When it comes to secrecy in South Carolina,
less more is more.
In the last 90 days, the state Supreme Court has ruled that autopsy reports are medical records that may be kept secret; that public agencies are not required to post an agenda for a regular meeting; and that a state judge must close a hearing that will determine whether the state attorney general is disqualified from overseeing an ongoing probe of the House Speaker’s campaign finances. And it’s not just the top court extending the veil: The state criminal investigations bureau has denied a records request for a jailhouse video of the second inmate to die in the same restraint chair in the same detention center.
The trend is causing alarm among journalists and watchdogs in the Palmetto State. The head of the South Carolina Press Association has expressed dismay, as have plenty of others. And over the weekend, the Columbia-based newspaper The State published a lengthy, important account of the recent developments. “Whether it is the result of court decisions, acts by elected officials, or bureaucrats who make decisions such as charging the public high prices to copy public records, people acting in the name of government are taking actions that keep the public in the dark,” wrote reporters John Monk and Clif LeBlanc.
There’s real cause for concern here. However, as I’ll explore in more detail below, in at least two of those cases the top court’s ruling was reasonable—probably even correct. Which raises the question: What can be done to turn the tide? No less than the state supreme court suggested an answer: The legislature could get involved. Which means the state’s open government debate is just beginning—and there’s no reason for news outlets, watchdogs, and others with an interest in transparency to accept the emerging status quo.
‘A matter for the General Assembly’
In the autopsy and meeting agenda cases, the culprit wasn’t the Supreme Court as much as the law. The statutes at issue in both cases were susceptible to multiple reasonable interpretations, including those adopted by the court’s majority opinions.
The autopsy case arose after a journalist requested an autopsy report from a county coroner, who refused to release it. (More here on the background.) The coroner said the report was a medical record exempt from disclosure under the state FOIA, which defines records as “all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials … prepared, owned, used, in the possession of, or retained by a public body.” However, the FOIA also says, “Records such as … medical records … which by law are required to be closed to the public are not considered to be made open to the public.”
That was the court’s puzzle, made more challenging because the term “medical records” is undefined in the statute. So, following various canons of statutory interpretation, the court turned to Merriam-Webster and found this definition: “a record of a patient’s medical information (as medical history, care or treatments received, test results, diagnoses, and medications taken).” And since an autopsy reveals “medical information,” the court ruled, autopsy records are medical records—and thus exempt.
But as they signed off, the justices added: “Although there may be policy concerns militating against this result, that is a matter for the legislature and not for this Court.”
To me, that’s the key phrase. It might be possible to decide the case differently on the merits, through other reasonable interpretations of the law, but the majority opinion is not unprincipled. As a matter of law, it’s probably correct. But it does create “policy concerns,” and now it’s up to the legislature to address them.
In some ways, this is an unfamiliar problem for South Carolinians, whose Supreme Court has in the past been generally protective of freedom of information. In 1991, for example, the court held that a body supported wholly or partly by public funds, or one that expends public funds, is subject to the FOIA. In 2001, the court held that all state departments and political subdivisions, including boards, commissions and quasi-governmental bodies, are subject to the FOIA. In 2005, the court held that a law enforcement agency must prove specific harm before it may invoke the FOIA exemption for records compiled in criminal investigations whose disclosure would harm the agency. In 2007, the court held that the FOIA’s personal privacy exemptions do not apply to the performance of a public duty. And so on.
Against that backdrop, Jay Bender, the media lawyer who represented the journalist in the autopsy case, told the AP on July 16 that the recent decisions “seem to reverse a 30-year trend of construing the [FOIA] to enhance the public’s ability to learn of public business.”