The Freedom of Information Act (FOIA) requires every public official to release public documents within 15 business days of an FOIA request. The government official is required by law to comply, whether the request is made by the press or by the public. The office of the Attorney General (AG) has the responsibility of enforcing the law.
Ironically, it is that very office which has fought for eight months to dodge and delay every FOIA request submitted by Newberry resident and former James Brown trustee Adele Pope.
Among the FOIA requests Pope filed last summer with the AG’s office:
1) Pope asked for a copy of the Legacy Trust. This is the trust created by former S.C. Attorney General Henry McMaster when he took over Brown’s $100 million music empire in the 2009 settlement deal with six of Brown’s alleged children and his companion, Tomi Rae Hynie.
2) Pope requested documents related to why the Legacy Trust trustee, who was appointed by McMaster and serves at Wilson’s pleasure, valued the music empire of legend James Brown at less than $4.7 million upon his death on Dec. 25, 2006. (For several years, Brown had earned royalties of $4-5 million a year.)
When Pope’s requests were denied by the AG’s office, in August she filed FOIA lawsuits in Newberry County over these and other requests.
In the filings and pleadings that followed, AG Wilson’s legal posturing has taken many forms —and along the way, many troubling questions about the strength of the FOIA in South Carolina have surfaced.
To avoid release of the James Brown documents:
· The AG claimed Newberry was not an appropriate place for Pope to bring suit, even though the AG is a state-wide elected official.
· The AG claimed that documents created by former AG Henry McMaster and his staff are “private,” even though all were being paid with taxpayer dollars while writing them.
· The AG claimed he wanted to release certain documents, but he could not because a judge had issued a stay. When the judge’s written order was issued with no mention of the alleged “stay,” Wilson still refused to release the documents.
· The AG claimed that because Pope was involved in litigation, she should gain access to documents using discovery, not the FOIA—suggesting that when people are sued, they lose their FOIA rights.
· The AG claimed that private plaintiffs in other litigation should be allowed to join Pope’s FOIA lawsuit as defendants, even though the FOIA deals with only public officials and public documents.
· In a January court hearing, Columbia attorney Mark Gende of the Wingate firm asked that his private clients be allowed to join the FOIA lawsuit, even though none of them is a public official and nothing had been requested of them. Gende’s clients include Brown’s companion Tomi Rae Hynie and his son Terry, who was given the right to purchase Brown’s music empire by AG McMaster.
· The AG filed a motion in February that Pope’s FOIA lawsuit should be consolidated with Gende’s Richland County lawsuit in which the AG’s office and private plaintiffs are suing Pope and Buchanan for tens of millions of dollars. If the consolidation proceeds, it would then become possible for Wilson to withhold the documents, arguing private parties are not bound by the FOIA.
The consolidation of a private tort suit with an FOIA case is unprecedented, and on March 14 Pope’s attorney, Adam Silvernail of Columbia, filed a brief in opposition.
“Because the sole purpose of the FOIA is allowing the media and public at large to have immediate access to documents, the process of consolidation itself would serve to delay and defeat the purpose of the FOIA,” said the brief.
According to the brief, “This case…seeks a small number of significant public documents from Defendants, as well as confirmation that Defendant Legacy Trust is a public body.”
The AG’s office has argued that the Legacy Trust is not a public document, even though it was created by former AG McMaster and his staff, all of whom were being paid by taxpayers.
Gende’s case in Richland County is complex, and after two years, no plaintiff has agreed to be deposed. According to the Silvernail brief, the case may not be heard for another two years.
The lawsuit involves the service of Pope and Aiken attorney Robert Buchanan, trustees from late 2007 to 2009. They vigorously defended Brown’s estate plan, which left his music empire to the “I Feel Good Trust” for the charitable purpose of educating needy children, and they have appealed the settlement deal that gives away over half of Brown’s music empire to those he specifically excluded from inheriting.
The FOIA lawsuit, on the other hand, deals with questions that can be decided immediately and without a jury:
1) Must the organizational document of an entity created by the AG be released?
2) Must the AG’s office produce public documents related to the $4.7 million at-death valuation of Brown’s music empire, as represented to the S.C. Supreme Court?
The FOIA case is ready for a final hearing, according to the brief, but Case 4900 is “mired” in discovery and other issues. Consolidation would only serve to delay further the release of the documents.
The brief argued that the AG’s attempt to consolidate the cases raises important questions:
1) Would the AG support other South Carolina officials if they were to intervene as individuals in FOIA litigation, thereby limiting public access to documents that may prove personally or professionally embarrassing?
2) Will journalists who request public documents related to ongoing litigation be forced into tort actions to fight privateparties, many of whom have no obligations under the FOIA?
The AG’s office has stonewalled not only Pope’s requests for documents, but also requests filed under the FOIA by the Newberry Observer.
A December request for a copy of the McMaster/Wingate contract, under which Pope and Buchanan are being sued in Richland County, was denied by Tracy Meyers of the AG’s office.
A Feb. 3 request for a copy of the Legacy Trust has received no reply, even though the 15 business days allowed by FOIA have long since passed. Repeated reminder emails to the AG’s spokesperson, Mark Plowden, have likewise received no reply.
A March 1 request for a copy of Tomi Rae Hynie’s diary has not received a reply, due March 23.
Hynie’s diary is also the subject of an Aiken lawsuit and is said to be “explosive” by a long-time friend of James Brown. The diary is purported to contain passages in which Hynie recounts that she begged Brown to marry her. If so, the diary could provide important evidence that she was not his wife, she knew she was not his wife—and she should not be part of the settlement deal.
According to the South Carolina Press Association “Citizen’s Guide to S.C.’s FOIA,” openness in government is important “because it allows the public to learn about the performance of public officials and the expenditure of public funds.”
A report on “corruption risk” by the Center for Public Integrity and Global Integrity, a nonpartisan good-government group, recently ranked South Carolina fifth in the nation.
According to the state newspaper, the report said, “There is no agency that enforces the Freedom of Information law or monitors the state government’s compliance with it. There is also no appeal process, relegating to the courts any problem a member of the public or press experiences in obtaining public information.”
Still, not even the courts can fulfill FOIA’s promise of prompt access to documents…when the agency responsible for enforcing the law is very agency dodging the law.