The SC Court of Appeals ruled on Wednesday that a citizen cannot sue the government for not keeping documents to which the public has a right of access.
The case came from Newberry County, where attorney Desa Ballard represented a former part-time chief magistrate. To build his case, Ballard requested copies of about five years of texts and emails from the county administrator in December 2014.
It is the type of direct request that counties make every day, with documents considered public by state law. But there was a problem not fully explained by the Public Records Act and the Freedom of Information Act: the administrator’s laptop had crashed a few months earlier, erasing much of the information Ballard needed. The county did not have a central e-mail server or backup system and did not archive text messages.
Registry officials did their best to help, according to court documents, by removing relevant emails from other employees’ inboxes and providing nearly 2,000 pages of messages Ballard had requested.
Ballard sued the county in a circuit court, where a judge split the decision and caused Newberry County to cover about half of Ballard’s legal fees. The county violated the Freedom of Information Act by failing to do and follow an electronic document retention policy, the judge decided, but since the documents had already been lost, there was nothing he could do.
In addition, the county argued, Ballard had no right to sue. The FOIA law requires government agencies to deliver documents requested by the public, but does not describe how they should be filed in the meantime. Since the messages had already been deleted by the time Ballard requested them, it was really the Public Records Act that dictated how information should be stored.
And although the two laws cover similar material, there is a fundamental difference in the way they are applied: the Public Records Act holds governments criminally responsible for circumventing their rules, but does not say that a private citizen has the right to sue.
Ballard appealed the case, asking the Court of Appeals to let it sue under the FOIA or apply the Public Records Act under an exception of underused public importance, but it was denied.
Instead, Judge Blake Hewitt drafted an opinion concluding that the circuit court had been wrong – not in refusing Ballard’s legitimacy, but in deciding that the county had violated the FOIA.
Ballard told the Post and Courier that Newberry County set aside funds for a server to back up public records, as recommended by information specialists, but did not proceed with the purchase. County attorney Nick Nicholson did not remember the details of the plan, but said it didn’t matter: the law, much of it written before computers were widely used, does not dictate a specific way of preserving records.
“For every dollar spent on a server to back up documents, you cannot spend it at the sheriff’s department or EMS,” said Nicholson. “What works in Newberry County will not work in Charleston County.”
The county has since upgraded much of its registration system, said Nicholson.
The final opinion in the case recognized that Ballard’s situation was unfortunate, and that public records laws are not very good without preserved documents to enforce them. But the county had already paid half of its fees to assume responsibility for a related, but direct, FOIA violation, and it could not be expected to take precautions that were not provided for in the law.
“We fear that the court’s decision will invalidate years of progress in public scrutiny of government activity,” said Ballard.
Ballard fears that public agencies will get a license to discard files they don’t use regularly, before citizens have a chance to ask what they contain. It is a natural concern, admits the opinion of the court, but not one that they are allowed to resolve.
Talk to Sara Coello at 843-937-5705 and follow her on Twitter @smlcoello.