South Carolina has always allowed state and local agencies to hide too much information from the public, and it has given the Commerce Department extra room to keep the public in the dark when it gives away our money to entice companies to our state.
Yet the agency’s responses to Freedom of Information requests about its incentives still read more like a stand-up comedian’s send-up of government secrecy than a serious attempt to comply with its obligations under state law.
State law makes it clear that the “information of a personal nature” that agencies can withhold from the public involves such things as a company’s annual receipts, names and contact information of citizens with disabilities, and 911 recordings of dying victims. Yet when Commerce responded to requests last year for documents about incentives it gave Singapore-based Giti Tires, it first redacted the name of the company’s contact person. And the names of company officials who submitted applications for the incentives, and the person who witnessed the signatures. And the names of the lawyers representing the company.
State law makes it clear that confidential, proprietary information that may be hidden from the public has to be … confidential … and proprietary. Yet in response to that same FOI request, Commerce redacted the amount of money the company received from the federal government.
State law allows the agency to withhold a great deal of information while it is competing with other states to recruit companies to South Carolina. Yet long after the incentive agreement was concluded and Giti was up and running, Commerce redacted the value of job-development tax credits it was providing, and how much the company promised to pay in wages, which factors into what sort of incentives it can receive.
When Sen. Dick Harpootlian sued over those responses, the agency defended itself by saying, essentially: This is how we’ve always done things. And last week — after reviewing the unredacted copies of the documents and hearing testimony, including from a former Commerce research director who said the agency withheld too much information for her to conclude whether the state got a good deal — Circuit Judge Robert Hood affirmed the fact that this is indeed how the Commerce Department has always done things.
Then he dismantled the legal underpinnings of the agency’s “expansive” interpretation of the law.
As he explained in a 20-page order: “While the Court does not dispute Commerce’s contention that companies ‘are very private’ and, under normal circumstances, ‘do not have to reveal this information to the public,’ the question here is whether the public is entitled to disclosure of certain public information once these companies voluntarily seek and obtain public assistance. The economic incentive deals at issue here concern huge sums of block-grant funding, tax credits, and other public expenditures to the tune of tens of millions of public dollars.”
This is a great victory for anyone who wants to know how our government is spending our money. If the Commerce Department turns over the hidden information, as it was ordered to do. A spokeswoman told The Post and Courier’s Andrew Brown that the agency “respectfully disagrees” with the judge and is considering its legal options.
It would be nice to add the weight of the state Supreme Court to Judge Hood’s conclusions, but the law here is clear, and the Commerce Department does not need to waste the taxpayers’ money or the courts’ time on an appeal. If it can’t reach that conclusion on its own, it should get a push from the boss.
Although Gov. Henry McMaster’s spokesman is correct in saying that South Carolina can’t disarm itself in the economic recruitment competition with other states, Judge Hood is correct in saying that state agencies have to obey the law that was designed to give the public the information it needs to evaluate the job that the Commerce Department — and by extension, the governor — is doing. By ordering his department to stand down, Mr. McMaster can demonstrate the commitment to open government that has to date been a hallmark of his career.