In 2003, Spartanburg School District 7 undertook a search process for a new school superintendent. From about 30 applicants, the school district cut the pool to five semifinalists, and then again cut the pool to two finalists before making a final decision.
The Spartanburg Herald-Journal newspaper then sent the school district a request under the South Carolina Freedom of Information Act for materials “relating to not fewer than the final three applicants.” The language of the request mirrored SC Code Section 30-4-40(a)(13), which allows public bodies to exempt from disclosure “All materials, regardless of form, gathered by a public body during a search to fill an employment position ..., ” except for materials relating to “not fewer” than three finalists.
The school district, noting that there were only two finalists, offered materials relating only to those two candidates. The newspaper argued that this response did not comply with FOIA and sued the school district. The case went to the South Carolina Supreme Court, where the newspaper won.
In the 2007 decision, New York Times Co. v. Spartanburg County Sch. Dist. No. 7, the Supreme Court reasoned that “the term ‘final’ ... refers to the last group of applicants, with at least three members, from which the employment selection is made.”
Because of this ruling, the school district had to provide materials relating to all candidates in the earlier and larger pool of five semifinalists, despite having assured those candidates that only the finalists — which the district considered to be the smaller group of two people — would be publicly identified. The unsuccessful applicants would most likely have preferred to remain anonymous because of potential implications for their jobs with their current employers.
The outcome of this case can create some surprises for public bodies. For example, if a city council conducts only one round of interviews with eight candidates and selects from that pool, then all eight candidates are “finalists,” for the purposes of FOIA, and the city must disclose materials for all eight. On the other hand, if city council interviews eight candidates and calls four of them back for second interviews, the “finalists” for the position are the four candidates who were interviewed a second time.
But consider in that second scenario — four candidates who are interviewed twice — what would happen if two drop out before the final decision, leaving only two people in the group. In that case, council would have to disclose materials either on the four candidates who interviewed twice, including the two withdrawn candidates, or on all eight candidates. Council cannot disclose information on only the two remaining candidates.
There are practices that municipalities can adopt to limit these surprises. Most importantly, high-profile searches, especially for top positions like city manager that are likely to attract FOIA requests, should have at least one cut to a pool of no less than three candidates, who received notice that their names may be disclosed. Otherwise, council may have to disclose materials on the entire pool. Making high-profile hires is a consequential process for cities and towns and not just because of the performance and leadership of the new hire.
The degree of professionalism shown in the process itself can impact the municipality’s reputation, and handling the announcement of finalists appropriately is an important part of that.