CHARLESTON, SC — A few years ago, the South Carolina Press Association assembled a task force to address how public bodies and officials were thwarting the state’s Freedom of Information Law. The FOI law in South Carolina is a good one, but the problem is agencies and government officials often just ignore some of its provisions. Because there’s no central agency or administrative body that deals with FOI complaints in South Carolina, a reporter or member of the public has to go to court for a remedy when denied access to information.
Before the new task force crafted a plan of action, the Press Association invited several journalists to come tell war stories about how public officials were evading their FOI requests and what might be done about it. Some reporters suggested more lawsuits, but that didn’t seem like a viable option. Lawsuits take time and money, and news organizations spend enough on both just trying to put out a solid product. What came out of the meeting was a commitment by the Press Association to lobby lawmakers on putting enforcement teeth into the current law, and also to urge newspaper editorial boards to get behind it. The association also came up with a promotional campaign to help citizens and public officials better understand the FOI law. A Republican House member who was a former journalist drafted a bill. It died. Twice. Years later the status quo remains.
I thought of this again recently in light of a West Virginia State Supreme Court decision on FOI law that has media organizations in that state struggling with how to respond. On April 10, the court ruled 4-1 that government agencies can charge hourly fees for searching public documents requested under the state’s open records law. Agencies previously were allowed to charge for the actual costs for copying documents, but that was ambiguous and at least one public body was trying to charge more. In a harsh dissent, Justice Brent Benjamin called the court’s majority opinion to allow charging search fees “a step backward from the modern trend to make government more open and accessible,” and he predicted the new ruling would have a “chilling effect” on citizens seeking access to public records.
Benjamin’s opinion is shared by journalists in West Virginia and their organizational advocates.
Ken Ward Jr, the hard-charging investigative reporter at the Charleston Gazette who runs the paper’s Coal Tattoo blog and knows his way around open records requests, worries the ruling will allow government agencies to block small media outlets and common citizens from obtaining records about their government by coming up with ever-larger fees.
He called it “a terrible ruling for government transparency.”
Roughly half the states have laws allowing agencies to charge some kind of fee for search time when processing public records, says Emily Grannis, a legal fellow with the Reporters Committee for Freedom of the Press, who has studied the law in West Virginia and other states. She says in recent years, though, since the economic downturn, her organization has noticed an anecdotal rise in public entities exercising their right to charge such fees, and also a rise in the costs they’re charging.
But allowing public bodies to charge for search time is “the killer of public record laws,” according David Cuillier, president of the Society of Professional Journalists who researches FOI issues as director of the University of Arizona’s School of Journalism. He considers such fees the equivalent of a poll tax, which in the Jim Crow South kept blacks and poor people from voting.
“This is charging people to participate in their government,” Cuillier says. “Really, what they’ve done is set up a system that excludes the poor from participating in West Virginia government. And I think it’s unconscionable. I think it’s immoral.”
So, there’s plenty of consensus among members of the media and their representatives inside and outside West Virginia that the new ruling will hurt the news gathering efforts of journalists and the general public’s access to information. A harder consensus to reach might be: What to do about it?
“The best tool journalists have is to write about it, to tell the public of how the government is gouging the citizenry on public records,” says Cuillier. “I think that’s by far the most effective tool that journalists have. Because they’re not gouging the press, they’re gouging the public.”