What is Horry County hiding? Public records request met with mostly blank documents
Horry County continues to charge for public records without explanation of how those fees were calculated.
The Sun News filed similar Freedom of Information Act requests Oct. 29, 2019, with the county, Horry County Schools and Myrtle Beach for records detailing attorney fees in the lawsuit concerning the redevelopment of the former Air Force base.
The county and school district jointly filed the suit in December 2018 alleging the city and Myrtle Beach Air Force Base Redevelopment Authority are misusing tax increment financing and taxpayer funds on a project the county and school district argue has already been completed.
Myrtle Beach provided the requested documents for free about a week later, while the school district also provided the documents without charge, though they were provided a week past deadline, per state law, which allows public agencies 10 business days to respond to a FOIA request and an additional 30 days to provide the records.
Horry County quickly responded, estimating the cost of fulfilling the request to be $90.25. Aaron Spelbring, the county’s FOIA manager responded that “(t)he fees assessed are in compliance with the SC FOIA” when asked for a breakdown of the projected costs.
The Sun News paid the $90.25, and the county emailed 56 pages, but redacted the majority of the invoices, including any dates. The documents included 40 pages that were either completely blank or just had the name of the law firm at the top of the page and 16 pages that showed just a line with “Balance Due Now” and a number.
When asked again how the fee was calculated and what exemption the county was claiming to redact nearly all the documents including dates, Spelbring repeated that the fees are in compliance with state law and pointed to a section of SC FOIA that allows public bodies to exempt “correspondence or work products of legal counsel for a public body and any other material that would violate attorney-client relationships.”
County council Chair Johnny Gardner, who is also an attorney, noted that sometimes opponents in a lawsuit will seek billing statements and similar records to try to gain an advantage and see what the other side is doing, but he said he would look into the issue with the county’s legal department when he was told that the school district and Myrtle Beach both provided completely unredacted records.
The Sun News has had issues with charges assessed by the county in the past. The county estimated it would cost $75,500 to fulfill a request in 2018 seeking records related to payments made to settle actual or threatened lawsuits during the past five years, a request that other local public agencies fulfilled for free or less than $50.
The county also refused to provide a breakdown of that cost estimate, responding only that the fees were in compliance with state law.
Taylor Smith, an attorney for the South Carolina Press Association, argued at the time 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.”
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.
Since the records for attorney fees were delivered electronically, all costs related to The Sun News’ latest FOIA request must be related to employee work time, and $90.25 would equate to approximately 3.6 hours at $25 per hour.
A Cornell law student sued the county last year alleging she was being charged fees in excess of what state law allows, but that lawsuit was later dismissed with the judge ruling that the county’s fees were reasonable.
This story was originally published January 7, 2020 at 6:19 AM.
