Government Transparency vs. Individual Privacy

IN SOUTH CAROLINA, THE TROUBLE WITH THE PUBLIC SECTOR
IS THAT IT’S BECOMING PRIVATE . . . AND VICE VERSA

It’s common shorthand to refer to the governmental and non-governmental workforces as the “public” and “private” sector. These terms make sense, too. Yet in recent weeks South Carolina state government seems bent on reversing their meanings: public actions are afforded more and more secrecy, even as private citizens are forced to disclose their private, law-abiding activities to governmental authorities.

Several recent court decisions highlight the lack of transparency in South Carolina government. In a July 9 State Supreme Court ruling that allowed the state grand jury to continue investigating allegations against the House Speaker, the justices included a footnote in the ruling. That footnoted stated that in the future any ancillary arguments concerning a grand jury investigation should be held privately, away from public view. While state grand jury investigations are secret by law, the circuit court judge in this case allowed motions on ancillary matters such as whether the Attorney General should be disqualified, or whether the grand jury has jurisdiction in this particular case, to be heard publicly. Ancillary hearings don’t address the substance of the case – the part that’s secret by law – and so it made sense to open them to the public. (The public, clearly, thought so too – attendance was high and press coverage extensive.)

If the Supreme Court’s suggested practice had been in place several months before, South Carolinians would have had no idea that the House Speaker was attempting to have the Attorney General – the citizens’ advocate – removed as the prosecutor in his investigation.

Weeks earlier, the state Supreme Court ruled that public bodies (such as town, city, and county councils) no longer need to publish agendas for regularly scheduled meetings. These bodies make decisions that can have significant effects on citizens’ lives. Without an agenda, South Carolinians won’t know if issues that directly affect them will be discussed at an upcoming meeting. If citizens don’t know an important issue is going to be discussed, they’ll likely not attend the meeting, which will in effect be held in secret. And that seems to be the point.

Finally, on July 16th,the Court issued yet another ruling inhibiting transparency, while simultaneously a state agency announced its own new anti-transparency policy. First, the Court ruled autopsy reports are not public records and do not fall under the state’s Freedom of Information Act (FOIA) law. The case had to do with the refusal of a South Carolina coroner to release the autopsy of a man shot to death by police.

Later the same day the State Ethics Commission announced a new permanent media policy. The executive director of the commission would be the only individual permitted to speak with the media on behalf of the Commission. This change, which was enacted without a vote, and was described as a violation of open record laws by press association attorney Jay Bender. The delegation of all public comment to executive director Herb Hayden is particularly troubling in light of the fact that he is currently being sued for violating the state Freedom of Information law by denying the existence of a public record, a lawsuit prompted by a story on The Nerve. Incidentally, a 2012 national study by the Center for Public Integrity gave South Carolina an “F” for public access to information.

These developments fall into a long tradition of secrecy in South Carolina government: a tradition that includes state lawmakers’ power to, in effect, exempt themselves from the Freedom of Information law, as well as exemptions for economic incentive agreements (sweetheart deals between government and big business) that have historically provided little or no benefit to South Carolina’s statewide economy.

But although government officials are permitted increasing secrecy in their dealings, private citizens aren’t.

While NSA wiretapping and monitoring of internet activity gets plenty of news coverage (as it should), state fusion centers receive far less press attention. Fusion centers are entities under the Department of Homeland Security umbrella designed to facilitate information-sharing between the federal government and state and local law enforcement. This sharing of data is intended to, among other things, identify and prevent potential terrorist activities. Recent independent studies have found that these centers often “collect and share intelligence information about the everyday activities of law-abiding Americans, even in the absence of reasonable suspicion.” While fusion centers are no doubt successful at invading citizens’ privacy, there is little evidence that South Carolina’s fusion centers have foiled any significant terrorist plots. Even so, the state budget continues to fund fusion centers.

But the invasion of citizen privacy by law enforcement authorities isn’t limited to fusion centers. Despite clear constitutional concerns, the legislature failed last session to pass a bill that would have prohibited the warrantless search of cell phones. The failure to explicitly outlaw these searches left them implicitly legal. Fortunately, a recent U.S. Supreme Court decision did the legislature’s work by declaring warrantless searches of cell phones unconstitutional.

Even when there’s no sin of commission, however, state authorities may well be guilty of sins of omission. In stark contrast to the state’s strictly private economic development deal-making, all private business dealings that occur in South Carolina are known to the State Department of Revenue (DOR) through tax records. While that may seem to some a good and proper function of state authority, the methods by which the state safeguards this information is hardly innocuous. Just two years ago, we learned of a massive hacking incident at DOR that resulted in the theft of the personal financial information of over 3 million South Carolinians, who were consequently exposed to the threat of identity theft. This is hardly the quality of service citizens should expect from an agency to which they are ordered to hand over personal information and financial records.

South Carolina’s record on government transparency vs. personal privacy is slowly beginning to look like that of an autocracy, not a representative democracy. Until its policies are changed South Carolina government is sending a clear message to South Carolinians: privacy for government, exposure for individuals.

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