An Eclipse of SC’s Sunshine Laws

By Richard Whiting

Remember the August 2017 solar eclipse that carved a path through South Carolina? Bright daylight gave way to shadows, which then gave way to total darkness. Within minutes, of course, a summer day was again put into the sun’s bright light.

Another eclipse seems to be taking place in the Palmetto State. In this case, it is what the public should be privy to that is being eclipsed. Private organizations, such as chambers of commerce, that have received public funds have been given a free pass to spend public dollars unchecked and a large enclave of lawmakers can operate in secrecy in the halls of government.

One case came to light after a years-long legal battle over whether a private organization that is given authorization to manage and dispense tax dollars is then considered a public body or, at the very least, must provide all records relative to the expenditure of those tax dollars.

Hilton Head Island-Bluffton Chamber of Commerce wound up winning its case this past May, a blow to transparency and public accountability. The Chamber received accommodations tax dollars to spend on behalf of the government entities for advertising and promotion of tourism.

The case wound up being heard by the state Supreme Court, which ultimately upheld the Chamber’s private status and held that laws and oversight surrounding the expenditure of A-tax dollars already in place are sufficient. In short, the high court ruled the public cannot have a line-item breakdown of how the Chamber spent the tax dollars. And this isn’t about a few dollars, mind you. In fiscal year 2017, the town of Hilton Head handed $1.7 million in accommodations tax dollars to the Chamber. Seems only right and fair that Hilton Head taxpayers should be privy to exactly what the Chamber did with those dollars in the name of advertising and promotion of tourism. Frankly, one would hope and think the Chamber, if operating above board, would readily make that information available.

Justice John Few seems to be the one who fully comprehended the seriousness of the majority ruling, writing in his dissent:

“By placing the responsibility for the expenditure of public funds in the hands of a private entity such as the Chamber, and then relying on public officials for ‘oversight,’ with no right of access by the public, the accommodations tax statute actually inhibits citizens from being ‘advised of the performance of public officials and of the decisions that are reached in a public activity,’ thereby frustrating — not furthering — the ‘vital’ policy of open government.”

One can see the shadow being cast as the eclipse grows.

And only this past week, Fifth Circuit Court Judge Robert Hood ruled the state GOP Legislative Caucus’ financial records are off limits.

In a March 4 story, The State newspaper reported on Hood’s ruling, noting that paper and other media had sued for caucus records handed over to State Law Enforcement Division investigators. Those records were related to a House public corruption probe. The media group contended the caucus’ records and meetings, which are now closed, should be open to the public because the caucus has use of office and meeting space in the Blatt Building on the Statehouse grounds. That space is paid for by taxpayers; the caucus uses it at no charge. The office space used represents an estimated $5,000 annual price tag.

But Judge Hood contends that’s not enough to force opening the caucus’ records to the public. That’s nearly two-thirds of that legislative body that is allowed to operate in secret on Statehouse grounds. Bear in mind the caucus consists of 79 members of the House. Bear in mind also that the court had before it material from the grand jury investigation of legislative corruption, a report that contained a SLED analysis showing the GOP Caucus was likely exceeding the state’s campaign contributions limit. More criminal activity to coincide with convictions already obtained? Possible, but you cannot know that based on Hood’s ruling.

In the March 1 ruling, Hood noted the caucus’ operating funds, other than those coming from annual membership dues, are raised through private donations. Furthermore, the caucus does not receive, spend or manage public dollars, Hood wrote. That might be true, but all 79 members surely have a substantial say in how those dollars are spent.

As if this were not disturbing enough, Judge Hood added a chilling caveat to his ruling against the media group’s lawsuit. The state’s open-records law does not apply to media organizations because they are corporations, not people, he said. Only citizens can file a Freedom of Information lawsuit, he said.

As our current law stands, anyone seeking what they believe to be public information has no recourse but to sue when they believe their rights to access have been denied. How many residents will do that? Unless they have extremely deep pockets, residents tend to drop their efforts to get hold of public information when faced with no alternative but to sue. And, quite frankly, residents often turn to and depend on media organizations to unearth public information on their behalf. Those organizations are made up of people, and those organizations often have to pool their resources, both to investigate and to litigate, in order to pry loose what public bodies try to keep from the public.

If Hood’s ruling stands, that would have a substantial impact even on the media’s efforts to obtain records and information on behalf of the public. The U.S. Supreme Court upheld corporations’ rights to make political expenditures, establishing what is called corporate personhood. If that’s the case, surely media corporations can be given “personhood” status when working on behalf of the citizenry.

But apparently $5,000 is not enough money to result in public disclosure any more than untold millions of taxpayers’ accommodations tax dollars can. And when it comes to government transparency, it would seem some justices, perhaps beholden to legislators, are culpable cloaking culprits.

The full eclipse is nigh upon us, folks. The question is whether we will emerge from the darkness as Earth did that August day in 2017.

Whiting is executive editor of the Index-Journal in Greenwood, SC and serves as chairman of the SC Press Association’s Freedom of Information Committee.

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