sunshine week

South Carolina’s Freedom of Information Act comes with parameters that can be difficult and even pricey to navigate.

The law is supposed to shed light on what public bodies and officials do, but that light can be dimmed and what belongs to the public can even be thrown into total darkness.

Within the framework of public meetings, for example, there are allowances for public bodies to meet behind closed doors to discuss a personnel issue, seek legal counsel or discuss a contractual matter. However, no vote can be taken on any of those topics during those closed-door meetings, more commonly referred to by public bodies as executive session. And certain information, such as Social Security numbers and health information pertaining to public employees is not subject to release under FOIA.

The process of gathering and providing public information can take time and resources; thus, a fee structure can be established and applied. These fee structures are supposed to contain costs to keep them reasonable, but they can also become a tool that public bodies can use not only to deter those who use FOIA as a means of creating busywork and disrupting a public body, but also to deter legitimate requests as fees can become exorbitant. In short, people seeking what rightfully belongs to the public can be priced too high for one’s pocketbook or bank account.

So, while you might well be entitled to what is deemed public information under FOIA, receiving the information can get downright expensive.

There are fees associated with searching for the documents, which can get more costly, depending on how far back in terms of months and years the documents being sought go. There are fees applied to retrieving documents and redacting information that must remain private, even under FOIA.

Much of the work associated with fulfilling a FOIA request is, by revisions to the law adopted and signed by Gov. Henry McMaster, to be done by “the lowest-paid employee who has the necessary skill and training to perform the request.”

If a pubic body has a FOIA officer tasked with aspects of fulfilling the request, that hourly rate can vary, and it can certainly be higher than, say, $25 per hour. Add to the mix a public body’s assertion that the records sought “require legal redaction” — translation: an attorney’s involvement — and you can nearly hear the cash register cha-ching.

Here’s an example.

The Index-Journal learned of a lawsuit filed by a former employee of a state university. In seeking information that might shed light on what led to the suit, the newspaper filed a FOIA request that, admittedly, was rather extensive. It involved emails among seven employees, including the one who filed suit. It reached as far back as January 2019. And while the request sought to narrow the findings through the flagging of keywords, the estimate to honor the request came to nearly $7,600.

Not exactly something one finds in their loose change drawer, is it?

The newspaper sought clarity on what led to the estimate and was told the IT employee would spend about 20 hours retrieving the emails, at a rate of $28.44 per hour. The FOIA officer would spend an estimated 150 hours poring over the emails and making redactions as needed at a salaried hourly rate of $46.84. There was no charge for any legal counsel work involved.

The paper also requested the former employee’s personnel file. That cost came to $173.42, which the paper paid.

The newspaper decided it could not justify the expenditure and instead opted to revise its request in an effort to reduce costs, knowing there was also the potential relevant information might be missed.

The emails among the seven employees no longer extended to January 2019. Instead, the paper sought emails between January 2020 and July 2020, a seven-month period, and it shortened the timeframe for emails with particular keywords.

The price tag did drop, but not appreciably enough for the paper to yet justify the expense. The new total came to just under $4,200.

While the newspaper believes the information can be informative as it relates to a taxpayer-funded university that now faces the expense of a lawsuit, it has opted to let the lawsuit proceedings play out and then report on the outcome.

Another state university matter arose that prompted the newspaper to seek a former employee’s personnel file. That employee had served in several high-profile positions at the university, including as interim vice president of business and administration and controller and director of fiscal affairs. He had been charged with three counts of third-degree sexual exploitation of a minor.

The newspaper sought his personnel file on the premise that it might learn if the charges at all tied back, in some capacity, to his work at the university, such as using university computers for the retrieval or collection of inappropriate materials.

Providing that file came with a price tag of $213.42.

For contrast, the newspaper also sought an extensive collection of emails relative to its ongoing investigation into the doings of various people associated with a state-supported school in our coverage area.

The emails went as far back as Feb. 1, 2019 and the request was filed just ahead of the holidays, which means there would be a longer amount of time taken to fulfill the request. But fulfill it is what Clemson University did, in a 120-day timeframe and at a reasonable and low price of $514.

And Greenwood County School District 50 also answered the paper’s request for documents among board members and D50 administration relative to the ninth-grade academy topic. More than 3,200 pages of documents were provided to the paper in short order. The invoice? No charge.

More often than not, this and other newspapers seek public information it believes to be in the general interest of the public, those who pay the salaries of the various publicly elected and appointed officials. Newspapers do this investigative work on behalf of the public, sometimes even as a result of a tip from someone among the public’s ranks.

Often, public bodies recognize that the information sought is for a legitimate reason warranting swift disclosure. And they often waive fees, again because they know the information serves the interests of the public.

At other times, however, public bodies can apply fees that dissuade newspapers and regular citizens alike from seeking information.

Just like residents and taxpayers, newspapers have budgets and have to choose where the dollars need to go.

Freedom comes at a cost. The state’s Freedom of Information Act provides access to public information, but can be pricey. The public’s business should be transparent, but can often be made opaque.

Whiting is executive editor of the Index-Journal and chair of the S.C. Press Association’s FOIA committee. Contact him at 864-943-2522; email rwhiting@indexjournal.com, or follow him on Twitter @IJEDITOR.