If the Legislature decides to sell Santee Cooper, it will be by far the biggest transaction South Carolina has ever completed. So it’s worrisome that the Legislature insisted on injecting so much secrecy into the process of accepting and evaluating bids.
Under the terms of H.4287, passed this spring, the S.C. Department of Administration must use a strictly confidential process to evaluate bids to purchase the state-owned utility and to take over management, and select what it considers the best in both categories. The department also will evaluate an alternative proposal from Santee Cooper to make internal changes, and then the Legislature must either approve one of those three proposals or reject them all.
The department will provide the reasons for its selections, but neither lawmakers nor the public will be able to see the losing bids. So no one will be able to judge, for instance, whether the agency gave the right weight to various criteria, or whether it applied those criteria correctly. In other words, the law creates a huge “trust me” burden for the agency.
A big reason for all of the secrecy was to keep legislators from ignoring the professional evaluations and simply picking the company they prefer. The law prohibits bidders from lobbying the Legislature to accept or reject any of the proposals, and it’s possible to read it as prohibiting them from even acknowledging that they offered bids.
We can’t argue with the goal. But all of the secrecy makes it essential that the evaluator acts in the most open, transparent and trustworthy manner it can.
That’s why it was so alarming last month when the Department of Administration seemed to needlessly delay a request from Post and Courier reporter Andrew Brown for copies of the contracts it had awarded to three companies that will help it evaluate the bids.
A trio of consulting firms to assist South Carolina lawmakers in reviewing offers to manage or buy Santee Cooper has been selected, the state's only public power provider.
Agency spokeswoman Kelly Coakley tells us that the agency told Mr. Brown it would comply with his request under the terms of the S.C. Freedom of Information Act — which allows it to take at least 30 days to turn over the documents — because it had to conduct “a coordinated review with the vendors to determine if the contracts contained any information protected under South Carolina law, such as trade secrets.” She sent him the unredacted contracts three business days after his request.
So no harm, no foul, right? Well, not precisely. Although we’re glad the agency released the contracts fairly quickly, it never bothered to tell Mr. Brown that it needed time for that review — only that he couldn’t have them yet. More significantly, the contracts had been completed from nearly two months to five days before they were announced, on June 3, July 18, July 19 and July 25. That should have given the agency plenty of time to complete those reviews by the time it announced the contracts had been awarded.
South Carolina’s Freedom of Information law has far too many optional exceptions, and all of this makes us worry that the agency is treating it like too many agencies do: as a list of excuses to not release information to the public rather than as an attempt to facilitate the public’s access to public information
The Department of Administration has been given an incredibly difficult and incredibly important job to do, and it’s incumbent upon the agency to make sure its work is above credible reproach. That starts with being as transparent as the law allows — not merely as transparent as it requires.