January 25, 2013

Supreme Court should clarify definition of ‘public body’

A court ruling that makes clear the definition of a “public body” under the state’s open records law would be welcome, but it will take the S.C. Supreme Court’s weighing in to give us the certainty needed on this important subject.

A court ruling that makes clear the definition of a “public body” under the state’s open records law would be welcome, but it will take the S.C. Supreme Court’s weighing in to give us the certainty needed on this important subject.

Hilton Head Island businessman Skip Hoagland’s lawsuit against the Hilton Head Island-Bluffton Chamber of Commerce might offer such an opportunity. Hoagland has asked for financial and personnel records from the local chamber, saying the chamber is a public body. A significant portion – nearly 30 percent – of its annual income comes from accommodations tax revenue and state grants.

The Freedom of Information Act states that an entity supported “in whole or in part by public funds” is subject to the law. A 1991 Supreme Court ruling confirmed that.

The chamber’s attorneys say that even though the chamber is the designated marketing organization for the Town of Hilton Head Island that doesn’t change its status as a private nonprofit organization. The chamber, the attorneys say, is a contractor providing services and only uses public money to defray the costs of the services provided. They point, in part, to an Horry County court ruling involving the Myrtle Beach Chamber of Commerce.

But as we’ve seen before – including recent conflicting rulings on sweepstakes video gaming machines – individual judges in different parts of the state can look at similar circumstances and come to very different conclusions. That’s where the state’s high court comes in.

An opportunity to shed light on this important topic could come from another case already before the Supreme Court.

A lower court judge, in a lawsuit challenging the S.C. School Administrators Association, ruled the association was a public body, but still wasn’t subject to the Freedom of Information Act. Complying with a records request would interfere with its advocacy work and would step on its First Amendment rights, the judge said.

State Attorney General Alan Wilson weighed in on the side of open records in this case, saying the association takes public money and therefore should be subject to the law.

At an October hearing before the Supreme Court, the association’s attorney didn’t dispute the 1991 ruling that came in the case of a private University of South Carolina foundation. But he argued the association, while technically a public body, was an issue-oriented advocacy group that shouldn’t be subject to the law.

Chief Justice Jean Toal signaled that there could be limits even if an organization takes public money.

“Providence Hospital (which is run by a religious group) takes a lot of public money ... I don’t believe the meetings of their trustees would be subject to public intervention,” Toal said in a story by The (Columbia) State newspaper.

If the Supreme Court rules too broadly, she said, it might prompt numerous other Freedom of Information lawsuits against private groups that accept any public money.

But that’s where the court can offer guidance and reconcile conflicting lower court rulings.

We hope the justices, as they have done in the past, come down on the side of disclosure and the stated goal of the law that public business be conducted in the open.

One of the issues to sort out with Hoagland’s lawsuit is what information must be released and what information can be held back. The chamber maintains it fully discloses how it spends the accommodations tax money it gets.

But it refused Hoagland’s document requests and this newspaper’s request for information that included employees’ pay, a list of contractors and organizations paid by the chamber for goods and services, and its revenue sources.

The Visitor and Convention Bureau, which receives and spends the accommodations tax money the chamber gets, is a division of the chamber.

The questions raised by Hoagland’s lawsuit and the chamber’s denial of this newspaper’s request lend weight to the argument that the Visitor and Convention Bureau should operate separately from the chamber. Sorting out the impact of the public money on the chamber’s entire operation would not be an issue if that were the case.

The chamber could be a wholly private organization answerable to its members, not the general public.

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