A bill introduced in the S.C. House would give police, prosecutors and sheriffs broad freedom to keep secret any and all crimes and arrests from the public, critics say.
“This goes a long way in creating a secret police operation in South Carolina,” said Jay Bender, a Columbia lawyer and USC media law professor who has for decades argued open government cases in courts. He represents numerous media organizations, including The State Media Company.
Supporters of the bill, including sponsor Rep. Chris Murphy, R-Dorchester, say Bender exaggerates the impact of the measure, which if passed would amend the state’s existing Freedom of Information law.
“For him to say this will cause a police state, that is a stretch,” Murphy said. He described his bill as “narrowly tailored” to allow law enforcement to more easily deny an FOI request to make public sensitive pretrial information about crime victims, witnesses and ongoing investigations.
The specific language in Murphy’s bill says law officials would be able to withhold any “information to be used in a prospective law enforcement action or criminal prosecution.”
“You could still to get police reports and everything else,” Murphy said. “All my amendment really did in my opinion was add protection for disclosure of information that could be harmful to a victim or a witness.”
Bender said current FOI already contains provisions giving law agencies authority to keep confidential information that might harm witnesses and victims.
However, Bender said, current FOI law puts the burden on prosecutors and police to prove to a judge why they need to keep evidence in an ongoing case secret – since, under court rules, defense attorneys and the defendant must be given all evidence before trial anyway.
“There now has to be a demonstration that the release would harm the agency,” Bender said.
Murphy proposed his bill after hearing concerns from prosecutors and other law enforcement agencies that current law makes it hard for them to keep critical pretrial information out of public view.
For example, a current case involves the recent shooting death of an Aiken police officer during a traffic stop. The officer’s traffic camera apparently caught all or part of the shooting on tape, and various news media organizations have filed requests to see the videotape. A possible death penalty trial is months away.
“This type of material should not be disseminated before the trial,” said 1st Circuit Solicitor David Pascoe, president of the state Solicitors’ Association, who urged Murphy to file his bill. It can prejudice potential jurors, making it more difficult to hold a fair trial, he said.
But Bill Rogers, executive director of the S.C. Press Association, said it’s the job of the judge – not the police or prosecutor – to set the rules for a fair trial. Since the defendant can view the videotape, the public should be able to also, he said. “The only people who won’t have the tape are the people,” he said.
Others say there would be little to keep police from bowing to pressure from merchants or politicians to keep a crime wave or a sensitive arrest – perhaps even of a politician – under wraps. Even if police reports still are made available, developments in cases happen after police reports are filed.
Not all law officers have signed on to Murphy’s proposal.
“What we withhold now is generally what we need to withhold,” said Jeff Moore, executive director of the S.C. Sheriffs’ Association. “We do it on a case-by-case basis.”
Murphy said in the event of a disagreement over what can be released, “You still have the courts. The courts can determine whether the information is covered under the FOI.”
Bender said forcing a citizen or a news media organization to hire a lawyer defeats the open spirit of the FOI. “It’s expensive, time-consuming and ignores the notion that in a democracy, (it is) the police (who) have to answer to the public, and not the public that has to answer to police.”
The bill is in the House Judiciary Committee. No date for a hearing has been set. It has 33 co-sponsors, including House Speaker Bobby Harrell and House Judiciary Committee chairman Rep. James Harrison, R-Richland.
Both sides claim the high ground.
“If you want to have police corruption, just let them operate in secret,” Bender said. “A fundamental concept of democracy is for the public to know what’s going on and to be in charge.”
Pascoe said: “My job is to make sure the state of South Carolina, the victims and defendants receive a fair trial. The effect of this bill is to assure that victims’ rights, and the right of a defendant to a fair trial, aren’t infringed upon. This proposed bill in no way violates the public’s right to know.”
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