SCPA Director of Network Sales passes away at 67
Funeral service for Henry James “Jimmie” Haynes, 67, will be held at 10:00 a.m. Wednesday, September 17, 2014, at First Presbyterian Church. Graveside service will be held in Greenlawn Memorial Park at 2:00 p.m. The family will receive friends from 6 until 8:00 p.m. Tuesday, September 16, 2014, at Dunbar Funeral Home, Devine Street Chapel.
Jimmie died Saturday, September 13, 2014 at Palmetto Richland Hospital surrounded by his family. Born in Columbia, he was a son of the late John Harrill Haynes and Agnes Watts Haynes. He was a graduate of Columbia High School, attended the University of South Carolina and served in the SC Army National Guard for six years. Jimmie worked at the State Newspaper for over 30 years, was the former Editor of the Newberry Observer and the Lexington Dispatch-News, and he retired as the network sales director for the SC Press Association. He was an avid Gamecock fan, loved antique cars, skiing, and playing tennis at Rock Bridge Country Club. He played Santa Claus at the Children's Hospital for more than 25 years, for other patients in cancer units, and for residents in nursing homes each Christmas. Jimmie was a former Chairman of Richland Memorial Cancer Treatment and Research Board, he assisted with the We Can Weekend for cancer patients and their families, he was a former chairman of the Cooperative Ministry Board, and he was a recipient of the Jefferson Award for his volunteer work. Jimmie was lifelong member and Deacon of the First Presbyterian Church, and for many years, he taught pre-school and Sunday School and was a member of the Chancel Choir.
Jimmie was a fun loving and devoted husband, father, brother, uncle and great uncle. Surviving are his wife of 42 years, Paula Sartwell Haynes; sons, Paul Harrill Haynes (Kourtnay) of Columbia, John Sheldon Haynes (Trista) of Summerville; brother, John “Jack” Haynes, Jr. (Bonnie) of West Columbia; sisters, Dorothy “Dottie” Haynes Munsch of Columbia, Barbara Haynes Habelow (Chuck) of Port Charlotte, Fla.; sister-in-law, Nancy S. Refo (William “Chipper”); nieces and nephews, Julie Siokos, Terri Chiles, Brian Refo, Jack Haynes, III, Laura Artabazon, Ted Munsch; and numerous great nieces and nephews.
The Haynes family would like to thank Dr. Joe McElveen and all the healthcare professionals who continuously supported Jimmie through his nearly 30 year-long battle with cancer. Memorials may be made to Care Team Fund at First Presbyterian Church, 1324 Marion Street, Columbia, SC 29201 or Leukemia and Lymphoma Society, SC Chapter, 107 Westpark Blvd, Suite 150, Columbia, SC 29210.
Subpoenas and the shield law
By Jay Bender, SCPA Attorney
News organizations have been served with a spate of subpoenas recently which prompted Bill to schedule a Webinar on Wednesday, September 10 at 11:00 a.m.
In the meantime, I offer this column as a teaser and a reminder of steps to take when the process server shows up or the certified letter reaches your desk.
As a first step I recommend the development of a policy regarding how your paper will respond to subpoenas and training of personnel who might come in contact with a process server.
A distinction needs to be made between federal subpoenas and state court subpoenas and between criminal and civil cases. You can determine the nature of a state court case by reference to the court issuing the subpoena. The Court of General Sessions is criminal court and the Court of Common Pleas is civil court. In the federal system the subpoena is likely to be captioned in the United States District Court. District courts hear both civil and criminal cases so it will be necessary to look at the docket number or case number to determine if the case is civil or criminal. Civil cases have “CV” in the case number and criminal cases have “CR.”
The reason for making the distinction between civil and criminal cases is that your obligation appears different depending on the nature of the case. Civil subpoenas may be delivered to a business by a process server or by mail. A party receiving a civil subpoena may object to the subpoena by writing to the party issuing it to express an objection, and then it is up to the party issuing the subpoena to move to compel compliance. The best response available is that the material sought is subject to the South Carolina shield law for state court cases and therefore privileged. In federal civil cases the objection is that the material sought is privileged under decisions of the Court of Appeals for the Fourth Circuit. More on the reach of the shield law or reporter privilege in a minute.
In criminal cases it is possible that a letter objecting to the subpoena is sufficient. If you have received a subpoena in a criminal case it may be necessary to file a motion to quash if you do not wish to comply.
Criminal subpoenas must be served on a specific person or in the case of a corporation on a person authorized to accept service of process. It might be beneficial to train your receptionist to tell a process server that he or she is not authorized to accept service of process.
Train your staff not to answer questions of lawyers or others calling to ask about specific coverage because that conversation might constitute a waiver of gthe shield law protection.
Several recent subpoenas have sought to learn the identity of persons making comments on a paper’s website in relation to news reports of crimes or accidents. A paper should consider whether it wishes to utilize resources to protect the identity of persons posting comments on websites. There is law that support a decision to resist such subpoenas, but you need to calculate how much that fight is worth to you.
Some subpoenas in the past year sought certain advertising material and billing information. That information is not subject to the reporter’s privilege ad in state court it might be necessary to produce it. Federal court may provide more protection but the question again becomes how much to spend to protect the identity of one of your posters.
Most attorneys in South Carolina have never dealt with the reporter’s privilege and many become quite perplexed when told that a newspaper does not wish to respond to a subpoena. The protection isn’t limited to confidential sources, and is to prevent a burden on publishers because staff members are being taken away from covering news to respond to subpoenas.
These are but a few of the questions I anticipate you might have regarding subpoenas so I encourage you to join us for the webinar on the 10th.
SCSU chair wants private meetings with president, cites ‘transparency’
Originally published 8/21/14
By Dale Linder-Altman
The Times and Democrat
South Carolina State University Board Chair Dr. William Small wants individual members of the board’s executive committee to meet with President Thomas Elzey in private sessions to “discuss and plan matters that are important to formulating an agenda” for the full board.
“I certainly believe ... public actions should be public, but thoughts before they arrive in action form – it seems to me requires some privacy protection,” Small said on Wednesday at a meeting of the executive/audit/board development committee.
According to Small, the meetings would not have to be made open to the public because they’re not formal committee meetings.
Board attorney Kenneth Childs said that regardless of the size of a committee, its meetings have to be announced and are subject to the Freedom of Information Act. However, he said that there is an exception if only the officers meet with the chief executive.
General Counsel Craig Burgess said that if there is a quorum of members, the meeting would be considered public.
He also noted that it would be an easy matter to research the legality of the meetings.
Small suggested scheduling meetings between Elzey and one or two members of the executive committee every two to three weeks.
Elzey said he currently communicates with “any and all board members.”
His primary concern about regular meetings with executive committee members would be about the best way to get the information they discussed out to the other board members, he said.
“I would not want any particular group or individual feel that they’re being excluded from critical information,” Elzey said.
That already seems to be a problem, he said. “Oftentimes, things are discussed and we’ve got a situation where some board members may feel they didn’t know about it or they didn’t hear about it.”
Since the purpose of the meeting is to plan the release of information, there would be “a logical outflow of information if we’re meeting successfully,” Small said.
Elzey said he’s all for the meetings if they move the university forward.
When asked later if committee members or other trustees would be barred from taking part in meetings with Elzey, Small said the university will comply with the law.
“But I cannot tell you chapter verse, dot and tittle what it’s going to look like,” he said. “There is no set pattern. We’re proposing something. We’ll work through it.”
During the meeting, Small said all the “nuances and details” of the meetings will be worked out.
“And I’m sure as we get into this, we’ll see some improvement in our transparency and in our inter-institutional communications,” he said.
Contact the writer: firstname.lastname@example.org or 803-533-5529.
‘Spectacle’ in West Columbia: Tempers flare between mayor, councilman at news conference
Originally published 8/21/14
By Tim Flach
LEXINGTON COUNTY, SC — West Columbia Mayor Joe Owens’ planned attack on a review accusing him of misconduct instead turned into an exchange of insults Thursday with a political foe.
Owens’ characterization of the review as “a pack of lies” came amid frequent interuptions by City Councilman Tem Miles, who arrived unexpectedly at City Hall to hear what the mayor planned to say at a news conference.
The event quickly evolved into extended bickering between the pair.
Owens initially balked at talking unless Miles departed.
“I’m not saying a word as long as you’re here,” said Owens, adding that Miles “wants to make a spectacle of it.”
Miles refused to leave, calling Owens “childish” and saying that any gathering at a public facility “is not an invitations-only place.”
Owens led reporters from a meeting room to his office, and the door was locked so Miles couldn’t enter.
Chip Burn, the mayor’s lawyer, said Owens didn’t want “squatters” in his private space.
“Come back and see us when you’re welcome,” Owens told Miles.
“Enjoy this office as long as you have it,” Miles replied.
Police soon unlocked the door to admit Miles into the mayor’s office.
He stood quietly for a while before challenging some of the mayor’s statements about the review and exchanging insults with Owens and Burn.
‘You’re a liar,” Miles concluded. “The mayor can’t keep his story straight.”
Miles also trade verbal jabs with Burn at times.
“I wouldn’t expect a better opinion from a protege of Richard Breibart,” Miles interjected at one point, referring to a prominent Lexington lawyer now in prison for stealing money from clients.
The exchanges led Owens to tell Miles to “get out of here.”
Amid the bickering, Burn said some aspects of the review critical of Owens are “a collection of lies and distortions.”
He challenged three of the more than 30 conclusions in the review ordered by council members in conflict with Owens, saying:
• Dogs shot by police in October 2012 were not tame but a wild pack that threatened the safety of residents, according to a police report.
• An unidentified police officer was required to be paid while away for specialized training in mid-2013, not fraudulently given salary.
• A meeting that Owens and some council members had with Police Chief Dennis Tyndall in March was a conversation, not a secret committee hidden from other city leaders and the public.
The review is full of “hearsay, rumor and innuendo,” Burn said.
The review at the center of the conflict cost city taxpayers $15,000. It was done by Robert Bolchoz, a Columbia lawyer hired in May as an independent investigator by council members at odds with Owens.
The review – made public Aug. 5 – chastises Owens on several matters, including allowing his grandson to go into police offices to solicit donations for a youth fundraiser.
It also alleges that Owens regularly bends rules to reward friends and intimidate those who question him – but stopped short of saying he’s done anything illegal.
Those conclusions are based on more than 30 interviews with about 200 city employees and four council members equally divided between Owens’ allies and critics, as well as an examination of city records.
Many of the claims are “inconsequential and taken out of context,” Burn said.
Miles came under fire Thursday from Owens for an out-of-town discussion of five council members about the petition drive that forced a Sept. 30 ballot on a proposal seeking to overturn council’s move of stripping Owens of his control over council agendas.
Miles said the meeting was private because the petitions hadn’t been turned in yet.
But that session violated the state’s open-meeting requirements, since it dealt with public matters, said Bill Rogers executive director of the S.C. Press Association.
“It was illegal, clearly,” Rogers said. “It’s cut and dried.”
The tension that erupted Thursday is the latest skirmish in a battle in the Lexington County community of 15,000 residents over the push to restore Owens to power as well as put him in charge of the daily operation of City Hall.
“You have been a direct witness to the behavior and character of some of the city officials with whom the mayor is forced to work,” Burn said after the exchanges. “The mayor still holds out hope that there can be an eventual reconciliation, but today’s events were most definitely a step in the wrong direction.”
Miles agreed that ill will is mounting.
“Certainly, not everything that is going on is pretty,” he said.
Reach Flach at (803) 771-8483
Editorial: Sooner or later, Harrell SLED report must be made public
Originally published 8/20/14
From The State
Columbia, SC — SINCE JANUARY, House Speaker Bobby Harrell has been demanding the release of the SLED investigation into corruption allegations against him.
And since January, Attorney General Alan Wilson has refused, citing an ongoing State Grand Jury investigation and a state law that prohibits the release of grand jury material.
There was, of course, always a second reason he didn’t release the report: No prosecutor is going to turn over an investigative report when the case is still being investigated. The legal distinction is that the prosecutor gets to decide whether to release such a report — except when the case is before the State Grand Jury.
Mr. Harrell has insisted since questions first were raised about the way he spent campaign money that he has done nothing illegal and that the SLED report would vindicate him and also demonstrate that the attorney general is pursuing a political vendetta against him.
Mr. Wilson has insisted that the report contains serious criminal allegations; indeed, both Mr. Wilson and SLED Chief Mark Keel signed legal documents to that effect, and Circuit Judge Casey Manning approved their use of the State Grand Jury because he concluded that the report detailed corruption allegations that merited further investigation.
Given the immense power that the public has entrusted to both of these men, and the serious questions of abuse of power that this case raises, the people of South Carolina need to know which story is true. There are only two ways that we’re ever going to know that: if Mr. Harrell is indicted and found either guilty or not guilty, or if the report is released to the public.
At this point, we have no way of knowing whether Mr. Harrell will be indicted. He apparently believes he’s out of the woods; he announced triumphantly over the weekend that the Grand Jury was not renewed when its one-year term expired at the end of June, and that Mr. Wilson had turned the matter over to First Circuit Solicitor David Pascoe. Although Mr. Wilson has refused to comment, citing the state Supreme Court’s thinly veiled directive to Judge Manning to keep everything about this case hidden from the public, the attorney general has not even implicitly disputed the speaker’s claim.
But here’s what we do know: Now that the Grand Jury no longer is empaneled, it cannot be argued that there is a legal prohibition on releasing the SLED report. And if Mr. Harrell’s victory dance has any basis — if in fact whatever remains of the criminal investigation is merely pro forma — then there is no reason that Mr. Wilson or Mr. Pascoe or whoever has possession of the report should not release it. Immediately.
For that matter, we don’t understand what legal basis there could be for Mr. Wilson refusing to comment on the status of the case. But then, there has been a lot about this case whose legal basis we have not understood.
It’s understandable that Mr. Wilson wouldn’t want to speak in detail and that the report would remain hidden from the public if the criminal investigation is indeed continuing. But even that must end at some point.
Whenever it ends, and however it ends, the attorney general must give an accounting for the way he has handled the case, and the SLED report must be released to the public. Not just because the subject of the probe has been so adamant in demanding its release, but because the voters need to know who has been doing his job and who has been abusing his office: our attorney general, or the speaker of the House.
Packet, Gazette editor McAden retires, closing 42-year journalism career
By David Lauderdale
The Island Packet
Fitz McAden retires Friday as executive editor of The Island Packet and The Beaufort Gazette.
His 42-year newspaper career has been marked by a dogged pursuit of stories and public accountability.
"You have to dig," he said. "It's not about being negative; it's about getting to the bottom of things and not just trimming the treetops. You've got to get to the bottom of it."
McAden started as a reporter for The Miami Herald. He had been state editor at the Herald and news editor at The State in Columbia when he took the job at the Packet in February 1995. He added the Gazette duties in 2008.
"The decision to bring Fitz to the Lowcountry was the best decision of my professional career," said Sara Johnson Borton, president and publisher of the newspapers. "Not only is Fitz a great journalist, he has a passion for our business. His passion for news has had a lasting impact on hundreds of journalists who have had the privilege of working for him."
McClatchy president and chief executive officer Patrick J. Talamantes said he is thankful for McAden's effort, body of work and support over the years.
"I got to know Fitz relatively early in my time at McClatchy," Talamantes said. "What impressed me off the bat -- an impression that has not changed -- was his focus on good stories and the communities those stories helped, his willingness to roll up his sleeves and get the work done, and his genuine desire to help young journalists learn the ropes, do well, and advance in their careers."
During McAden's tenure in the Lowcountry, the newspapers added a Saturday edition, making them seven-day dailies for the first time; added an online edition updated nightly in 1997; went through a redesign as a new press and new building came online in 2007; evacuated the newsroom en masse twice during hurricane threats; published an "extra" edition on the afternoon of Sept. 11, 2001; combined the Packet and Gazette newsroom staffs; survived a major downturn in the economy; and evolved into a 24-hour news production team delivering video, audio, graphics and text to smartphones, tablets and laptops in addition to a morning newspaper in print.
His news staff has won scores of awards from the S.C. Press Association, and about a dozen Presidents Awards, McClatchy's highest recognition for journalism excellence in which the work of the local staff has been judged against as many as 30 dailies nationwide.
When the Packet was named one of "10 Newspapers That Do it Right" nationally in 2004 by Editor & Publisher magazine, it cited "the paper's watchdog role, reflected in stories such as the revelation that a local marina dredging project was dumping the muck into a nearby sound instead of further out in the ocean, and an investigation into municipal court backlogs."
McAden led deep probes into how local and state courts and regulatory agencies dealt with a case of physician misconduct; the Beaufort County EMS response to a brutal beating in Bluffton; a child killed in a middle school restroom; improperly installed roof trusses in hundreds of homes that had passed county inspection; the messy private affairs of a state representative who was seeking statewide office; complaints against a timeshare company; fees a utility charged to the poor even though they did not tap into new water lines; haphazard county real estate assessments; the bungled attempt to try suspects in the death of an 8-year-old boy caught in the crossfire of a gun battle; and the unsolved apparent murder of a couple who disappeared without a trace.
In many cases, the digging has led to walls of secrecy set up by public bodies and their attorneys, by government workers and judges.
"The public records thing is a battle that is never won," McAden said this week. "You just have to keep pushing to get the information people need to know and have a right to."
McAden said he has often felt pushback from readers and local leaders.
He has been known to push his staff hard. Even though he likes to tell stories and pull practical jokes, he set the newsroom tone with his typical 12-hour work days, pecking with two fingers at a keyboard late at night. His work day got much longer on Fridays. Staffers sometimes got emails from him that were sent as late as 4 a.m. He said the investigations, which come on top of routine daily production, could not be done without a good staff.
"We want to do the stories that make a difference and bring about change for the better," McAden said. "Not that we are the sole arbiters of that. We're an institution, too, and all institutions are imperfect. Newspapers can come across as sort of a scold, a constant scold. That's one of the problems the media has, but it's a hard thing to avoid if you do your job right."
McAden said his wife, Jill McAden, principal of Hilton Head Island Elementary School, has been very tolerant of his job. And his two sons, James and Andrew, now college graduates and on their own, learned as boys that "dropping by the office for 15 minutes" meant hours away from home.
McAden, who will turn 65 next week, is a native of Charlotte who was reared in Columbia in a family of textiles executives. He said he has not had time to make retirement plans.
"Mow the lawn," he said. "Be a better husband. Be a better father."
"Fitz has been a trusted colleague as well as a wonderful friend," said publisher Borton. "I will miss him terribly. He's made life in the Lowcountry better for all of us over the last 19 years."
A search is underway for McAden's replacement. Managing Editor Jeff Kidd will fulfill McAden's duties until a new editor is named.
Greenville News publisher Brandt announces retirement
By Ron Barnett
The Greenville News
Steve Brandt, president and publisher of The Greenville News Media Group, announced on Friday that he plans to retire on Oct. 31 after 36 years with the company.
He broke the news to employees with a light-hearted quiz about the name of a 1970 George Harrison album: "All Things Must Pass."
"This is a bittersweet moment for me," Brandt said. "I love this newspaper and my colleagues here, but I am looking forward to pursuing other interests. It is time to hand the reins to a new leader."
In addition to leading the newspaper through its transition from ownership by Multimedia Co. to becoming part of Gannett, and from the heyday of print into the digital age, Brandt has served in a variety of community leadership roles, including the development of the Peace Center for the Performing Arts, across the street from the newspaper office at the corner of Main and Broad.
Dave Neill, Carolinas regional president for Gannett and publisher of The Asheville Citizen-Times, will take on the additional responsibility of publisher of The Greenville News Media Group on Sept. 1. Brandt will continue as president through Oct. 31.
"Steve's leadership of the newspaper and dedicated service to the community over last 36 years are commendable. One can assume his numerous contributions have helped make Greenville a better place to live and work," Neill said.
"Steve has been a trusted advisor and mentor to me over the last 10 months, and I look forward to his continued guidance and support in the future."
Brandt, 62, began his career with The Greenville News-Piedmont Co. in 1978 and held a number of positions before becoming president and publisher in 1993. Following Gannett's acquisition of Multimedia in 1995, Brandt served as president and publisher of The Rochester (N.Y.) Democrat and Chronicle.
He returned to Greenville as publisher in 1999.
Brandt was a five-time winner of Gannett's President's Ring for Excellence and served as president of the Southern Newspaper Publishers Association and the South Carolina Press Association. Read more.
Officials across South Carolina increasingly keeping public in the dark
By John Monk and Clif LeBlanc
COLUMBIA, SC — South Carolina’s open meetings and records law, designed to make government transparent and keep citizens informed, increasingly is being eroded by some state and local public officials.
Whether it is the result of court decisions, acts by elected officials, or bureaucrats who make decisions such as charging the public high prices to copy public records, people acting in the name of government are taking actions that keep the public in the dark.
The problem seems to have accelerated in the past several months.
“Politicians and bureaucrats don’t want people to know what they are doing,” said John Crangle, executive director of S.C. Common Cause, a watchdog group. “They don’t want to be inconvenienced by the public, even though the public is their boss.”
Even the S.C. Supreme Court, which in the past could usually be relied upon to uphold the public’s right to know, has joined the march to more secrecy. Read more.
When does a document become a public record?
By Jay Bender, SCPA Attorney
You may have heard that the State Ethics Commission has a new media policy. Commission Chair James Burns announced at the Commission meeting last week that the Commission would be studying a new policy relating to who could speak for the agency. Without entertaining a motion or taking a vote Burns announced that until a new policy were adopted the interim policy would be that Commission Executive Director Herb Hayden would be the only one authorized to speak on behalf of the agency.
Leaving aside for the moment whether the pronouncement of an interim policy under those circumstances was consistent with the law regarding the conduct of public business, I would like to focus on the interim policy itself.
The first Executive Director of the Ethics Commission was Gary Baker who served for 23 years. In those years Baker was always available to respond to a reporter’s questions about the meaning of the ethics law and the requirements to satisfy the law. Following Baker’s retirement Hayden became Executive Director and followed Baker’s practice of being available to explain the law.
Cathy Hazelwood, Deputy Director and General Counsel for the Commission has for years been available along with Hayden to respond to questions from reporters and the public about the operation of the Commission and the requirements of the law. Hazelwood earned the reputation of being an expert on the law who could explain it in ways that the public could understand. If asked about a specific case during a time when comment is forbidden by law, Hazelwood would politely but firmly decline comment.
Many reporters found Hazelwood to be more readily available for comment than Hayden, and over time Hazelwood’s name became associated with most comments from the Commission. And, when you want a legal opinion, it is a good thing to ask the agency’s lawyer.
After Burns announced the new interim policy, Hazelwood is no longer authorized to speak for the agency. Burns has said that the decision is to forestall an impression that as prosecutor Hazelwood has made up her mind about a case. Well, since prosecutors must always make a decision about possible guilt prior to initiating a prosecution, that reasoning rings hollow.
Since the members of the Commissions are the ones who sit in judgment, comments by individual commissioners about a case might be inappropriate, but an explanation by the lawyer for the Commission about what the law requires is not inappropriate.
There is speculation that the gagging of Hazelwood is in retaliation for her sending a letter to Gov. Haley demanding reimbursement for security provided by the state when the governor was attending political fund-raising events in North Carolina. When a request was made for the letter under the Freedom of Information Act, Hayden is said to have replied that the letter was destroyed. Turns out the letter wasn’t destroyed and a copy found its way to reporters.
Was the letter from Hazelwood a public record?
The FOIA provides that any document “prepared, owned, used or in the possession of” a public body is a “public record” subject to the disclosure requirements of the law. Even if the letter had never been sent, the draft of the letter in the possession of the public body was a public record. In a similar vein, proposed minutes of public body meetings become public records upon their preparation, not upon their approval.
Is it appropriate to destroy public records?
All state agencies are required to work with the Department of Archives and History to develop a record retention policy, but it seems that most have not. I don’t know if the Ethics Commission has a records retention policy, but if it does, I suspect it does not have a provision that says drafts of letters stating the position of the agency are to be destroyed. Section 30-1-30 of the South Carolina Code of Laws makes it a misdemeanor to destroy a public record.
At my office we have a rubber stamp that is used with red ink to mark “DRAFT” on documents not in final form. If the Hazelwood letter were a draft, and not sent, it nevertheless was a public record subject to the disclosure requirements of the FOIA. If the letter were sent and the position stated in the letter subsequently modified, there should have been a second letter stating the modification of the agency’s position and not a suggestion that the initial letter be destroyed.
I have argued for some time now that we don’t need ethics reform. We need cultural reform. We need to develop a culture that does not tolerate misconduct by public officials and the silencing of those with the courage to speak on the record about misconduct. Ironically, it seems that cultural reform might now be necessary at the Ethics Commission.
Background, commentary on the autopsy ruling from the reporter involved in the case
By Joe Perry
In light of the recent S.C. Supreme Court ruling in Perry v. Bullock, I've decided to weigh in on the matter, as I'm the guy whose reporting was the catalyst for the case. I also wanted to clear up a few things, add some context and pose a few questions.
From November 2005 to November 2011, I worked for The Sumter Item. I resigned as senior staff writer to be a stay at home dad. I now work part-time for The Manning Times and do freelance work as well.
Not one single press outlet in the state bothered to contact me, which I found odd, as I was a co-plaintiff, along with my former employer, Osteen Publishing.
It's not sour grapes, I assure you. We lost, after all, and I greatly respect and admire Hubert Osteen for a multitude of reasons. At any rate, this is what happened:
Early on Sept. 28, 2010, there was a carjacking in Sumter in a neighborhood off Alice Drive, a busy thoroughfare. About two hours later, shortly after 9 a.m., two city police officers encountered Aaron Jacobs, 25, walking along Patriot Parkway, another busy road about five or six miles away.
Police said Jacobs fit the description of the carjacking suspect and stopped to question him.
Some sort of confrontation ensued. Police said Jacobs resisted a weapons pat down and one of the officers grabbed his shirt, which came off as he was fleeing the scene.
The two officers said they saw a gun tucked in the waistband of Jacobs' pants, and as he was running away, he pulled the gun and turned toward them. One of the officers opened fire, pulling the trigger nine times.
The city used fire trucks to shut down Patriot Parkway. Officials refused to release the names of the officers involved, citing an unspecified threat against them. (I later learned neither SLED nor the sheriff's office were investigating any such threat.) Although we all know SLED investigates officer-involved shootings, the Sumter County Sheriff's Office actually authored an incident report, but not as an investigation of any sort. The deputy police chief -- now Chief Russell Roark -- asked Sheriff Anthony Dennis to omit the names of the officers involved and Dennis complied. (Dennis later released a complete and unredacted supplemental report to me with the officers' names.)
Reggie Lloyd, who was director of SLED at the time, came to town and a press conference was held. Lloyd gave me his cell number and told me not to hesitate to call.
Fast forward to summer 2011. Third Circuit Solicitor Chip Finney had cleared the two officers involved in the shooting, deeming it justified. After many, many phone conversations and several e-mails with Lloyd, he agreed to release the entire SLED file on the shooting, and on June 22, 2011, I drove to headquarters and was given a fat envelope containing about 60 or 70 pages.
At the end of the file was the autopsy report, which showed Jacobs was shot twice in the back of the head and twice in the back.
If the former director of our state's top law enforcement agency -- and a former U.S. Attorney and circuit court judge -- recognized the autopsy report to be a public record, how can our highest court take an opposite stance?
If I had been a defense attorney, as our solicitor used to be, I would've had a field day with the other reports in the file, which showed:
- No conclusive gunshot residue on Jacobs' hands.
- Both officers gave their statements two days after the shooting. The statements were nearly identical.
- The second officer who said he didn't fire his gun wasn't tested for GSR. The officer who fired nine shots didn't test positively for GSR.
- A gun police said belonged to Jacobs was found 39 feet from his body and the locking mechanism for the magazine was broken.
- The bullets removed from Jacobs didn't conclusively match up with the officer's weapon.
And there was indeed some medical history in the report. Jacobs, the autopsy report said, had an enlarged heart -- easy enough to black out with a marker as I recall that was the only mention of his medical history. One line in a four or five page report. Jacobs also had marijuana in his system and a bag of it in his pocket. Is it possible he was trying to throw away his weed while fleeing and it was mistaken for a gun? Does anyone think it's reasonable for someone to pull a gun on two cops over a bag of weed?
I tracked down an eyewitness from one of the reports. He told me this: "I didn't see no gun, he ain't pulled no gun. Man, he got out of that shirt and took off running."
No gun. Not in his waistband, not in his hands. Which is troubling enough for a reporter to hear. Without the autopsy report, however, the picture was incomplete.
Here's my takeaway from all of this: In December 2010, a Richland County teenager was arrested and charged with the carjacking. So police stopped the wrong person. Were the police within their rights to stop Jacobs? Sure they were. And if you pull a gun on cops -- really anyone these days -- all bets are off. But they stopped the wrong person, period, and it's unknown if Jacobs actually pulled a gun. Why was the Sumter Police Department adamant about refusing to name the officers involved? Does it seem likely that a person fleeing police -- especially someone with a drug charge in his past, as Jacobs' record showed, and therefore familiar with law enforcement -- would turn to aim a gun at police as he's running away? Is that even physically possible? Did Jacobs' enlarged heart factor into his death? Of course not. He was shot four times.
His medical history was a moot point.
Also worth mentioning is the fact that The Sumter Item sued Sumter County Coroner Bill Gamble in 1989 to get an autopsy report and a circuit court judge ordered Gamble to release the report.
So we lost, and that doesn't bode well for the press or the public. Nonetheless, I salute Hubert Osteen for standing on principle and fighting the good fight. I salute Reggie Lloyd for following through with a promise he made to me, and I salute the lone dissenter, Justice Pleicones, whose display of common sense is unfortunately the exception and not the rule.
Bother your legislators. We need to change the law.
Editorial: A disturbing trend
We wrote recently of the disturbing trend in the White House of spinning every issue through press spokesmen rather than engaging in open questioning about issues of interest to Americans. A lack of transparency isn’t limited to the federal government, as the S.C. Supreme Court has recently issued two troubling rulings which limit public access in the Palmetto State.
One ruling involves autopsy reports; the high court ruled that they can be deemed medical records and thus can be kept secret. The case involved a Sumter incident in which police killed a man; they claimed he had fired first and they had merely defended themselves. But the autopsy report, which was obtained by The Item, Sumter’s newspaper, through a separate source, said the deceased man had no gunpowder residue on his hands and stated he’d been shot in the back. It begs the question: if authorities were confident proper procedures had been followed, why did they insist on not letting the autopsy results out?
Equally disturbing is a ruling by the Supreme Court that public bodies can change their agendas at the last minutes without notifying anyone. But the high court went one step further than that, saying that agendas aren’t necessary for regularly scheduled meetings. That’s akin to telling the public that citizens have no right to know what’s going to be discussed by elective and appointive bodies.
In many instances, these disagreements are seen as press battles, but of course they affect everyone. Openness in government is important, and these latest rulings by Supreme Court justices show they have little regard for letting us all know what’s going on.
S.C. Supreme Court ignored FOIA in autopsy ruling
Originally published 7/21/14
By Martin Cahn
Let’s make something perfectly clear: The S.C. Freedom of Information Act (FOIA) is not dead, but the S.C. Supreme Court is sure acting like they’re trying to kill it.
OK, perhaps I’m being a bit too harsh, but last week’s 4-1 ruling concluding that autopsy reports are medical records exempt from the FOIA sure feels like another nail in the open government coffin.
On June 30, I wrote that the state Supreme Court’s ruling on meeting agendas was wrong in that it leaves open the possibility of public bodies never publishing an agenda ever again. Last week, I wrote that the Court’s ruling in the House Speaker Bobby Harrell could -- but hopefully won’t -- lead to having all grand jury matters secret, even if those matters don’t take place in the grand jury room.
And here we are again.
I think you can tell -- from Robert Ariail’s cartoon on the top of this page to S.C. Press Association (SCPA) Executive Director Bill Rogers’ op-ed on Friday along with that day’s editorial about President Barack Obama’s not-so-transparent administration -- we are very serious about these matters.
And we are serious about them not for our own sake as journalists, but for your sake. You have the right to know what your city or county council or school board is planning to discuss and vote on. You have the right to be able to walk into a courtroom and know whether or not the state’s top prosecutor is going to be in charge of an inquiry into possible criminal activity by a sitting legislator. For that matter, you have the right to have someone other than that legislator’s peers determine whether or not he or she should be punished for alleged crimes.
And you certainly have the right to know exactly what a coroner has concluded about someone’s death -- and why they made that conclusion -- when there are questions as to exactly what happened. Especially when that death was caused by a sworn law enforcement officer.
That was the case at hand before the S.C. Supreme Court on July 15. Our journalistic neighbors to the south, The Sumter Item, had been covering a story about a police-related shooting in September 2010 that killed a man named Aaron Lee Jacobs. As Rogers pointed out in his op-ed Friday, the Item reported that the officer shot Jacobs in the back, despite the Sumter Police Department’s claim that the officer fired in self-defense.
Officers thought Jacobs was a suspected carjacker. After Jacobs’ death, however, officers arrested a teenage boy for the carjacking. They’d confronted and shot the wrong man.
The Sumter Police Department did not just refuse to release an incident report in the case (claiming that because the S.C. Law Enforcement Division [SLED] was investigating), but claimed there wasn’t an incident report to produce.
With no help from SLED, the Item turned to Sumter Coroner Harvin Bullock for a look at Jacobs’ autopsy report. Bullock and Sumter County Attorney Johnathan Bryan claimed autopsy reports are medical records -- a claim supported by others, including S.C. Attorney General Alan Wilson, but rejected by the SCPA and open government advocates.
As it turns out, the Item was able to obtain the report from elsewhere -- a report that concluded the officer shot Jacobs in the back.
Autopsy reports, the government and state Supreme Court contend, are medical records because they contain medical information. Bullock even cited the Health Insurance Portability and Accountability Act (HIPAA) as requiring him to block access to the report. However, a review of the HIPAA specifically points out that, according to the Association of Health Care Journalists, autopsy records “are not protected health information to the extent they are maintained by state agencies. In addition, if a state FOIA law designates death records and/or autopsy reports as public information that must be disclosed, covered entities may disclose that protected health information without an authorization.”
So, let’s check the S.C. FOIA. Section 30-4-40 covers matters exempt from disclosure. Under that section, paragraph 18 states “Photographs, videos, and other visual images, and audio recordings of and related to the performance of an autopsy, except that the photographs, videos, images, or recordings may be viewed and used by” specific people listed elsewhere in the state code.
As the SCPA points out in its “plain English” explanation of this paragraph, the FOIA does not exempt the reports themselves, only those photos, videos, other images and recordings associated with them.
So, bottom line, the S.C. Supreme Court completely ignored the S.C. FOIA.
The majority in its opinion said -- as it pretty much did on the agenda ruling several weeks ago -- that those who don’t like their conclusion should get the legislature to change the law.
That should definitely be done in response to the agenda ruling, as I pointed out several weeks ago. In this case, though, the FOIA is already clear enough: by simple omission in its exemption section, autopsy reports in and of themselves are not exempt.
Privacy advocates may claim a newspaper shouldn’t be poking around an autopsy. But non-pertinent information can be blacked out. We need to shed this particular layer of privacy in order to shed light where it’s needed.
(Martin L. Cahn is the editor of the Chronicle-Independent, Camden, S.C. Follow him on Facebook at www.facebook.com/martin.l.cahn. Email responses to email@example.com.)
Ruling could bar farmer from henhouse
Originally published 7/14/14
By Martin Cahn
Well, at least they got one thing right.
Wednesday, justices of the S.C. Supreme Court unanimously ruled that S.C. Attorney General Alan Wilson -- wait, let me qualify this as it really should be -- that a state grand jury can continue looking into allegations of public corruption against S.C. House Speaker Bobby Harrell.
Harrell may be “disappointed with the court’s ruling,” as he said in a press release, and Wilson might be justified in celebrating a little bit, but the justices’ ruling on the state grand jury is more a win for that system than it is of Wilson.
In fact, justices left the door wide open to replace Wilson as the person leading the grand jury’s investigation.
That, in my opinion is wrong.
Perhaps I’m being a little dramatic? What the justices actually said was that the circuit court, where this case began, should be the venue in which a decision on Wilson’s involvement should be made.
On the other hand, it’s in the circuit court where things went sideways in this case. It was in such a courtroom where Judge L. Casey Manning -- going beyond the arguments either side was making -- ruled that only the S.C. House Ethics Committee should investigate the allegations against Harrell.
I’ve seen Manning in action before, right here in Kershaw County, presiding over primarily criminal cases. As with any judge, there are decisions he’s made I agreed with and others I did not. (I must also tell you that Manning has a wicked sense of humor, of which I’ve been on the receiving end at least twice that I can remember. I know it was all in good fun, of course. At least I think so.)
However, I did not agree with his ruling in this case.
I fully admit I’m not a legal expert, but it seems clear to me -- and if it does for me, it should for almost any lay person -- that Wilson has the right to investigate any criminal allegation levied against any citizen of this state, including our legislators. Claiming otherwise puts us clearly in what cartoonist Robert Ariail once depicted as allowing the fox to go back to “his” henhouse. I’d go even further: the foxes have gotten rid of the hens and turned the legislature into a fox den.
At least, that’s what it seemed Manning was allowing Harrell and those legislators who think as he does to do. Luckily, our state’s highest court decided that shouldn’t be the case.
Unfortunately, by ruling that Manning or (hopefully) some other circuit court judge should still decide if Wilson ought to be in charge of a grand jury case against a legislator brings us back to the henhouse analogy: the farmer could be barred from even checking the henhouse.
State law is pretty clear about the Attorney General’s role with grand juries: “The Attorney General or his designee shall attend sessions of a state grand jury and shall serve as its legal advisor. The Attorney General or his designee shall examine witnesses, present evidence, and draft indictments and reports upon the direction of a state grand jury.”
However, an attorney general can be disqualified if a conflict of interest is determined. I don’t see where Wilson has a conflict of interest concerning Harrell, though.
Another issue came up in the justice’s ruling that’s troubled a few people. A footnote on page 12 of the ruling reads as follows:
“Due to the secrecy afforded state grand jury proceedings, future arguments regarding jurisdiction, or any other ancillary matter, should be held in camera,” which means in secret.
I’ve checked the state code and -- as much as I am for as much openness as possible, including in our courts -- the justices may have gotten this one right ... but perhaps not completely.
“State grand juries are secret,” the state code reads. The only people allowed in a state grand jury proceeding are the jurors themselves, the attorney general or designee, court reporter, translator and testifying witnesses (one at a time). Unless otherwise directed by the court, grand jury testimony can only be revealed to the attorney general or designee; government personnel necessary to assist the attorney general in enforcing the state’s criminal laws; and, of course, attorneys representing anyone who provides testimony to a grand jury.
In all those cases, each must keep those proceedings secret.
However, I see nothing about keeping secret aspects of a case that take place away from the ears and eyes of grand jurors.
In other words, if a hearing to determine Wilson’s continued leadership of the investigation against Harrell is held in a circuit court judge’s courtroom and not in the presence of the grand jury, I don’t see anything in state law that would keep the public from attending.
In fact, I would insist that such matters be open. As long as nothing that would go before the grand jury is revealed in open court (there’s a reason for sidebars, folks), I believe the public has a right to know exactly who is going to be leading investigations against a sitting legislator and, if not, why. Of course, perhaps it’s just not possible to do that without exposing what a grand jury should hear in secret.
Harrell says Wilson is on a political witch hunt, and that he hasn’t shown that he’s violated any laws. Somehow, though, I don’t think Wilson would have fought this hard for nothing.
At least we can be glad that it will be grand jurors -- regular John and Jane Citizens -- who will be determining if Bobby Harrell broke the law and not his fellow foxes … er, legislators.
(Martin L. Cahn is the editor of the Chronicle-Independent, Camden, S.C. Follow him on Facebook at www.facebook.com/martin.l.cahn. Email responses to firstname.lastname@example.org.)
Court ruling shows FOIA needs revision
Originally published 6/30/14
By Martin Cahn
Two years ago, I applauded a S.C. Court of Appeals ruling that Saluda County Council violated the S.C. Freedom of Information Act (FOIA) in 2008 by adding to an already published agenda for one of its regular meetings. I did so because I, as I believe my fellow journalists do, that a) publishing an agenda provides proper notice to citizens of what a public body intends to consider at its regular meetings, and b) that adding items to an established agenda during a meeting is unfair to those citizens not in attendance who didn’t know about something ahead of time they might have wanted to hear or speak up about.
Recently, the S.C. Supreme Court reversed the lower court’s ruling because the FOIA includes the following language concerning meeting agendas: “Agenda, if any (my emphasis), for regularly scheduled meetings must be posted on a bulletin board at the office or meeting place of the public body at least twenty-four hours prior to such meetings.”
Justices ruled not only that there is no language keeping public bodies from amending agendas at any time, including during meetings, but that the “if any” phrase means public bodies need never again publish any sort of agenda prior to a regular meeting (they would still have to for emergency or special called meetings).
While the Court’s ruling is technically correct, I would argue that this negates the intent the crafters of the S.C. FOIA had in ensuring open government here in our state. There are two steps to take, in my opinion: 1) urge public bodies to continue publishing agendas -- and not amending them during meetings -- despite this ruling; and 2) work to change the language of the FOIA so as to require all public bodies to publish agendas no less than 24 hours before all meetings. Personally, in order to facilitate publication by the media and, therefore, better notice to the public, I’d like to see this increased to 48 hours.
The good news for us here in Kershaw County is that our local governments are pretty good about agendas. In addition to physically posting on meeting room doors, etc.:
• Camden City Council not only publishes its agendas well ahead of time but provides the media with its entire agenda packet so that we can, if we choose, give you, the public, even more information about what’s coming up.
• Kershaw County Council provides its agendas via email to the media. Although it does not provide an entire packet as the city does, County Administrator Vic Carpenter is always willing to provide additional information whenever asked.
• The Kershaw County Board of School Trustees places its agenda and supporting documentation online for everyone to see.
Early indications are, specifically from county council, that our local officials plan to continue publishing agendas and amend them only when absolutely necessary.
If I have any complaint about some of our local agendas is that they sometimes do not clearly spell out the fact that a vote will be taken on certain items. However, in checking with experts at the S.C. Press Association (SCPA), the word “vote” doesn’t have to appear on any agenda. As long as the public knows that an item is even coming up for discussion, that’s considered sufficient. So be it.
Just because our local public bodies are pretty good about agendas now doesn’t mean future iterations of councils and boards won’t take advantage of the Court’s ruling. And, just to broaden things a bit, there are many public bodies throughout the state that are very, very bad on just about every aspect of their meetings.
However, strengthening the S.C. FOIA would be easy to do. In that one quoted sentence from the FOIA, simply remove the words “if any” and replace “regularly scheduled” with “all.” SCPA officials tell me they are already looking into fighting for some type of revision during the next legislative session.
Having our legislators and the governor agree to this would speak very highly of their collective support of open government. The question is, do they have the will?
I’m afraid that -- and I’m speaking overall because our local delegation is pretty fantastic in my book -- the General Assembly collectively is not real keen on openness. Just look at the whole Bobby Harrell mess. If a number of editorials I’ve read from around the state are any indication, my peers aren’t too confident that legislators won’t want to help out their fellow elected officials on the local level who’d rather work in secret. All they have to do is ... nothing.
I happen to know from experience that S.C.’s FOIA is one of the best in the nation. There have been times when I’ve sought what I knew to be public information here in another state only to have officials tell me they are not required to give out that particular information -- even to their own residents.
All kinds of things are required to be out in the open in South Carolina that are not in other states. Unfortunately, the S.C. Supreme Court’s ruling weakens this wonderful law and sets us up for further open government failure.
Again, the S.C. FOIA is good law. We just all need to fight to make it even better for the benefit of all our citizens.
(Martin L. Cahn is the editor of the Chronicle-Independent, Camden, S.C. Follow him on Facebook at www.facebook.com/martin.l.cahn. Email responses to email@example.com.)
Supreme Court autopsy ruling trumps public accountability
Justices: Autopsy reports not public
By Bill Rogers
S.C. Press Association
For the second time in a month, the S.C. Supreme Court has ruled against openness and punted important issues back to the Legislature for change.
On Tuesday, the court ruled that autopsy records are exempt from release under the FOIA because they are medical records.
Why does this matter to the public?
It matters because the next time police shoot an innocent man, don’t expect the public to have access to the autopsy report giving the details of the death.
That is what this case was about… the shooting of an innocent suspect. Supposedly in self-defense. Problem is, the autopsy showed the suspect in Sumter County was shot in the back.
Can you see now why autopsy records should be public?
This is a terrible ruling that will allow coroners to withhold information the public has a need to know.
This case was really about public oversight, and the public lost.
The public also lost a few weeks ago when the high court ruled that not only could public bodies change meeting agendas at the last minute without notifying the public, but that agendas for public meetings were not even required.
I’m not a lawyer, but I’ve got enough sense to read this part of the FOIA: “All public bodies shall notify persons or organizations, local news media, or such other news media as may request notification of the times, dates, places and agenda of all public meetings…”
Pretty clear to a layman. But the court chose to focus on the wording for notification of regularly scheduled meetings at the beginning of the calendar year, where the wording said that notice must include the agenda, “if any.” If you announce a meeting to be held in October at the start of the calendar year, I can’t imagine having a meaningful agenda prepared. The law made it clear later that agendas must be available 24 hours in advance.
Why is this a problem for the public?
Because you won’t know what your councils or school boards will be discussing, so you won't be able to participate in the discussion.
These rulings send us back to secret government.
Sure, the Legislature can fix this. But will they? For the last two years, efforts at FOIA reform have failed.
It will fail again if the public and the media don’t demand FOIA and ethics reform.
Read the full text of the autopsy ruling here.
More commentary on this ruling:
Jay Bender, SCPA Attorney: "I am disappointed in the decision, and am concerned that the two most recent decisions of the Supreme Court seem to reverse a 30-year trend of construing the Freedom of Information Act to enhance the public’s ability to learn of public business whether by getting access to records or attending meetings where the subject of discussion is known in advance. I anticipate an effort in the General Assembly to clarify the law in favor of access, but I know there will be organizations supported by public funds lobbying against access on grounds that it is too inconvenient to involve the public in the public’s business. The most troubling aspect of today’s ruling is that the autopsy report provided by SLED was inconsistent with the statement made by police regarding the circumstances of the shooting death of a citizen. With this decision, I fear that the only version of events that will reach the public with be the one that exonerates government personnel from any claims of misconduct."
Hubert Osteen, Editor in Chief, The Sumter Item: "The South Carolina Supreme Court, in its infinitesimal wisdom, declared war Wednesday on the First Amendment and openness in government. The ruling was on an appeal by The Item and Osteen Publishing Co. of a circuit court’s decision supporting Sumter County Coroner Harvin Bullock’s refusal to release an autopsy report on the fatal shooting by Sumter police officers of Aaron Leon Jacobs in 2012. Bullock’s refusal was based on his contention that an autopsy was a medical record not subject to disclosure under the state Freedom of Information Act (FOIA). The Supremes, with the exception of one, agreed, using all sorts of legalese to justify its decision. The lone dissenter was Justice Costa Pleicones. He showed far more understanding of what the S.C. Code means in its reference to the duties of coroners and medical examiners. We quote from his dissent: “(an autopsy report) must be furnished upon request to any party to whom the cause of death is a material issue.” And he goes on to say, “ In my view, this statute demonstrates that autopsy records are not required by law to be closed to the public under FOIA, and also establishes the legal standard for release of autopsy reports to the public….In my opinion, the majority errs when it affirms the circuit court’s holding that an autopsy report is a medical record and therefore absolutely exempt from disclosure under FOIA.”
The Supreme Court blundered in its irrational decision, and the losers in this case are the majority of South Carolinians who oppose secrecy in government and believe firmly in what the First Amendment to the U.S. Constitution is all about.
This is not the end of this issue but the beginning of another effort by newspapers and other media, with the support of like-minded citizens to strengthen FOIA so any alleged loopholes can’t be used to thwart the spirit of the law, which is the result of the high court’s ill-considered ruling."
Ruling limits breadth of state's Freedom of Information Act
By Bristow Marchant
The Sumter Item
With a ruling posted to its website Wednesday morning, the S.C. Supreme Court limited the scope of the state's Freedom of Information Act, a decision that advocates of open government fear will make it more difficult for the public to check the actions of government agencies and elected officials.
In a case initiated by The Sumter Item in response to a police-involved shooting, four of the court's five justices ruled that autopsy reports compiled by a county coroner's office as part of a law-enforcement investigation are private medical records and are exempt from public disclosure under FOIA.
Justice Kaye Hearn ruled the state's highest court is "compelled here by the plain meaning of the statutory term to conclude that an autopsy report is exempt from the FOIA's disclosure requirement." Hearn was joined in her opinion by Chief Justice Jean Toal and associate justices Donald Beatty and John Kittredge.
This week's ruling concludes nearly four years of wrangling over the autopsy of Aaron Jacobs, a 25-year-old man shot and killed in a confrontation with Sumter police officers on Sept. 28, 2010. Two officers approached Jacobs, who was walking on Patriot Parkway, while searching for a suspect in a carjacking, a meeting that ended in Jacobs' death. A different man was later arrested for the carjacking.
Sumter Item reporter Joe Perry requested a copy of Jacobs' autopsy to determine the circumstances of Jacobs' death. Sumter County Coroner Harvin Bullock refused, saying the report was a private medical record. Osteen Publishing Co., publisher of The Sumter Item, brought suit to force the release of the information under FOIA, the state law requiring government records and documents be made available to the public.
Jay Bender, an attorney for the S.C. Press Association, argued The Sumter Item's case at a Feb. 5 hearing in front of the court. He thinks the court majority created an overly broad definition of "medical record" in its ruling.
"If this is a medical record, people are dying to get into that practice," Bender said.
Instead, an autopsy in circumstances such as those surrounding Jacobs' death is a tool in a criminal investigation, Bender argues, and needs to be reviewable.
"In a situation like this, where the police are involved in a shooting, a government official will have an autopsy report that is inconsistent with the police report, and it will not be made public," he said. "The version from police will be the only one available."
The court's decision partly revolved around the fact FOIA exempts "medical records" but doesn't spell out what documents are covered under the term, leaving it up to the judges to determine what counts as a medical record and what doesn't. At one point, the justices' ruling even cites the Merriam-Webster dictionary definition of the phrase in justifying its interpretation.
"The medical information gained from the autopsy and indicated in the report is not confined to how the decedent died," Hearn writes in her opinion. "Instead, an autopsy, which is performed by a medical doctor, is a thorough and invasive inquiry into the body of the decedent which reveals extensive medical information."
In a statement released after the ruling, Bullock said the court's decision gives much-needed guidance to how officials handle autopsy documents.
"Even though the autopsy reports have always been available to the next of kin through the Sumter County coroner's office, this court decision gives clear direction to all coroners, the media and the families on this sensitive subject," Bullock said. "Throughout this process, my only goal has been to protect the interest of the families and of the people of Sumter County in accordance with South Carolina law."
Justice Costa Pleicones dissented from his fellow justices, arguing that state law regulating coroners and medical examiners sets rules on the handling of autopsy reports.
"(This portion of state law) provides that an autopsy report 'must be furnished upon request to any party to whom the cause of death is a material issue,'" Pleicones wrote in a dissenting opinion. "In my view, this statute demonstrates that autopsy records are not required by law to be closed to the public under FOIA, and also establishes the legal standard for release of autopsy reports to the public."
Bender said the press association will push the state Legislature to tighten definitions in the FOIA legislation when it returns in January, clarifying that the relevant information in an autopsy is not covered by medical privacy exemptions. Such a change would benefit journalists investigating future incidents like that in which Jacobs was killed.
"The Supreme Court blundered in its irrational decision, and the losers in this case are the majority of South Carolinians who oppose secrecy in government and believe firmly in what the First Amendment to the U.S. Constitution is all about," said Hubert D. Osteen Jr., chairman of Osteen Publishing. "This is not the end of this issue but the beginning of another effort by newspapers and other media, with the support of like-minded citizens, to strengthen FOIA so any alleged loopholes can't be used to thwart the spirit of the law."
Autopsy ruling hinders your right to know
By Braden Bunch
The Sumter Item
The South Carolina Supreme Court erred in its decision regarding FOIA laws and the oversight the laws provide the public over their elected officials. This ruling is a setback for the people of South Carolina who both need and deserve openness and accountability from their government.
The determination by the courts that an autopsy is a medical record, and therefore should be kept private, and not an investigative tool flies in the face of common sense. Never has an autopsy been conducted to improve the health and well being of a patient. These forensic investigations, often conducted in criminal cases, are solely to determine the cause of death of someone when that cause may come into question.
The ability for the government to provide this information, especially when an investigation has been ordered by a public official in a criminal inquiry, should not be selective. This should be a requirement when requested by the citizenry. The public always has a right to know about the activities of the people governing them, especially in situations where the information could expose improper behavior, let alone cause embarrassment for those involved in the situation.
This specific incident before the court involved a case where a law enforcement officer shot an unarmed, misidentified man in his back. It was only after we were able to obtain the autopsy reports in this case through means other than the elected official that should have provided the document in the first place that we were able to learn the official explanation by law enforcement was inaccurate. This latest ruling by the state's highest court now jeopardizes the ability of the public to expose discrepancies between fact and public relations and will only fuel cover-up conspiracies when questionable activities tragically resulting in death occur in the future.
As part of our profession, journalists have made an unwritten pact with the community they serve that we will work vigilantly to protect the public's interest. It is becoming clear that the direction the courts and some elected officials have taken recently concerning the misinterpretation of the laws governing the public's right to know about government activities is a disconcerting one.
In its decision, the Supreme Court ultimately referenced the vagueness of FOIA laws governing our state, saying the power into improve these regulations and provide openness to the people of South Carolina lies in the hands of the Legislature. If anything, Wednesday's decision is definitive proof that Freedom of Information Act laws in South Carolina need to be revisited and reformed by our General Assembly in the earliest time possible. Not doing so would be nothing less than a dereliction of duty.
Braden Bunch is the senior news editor at The Sumter Item. Reach him at (803) 774-1201 or at firstname.lastname@example.org.
South Carolina's State Ethics Commission restricts media policy, asks for review
By Jeremy Borden
The Post and Courier
COLUMBIA - As the S.C. State Ethics Commission formulates a new policy aimed at how it should deal with the media, the commission's chairman on Wednesday temporarily restricted the panel's communications with reporters.
A prominent media attorney called the move unlawful.
Commission Chairman James Burns said that until an official policy is adopted - a proposal is expected to be considered in September - only Executive Director Herb Hayden may speak with the media. The commission, appointed by Gov. Nikki Haley, oversees campaign finances and can levy penalties for a range of ethics matters for the governor and other state and local officials.
Generally, deputy counsel Cathy Hazelwood has answered media questions, and has often been forthright with the media on legal issues regarding the state Ethics Act.
Media attorney Jay Bender said Burns' move to change the policy without a motion, discussion or vote was against the state's open records laws.
"That's a change in policy," Bender said. "Without a motion and a vote, that would be illegal."
He added: "If we had more people in government like Cathy Hazelwood, we'd have a better government."
Bill Rogers, the executive director of the South Carolina Press Association, said other state agencies have used the implementation of a media policy to muzzle staffers and slow the release of information. Other media policies appoint "a central person who spins and controls the process," Rogers said.
Burns and Hayden said in an interview after the meeting that the new policy was not aimed at Hazelwood. Burns said that he wants the new commission members and staff to have a media policy in place to ensure the body is fair to all involved. "We don't want to give the impression that Cathy as the prosecutor is predisposed on any particular action on any particular case," Hayden said. "You don't want the prosecutor making a statement what they're going to do one way or another."
Hazelwood declined to comment.
Burns said nothing specific he had seen in media reports prompted the review. Burns also said that he consulted with Hayden before announcing the temporary change in media policy that all requests for comment be directed to Hayden. Hayden generally sets policy for the organization and helped do so in this case, Burns said.
"That's what Jay Bender is not focusing on," Burns said.
He stressed that the implementation of a media policy does not mean the agency plans to restrict access to the agency. "I'm a very strong advocate for being open, being transparent," Burns said.
Burns has asked Hayden to report on how other state agencies handle media requests, a policy that is expected to be discussed at the commission's September meeting.
Reach Jeremy Borden at 708-5837.
Judge orders AG's office to release records to Newberry journalist
A circuit court judge recently ordered Attorney General Alan Wilson to release documents related to the estate of musician James Brown.
Journalist Sue Summer, of Newberry, filed suit in 2012 after Wilson refused to release documents related to Brown’s controversial estate, which has been tied up in convoluted court cases since his death.
Judge Eugene C. Griffith, Jr. ruled on July 8, that the Attorney General and his office are public bodies. He said the AG's records are public and must be released to Summer under the FOIA.
"[Wilson's] claim that FOIA requests must be delayed or denied if there is a pending discovery motion in an unrelated case is inconsistent with both the letter and spirit of the FOIA," Judge Griffith wrote in his order.
The judge's order states that Wilson has 15 days to produce all documents related to Summer's FOIA request.
SCPA Attorney Jay Bender said, "This order establishes a citizen’s independent right of access to public records even in those instances where the requested public records might have a connection to a separate civil action between other parties. Another aspect that is important is that the court has ruled that a citizen may bring an FOI suit where the citizen resides and it isn’t necessary to file suit in Richland County against a state agency."
Summer called Judge Griffith's order "a strong affirmation of the FOIA" and said she is looking forward to seeing the documents.
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