Horry County estimated it would cost them $75,500 to fulfill a Freedom of Information Act request that other local governments fulfilled for free or less than $50.
The Sun News sent out the same request — seeking all records that reference or relate to payments made by, or on behalf of, the public agency to settle actual or threatened lawsuits during the past five years — to the county, Horry County Schools, Myrtle Beach, North Myrtle Beach, Loris, Aynor, Conway and Surfside Beach.
Myrtle Beach and North Myrtle Beach emailed The Sun News responsive records for free. Horry County Schools sent a link to a website where responsive records could be found. Aynor responded that it had no responsive records, and Loris responded that it was unable to locate records due to flooding in its records room caused by Hurricane Florence.
Conway charged $42.40 for its records, cited as the cost of one hour of staff time, and Surfside Beach charged $21.60, including $20 for staff time and 60 cents for copies.
Unlike those cities, which provided a breakdown of its costs, Horry County’s public information officers refused to detail how they reached the $75,500 estimate, which The Sun News declined to pay.
Public Information Specialist Kelly Lee Brosky, who is listed as the county’s point of contact on its Freedom of Information Act Request Form, emailed The Sun News the $75,500 estimate Oct. 15 and requested a payment of $18,875 as a deposit before they would begin compiling the records requested. She noted in the email that the county would refund The Sun News if costs ended up being less than the deposit, but The Sun News would need to pay the difference at or prior to delivery of records if costs end up being more.
When asked for a detailed invoice explaining the estimate, Brosky simply replied that “the fees assessed are in compliance with the South Carolina Freedom of Information Act,” and didn’t reply to follow-up emails requesting further details.
South Carolina’s Freedom of Information Act states “(t)he fee for the search, retrieval, or redaction of records shall not exceed the prorated hourly salary of the lowest paid employee who, in the reasonable discretion of the custodian of the records, has the necessary skill and training to perform the request” and “(f)ees charged by a public body must be uniform for copies of the same record or document and may not exceed the prevailing commercial rate for the producing of copies.”
On its Public Information website, Horry County advises FOIA requesters to anticipate fees including 15 cents per page and $25 per hour for staff time.
Internal county emails regarding The Sun News’ lawsuit settlement FOIA request, obtained through a separate FOIA request, show Kelly Moore, head of the county’s Public Information department, forwarded the request to four county employees asking for each to send her “an estimated amount of time and number of copies it would take to search, retrieve, and redact responsive records.”
County attorney Arrigo Carotti responded that it would take him at least 20 hours and 100 pages, while Linwood Vereen, the county’s risk manager, estimated 339 hours and 2,373 pages. Each noted the actual amount of time and number of pages could be greater than those estimates.
County finance director Barry Spivey responded that he wouldn’t have any records that Carotti and Vereen wouldn’t also have, while Human Resources legal specialist Denise Hagemeier responded that she had no responsive records.
Based on the the county’s posted FOIA fee schedule, the sum of Carotti’s and Vereen’s estimates would add up to less than $9,350.
The internal emails also show Moore sent the response that included the $75,500 estimate to Brosky, who then sent it to The Sun News.
When asked about the difference between the $9,350 calculated by The Sun News based on the email responses and the $75,500 estimate, Moore said, “All I can say is the fees assessed are compliant with the (law).”
Taylor Smith, an attorney for the South Carolina Press Association, argued that the county refusing to detail its costs wasn’t compliant with the law.
“The public bodies under FOIA are required to not only defend the use of exemptions they claim but also the reasonableness of the fee,” he wrote in an email. “… If they don’t do so now, they will definitely have to do it if the newspaper were to sue them.”
Bill Rogers, executive director of the association, also doubted the county’s compliance.
“The public should have access to information at the lowest possible cost, and it’s hard to imagine this is the lowest possible cost,” he said, pointing out that the law states its intent is for citizens “to learn and report fully the activities of their public officials at a minimum cost or delay to the persons seeking access to public documents or meetings.”
The county’s costs could also be inflated, Rogers pointed out, by printing records it could have otherwise delivered electronically.
The law states that records “must be furnished at the lowest possible cost” and in a form that “is equally convenient for the public body,” while also noting that copy charges can’t be applied to records transmitted electronically.
When county officials refused to detail the $75,500 estimate for the lawsuit settlement FOIA request, The Sun News submitted a new request for all electronic communications with FOIA requesters in an effort to see if the county was estimating large costs without explanation to any other requesters.
The new request specified The Sun News was only looking for requests since the beginning of 2017 that were originally sent to Brosky and was not looking for records provided to the requesters, only the county’s electronic communication with them.
Brosky responded in an email 10 days later estimating that the cost of fulfilling the new request would be $10,525 and again didn’t respond to follow-up inquiries about that cost.
Internal county emails regarding that request included Emily Lewis, the county’s supervisor of code enforcement, estimating it would take her about eight hours to make copies of her emails and Brosky estimating it would take her 217 hours of work due to “an average of 10 minutes per email to print.”
The Sun News instead sent a new request seeking only internal county electronic communications regarding the previous two FOIA requests.
The county provided The Sun News 64 pages of printed emails about four weeks after receiving a requested $34 payment, though Brosky noted in an email “additional staff time and copies were required to complete your request however we have waived those charges.”
Moore said the county provides records electronically as compliant with state law, but when asked why they printed out emails, she replied: “I’m not sure how to answer that other than to say we’re compliant with the law. If you have concerns, there’s certainly a venue for that.”
The emails show that each time The Sun News asked for an explanation of the cost estimates, Brosky forwarded the request to Moore and Carotti.
County officials don’t have time to interact individually with each requester, Moore explained, due to the volume of requests the county receives.
County administrator Chris Eldridge recently showed a PowerPoint presentation to council members showing that the county receives about 2,500 requests annually, including 800 specifically submitted to the Public Information office.
Eldridge told council members potential plans to improve FOIA response included establishing a centralized process for requests, implementing a countywide tracking system, and publishing frequently requested records online.
The Public Information office has requested budget appropriations to hire a deputy/FOIA manager for $86,944 in salary and benefits, according to the county’s 2020 planning guide.