Sunday, January 01, 2006

Hunley case may not be a case after all

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The State
November 03, 2005

Freedom of Information Act arguments get chilly reception in S.C. Supreme Court
A lawyer for the Friends of the Hunley conceded Wednesday to the S.C. Supreme Court that the group preserving the Confederate submarine must open its records to the public.

The state-created foundation is overseeing the preservation of the Hunley, the first sub to sink an enemy warship.

For four years, the foundation has battled claims that it is subject to the state Freedom of Information Act because it handles millions in taxpayer money.

If it is, it must give information to any citizen. Over the years, the foundation has given information to reporters, while denying it to citizens it considers to be harassing it.

“It is my belief that Friends currently is a public body,” Hunley lawyer Biff Sowell said in response to a question by Associate Justice Costa Pleicones. Despite that statement, the five-member Supreme Court may avoid ruling on whether the foundation is a public body subject to the Freedom of Information Act.

During the 30-minute hearing, Chief Justice Jean Toal repeatedly told attorney Jim Carpenter, who sued the foundation, he didn’t have a case that should be decided by the court.

The case had been on appeal to a lower court when the Supreme Court decided to hear it. The court did not explain its reasons for taking the case.

It wasn’t clear whether Toal had made up her mind that Carpenter had no case or whether she was trying to elicit his reaction. Carpenter represents Ed Sloan, a retired Greenville businessman who has brought dozens of suits against local and state agencies, questioning their financial stewardship and openness to the public.

Toal told Carpenter his open records case was moot — a dead issue — because the foundation gave him the documents he sought after he sued.

“That reason (to sue) has evaporated now that they have given you all the documents,” Toal said, quoting Sloan, who said that, once he received the papers, his interest was only “academic.”

Carpenter told Toal a decision was necessary because the foundation had denied other Freedom of Information requests and the case is “of public importance.”

Toal countered, “What is the public importance in light of the fact that the Freedom of Information Act has been complied with?”

Carpenter told Toal if the court didn’t rule, it would be allowing public agencies to stonewall citizens seeking information.“They didn’t give us the documents until after we sued them."

Should the court allow an entity to say, ‘No, we are not going to comply with the Freedom of Information Act until you sue us?’’’Carpenter added, “It’s not in keeping with the public policy of this state” to allow agencies to flout the law until they are sued.

The foundation’s refusal to honor a Freedom of Information request “cries out for a ruling by this court,” he said.Responding to another Toal question, Carpenter said “many, many tens of thousands of dollars” in attorney’s fees are at stake. Under the law, if a plaintiff wins a Freedom of Information lawsuit, he or she is entitled to attorney’s fees from the agency that violates the law.

Friends lawyer Sowell downplayed the money involved. Businessman Sloan might have about two weeks’ worth of fees at stake, he said. That would represent the time between when Sloan first filed suit, in 2001, and two weeks later, when the foundation decided to give him the documents.

“But we mooted it (the claim) when we gave him all the documents,” Sowell said.Carpenter also faced questions from Toal on a second issue before the court: Is the foundation an extension of an existing state agency, the Hunley Commission?The justices’ questions indicated that claim would be difficult to prove.

The Friends of the Hunley was created about 10 years ago by the Hunley Commission, chaired by Sen. Glenn McConnell, R-Charleston. An issue is the involvement of McConnell, head of the state Senate and one of the state’s most powerful politicians, in the commission and the foundation.

After the hearing Sloan said, “I think McConnell will be very happy.”


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