FOI Daily Dose: South Carolina court rules public bodies cannot use First Amendment to evade FOIA

The South Carolina Supreme Court ruled July 17 that organizations supported by public funds cannot use the First Amendment to evade the state Freedom of Information Act, according to Greenville Online.

The opinion echoed a 1991 Supreme Court ruling when The Greenville News sought access to records of a University of South Carolina foundation, and the South Carolina Association of School Administrators (SCASA) claimed disclosing the information violated their First Amendment rights to free speech and free association.

The 1991 ruling said organizations supported in whole or in part by public funds are public bodies subject to the FOIA.

But in the most recent legal dispute, radio personality Rocky Disabato claimed SCASA violated the public records law by refusing to meet his request for information about its role in a high-profile lawsuit against then-Gov. Mark Sanford over federal stimulus funds, according to The State.

The SCASA said state FOIA does not apply to them because even though they engage in public advocacy and receive some public funding, they operate as a non-profit organization, and the FOIA infringes their rights to free speech and association.

A Richland County Circuit Court judge agreed with the administrators and ruled that even though SCASA is a public body, it is not required to comply with FOIA laws.

Even so, the Supreme Court reversed the decision on grounds that the FOIA fosters trust in government and prevents fraud and corruption, The State said.

The court explained that without requiring public bodies to be subject to public scrutiny, agencies could “push agendas through third-party groups without scrutiny,” Greenville Online reports.

The court wrote: “If public bodies were not subject to the FOIA, governmental bodies could subvert the FOIA by funneling state funds to non-profit corporations so that those corporations could act, outside the public’s view, as proxies for the state.”

Writing for the majority, Justice Kaye G. Hearn recognized the negative impact the state FOIA might have on SCASA’s rights, and the court left it up to a lower court to decide if the SCASA is, in fact, a public body.

The decision said the FOIA does not apply to private entities that receive public funds for “a specific purpose,” such as a childcare center or healthcare clinic, The State said. Keith R. Powell, one of the attorneys representing SCASA, explained to The State in an email:

“The majority decision today is that IF a private entity is found to be a ‘public body,’ then it must still comply with the FOIA. The issue of whether or not SCASA is a ‘public body’ has not even been begun yet, and would be the subject of the remainder of the lawsuit back down in the circuit court . . . . Importantly, the court implicitly rejected the plaintiffs’ arguments that merely receiving any payments from the government, and/or merely being given some role in a public advisory committee, would automatically make a body ‘public’ under the FOIA.”

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett.

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