S.C. high court rules FOIA doesn't violate First Amendment

  • Thursday, July 18, 2013

By Jay Bender
SCPA Attorney

The Supreme Court of South Carolina ruled Wednesday that non-governmental entities that are “public bodies” under the South Carolina Freedom of Information Act cannot claim that the disclosure requirements of the FOIA violate First Amendment rights protecting freedom of association or speech.

In August 2009 a Charleston radio personality, Rocky D [Rocky Disabato], made an FOIA request to the S.C. Association of School Administrators (SCASA) seeking access to records relating to the group’s efforts to force then Gov. Mark Sanford to accept federal school funds.

SCASA responded in the same fashion as many recipients of public money respond to FOIA requests by denying that it was a “public body” subject to the requirements of open records and open meetings established by the FOIA. A “public body” is defined in the law as a political subdivision of the state or an entity supported in whole or part by public funds or expending public funds. Rocky D filed suit. The Circuit Court dismissed the suit before trial on grounds that SCASA was not a public body, and, even if it were, the state law requirement that it have public meetings and disclose its records abridged its rights to associate and speak on political issues.

Writing for a three-justice majority Justice Kaye Hearn framed the issue as requiring a reconciliation of “two competing principles of our democratic tradition.” Hearn wrote, “We must decide whether the FOIA as applied to the South Carolina Association of School Administrators (SCASA), a non-profit corporation engaged in political advocacy, unconstitutionally infringes upon SCASA’s First Amendment speech and association rights.”

The Supreme Court reversed the dismissal and remanded the case to the Circuit Court. Significantly, the Supreme Court ruled that the disclosure requirements of the FOIA did not unconstitutionally abridge the First Amendment rights of SCASA. The South Carolina Press Association together with the South Carolina Broadcasters Association submitted a brief to the court urging a reversal of the Circuit Court order. The Supreme Court declined to rule on the question of whether SCASA was a public body and subject to the FOIA, stating that such a determination was to be based on facts established from evidence submitted to a trial court. The Supreme Court explained that merely because an entity was a non-profit corporation did not answer the question, relying on the 1991 decision in Weston v. Carolina Research & Development Foundation where the Greenville News and the Associated Press were successful in establishing that a foundation created by the University of South Carolina and supported by funds from the school was subject to the requirements of the FOIA.

The significance of today’s decision lies in foreclosing non-governmental “public bodies” from claiming that the disclosure requirements of the FOIA abridge free speech and free association rights. In future litigation it will still be necessary to provide proof that an entity is supported by public funds or expends public funds, that is not a change, but once that threshold has been met, the public body cannot avoid disclosure by claiming that disclosure is an abridgment of its First Amendment rights.

Since many chambers of commerce and other groups now receive significant sums of public funds from “Hospitality Tax” coffers to operate, those groups no longer may claim their activities are sheltered from public scrutiny by the First Amendment. Rocky D may no longer be on the air in Charleston, but the case he started will be of value to South Carolinians who want to see where their tax money is being spent.

Jay Bender has been the S.C. Press Association’s  lawyer for nearly 30 years. He doesn’t have to do much media law case research because he has been directly involved in most important S.C. libel and FOI cases. He holds the Reid H. Montgomery Freedom of Information Chair at the University of South Carolina and teaches media law at the USC J-school and USC School of Law.

Opinions that appear on this page in Letters to the Editor or in columns do not necessarily reflect the opinions of this newspaper.

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