The following editorial appeared Thursday in The (Hilton Head) Island Packet:
The S.C. Supreme Court has strengthened the state’s open records law with a ruling that organizations cannot invoke free speech rights as a first line of defense against releasing information about their activities.
The S.C. School Administrators Association had pointed to the First Amendment in denying a records request, saying its ability to advocate for its members would be hurt if it had to open up its meetings and records to the public.
It also argues that it is not a public body but a private, nonprofit organization despite the fact that many of the group’s members – school administrators – pay their dues with money from the school districts. Unfortunately, the state’s high court didn’t address that specific issue in its ruling, but instead said it was a matter to be decided in a lower court trial based on the evidence presented.
On the free speech issue, the court ruled that the state’s Freedom of Information Act could have a negative impact on a group’s free speech, but that didn’t mean that it was unconstitutional: “The FOIA is a content-neutral statute that serves important governmental interests and does not burden substantially more speech than necessary to serve those interests, and therefore, it does not violate (the School Administrators Association’s) First Amendment speech and association rights.”
In the ruling, the court reiterated the key role the Freedom of Information Act plays in ensuring open and transparent government in a democracy. The court quotes James Madison: “A popular government, without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance; And a people who mean to be their own governors, must arm themselves with the power which knowledge gives.”
That point makes all the more injurious many government entities’ efforts to sidestep the law whenever possible rather than abide by it.
While the court didn’t rule on whether the school administrators group is a public body, it did lay out again where it stands on the issue in general, pointing to its 1991 decision on the subject.
“We have held that the definition of ‘public funds’ excludes ‘payment from public bodies in return for supplying specific goods or services on an arms-length basis.’ … However, FOIA remains applicable to the entirety of any recipient organization if ‘a block of public funds is diverted en masse from a public body to a related organization, or when the related organization undertakes the management of the expenditure of public funds.’”
Without requiring groups that receive public money to be subject to public scrutiny, the court states, agencies could push their agendas through third-party groups without oversight.
“If (non-government) public bodies were not subject to the FOIA, governmental bodies could subvert the FOIA by funneling state funds to nonprofit corporations so that those corporations could act, outside the public’s view, as proxies for the state.”
If you think that’s not likely, recall the nonprofit corporations some school districts set up in years past to borrow money to build schools without being subject to debt limits or a vote by the public.
We’re particularly interested in the definition of a public body because of the implications for such groups as the Hilton Head Island-Bluffton Chamber of Commerce, which receives state grants and accommodations tax money. Hilton Head businessman Skip Hoagland has sued the chamber after being denied access to information he sought under the Freedom of Information Act. The chamber earlier this year asked the Supreme Court to take up the question of whether the chamber was a public body in order to escape this lawsuit and to determine whether it needed to open up its meetings and records.
The court refused that request, and its decision to send the same question about the School Administrators Association back to trial court suggests that’s where we'll get an answer about the chamber, too.
The more clarity we can get on this subject, the better.