MPA files lawsuit against Town after mayor fails to comply with FOI law

BLYTHEWOOD – The Town of Blythewood has been at risk of a legal action for almost two months after Mayor Bryan Franklin failed to submit responsive documents to a Freedom of Information request from MPA Strategies, the town’s newly contracted marketing and grant writing firm.

On Tuesday, June 28, MPA filed that legal action against the Town, stating that, “The Town still has not complied with the plaintiff’s request and has demonstrated no intent to comply with the law.”

MPA is asking for a declaratory judgment and for injunctive relief pursuant to and under the authority of S.C. Code 30-4-10, et seq., which is known as the Freedom of Information Act (FOIA).

MPA filed the complaint in the Court of Common Pleas Fifth Judicial Circuit in Richland County.

In the complaint, Joseph D. Dickey, Jr., attorney for MPA, said that on or around November, 2020, the Town contacted MPA concerning proposed marketing and grant writing services. The Voice has previously reported that former Blythewood Town Administrator Brian Cook suggested the Town consider contacting Ashley Hunter, MPA’s owner and CEO, to provide those services, as she was providing similar services for a number of other towns in South Carolina who, he said, were pleased with her work.

According to the complaint, council initiated a request for proposal (RFP) for marketing and grant writing services on Dec. 30, 2020.

Nonprofit not required in RFP

The complaint states that the RFP did not require applicants to be a nonprofit, tax exempt organization or eligible to receive state accommodation tax funds to be responsive.

In addition to MPA’s RFP, the Town also received submissions from NP Strategy and the Greater Blythewood Chamber of Commerce.

The contract was subsequently awarded to MPA over the Chamber of Commerce by a town council majority vote of 3-2 on Feb. 22, 2021.

Franklin and Councilman Eddie Baughman were the two dissenting votes, favoring the Chamber of Commerce over MPA.

The complaint states that while having a nonprofit entity was never a requirement of the Town’s RFP, the Town subsequently advised MPA that it would be beneficial for MPA to become a nonprofit entity. The complaint stated that MPA complied, establishing the nonprofit State and Frink Foundation.

“Despite awarding the contract, the Town then required MPA to further negotiate the contract outside the parameters of the original RFP,” the complaint states.

The contract was negotiated by Franklin with assistance from Town Attorney Shannon Burnett and Town Administrator Carroll Williamson.

Stalled Negotiations and Rumors

After almost two months of unsuccessful negotiations and because at least two town officials had spread rumors about Hunter to the media and other town officials, MPA submitted a written FOIA request to the Town on April 15, 2021, in which MPA asked for all documents from Franklin’s devices relating to MPA pursuant to S.C. Code Ann. 10-4-10, et seq.

The mayor signed the contract the next day and sent it to Hunter to sign.

MPA’s FOIA request sought disclosure of, among other things, certain documents and recordings from Mayor Bryan Franklin related to MPA, Ashley Hunter and State and Frink Foundation, MPA’s nonprofit entity.

Town Charges $500 FOIA Fee

On April 20, Franklin authorized retaining Black to represent the Town in it’s dealings with MPA.

On April 23, 2021, MPA received correspondence from Black acknowledging receipt of MPA’s FOIA request and advised the cost of copying documents….10 cents per page plus $10 per hour for copying and a fee of $500 to pull email and text messages per device for the electronic data sought through the FOIA.

Three days later Dickey responded, questioning, “the excessive fee of $500 for a third party vendor to check devices.” After receiving no reply from Black, the complaint states that Dickey sent a follow up email on May 5, 2021, inquiring if Town’s response was to be received no later than May 24, 2021, the due date for the Town to submit the documents.

On April 29, The Country Chronicle newspaper sent FOIA requests to all five Blythewood town councilmen for documents concern MPA Strategies. On May 7, Black emailed Dickey stating that the Town had decided to waive all FOIA charges previously quoted and that, “a response by May 24 was ‘highly optimistic.’”

More Response Delays

On May 24, according to the complaint, Dickey emailed the Town stating there had been no communication from the Town since May 7, 2021, and that, “today is the deadline for the Town to respond with the requested information.”

According to the complaint, about 45 minutes later, Black responded.

“As we discussed, your FOIA request overlaps with several other requests for the same data. All of the data is being pulled by an independent contractor [TCDI]. We are still in the process of pulling all of the data,” Black wrote.

Franklin had insisted publicly and repeatedly that all council members were required to submit all their devices – personal and town issued – to Black to be processed through TCDI. The Freedom of Information Act, however, does not require that FOIA responses be processed in that manner.

The complaint stated that Black said the independent contractor would pull all documents from all the devices and that he would then determine which documents were responsive and submit them to the requestors. Not all of the councilmen wanted to submit their personal devices to be scanned and said they would submit texts, emails and other documents themselves or through their own attorneys.

“I do believe we are entitled to a timeframe of which to expect responses,” Dickey replied, according to the complaint. “Is that something the Town is unable to provide?”

Black emailed back, “Correct. I am unable to provide you a timeframe until we get all of the data from all devices. Thanks for your understanding. Additionally, you have made allegations that a town employee made some form of defamatory or improper comment regarding your client,” Black wrote. “If you could elaborate on that it may help me expedite things.”

Dickey responded on May 26.

“The mayor has publicly stated his information has been submitted. Therefore, I don’t understand the delay,” Dickey wrote. “I only requested data from the Mayor, so I am unsure of “all devices” you reference. The information you’re requesting has nothing to do with the Town or you complying with the FOIA request. Let me know when to expect a full response.”

Black replied on May 26, that, “in order to waive the $500 per device charge, we negotiated a bulk rate for all of the devices. We are unable to process until the vendor receives all the devices. On email it is pulled and being reviewed,” Black wrote. “We may be able to get you the email before the texts.”

Dickey pointed out that, “Notably, the Town remarkably was able to timely respond to the County Chronicle’s April 29, 2021 FOIA request as confirmed through the newspaper’s June 17, 2021 article.”

The Freedom of Information Act provides that any person has a right to inspect or copy any public record of a public body, except as otherwise provided by state statute 30-4-40. The statute also provides that a S.C. public body in receipt of written FOIA request, “shall within ten days (except Saturdays, Sundays and legal public holidays) of the receipt of any request notify the person making each request of its determination and the reasons thereof.”

In the complaint, Dickey stated that, “If the request is granted, the public body must, no later than thirty calendar days from the date on which the final determination was provided, must furnish the requestor with records.”

The June 28 complaint states that MPA has not been provided any of the requested records, all of which were due May 24, 2021.

In the complaint, MPA asks the Court to declare that the Town of Blythewood violated the FOIA in failing to maintain public records and in failing to produce records in response to a request. Dickey is also asking the Court to require the Town to immediately respond and produce the responsive documents as required by law.

The complaint also asks for “attorney fees and costs incurred by MPA in bringing this action and prosecuting it.”

UPDATE: On July 9, Black emailed the responsive documents to both MPA and The Voice. Those sent to The Voice included 1,886 documents, a very large portion of which are documents that make no mention of MPA, (i.e. a notice that the Board of Zoning Appeals will not meet, copies of months and months of the agendas and agenda packets for all town board and committee meetings, notice of events at Blythewood High School, information about funding Movies in the Park, etc.) Most of the documents are duplicated, some as many as four or five times. The 1,886 documents are in no particular order, and it is not discernable who many of the texts messages are from are to.

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