SC justices hear arguments in freedom of information dispute

The (Columbia) StateOctober 3, 2012 

COLUMBIA -- State Supreme Court justices quizzed lawyers on both sides of a thorny issue Wednesday involving a statewide public school advocacy group, freedom of speech and the S.C. Freedom of Information Act.

"What we have here is an unprecedented case," attorney Kevin Hall told the justices. Hall, of Columbia, is representing Charleston resident Rocky Disabato, who sued the S.C. Association of School Administrators seeking access to its internal records, including telephone records.

The association gets broad support from taxpayer dollars because many of its members -- school administrators -- pay their dues with money from their school districts' funds, Hall said.

For that and other reasons the court should declare the group a public body subject to the Freedom of Information Act's records' disclosure provisions, Hall said.

John Reagle, the attorney representing the association, acknowledged that technically the group is a public body. But he said it is a nonprofit corporation set up to be an advocacy group for public education issues in South Carolina. He urged the court to find that the freedom-of-information law can't be applied to any private, issue-oriented advocacy organization.

As a private group, the association has First Amendment rights of freedom of speech, which means it needs to be able to formulate policies in private without intrusive public scrutiny, Reagle argued.

Referring to a 1991 case in which the state Supreme Court found that a private University of South Carolina foundation's records were subject to the Freedom of Information Act, Reagle said that decision was proper because the foundation was "acting as the agent of the university in what it was doing, so the records are really the (public) property of the university."

Toal observed that the Freedom of Information Act has many exemptions about disclosure and asked Reagle why he didn't avail himself of the exemptions instead of asserting that all association records are off-limits.

"The exemptions simply kick the dispute down the road, so you are arguing about whether exemptions apply," Reagle said.

When Hall told the justices that receiving public money made a group subject to the Freedom of Information Act, Toal said, "Providence Hospital (which is run by a religious group) takes a lot of public money. ... I don't believe the meetings of their trustees would be subject to public intervention."

In fact, said Toal, Hall's client Disabato targeted the association because he objected to the association's filing of a lawsuit seeking to get former Gov. Mark Sanford to accept federal stimulus money.

"He wants information about their speech," Toal told Hall. "He doesn't want information about how they spend public money. He wants information about a lawsuit they brought and the political positions they advocate."

If the Supreme Court rules too broadly in this case, Toal said, it may precipitate numerous other freedom-of-information lawsuits against private groups that accept any public money.

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