Parties in a defamation case have agreed to modify a confidentiality order after it was challenged by the Index-Journal, which was concerned the initial order could be used “to evade the right of the public and press to have access to court records and proceedings.”

On Thursday, Circuit Judge Eugene C. Griffith Jr., of Newberry, approved a consent order that makes three modifications to the initial confidentiality agreement.

First, the order requires the litigants abide by Rule 41.1(b) of the South Carolina Rules of Civil Procedures — which is already mandatory but was not spelled out in the initial confidentiality order. It requires a party filing a motion to seal to explain “why sealing is necessary” and “why less drastic alternatives to sealing will not afford adequate protection,” along with addressing a number of other factors.

Second, a party seeking to seal a submission must give notice to The Index-Journal Co. through its attorney, Jay Bender.

Third, “the confidentiality provisions established by this order do not extend to records in the possession of a public body as access to those records remains subject to the South Carolina Freedom of Information Act.”

Former President Dan Ball is suing Rich Cosentino, both as Lander’s president and an individual, Lander University, its trustees and the Lander Foundation. The filing, which claims defamation, takes issue with his treatment and the actions of defending parties in relation to the state Office of Inspector General’s investigation into allegations of misconduct and misspending, including that no release or statement was issued telling the public the probe had closed without criminal charges.

The defendants have denied any wrongdoing.

Ball filed the lawsuit March 15, 2019, initially naming The Index-Journal Co. as one of the plaintiffs. Ball contended the newspaper, which was working on a larger project about the Lander Foundation investigations, had erred in not reporting that the investigations had ended without criminal charges.

The newspaper was dropped from the lawsuit after it published a front-page story reporting that no criminal charges resulted from an OIG investigation and subsequent State Law Enforcement Division investigation into how money was spent at the Lander Foundation. An amended complaint was filed March 27, 2019.

A consent confidentiality order Griffith approved in July allowed the party producing a document during discovery to label it “CONFIDENTIAL.”

“The parties agree to hold confidential all documents marked CONFIDENTIAL and agree that this information shall be used only for the purposes of conducting the litigation in which the documents were disclosed,” the order said. That approach would seem to circumvent Rule 41.1(b).

Arguing that the Index-Journal’s “interest is to secure the right of the public and the press” to documents in the lawsuit involving the publicly funded university, the newspaper filed a notice and motion for intervention for access to court records in August.

In a memorandum accompanying the notice, Bender writes: “The order is silent with respect to documents and material filed with the court, but it is movant’s concern that the order will be used by the parties in an effort to evade the right of the public and press to have access to court records and proceedings.”

The longtime press attorney notes that the state Supreme Court “has explained that public access to court proceedings and records antedates the Bill of Rights” and says three of the defendants — Lander, its foundation and its board of trustees — are public institutions, while the remaining defendant is the head of a public institution.

“Since this litigation relates to the conduct of public business,” Bender wrote, “the principles identified above securing public access to proceedings and records are consistent with the finding of the General Assembly in another context that it is ‘vital in a democratic society that public business be performed in an open and public manner.’”

The confidentiality order came three months after the Index-Journal published an eight-page special report titled “Cracks in the Foundation” on the Office of Inspector General probe into the Lander Foundation and the aftermath, including investigations by SLED and the state Department of Revenue as well as Ball’s pushback on the probe’s finding and his subsequent lawsuit.

Thursday’s agreement to amend the confidentiality order comes as left-leaning consumer rights advocacy group Public Citizen and Georgetown University Law Center professor Adam Levitin are seeking to unseal records in a Lancaster County case involving a company connected to acting White House Chief of Staff Mick Mulvaney. Bender is representing Public Citizen and Levitin.

Among the concerns Bender raised in seeking to unseal documents in Indian Land Ventures LLC v. Lancaster Collins Road LLC and Fonville & Co. is that litigants and the court failed to abide by Rule 41.1(b), which is meant to keep court proceedings open to the public.

“The burden is not on the public to show a need for sealed information,” he wrote. “Rather ... the burden is on the proponent of secrecy to show such need for confidentiality before the constitutional right of public access can be overridden.”

Contact Assistant Editor Matthew Hensley at 864-943-2529 or on Twitter @IJMattHensley.