In an unusual move Friday, the Beaufort County Board of Education’s officers made a decision on behalf of the entire board and school district to deny Freedom of Information Act requests for copies of the federal subpoenas served to two district employees in January that sought documents related to the construction of two Bluffton schools in an FBI investigation.
The decision came after a special-called meeting at a Hilton Head Island hotel that ended quickly and abruptly without the full board weighing in on the FOIA requests.
Board members, some of whom continue to advocate for the subpoenas’ release, rarely, if ever, make determinations about honoring or denying FOIA requests for the school district.
Experts on South Carolina’s open records law say the public has a right to see the subpoenas, and school districts in other parts of the country have released federal subpoenas they’ve received in connection to similar FBI investigations.
In a statement released Friday afternoon, reiterating that the school district has been told it is not the target of the FBI’s investigation, the board’s officers — chairman Earl Campbell, vice chairwoman Geri Kinton and secretary David Striebinger — cited an “unambiguous preference” from the U.S. Attorney’s Office to withhold the subpoenas.
“It is impossible to reconcile our promise to cooperate fully with the investigation if we take an action that investigators have recommended we not take,” the statement read.
State law allows, but does not require, public bodies to withhold information compiled for law enforcement purposes that may interfere with an active investigation.
“I don’t think the district has the authority to withhold those records,” said Jay Bender, an attorney specializing in South Carolina’s open-records law. “The people of Beaufort County are entitled to see the subpoenas with respect to this pending referendum.”
The Beaufort County Board of Education will ask taxpayers for $76 million on April 21 that, if approved, would help alleviate overcrowding by expanding the two schools referenced in the subpoenas, as well as build a new school and add three Career and Technical Education buildings.
Friday’s FOIA denial is not the first time the board and the district have attempted to keep the public from the federal subpoenas.
The board’s officers promised to “cooperate fully with the investigation” on Feb. 3, but only after board member John Dowling defied advisement from school district’s attorney Drew Davis and publicly disclosed the existence of the FBI investigation by motioning for the board to issue a statement.
In the weeks prior to that revelation, members of the board’s minority bloc — some of whom say they felt threatened by district staff to keep quiet about the subpoenas — had pressed the district over email to issue a statement, but were met with resistance.
“I am unclear what message could be released at this time,” Superintendent Jeff Moss replied.
May River High School and River Ridge Academy, the two schools referenced in the subpoenas, according to Moss and board members, are the only two schools built so far during Moss’ tenure as superintendent.
In addition to records related to the construction of the schools, the subpoenas requested information about the bidding process and about North Carolina-based Hite Associates, the architect used in both projects that also had worked with Moss at Moss’ previous two school districts in North Carolina.
The Bluffton projects were the first South Carolina school projects Hite Associates had worked on.
Several members on the board’s majority, which typically aligns itself with Moss and, by extension, Davis, have consistently argued that disclosing the existence of the subpoenas could interfere with the federal investigation and restrict the due process rights of the suspect.
“I can’t see what the good is coming out of prematurely releasing information that has no context to it,” Kinton said Wednesday. “Nobody has given me any (reason) other than you’re being transparent.”
But given the gravity of a federal subpoena — a point superintendent Moss previously downplayed — Striebinger said he asked for the board to provide input on the decision.
“The board is at times uncomfortable with the decisions the superintendent makes,” he said. “I personally felt it was time for the board to step in and direct the superintendent.”
‘Political hot potato’
During the special-called meeting Friday at the Hilton Head Marriott Resort and Spa, where board members were attending the state School Boards Association conference, a banging gavel could be heard from the hallway.
The board adjourned less than five minutes later with no vote on whether to release the subpoenas. Board member JoAnn Orischak, who has advocated for the public release of the subpoenas, said she attempted to ask if there would be a vote on whether to release them but was silenced by several other board members.
She and other board members have been unable to get their hands on a copy of the subpoenas since the Jan. 16 meeting in which they learned of the subpoenas’ existence.
Dowling went so far as to submit an open-records request to the district for a copy, a first for him as a board member, but not an out-of-the-ordinary strategy for minority board members.
It was Dowling’s open-records request that cut the meeting short. Davis said the discussion should not take place with a “potential litigant” in the room, according to Dowling.
Dowling did not offer to recuse himself from the closed-door meeting because he says he has never threatened to sue the district if denied a copy.
“The subpoenas are a political hot potato,” he said. “It was a ploy to get my voice out of the room.”
Bill Rogers, executive director for the S.C. Press Association, of which The Island Packet and The Beaufort Gazette are members, argued that much more can be gleaned from a firsthand report than someone’s interpretation of it.
“There is no reason for it to be withheld,” he said. “I wonder why (the district) is closemouthed about it if they’re not the target?”
Other school districts across the country have been subpoenaed for records by the federal government and publicly released them.
▪ In California, federal authorities subpoenaed Fresno Unified, the state’s fourth-largest school district, for construction-related records in August 2015. By Sept. 8 of that year, the district released the subpoena in response to an open-records request from The Fresno Bee. The federal investigation into the district’s no-bid contracts for multimillion-dollar construction projects was still ongoing as of February 2017.
▪ The FBI subpoenaed Florida’s Leon County School District in 2014 for construction records on half a dozen schools dating from 2007 to 2013. Upon advice of legal counsel, the Leon schools records custodian declined to provide a copy of the subpoena to The Tallahassee Democrat, citing an exemption in the law for records relating to active criminal investigations. But after repeated requests, the superintendent ordered the subpoena be publicly released just a day after the subpoena was served, according to the newspaper.
▪ In New York, the FBI subpoenaed Kingston School District in 2011 for records related to security personnel. The district denied a local newspaper, The Daily Freeman, a copy of the subpoena, but the paper was successful in an appeal.
These districts abide by their own states’ open-records laws, which are not identical to the South Carolina Freedom of Information Act that Beaufort County School District must follow.
Five others, including The Island Packet and The Beaufort Gazette, submitted an open-records request for a copy of Beaufort County’s federal subpoenas, according to district spokesman Jim Foster, but Dowling is the only board member to do so as of Friday.
Said Rogers, “The public should be aware of what’s going on and in a timely fashion, and that’s now.”