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.”
As the AP noted in its story on the ruling, whether autopsy reports are public varies from state to state, with 15 allowing release, six allowing release if they’re not being used in criminal investigations, and the rest restricting release. The states allowing release all recognize, appropriately, that there is at times a clear public interest in access to autopsy reports. Consider the case at hand. The journalist requested the autopsy report on Aaron Jacobs, shot by police officers who said he had fired on them. But the report, obtained through other means by the journalist, revealed that there was no gunshot residue on Jacobs’ hands and that he was shot in the back.
That’s the sort of information that can enable the public, and the press, to fulfill their role of holding officials accountable for their claims and actions. And if state law doesn’t provide access to it, as it apparently doesn’t, the law should be changed.
‘The plain language’
Like the autopsy case, the meeting agenda case involved some statutory interpretation that could have gone either way. It arose after a regularly scheduled meeting of a county council, where a motion was passed to amend the agenda to take up—and ultimately pass—a resolution not listed on the agenda. Afterward, an interested party sued the council, claiming that amending the agenda without notice, in the absence of exigent circumstances, violated the state FOIA.
Its open meeting provision says, “Every meeting of all public bodies shall be open to the public unless closed” for a specific reason, such as the discussion of a proposed contract or the receipt of legal advice related to a claim. Meanwhile, the notice provision requires “written public notice” of “regular meetings at the beginning of each calendar year … Agenda, if any, for regularly scheduled meetings must be posted on a bulletin board at the office or meeting place of the public body at least twenty-four hours prior to such meetings.”
Focusing on that language, the state Supreme Court held that “the plain language of the words ‘if any’ can mean only that an agenda is not required for regularly scheduled meetings… Thus, [the county council, which acted in a regular meeting], could choose to issue no agenda at all.” Moreover, the court said, there is no FOIA restriction on amending an agenda. And, the justices added, “The imposition of any additional restrictions in FOIA is a matter for the General Assembly.”
Again, the applicable law can be read reasonably in multiple ways, and the majority opinion is not unprincipled. In the right light, it looks correct. So, yet again, it’s up to the legislature to drive change here to address the policy concerns.
And they’re not small concerns. An unscrupulous public body could exploit the court’s decision to circumvent the notice provision by foregoing an agenda and simply discussing matters as they come up. That would offend the FOIA’s spirit and purpose, which is partly to enable public participation in government.
As Doug Fisher, a journalism instructor at the University of South Carolina, blogged June 19: “I don’t think the ruling is wrong [as a legal matter]… [But the problem] is that without an agenda, it’s hard to follow the action. It’s like watching a play without a playbill: It can be tough to follow the characters and even the plot. That might be acceptable in the theater; it should not be acceptable in a country that at least gives lip service to the idea of a democratic society.”
Time to speak up
There are some bright spots amid the vanishing sunshine—one of which involves James Brown. A few weeks ago, a South Carolina judge ordered the state attorney general, under the FOIA, to release to a journalist various records related to the soul singer’s estate, including a diary that belonged to the woman who claimed to be Brown’s wife at the time he died, an appraisal of Brown’s assets, and records accounting for how much trustees and attorneys have been paid from the estate. The AG had argued that the documents shouldn’t be released because some are under a court order not to be released in a separate lawsuit.
Another bright spot, according to The State’s review of South Carolina’s sunshine law, is that some government agencies do release records despite provisions in the FOIA that would allow the agencies to withhold them. “At least eight times in the past three years,” the paper reported, “Columbia City Council could have gone behind closed doors to discuss ‘legal matters,’ but its members voted to allow the public to listen to discussions” on purchase agreements, the city’s form of government, and mayoral and council salaries.
“But that’s not the norm,” The State concluded, and now the South Carolina press—along with good-government groups—has its work cut out for it to consider and, I hope, push for legislation addressing the policy concerns underlying the agenda and autopsy issues.
Unfortunately, the recent track record of legislative efforts to strengthen the FOIA, as CJR’s Corey Hutchins has written, is not encouraging. And the legislature is not exactly known as the paragon of good government. (Witness that investigation of the House Speaker mentioned above.)
But if there’s a time for the press to speak up, now’s that time. Record and meeting stories are only as good as access laws, so effective legislation could be the difference between getting a story and not. The state Supreme Court has made that clear. Larry Martin, a Republican state senator, plans to hold a study group in the fall to get stakeholders talking, and the local press ought to have a loud voice in that conversation.
“[Maybe three] in a row will persuade newsrooms in the state that it’s poor strategy to do most of the FOI drum beating largely one week a year,” Fisher, the USC journalism instructor, blogged July 17. “The [FOIA], despite its vaunted opening language, is being hacked to bits … If you believe in public information, it’s time to put up or shut up.”
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.