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Seized public records remain public, judge rules

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    News Media Update         SOUTH CAROLINA         Freedom of Information    

Seized public records remain public, judge rules

  • A South Carolina trial judge ruled that public records may not be withheld because they have been seized for use in a criminal investigation.

March 18, 2004 — Public records seized by prosecutors during a criminal investigation must remain available to the public, a South Carolina trial judge ruled last week.

Judge Paula Thomas of Circuit Court in Georgetown held March 11 that such records do not become exempt from the state Freedom of Information Act under the exemption for police investigatory files.

The ruling arose from an investigation by The (Myrtle Beach) Sun News into the finances of the Waccamaw Regional Transportation Authority. The authority provides public bus service to Georgetown and Horry counties under the name Lymo. The authority is publicly funded, but supplements its budget by providing private-contract bus service.

The Sun News published a series of articles Feb. 8 and 9 that were critical of the authority’s accounting and procurement practices, as well as the lack of oversight by other government entities. As part of its investigation, reporters for the Sun News requested the authority’s financial records under the state FOI Act Dec. 30, but were told the records would not be available until March 10.

The South Carolina FOI Act requires a public body to answer a request within 15 business days, but does not require the records to be turned over within that time.

As a result of the stories, the authority’s board of directors launched an internal investigation and found gross corruption by CEO Benedict Shogaolu. On Feb. 26, the board publicly released a report of the investigation and fired Shogaolu. The FBI and the state attorney’s office launched criminal investigations.

On March 1, Henrietta Golding, the authority’s attorney, sent a letter to the newspaper saying law enforcement agencies had requested that the financial records not be disclosed as promised. The agencies then seized the records under a search warrant. The Sun News filed a lawsuit for access to the records March 4.

According to the Sun News, state attorney Greg Hembree told the newspaper that it would be inappropriate to release files that are part of a pending criminal investigation.

Under the South Carolina FOI Act, a public body may exempt law enforcement investigative records from disclosure if they are “not otherwise available by law” and “would harm the agency.”

Judge Thomas ruled that the records must be released to the paper immediately. “I do not find that they suddenly have been converted to law enforcement documents,” Thomas said from the bench, the Sun News reported.

A written order will be issued later this month. Sun News attorney Robert Muckenfuss said he does not anticipate that the defendants will appeal.

(Sun Publishing Company, Inc. v. Waccamaw Regional Transportation Authority, Inc.; Media Counsel: Robert Muckenfuss, Helms, Mulliss & Wicker, Charlotte, N.C.) GP

© 2004 The Reporters Committee for Freedom of the Press

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