SC Supreme Court should define 'public body'

info@islandpacket.comFebruary 28, 2013 

No matter what you think of Hilton Head Island businessman Skip Hoagland's tactics or his criticism of the Hilton Head Island-Bluffton Chamber of Commerce, he will have done the public a service if they result in clear legal direction about the definition of a public body under South Carolina law.

The chamber, as a result of a lawsuit Hoagland filed seeking information under the state Freedom of Information Act, has asked the state Supreme Court to take the case without its going through the lower courts.

In its petition to the high court, the chamber states that it does not meet the definition of a public body, based on the state accommodations tax law and how it handles that money as Hilton Head Island's and Bluffton's designated marketing organization.

But it also states, "... if the chamber is deemed to be (a) public body, it needs to begin as soon as possible to provide notice of meetings and otherwise govern itself in accordance with FOIA."

Hoagland has asked for financial and personnel records from the local chamber, saying the chamber is a public body. A significant portion -- nearly 30 percent -- of its annual income comes from accommodations tax revenue and state grants.

We said in January that a Supreme Court ruling would bring clarity on this very important subject. Guidance from the state's high court is critical because many nonprofit groups, including the chamber, operate under the assumption they are exempt from the state's open records law. The chamber turned down Hoagland's information request, as well as one from this newspaper. A lawsuit is the only recourse when such requests are denied, a potentially daunting and expensive proposition.

The Freedom of Information Act states that an entity supported "in whole or in part by public funds" is subject to the law. A 1991 Supreme Court ruling confirmed that.

The chamber's attorneys say that even though the chamber receives accommodations tax money and state tourism marketing grants, that doesn't change its status as a private nonprofit organization. The chamber, its attorneys say, is a contractor providing services and only uses public money to defray the costs of the services provided. They point, in part, to an Horry County court ruling involving the Myrtle Beach Chamber of Commerce.

The Hilton Head chamber's petition to the Supreme Court states that no points of fact are in dispute, only interpretation of the law.

But it also states that the chamber meets the requirements of the accommodations tax law and state reporting requirements for grants. The legal process of discovery in the context of Hoagland's lawsuit could shed light on whether that's accurate. The 1989 Myrtle Beach ruling makes the point that the Myrtle Beach chamber didn't support its operations with accommodations tax money, but only used it to provide a specific service.

The speed with which this case is dispatched in the courts doesn't concern us as much as it does the chamber. It maintains that it is being harmed by Hoagland's "relentless public attacks and accusations of wrongdoing."

In his affidavit, chamber president Bill Miles argues that Hoagland's actions are a reason for the high court to take the case. He states, "This court should exercise its original jurisdiction because Hoagland's incessant harassment of the chamber involves the public interest and provides a special ground for this court to entertain this case in its original jurisdiction."

He makes a better case with this, "If this court determines that the chamber is subject to FOIA, it must quickly change its operations so that it can comply with FOIA's requirements."

That does involve the public's interest.

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