State bills would change current request law
Two bills that would amend South Carolina’s Freedom of Information Act are moving forward in the House of Representative’s judiciary committee.
House Bill 4740, proposed Tuesday, would exempt police from releasing information that could be used in law enforcement action or criminal prosecution, and would allow agencies to withhold information that would harm victims or witnesses.
Currently, state law only exempts police from releasing information that would harm their investigations.
The other proposal, H. 3235, picked up two sponsors Thursday. The bill would require the government to fulfill open records requests in 30 days, and would put a cap on the fees agencies can charge citizens in doing so.
The law enforcement exemption, H. 4740, would close a loophole that allows defense lawyers to unfairly access police reports and circumvent court processes, according to bill supporters.
“I think that’s a splendid idea, because what you have here is attorneys who don’t want to go through the discovery process, so they get a citizen who’s not involved in the case to do a FOIA,” Rep. Bill Taylor, R-Aiken, said. “This closes up a bad loophole.”
Taylor said he wasn’t sure how the amendment would affect journalists or the media’s coverage of crime, but he said it was an issue that would come up as debate over the bill continues.
Rep. Chip Huggins, R-Lexington, a sponsor of the bill, downplayed the effect the proposed exemption would have on news coverage and emphasized that it would protect citizens.
“I think the news is still going to break,” he said.
Huggins added that the law, in its current form, allows for “dissemination of information where it’s being used in the wrong regard,” which he said is his reason for being a sponsor.
Its detractors, including Jay Bender, an attorney for the South Carolina Press Association, disagree.
“If this passes, you’ll never have an opportunity to look to see what information the police have collected,” Bender said. “The police instinct is to be secretive, and unless there is something that requires police to give up information, they won’t voluntarily.”
Bill Rogers, the press association’s director, added that the bill’s breadth would allow law enforcement to keep information under wraps.
“This is a blanket exemption, and anything used in the prosecution could be withheld,” he said. “Information used for the prosecution, criminal prosecution or criminal law enforcement — it’s so broad, nothing would be released.”
The exemption, Bender said, appears to have already picked up traction in the House of Representatives; the bill lists 34 sponsors, including House Speaker Bobby Harrell, R-Charleston, and judiciary committee chairman James Harrison, R-Columbia.
H. 3235, the bill that would require a time limit for FOIA responses, had fewer sponsors Thursday, though it doubled its count to four.
The bill, originally introduced by Taylor, also has the support of SCPA’s Bender and Rogers.
“We’re very much in favor of that bill,” Rogers said. “We think it really makes records affordable for the public.”
Taylor cited that and other barriers to open records as explanations for the need for such a bill.
“The need is so obvious that we could line up people from Aiken to Columbia to testify of how the FOIA law is foiled by government,” he said. “We don’t have a strong Freedom of Information Act in South Carolina ... Currently, citizens are thwarted because there’s no teeth in the bill. Therefore, they can sort of be put off and be told, ‘Oh, we’re working on it.’”
“A parade” of citizens who had issues with city governments, school boards and state agencies had testified in support of the bill over the last week, he said.
Taylor said he’s received criticism of the bill, especially from smaller governments on the city and county level, which are opposed to the time limit and requirement that they bear the costs of fulfilling requests, and anticipates that opposition will emerge as it is debated.
The legislature will be off next week on furlough, but Taylor said he expected the bill would be voted on by the judiciary committee the following week and hoped it would appear on the House floor shortly thereafter.
Should the bill pass and be signed into law, though, he said it wasn’t the FOIA law he would like to eventually see passed.
“While you would like to see it a lot stronger, almost everything is incremental,” Taylor said. “I’m already getting a lot of push-back from the local and city governments, so they’ve got to swallow this pill before we go for another one.”