Playing with FOIA
Public record price-gouging keeps us all in the dark
Earlier this month I submitted a public records request to the South Carolina Department of Education seeking emails sent or received by the state superintendent's office containing the words "critical race theory" and "CRT" after the superintendent put out a bizarre statement condemning the conservative bogeyman of 2021.
To my surprise, the department sent me an invoice for $616.
According to the invoice, it would take two state employees 8 hours each to fulfill the request. They want a $154 deposit from me just to get started.
That's why I decided to make the following tutorial video on searching, exporting, and redacting emails. My thinking is that, if it takes you 16 man-hours to do a basic document search, you need to work smarter, not harder.
That wasn’t so hard, was it? As I mentioned in the video, we’re already paying for some handy software from GovQA that should make searching and redacting emails a breeze. Normally I would charge a consultant fee for this goldmine of advice, but I am waiving my fees for the good of the public. Y’all are welcome.1
The states all have their own versions of “sunshine laws,” open-meeting laws, and Freedom of Information laws; I’m most familiar with South Carolina’s because I worked as a news reporter here for 8 years. I filed requests like this one routinely, and I got stonewalled by public information officers more times than I can count.
For a long time, officials hid their business behind “executive session” meetings where they discussed public matters behind closed doors, or behind broadly worded exemptions that allowed them to claim potentially embarrassing records were private.
In 2017, new amendments to the S.C. Freedom of Information Act allowed public agencies to start charging redaction fees — essentially a special payment for a state employee to run a Sharpie over public documents. The law said the fees “shall not exceed the prorated hourly salary of the lowest paid employee who ... has the necessary skill and training to perform the request,” but state and local officials almost immediately started charging ludicrous fees.
$28,000 for emails between the Chester County school superintendent and the school board chairwoman.
$8,000 for Greenville County Sheriff’s Office records on disciplinary actions for deputies.
$75,500 for documents related to lawsuits settled by Horry County government.
$23,000 for records showing how the Horry County Police Department handled (or failed to handle) child sex crime investigations.
“Elected people think they know best about what the public should know,” First Amendment lawyer Jay Bender told the Post and Courier in 2018. “People who don’t like to give up information will use redaction costs to deter citizens.”
The $616 price tag on my record request pales in comparison, but it is still an obnoxious violation of the spirit of the law. It should be free according to SC FOIA Section 30-4-30(B):
Documents may be furnished when appropriate without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public.
Some teacher friends offered to raise money to cover the fees. They would like to know why their boss’s boss’s boss accused them of harboring “ideologies” and “agendas” on Facebook. I told them I plan to stand my ground. If I cave and pay the money, the next person to file a FOIA request will get treated the same way, and they might not be able to raise the funds.
In the meantime, I’ve reached out to Trish Crain, the Alabama education reporter whose reporting inspired me to try this in the first place. She filed a FOIA request in her state after the superintendent there introduced an anti-CRT resolution to the State Board of Education and found out that a whopping two people had emailed him on the subject.
She helpfully suggested that I could try submitting a more narrowly defined request, like she had done in Alabama. I took her advice and submitted a second FOIA request as follows:
I request the following information under the provisions of the South Carolina Information Act:
All emails sent or received by Education Superintendent Molly Spearman or Chief Communications Officer Ryan Brown from May 20 through June 9, 2021, containing the phrase “critical race theory” or the acronym “CRT.”
Because this information is requested in the public interest, I ask that all fees be waived.
I’ll let you know how it goes.
***
FOIA is for everyone. You don’t have to be a journalist or a lawyer to file a request. To follow groundbreaking FOIA work at the national level, check out the investigative outfit Property of the People. At a local level, I continue to rely on the Citizen’s Guide to the South Carolina Freedom of Information Act published by the S.C. Press Association.
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I misspoke in the video — my original request was for January 1 through July 12, not January 12. Also, a techie friend reached out to tell me I was oversimplifying the process for government records requests in my video, which I’m sure is a fair point. The process probably involves some auditing and chain-of-custody work, and maybe a clunkier archive search than Gmail’s, but it still shouldn’t take two people all day to do.