“I have been watching the Jenkinsville Water Company situation with interest,” said State Sen. Creighton Coleman. “When the water company wouldn’t allow customers or the media to receive requested information, and stated that they were a private company, I asked for an attorney general’s opinion. The more sunshine we can let in, the better for all concerned.”
On May 2, The Herald Independent sent a FOIA request to the Jenkinsville Water Company board, asking for a copy of the company’s April 16 Special Called Meeting agenda and minutes, as well as copies of the company’s non-profit 2008, 2009 and 2010 940 state tax filings and 941 federal tax filings, the recent company audit report by Virgil McConnell and the amount the company owes in taxes for the past three years.
In a letter dated May 5, the Jenkinsville Water Company told The Herald Independent that the company would not comply with the FOIA. Included with that letter was correspondence from the water company’s attorney, Mike Duncan of Austin and Rogers, P.A. of Columbia.
Duncan’s letter said the Jenkinsville Water Company “does not meet the definition of a ‘public body’ under S.C. Code Section 30-40-20 and is therefore not subject to the requirements of the S.C. FOIA. As a private company, Jenkinsville Water Company, Inc. would only be subject to the terms of the FOIA by means of being supported by ‘public funds’.”
As it turns out, Jenkinsville Water Company is supported by public funds. The Attorney General’s findings, written by Deputy Attorney General Robert D. Cook, state, “Information has been provided to this Office concerning a number of grants from federal and state entities to the Jenkinsville Water Company. According to the company’s 2007 Form 990, they received $34,751 in government grants. Moreover, we are informed that the company recently received a grant of $73,000 for a new well from the S.C. Budget and Control Board. (And) according to the Feb. 24, 2009 Minutes of the Budget and Control Board, the Board approved a grant of $132,500 toward eligible construction costs to the water company. Fairfield County has in the past served as the administrator/pass through agent for grants and has recently written the president of the company requiring it to provide the County with certain financial information before it will provide such service in the future. This past support of the (water) company by the County is particularly persuasive that the company is a ‘public body’ for purposes of FOIA.”
Jenkinsville Water Company Board President Gregrey Ginyard said he had not heard about the attorney general’s report and continues to deny that his company receives any public money.
“The County has never written a grant for the Jenkinsville Water Company,” Ginyard said. “I write them (the grants). Our legal adviser told us we are a private company. We don’t get federal or state money.”
The opinion quoted from several court cases where it has been made clear that the definition of a ‘public body’ as contained in the FOIA means an organization that is supported in whole or part by public funds or expending public funds.
“The purpose of the FOIA definition of ‘public body’ serves to inform the public as to how its government operates. As the Court(s) have recognized, when a block of public funds is diverted en masse from a public body to a related organization, or when the related organization undertakes the management of the expenditure of public funds, the only way that the public can determine with specificity how those funds were spent is through access to the records and affairs of the organization receiving and spending the funds.
“Accordingly, it is our opinion that the Jenkinsville Water Company is a public body and is required to comply with the Freedom of Information Act.”
The Herald Independent will be resubmitting its former requests, along with a request for additional documents such as the company’s by laws and minutes. The FOIA also requires that the company notify the paper of all meetings in writing within at least 24 hours notice.
Coleman said he sent the opinion to the Jenkinsville Water Company’s attorney, Mike Duncan. Duncan did not return a phone call for comment.
“I know that now that Mike (Duncan) has seen the Attorney General’s opinion, he will do the right thing and advise the Jenkinsville Water Company to comply with the law,” Coleman said.