South Carolina woman requests public documents then gets a bill for $12,000 from the county

From South Carolina Press Association

A Port Royal resident known for challenging Beaufort County government has filed a lawsuit against the county after she received a bill for over $12,000 when asking for the release of county council emails.

Mare Baracco filed the lawsuit Wednesday in Beaufort County Circuit Court against the county and accused the county of violating the S.C. Freedom of Information Act.

The lawsuit says Baracco made requests on March 10 and March 18 for county documents and that the requests were acknowledged by the county on March 11 and March 18.

Baracco said Thursday that her requests were for emails sent by county council and staff through their private emails from 2013 to the present.

“Instead of producing a single document, the county, acting through its FOIA specialist, Whitney Snyder, sent to (Baracco) a reply on March 18, 2019, stating that in order to fulfill her request, the county demands that (Baracco) pay a deposit of $3,019.75 as partial payment for the county’s anticipated charges of $12,079 to retrieve the requested documents,” the lawsuit says.

The lawsuit claims that Baracco asked why the charge was so high when the documents were archived electronically, and the county replied that the charge included fees for an anticipated 167 hours for staff to “search and compile emails” at $72 an hour, as well as $16 an hour for the records to be compiled and redacted.

“These charges are excessive and unlawful,” the lawsuit says.

On March 18, Baracco submitted another FOIA request for which the county asked for a deposit of $152.82. That request was followed by another on March 31, and the county asked for a deposit of $404.29 to cover its anticipated expenses, the lawsuit claims.

In the lawsuit, Baracco cites a section of the S.C. FOIA and accuses the county of inflating costs to “deter (her) from making her request and to chill her access to public documents.”

“The public body may establish and collect fees not to exceed the actual cost of searching for or making copies of records. Fees charged by a public body must be uniform for copies of the same record or document,” the state statute says. “… The records must be furnished at the lowest possible cost to the person requesting the records. … Fees may not be charged for examination and review to determine if the documents are subject to disclosure.”

“We have the right to expect our government to be accountable to us,” Baracco said in a statement sent to The Island Packet and The Beaufort Gazette. “That means officials and employees acting in our best interests and not secretly. … Many of the documents I requested are for some council members and employees’ personal emails, which they use instead of their government emails to transact county business.”

When asked about the lawsuit Thursday, Interim County Administrator John Weaver said he was not yet aware of it. When a reporter sent him a copy of the filing with a request for an interview, Weaver declined to comment.

“I have read the complaint but have no comment at this time except to say that the county’s FOIA staff and the county attorney are well aware of the requirements of the S.C. Freedom of Information Act,” Weaver wrote in an email. “I have no reason to believe that the calculations by our staff were not done pursuant to state law and are fair and reasonable under the circumstances.”

Baracco has a contentious history with the county. In October, she filed a complaint against former county interim administrator Josh Gruber with the S.C. State Ethics Commission regarding a consulting contract he and the county attorney drew up as he was preparing to leave for a position with the Town of Hilton Head Island last August.

The commission is now investigating Gruber and summoned him to appear before it in Columbia at 9:30 a.m. June 20 for a hearing.

Editor’s Note: Based on Kentucky law, this would not happen though if a public agency tried, it would be against the law.

KRS 61.874 (3) addresses the staff time issue:

(3) The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required. If a public agency is asked to produce a record in a non-standardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.

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