Just over a week ago, Richland County’s Ombudsman Office — the office that handles Freedom of Information requests for Richland County Detention Center — alerted FITSNews that one of our FOIAs for Alex Murdaugh’s jail calls was ready.
They just needed a mailing address.
We provided that within four minutes of their request on April 6.
On Thursday afternoon, FITSNews received another notice from this same office that basically said, “Actually, we’ve changed our minds … because of that motion for a preliminary injunction.”
Did you just hear the sound of silk rubbing against mustard stains?
That’s Murdaugh’s “bulldog” attorneys state Sen. Dick Harpootlian and Jim Griffin having a little victory hug for themselves.
Our messy stalling tactic worked!
This is not shocking.
Frankly, it was more surprising to us that a South Carolina county seemed willing to do the right thing by FOIA — even after the ‘dogs filed their error-ridden, hot nonsense of a lawsuit in federal court on Feb. 28, accusing the county and the interim director of the jail of violating U.S. wire tap law.
But the county’s about-face is intriguing because nothing substantive seems to have changed between March 1 — when the ‘dogs filed a motion for a preliminary injunction against the release — and today.
But obviously something did change.
And we can’t wait until someone inevitably tells us what dark arts were employed to arrive at today’s silly reversal.
Did canes get pounded on the floor? Was there harrumphing? Or did someone have to put a slouchy appendage on the table next to a ruler and a basket of legislative goodies?
Right after the ‘dogs filed their motion on March 1, our founding editor Will Folks wrote that there must be something really bad on those recordings.
I’d say he’s right …
Especially given the fact that the first round of calls — exclusively published by us — revealed several inconsistencies between the truth and what Harpootlian and Griffin were trying to sell to Judge Alison Lee in an effort to get a personal recognizance bond for their client.
Especially given that neither ‘dog seemed to have followed the detention center procedures to protect their attorney-client conversations from getting recorded.
Oops!
Especially given that the calls seemed to show that their client had found a new hustle behind bars.
Beef sticks and Cheez-Its and hot pickles. Oh my!
I certainly understand why Harpootlian and Griffin would want to keep this information under wraps ahead of the one, two, three, four, five … etc. … trials they might need to prepare for.
But we obviously — and strongly — disagree with the county’s decision.
As we speak, we are exploring our legal options in response.
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Here’s why:
Well, someone has to do it … my God!
The South Carolina Press Association has remained (pettily?) quiet on this matter (was it something we said? are we not amicus enough for your briefs?).
And mainstream media — though they tore their quads trying to catch up and file their own requests for the calls — appear to have dutifully memorized the same set of Murdaugh Talking Points Flash Cards in their initial coverage of the complaint.
Both The (Charleston) Post and Courier and The (Columbia) State included unattributed lines stating it was rare for jail calls to be released to the public.
Let me fix that for you, boys, it’s rare for reporters in South Carolina to ask for them.
Another bone to pick …
The Post and Courier’s characterization of Murdaugh’s calls was nothing more than a whitewash, painting Murdaugh as a concerned father focused on his son’s academics, as opposed to what the call actually was: a discussion about his son’s re-admittance to law school and a somehow-related $60K payment made to an influential lawyer in that context.
In that call, Murdaugh warned his son that he only had one chance left at this. A reminder, his son was asked to leave law school in 2019 after his first year due to his alleged involvement in a cheating scandal (as reported in the The Wall Street Journal).
Not mentioned in the Post and Courier’s phone call story? That Murdaugh appeared to be violating the jail’s rules by gambling and having a relative put money on another inmate’s canteen account. Murdaugh told his relative it was to buy aspirin because of all the working out he has been doing. Meanwhile, his attorneys told Judge Lee it was to buy underwear.
By the way, The Post and Courier is the same pro-FOIA paper that shot across the football field like Forrest Gump after Maggie and Paul Murdaugh’s June 2021 murders and sued South Carolina Law Enforcement Division and Colleton County Sheriff’s Office, accusing them of violating FOIA.
And we salute them for that.
Ultimately, they were able to secure the release of the heavily redacted initial incident reports and the 9-1-1 call that Murdaugh made that night.
But a judge did not end up ruling on whether SLED or Colleton County had violated FOIA.
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But those jail calls sure are subject to FOIA …
Just ask Jay Bender, the state’s foremost legal authority on open government, FOIA and the First Amendment.
He told the State:
“It’s very creative that they (FITSNews) made the request. My thought is that inmates know their telephone conversations are being recorded, so the inmate would have no expectation of privacy with respect to the content of the calls, and since tapes that are in the possession of a public body are public records, they are public.”
It’s true. Inmates are told they’re being recorded at the beginning of every call.
In fact, Inmate Murdaugh even mentioned this fact during one of his calls with his brother, who noted he didn’t like talking on the phone for that very reason.
Also worth noting, a 2011 opinion from the South Carolina Attorney General’s Office addressed this very issue and said that “it could be concluded that inmates’ personal telephone calls should be construed as being subject to disclosure, especially where some form of express or implied consent can be construed to have been in place.”
This is probably one of the reasons the ‘dogs filed their suit in federal court.
Federal case law also seems to favor releasing the calls …
Harpootlian and Griffin are arguing that Title III of the federal wiretapping statute “prohibits the disclosure of recorded telephone communications of inmates to the public in response to a records request.”
However, as we’ve noted before, the U.S. Court of Appeals ruled in a 2003 case (Smith v. U.S. Department of Justice) that Title III does NOT prohibit the disclosure of such calls, and therefore the calls are not exempt from FOIA.
In their initial complaint, the ‘dogs made no mention of this case and instead cited one from the 1970s that was apparently more to their liking.
The most recent applicable case law needs to be cited, so we were happy to help out by suggesting it to them.
Richland County also favors the release of the calls …
The county used to be on the same page as us.
Aw, memories …
In his response to Murdaugh’s lawsuit, the county’s attorney Andrew Lindemann cited the Smith case — as well as other case law from multiple circuit courts — to support the release of the calls.
Because “recordings of an inmate’s telephone communications made while imprisoned are not subject to Title III or any of its limitations on disclosure,” Lindemann noted that Harpootlian and Griffin’s attempt to stop the calls from being released “will most certainly fail.”
Other fun notes from the county’s response and an affidavit filed by then-interim director of the jail Shane Kitchen, who was named as a defendant: Harpootlian and Griffin also failed to sue the correct party (Kitchen does not handle FOIA requests).
They also failed to follow jail protocol to have their calls protected from monitoring under attorney-client privilege.
And they failed to subpoena the correct vendor who handles the jail’s inmate calls.
Quite honestly, between their responses to the lawsuit and their Thursday note to us, it seems like the county really wants to release these calls. Check out their note …
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This is the biggest corruption case in South Carolina history …
The Murdaugh family’s long-standing and quite-real influence over judges, juries, banks, politicians and law enforcement officers in this state make transparency absolutely critical as we navigate uncharted terrain in untangling this complex case.
We don’t know the full scope of alleged crimes.
We don’t know the full list of alleged co-conspirators.
From what FITSNews has repeatedly been told, a lot of people will likely go down with Murdaugh.
If something can be released in accordance with FOIA in this case, then it should be released.
Plain and simple.
We are not talking about a man who is in jail on a simple assault charge trying to talk to his mom.
We’re talking about Richard Alexander Murdaugh, the load-bearing wall in what is shaping up to be the biggest crime and corruption case in the history of South Carolina.
Murdaugh … who has a reputation of being able to “get out of” anything he gets into.
Murdaugh … who is known for exploiting all systems in his and his family’s favor.
Murdaugh … the guy who was already under investigation for obstruction of justice at the time of his wife’s and son’s murders.
Murdaugh … who remains the only publicly named person of interest in those murders, which have yet to produce an arrest.
FOIA exists to protect the public from secret government activity.
And this is why it is in the public’s BEST INTEREST for sunlight to shine on this case from all available angles.
Because, guess what, the county’s sudden change of heart seems to be proof that games are being played. (More proof of games here.)
Though the county has known about the lawsuit for more than a month, they cite the March 1 motion as a reason for their decision to withhold the recordings.
In its letter to FITSNews, the county claims that releasing the recordings would likely open them up to “numerous forms of liability.”
Bender disagrees.
“There’s no liability on the part of the government for releasing it,” he said Thursday night. “I think the federal lawsuit has accomplished what Murdaugh’s lawyers set out to accomplish and that is to intimidate the government to stop it from providing public access to public records.”
This is a news analysis.
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ABOUT THE AUTHOR …
(Via: Provided)
Liz Farrell is the new executive editor at FITSNews. She was named 2018’s top columnist in the state by South Carolina Press Association and is back after taking a nearly two-year break from corporate journalism to reclaim her soul. Email her at liz@fitsnews.com or tweet her @ElizFarrell.
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