‘When in doubt, disclose.’ Public has right to know who dies in SC prisons, AG rules

Deaths that happen in South Carolina prisons can’t be kept secret and the names of the deceased and cause of death can be made public, the S.C. Attorney General’s Office said in an opinion Friday.

“This office strongly supports transparency and disclosure under the Freedom of Information Act,” the 11-page opinion said in a ringing statement supporting the principle of government openness.

“Indeed, we have consistently advised for decades: When in doubt, disclose,” the opinion said.

The opinion continued, “The operation of our prisons and jails and what occurs therein are matters of great public importance. For that reason, among others, prisoners have a diminished expectation of privacy while in prison.”

Failure to disclose the identities of dead inmates would be a violation of the S.C. Freedom of Information Act (FOIA), the opinion said. “Disclosure is mandatory.”

An attorney general’s opinion does not have the force of a law or a court decision. But a well-researched Attorney General’s opinion is widely regarded as an authoritative statement of how a court would rule.

For years it had been widely assumed by just about everyone that the names and causes of death of inmates could be disclosed, both as a matter of public policy and because FOIA provisions had long been interpreted in favor of such disclosure.

But several months ago, some prison staffers complained to S.C. Department of Corrections Director Bryan Stirling that the department was violating a federal health care records privacy law by releasing the names of dead inmates and the cause of death.

However, Stirling said he did not believe the federal law, called HIPAA (Health Insurance Portability and Accountability Act), required keeping secret inmate deaths. But he agreed in February to request the S.C. Attorney General’s office to rule on whether, in light of HIPAA, the prison system could keep inmate deaths secret.

Stirling said in early May he would abide by whatever opinion the Attorney General’s Office ultimately issued.

On Friday, Stirling said, “This opinion affirms our practice of releasing the names of inmates who pass away in our prison system. I believe in being transparent, and I’m glad to know we are on firm legal ground.”

In March, while waiting for the opinion, Stirling began withholding the names of people who die in the state prison system.

The State newspaper learned about the unusual situation in early May. A reporter got a tip that Vinson Filyaw, the “Girl in the Bunker” kidnapper who got 421 years in prison, had died in custody. The prison system refused to confirm the death. The State found out anyway and on May 2 wrote a story.

Had the Attorney General’s Office ruled in favor of keeping inmate deaths secret, South Carolina might have faced an unusual situation: whenever the Department of Corrections carried out the death penalty, it might have refused to tell the press and public who had just been executed.

In a May 5 article in The State about the secrecy, veteran media attorney Jay Bender of Columbia ridiculed the Corrections Department for keeping the identities of dead inmates secret, especially those death row inmates who are executed.

“What is the prison system going to do after an execution, say an unnamed inmate was executed for some crimes he committed long ago?” Bender asked.

“The notion that an inmate who dies has a right to privacy is bizarre because your right to privacy dies with you,” said Bender, a longtime attorney for The State Media Co. and the S.C. Press Association.

In addition to calling attention to the importance of open records in a free society, the Attorney General’s opinion gave a detailed analysis of how both HIPAA and the FOIA pertain to inmate privacy and found that FOIA is the controlling authority.

The opinion also cited similar cases concerning death records in Texas, Ohio, Nebraska and Georgia where attorneys general have ruled in favor of openness.

On Friday, Bender said he was glad the Attorney General’s Office ruled the way it did. “It’s terrific.”

Places where inmate deaths are kept secret are corrupt states, said Bender, mentioning Argentina, a country that for years was known for “disappearing” political opponents of those in power. Those who “disappeared” were never heard from again.

The editorial page of the Charleston Post & Courier recently expressed disapproval for the notion of keeping the identities of dead S.C. inmates secret.

“The first thing that needs to be said is that any law that would restrict what a prison can tell the public about inmate deaths is a law that needs changing. We ought to know pretty much everything that is knowable when someone dies in state custody, partly so we can hold prison officials accountable if they contributed to that death,” the May 11 editorial said.

Bill Rogers, executive director of the S.C. Press Association, said Friday that had Corrections continued to keep dead inmates’ identities secret, “It would certainly devastate the public trust in the prison system.”

The opinion, which was approved by Attorney General Wilson, was written by Solicitor General Bob Cook and Assistant Attorney General Cydney Milling.