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SC Supreme Court Issues Controversial Transparency Ruling




Taxpayer-funded entities in South Carolina have been given broad latitude to evade the state’s Freedom of Information Act (FOIA) thanks to a new S.C. Supreme Court ruling on open meetings.

According to the court’s ruling, state and local governing bodies are free to modify their public agendas whenever they choose – or refrain from submitting agendas altogether.  That puts citizens, reporters and taxpayer advocates at a serious disadvantage – and increases the likelihood state and local government bodies will employ secretive, anti-transparent methods when it comes to the most controversial items of taxpayer business.

“Nowhere in FOIA is there a statement that an agenda is required for regularly scheduled meetings,” the court ruled in the case, which originated in Saluda County. “Nor is there any restriction contained in FOIA on the amendment of an agenda.”

In 2008, Saluda County council modified its original agenda during a public meeting – prompting citizen Dennis N. Lambries to file a suit arguing that it had done so in violation of FOIA.

Lambries argued – correctly in our opinion – that government bodies should deviate from their published agendas only in “truly exigent circumstances” (i.e. the standard prescribed by a 1984 Attorney General’s ruling).

The Supreme Court disagreed …

“In the absence of such a legislative directive here, we decline to judicially impose a restriction on the amendment of an agenda for a regularly scheduled meeting, especially when it is clear that no agenda is required at all,” four of the justices concluded. “We find this is also the better public policy in light of the fact that a violation of FOIA can carry a criminal penalty.”

All five justices backed the decision, but only four signed their names to the majority opinion …

What’s the problem with this ruling?  Simple: If taxpayer-funded bodies are able to arbitrarily determine when and how they inform the public of their dealings – it reduces the ability of watchdogs to expose those dealings and hold them accountable for results.  South Carolina already ranks dead last in the nation when it comes to accessing public information – and the vast majority of its crony capitalism is already conducted in secret.

Do we really want to give government more freedom to hide things from the public view?

The court’s ruling concludes that state lawmakers have the sole authority to impose “any additional restrictions” to the state’s open government laws.  In that regard, it is correct.  In fact we sincerely hope those lawmakers working on ethics reform in anticipation of the upcoming 2015 session of the S.C. General Assembly take the court up on its invitation to impose such restrictions.