Critics say changes in state FOIA promote secrecy

pdonohue@beaufortgazette.comFebruary 15, 2012 

A bill introduced last week in the S.C. House amending the state's Freedom of Information law has drawn the ire of open-government advocates who say it would allow police to keep secret any and all crimes and arrests from the public.

The proposal, introduced by Rep. Chris Murphy, R-Dorchester, would allow police, prosecutors and sheriffs to withhold "any information to be used in a prospective law enforcement action or criminal prosecution," and is cosponsored by 33 House members, including House Speaker Bobby Harrell.

Critics of the bill say it promotes government secrecy.

"This goes a long way in creating a secret police operation," said Jay Bender, a Columbia lawyer and USC media law professor who has for decades argued open-government cases in courts. "If you want to have police corruption, just let them operate in secret. A fundamental concept of democracy is for the public to know what's going on and to be in charge."

Murphy told The (Columbia) State newspaper that Bender's claims exaggerated the impact of his proposal, which was referred to the House Judiciary Committee.

"For him to say this will cause a police state, that is a stretch," Murphy was quoted as saying. He described his bill as being designed to allow law enforcement agencies to more easily deny an FOI request to make public sensitive pretrial information about crime victims, witnesses and ongoing investigations.

Bluffton Police Chief David McAllister said he supports efforts to better protect crime victims and witnesses but said the other language in the bill might be too ambiguous.

"Anything is 'prospective,'" McAllister said. "That might be a little too far-reaching. There is already language in the existing FOI law that gives us discretion about releasing information pertaining to ongoing criminal investigations, but I absolutely support protecting crime witnesses and victims."

Bender said the current FOI law already contains provisions giving law enforcement agencies authority to keep confidential information that might harm witnesses and victims but puts the burden on prosecutors and police to prove to a judge why they need to keep evidence in an ongoing case secret.

"There now has to be a demonstration that the release would harm the agency," Bender said.

Murphy told The State he proposed his bill after hearing concerns from prosecutors and other law enforcement agencies that current law makes it hard for them to keep critical pretrial information out of public view.

Beaufort County Sheriff P.J. Tanner said he shares those frustrations.

"Even when a case has been fully investigated and an arrest has been made, the case is closed, but ... that's not the end of the story," Tanner said. "It comes down to what the public needs to know versus the public just being inquisitive and wanting to know everything about a case."

Reporter John Monk of The (Columbia) State contributed to this report.

Follow reporter Patrick Donohue at

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