A little-known law that governs how public records are managed could pose an almost $1 million roadblock to proposed changes to the state’s Freedom of Information Act, reforms designed to ensure government transparency.

Debate is centered on a prediction that it will cost nearly $1 million to store state legislators’ records if lawmakers vote to open their papers to public scrutiny. However, skeptics think that cost has emerged as a factor in the open-records debate because some legislators do not want their records opened to the public.

Later this month, the state House will take up a bill aimed at revising the state’s weak Freedom of Information Act. The revisions are intended to curb long waits and excessive fees charged those who seek public records.

The proposal, sponsored by state Rep. Bill Taylor, R-Aiken, was advancing swiftly before lawmakers narrowly voted to eliminate an exemption that would have allowed legislators to keep their papers and correspondence out of the public eye. Giving up that exemption – and the secrecy it affords – is unpopular with some legislators.

Now, debate is swirling over whether eliminating the exemption would have unintended consequences.

S.C. Department of Archives and History director Eric Emerson, whose agency stores many public records, says his department could incur added costs of almost $1 million to store the legislative records.

Emerson’s cost estimate has been greeted with skepticism.

“Are these the real costs?” asked state Rep. Weston Newton, R-Beaufort. “Or is this just a doomsday scenario?”

Newton and Taylor have introduced a separate bill that would retain a limited legislative exemption to the state’s “sunshine” law, shielding from disclosure legislation that has not yet been introduced. They also want to create a new exemption for emails sent to lawmakers from constituents, arguing that citizens have an expectation of privacy.

Emerson’s cost estimate is based on his prediction that storing legislative records would force his agency to manage 2 1/2 times the number of public records that it now manages. Storing the public records of 170 General Assembly members would cost his agency $940,000, Emerson says, to pay for five new employees, upgrades to security, archival supplies and storage equipment.

“It could cost $1 million” to deal with the records, said Jay Bender, a media law attorney who sometimes represents The State.

However, Bender questions that estimate. It seems unlikely the Archives Department would be swamped with records from legislators, Bender said, adding debate about the cost of preserving legislative records for history should be separate from ensuring that the public has access to what lawmakers are doing now.

“I don’t see a rush to send records to Archives,” Bender said. “It would be a nice thing because preservation of public records is the footprint” for researching government later.

“The question here is whether we’re going to have open government in South Carolina (now), rather than whether we’re going to have an historical record.”

‘Living under the law’

Besides preserving the state’s historical records, Archives Department staff members also assist public bodies in developing plans to manage their public records in compliance with the state’s Public Records Act, a little-known law that recently has received attention.

That law says agencies and political subdivisions must develop guidelines for retaining their documents. Called retention schedules, the law creates “life spans” for documents, depending on their importance, and creates rules detailing what documents can be destroyed and when.

Public officials and the chief administrative officers of public bodies are responsible for the public records in their possession. Eventually, the records can be sent to the Archives Department if they are deemed to be of historical value, Emerson said.

Removing the legislative exemption to the state’s Freedom of Information Act means the same process would have to be applied to legislators’ papers, Emerson said.

State Rep. Rick Quinn, R-Lexington, who is pushing to eliminate the legislative exemption to the sunshine law, says the process or cost should not factor into deciding whether state lawmakers should be held to the same standards of openness as other public officials. Lawmakers likely should have been following the state’s Public Records Act and maintaining their records all along, regardless of whether their papers are shielded from public view, he said.

“We are creating public records every day,” Quinn said. “The only difference is we don’t have to disclose those records to the public.”

Wait and debate

The House is scheduled to debate Taylor’s bill March 19.

House Majority Leader Bruce Bannister, R-Greenville, said including the proposal to eliminate the legislative exemption to the Freedom of Information Act in Taylor’s bill “certainly has slowed down the process.”

Last year, a similar bill died in the Senate – a fate that some attribute to the upper chamber’s distaste for doing away with the legislative exemption.

But Gov. Nikki Haley supports eliminating lawmakers’ exemption, also recommended by a special ethics reform committee that the Republican governor appointed. Haley’s interest in the issue means Taylor’s reform proposal could face a veto by the governor if it does not eliminate the legislative exemption, Bannister said.

“Everybody has their own theory of why we’re talking about (the legislative exemption) in this bill,” Bannister said.

Some say the proposal to eliminate the legislative exemption is a poison pill, inserted as a way to ensure Taylor’s reform bill dies, Bannister said. Others say now is the best time to remove the exemption for the General Assembly, he added.

“The FOIA bill is going to move forward,” Bannister said. “What the body does with the legislative exemption, I don’t know the answer to that.”

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