Redacting “Project Pascalis.”
by Don Moniak

January 16, 2023

In 2017, following perceived reform of South Carolina’s Freedom of Information Act, the state’s top two elected officials had identical advice for the state’s civil servants: “When in doubt, disclose.”

After The Aiken Municipal Development Commission’s (AMDC) Project Pascalis began to encounter objections and questions from concerned citizens, the City of Aiken’s FOIA officers, with the blessing of Custodian of Records and City Manager Stuart Bedenbaugh, more often than not chose obstruction and secrecy in response to FOIA requests.

As reported previously, city officials quietly removed the terminated Pascalis properties Purchase and Sale Agreement from its document repository on November 10, 2022. In both May and August of 2022, assistant FOIA officer and AMDC Executive Director Tim O’Briant presented, in an arguably fraudulent manner, copied and pasted search, retrieval, and redaction cost estimates as original efforts. Throughout the Pascalis development stage, the AMDC devoted nearly 2/3rds of its public meeting time to closed-door Executive Sessions.

More recently, in response to a Freedom of Information Act (FOIA) request (1) for legal department invoices, the City of Aiken recently provided heavily censored documents in which publicly known facts are redacted. Most notable among the known facts is that Pope-Flynn law firm worked for eighteen months on the recently cancelled $100 million plus downtown demolition Project Pascalis, and that contract attorney James Holly was hired to work for the city’s Design Review Board.

The City of Aiken is not the first public body to take a heavy-handed approach to legal invoices. The California Supreme Court ruled in the 2010’s that invoices could be redacted if they contained privileged information.

But much of what was redacted by City of Aiken Solicitor Laura Jordan—and approved by Custodian of Records Stuart Bedenbaugh—is common knowledge or can be inferred. Some records were previously released in unredacted form; making this the second time in 2022 that City FOIA officers redacted basic information that had also been previously released in unredacted form.

The most notable excessive, and arguably illegal, redactions involve the Pope-Flynn law firm, which provided contract legal counsel for the Aiken Municipal Development Commission (AMDC) throughout the Project Pascalis process. Pope-Flynn’s invoice for April, 2022 included Gary Pope, Jr. “attending Project Pascalis meetings in Aiken.”. Yet, the fact that the invoice was for work on Project Pascalis was redacted.

When comparing the invoice to the unredacted version, released in response to a previous FOIA response in a large electronic file titled “AMDC Financial Binder,” the following publicly known information is revealed to have been redacted:

• The existence of relocation assistance agreements for Pascalis properties tenants. 
• The fact that Gary Pope, Jr.  previewed “community meetings.” 
• The  fact that there were “deal points necessary to resolve.” 
• The fact there were “open items.”
  
  When redacting Pope Flynn’s October, 2021 invoice (2) City Solicitor Jordan, with Records Custodian Bedenbaugh’s blessing, chose to redact:
  
• A “development agreement meeting” and “revisions to Project Pascalis Work on Development Agreement,” even though the agreement was never finalized. 
• The fact that Gary Pope Jr had a conversation with City Attorney Gary Smith regarding “:conflict on Pascalis;” even though Pope, Jr publicly boasted about having the call at the April 20, 2022 Pascalis evening public meeting. 
• The fact that he formatted a “table of contents.” 
• “Resolutions and agrements for 11/9/21 AMDC meeting” that were made public on 11/9/21. 
• The fact that a Pope-Flynn associate reviewed the Community Development Act that governs the AMDC. 
  
  The list of other unnecessary, excessive, and arguably illegal acts of public record censorship is long. The fact that City of Aiken officials have become accustomed to a culture of secrecy is evident by the now routine habit of hours long closed-door Executive Session. It was exemplified by Economic Development Director Tim O’Briant’s statement in early October, 2022 that “it would take a judge’s order” for the AMDC to open its books and records to public inspection.
  
  Footnotes:
  
  (1) FOIA Request 252-2022 was for:
  
  “A copy of all invoices for professional legal services for the City of Aiken and all City of Aiken departments, commissions, boards, and committees for the period January 1, 2021 to present (9/19/22); including any and all invoices from Smith Massey Brodie Guynn and Mayes law firm, Pope and Flynn law firms, Counsel for J. David Jameson who conducted FOIA redaction services for FOIA #155-2022, and any other invoice for legal services contracts or procurements. 2. A budget breakdown, if available, for the City Attorney for the period January 1, 2021 to present. The 2021-2022 Budget identifies only City Solicitor, Paralegal, and City Municipal Clerk salaries, with the remainder of the legal department being “operatering costs.” This information is in the public interest, as all Pope-Flynn invoices for Project Pascalis have been posted publicly at aikenmdc.org’s “public records” page. Therefore, all legal invoices are in the public interest and should be available free of charge as allowed by SC FOIA.”

(2) October 2021 Pope-Flynn Invoices