S.C. Supreme Court rules public bodies subject to FOIA

The South Carolina Supreme Court ruled Wednesday that the state's public records law does not violate the First Amendment speech and association rights of nonprofits that are subject to the law's disclosure requirements because of their financial ties to local governments.

Writing for the majority, Supreme Court Justice Kaye G. Hearn rejected the South Carolina Association of School Administrators' (SCASA) argument that requiring nonprofits to comply with the Freedom of Information Act violated their rights under the First Amendment.

The Supreme Court ruled that although the state's open records law did burden SCASA's rights because the group could no longer speak and associate privately, the statute did not ultimately violate the First Amendment because there is a strong interest in ensuring government transparency.

The case centered on a 2009 FOIA request from Charleston talk-radio host Rocky Disabato to SCASA. Asking for phone records and other documents, according to reports, his request said the information might expose "collusive efforts" among state agencies to press for stimulus money from Gov. Mark Sanford during the 2009 recession bailout. SCASA moved to dismiss the case because it believed FOIA improperly overreached by requiring nonprofit corporations engaged in political advocacy to disclose their records.

The Supreme Court ruling reversed a lower court in the case, which had ruled that FOIA was subject to the highest standard of review under the First Amendment, known as strict scrutiny. The lower court ruled that FOIA violated SCASA's First Amendment rights because there was not a compelling government interest that justified the free speech burden.

But the high standard applied by the lower court was incorrect, Hearn wrote, because FOIA did not target the content of any individual's speech. As a result, the Supreme Court applied a lesser standard where, as long as a statute served "important governmental interests unrelated to the suppression of free speech" and did not "substantially" burden speech rights more than necessary, it would pass constitutional muster.

Hearn also ruled that although the FOIA focuses on government agencies, it also supports the right of the people to indirectly monitor government actions through related public bodies.

"If 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," Hearn wrote. "Any entity that receives public funds is subject to [the state's] freedom of information laws."

Furthermore, the court found that the FOIA was already narrowly tailored to exempt sensitive records that invade an individual's privacy from public disclosure, and therefore attempts to limit requests only to necessary information.

Although the Supreme Court tossed out SCASA's First Amendment challenge to FOIA, it declined to rule on whether the educational nonprofit would itself ultimately be subject to the transparency law.

Under the statute, nonprofits financed by local governments are subject to the act's disclosure requirements. The Supreme Court ruled that the trial court would need to determine whether FOIA applied to SCASA.

Jay Bender, attorney for the South Carolina Press Association, which submitted a friend-of-court brief in the case, said the decision was a strong win for press freedom.

"The entities that get [money] always want to pretend they're private, nonprofit and they don't have to tell you how they're spending the money," he said. "[The decision] takes away a potential hiding place for entities that are supported by public funds who wish to keep their activities secret from the public."

Because the Supreme Court presumed the SCASA was public body due to lack of evidence, it will be up to the circuit courts to decide whether it is considered a public entity. If found to be so, then the nonprofit will be required to comply with Disabato's request.

The Reporters Committee for Freedom of the Press and the Student Press Law Center filed a friend-of-the-court brief in support of Disabato. Arguing that a state's sunshine laws are central to journalists' ability to oversee government activities, the brief agreed that no First Amendment interests are implicated by requiring a public body to obey public disclosure requirements.

Related Reporters Committee resources:

· South Carolina – Open Government Guide