SOUTH CAROLINA —The South Carolina attorney general intervened Tuesday in a state Supreme Courtcase to decide whether school administrator associations fall under the SouthCarolina Freedom of Information Act.
Alan Wilson, the state’s attorney general, filed a brief onthe side of appellant Rocky “Rocky D” Disabato, a radio talk-show host who wasdenied a public records request from the South Carolina Association of SchoolAdministrators.
The records in question concern a debate over federalstimulus funding from the 2009 American Recovery and Reinvestment Act.
In August, Circuit Judge G. Thomas Cooper Jr. ruled in favorof SCASA, finding that applying the public records law to SCASA infringes onits members’ First Amendment right not to speak publicly. He also ruled thatSCASA is primarily a corporation because it “engages in core political speechand issue advocacy.”
Hall & Bowers, LLC, the law firm representing Disabato,appealed in October to the South Carolina Supreme Court.
Wilson’s brief details his belief that Cooper’s rulingshould be overturned.
He wrote that FOIA does not violate First Amendment rightsbecause requesting public records is unrelated to suppressing free expression.SCASA falls under the purpose of FOIA to guarantee citizens have access toinformation about public policy decisions, he argues.
“Accordingly, requiring SCASA to comply with FOIA isconsistent with the furtherance of the objectives of (FOIA),” Wilson wrote,“which could not be accomplished otherwise.”
SCASA employees, he continued, are covered under the state’sdental and health plans. The organization also recommends appointments, serveson a state committee and performs other governmental tasks.
“The funding and the functions of SCASA bring theorganization well within the definition of a public body,” Wilson wrote.
Keith Powell and Kenneth Childs, attorneys representingSCASA, said they hadn’t had a chance thoroughly to read Wilson’s brief and wereunable to comment on the specific points presented in it.
However, Powell said Wilson’s position is not extremelyimportant to the case. They said the state attorney general generally supportsthe state statute — in this case, FOIA.
“I don’t think there’s anything extraordinary about the factthat the attorney general would want to file a brief and make those points,”Powell said. “It’s not unusual or particularly significant that they would filea brief for a case of this nature.”
Childs agreed, adding that Disabato used FOIA as a “vehicleto harass private organizations.” As a result, it abridged SCASA’s FirstAmendment rights, he said.
Kevin Hall, one of Disabato’s attorneys, said he hopes theSupreme Court will “remedy” the decision made by the lower court. He believesWilson’s support will help.
“To have the attorney general intervene on the case, that’svery important,” Hall said. “He’s shown himself to be an ardent supporter ofopen government and transparency.”
The Student Press Law Center will also file a brief insupport of Disabato in the coming weeks.
“If the trial court’s decision holds up, the open recordslaw of South Carolina — and any similar law — is under a cloud of uncertainty,”SPLC Executive Director Frank LoMonte said. “It’s really hard to see how youcould ever get open records from a government agency without them complainingit infringes their First Amendment rights.”
LoMonte said he doesn’t expect Cooper’s ruling to hold. Hesaid this case follows a trend of government officials who attempted and failedto “hide behind the First Amendment,” including Michael Carrigan, a citycouncilman in Sparks, Nev., who claimed he could vote on matters that posedconflicts of interest because of his freedom of speech.
The U.S. Supreme Court rejected that argument in June.
“The fundamental flaw is (the implication) that thegovernment might need protection from the public,” LoMonte said, “and not theother way around.”