The South Dakota public records dispute resolution procedure and Public Records Act: a fundamental change in South Dakota law.

• Author: Swier, Scott R.

1. INTRODUCTION II. THE PUBLIC RECORDS DEBATE IN SOUTH DAKOTA--A RECENT HISTORY A. THE "KEEPING OF A RECORD" REQUIREMENT B. ATTORNEY GENERAL LARRY LONG'S REPORT--"THE STATUS OF OPEN GOVERNMENT IN SOUTH DAKOTA" C. ARGUS LEADER V. HAGEN III. THE SOUTH DAKOTA PUBLIC RECORDS DISPUTE RESOLUTION PROCEDURE A. INFORMAL REQUEST FOR PUBLIC RECORDS AND APPLICABLE FEES B. WRITTEN (FORMAL) REQUEST FOR PUBLIC RECORDS AND PUBLIC RECORD OFFICER C. CIVIL ACTION OR ADMINISTRATIVE REVIEW D. APPEAL OF OFFICE OF HEARING EXAMINERS' DECISION E. RECENT OFFICE OF HEARING EXAMINERS' DECISIONS 1. Kari v. City of Newell 2. Geiser v. South Dakota Department of Revenue and Regulation--Division of Insurance 3. Mercer v. South Dakota Department of Revenue and Regulation 4. People for the Ethical Treatment of Animals (PETA) v. South Dakota Board of Regents 5. Brennan Center for Justice v. South Dakota Secretary of State IV. THE SOUTH DAKOTA PUBLIC RECORDS ACT A. LEGISLATIVE HISTORY OF SB 147 AND THE "PRESUMPTION OF OPENNESS" B. THE DEFINITION OF "PUBLIC RECORD" C. LIBERAL CONSTRUCTION FOR FINANCIAL RECORDS D. EXCEPTIONS TO THE "PRESUMPTION OF OPENNESS" E. RECORDS SPECIFICALLY EXEMPT FROM DISCLOSURE F. THE DELIBERATIVE PROCESS PRIVILEGE G. MISCELLANEOUS PROVISIONS 1. Specialized Service Fee 2. Denial Letters File 3. Redaction of Specified Information 4. Certain Materials Maintained by the Department of Game, Fish & Parks and Certain Materials Relating to Licensed/Permitted Drivers 5. Unified Judicial System Records and Documents Exempted 6. Correctional Records 7. County Register of Deeds Redaction 8. "Good Faith" Immunity for Public Officials 9. Format of Public Record 10. Format, Storage, Retention, and Availability of Government Contracts V. CONCLUSION "South Dakota media and public officials sometimes bump heads on access to government records." (1)

1. INTRODUCTION

   The United States Constitution does not guarantee a general right of access to government records and affairs. (2) Nonetheless, all fifty states have passed some form of public records legislation designed to make the inner workings of government more transparent to the public. (3) These statutes require public access to government records, unless the law provides express restrictions. (4)

   For decades, South Dakota's public records laws remained virtually unchanged. In 2008, however, at the urging of then-Attorney General Larry Long, the South Dakota Legislature enacted the South Dakota Public Records Dispute Resolution Procedure (Dispute Procedure). Before the Dispute Procedure was adopted, the public was left with little option but to sue the state or its political subdivisions when a public records request was denied. (5) The Dispute Procedure created a simple, inexpensive, small claims-type procedure for requesting and obtaining public records.

   The following year, in 2009, the Legislature enacted the South Dakota Public Records Act (Act). The Act creates a "presumption of openness" and attempts to balance two important, yet often conflicting interests--greater government transparency and the protection of private information. (6)

   This article is designed to provide members of the South Dakota Bench and Bar with a useful and pragmatic guide to the Dispute Procedure and the Act. Part II of this article provides a recent history of the public records debate in South Dakota. Part III provides review of the Dispute Procedure. Part IV addresses the complex statutory framework of the Act.

2. THE PUBLIC RECORDS DEBATE IN SOUTH DAKOTA--A RECENT HISTORY

   1. The "Keeping of a Record" Requirement

      The South Dakota Constitution does not provide citizens with the right to access public records. (7) Before the Act's "presumption of openness" requirement became effective on July 1, 2009, S.D.C.L. section 1-27-1 had been the longstanding benchmark for the public's access to government records. (8) This statute followed the common-law rule of permitting access only to those public records required by law to be "kept" (9) and provided, in relevant part:

      If the keeping of a record, or the preservation of a document or other instrument is required of an officer or public servant under any statute of this state, the officer or public servant shall keep the record, document, or other instrument available and open to inspection by any person during normal business hours. (10) The "keeping of a record" requirement was roundly criticized by members of the South Dakota media. (11) During recent years, the media began a movement to abolish this common-law requirement and seek greater transparency in South Dakota's public records laws. (12)

      B.ATTORNEY GENERAL LARRY LONG'S REPORT--"THE STATUS OF OPEN GOVERNMENT IN SOUTH DAKOTA"

      In 2006, the South Dakota Legislature charged Attorney General Larry Long with the task of studying open government issues in South Dakota. (13) In July 2007, the Attorney General fulfilled this legislative charge by submitting "The Attorney General's Report--The Status of Open Government in South Dakota" (Report). (14)

      The Report initially noted that "[a] significant number of records maintained by state agencies and by local governments are not 'required to be kept by state statute' and fall outside the scope of S.D.C.L. [section] 1-27-1." (15) As a result, "public entities at various levels hold a great deal of discretion in determining whether to release such records." (16)

      The Report then comprehensively analyzed South Dakota's public records laws, including the "keeping of a record" requirement, (17) the treatment of specific government documents, (18) unique state laws pertaining to specific records, (19) documents not required to be kept by state statute, (20) the effect of federal laws on state and local records, (21) obtaining access to state and local records, (22) copying fees, (23) time requirements for responding to public record requests, (24) and dispute resolution. (25)

      The Report concluded with nine recommendations to improve South Dakota's open records laws:

      1. A more standardized definition of public record should be developed which does not depend entirely upon the "being kept" provision of current law. (26)

      2. To the extent that discretion is to be exercised by governmental entities in determining whether to release documents, standards should be developed. Such standards would require weighing the factors in favor of public disclosure against factors promoting confidentiality of information for personal, security, investigatory, federal compliance, or other reasons. (27)

      3. Uniform definitions for confidential or limited access records should be crafted based on content to protect legitimate expectations of privacy as well as matters involving security of government facilities and state created procedures, innovations, and inventions. (28)

      4. A method should be adopted that provides for redaction of personal identifying information (such as social security numbers, taxpayer identification numbers, bank account numbers, and other personal information) from documents, thus allowing the documents to be otherwise released to the public when possible. (29)

      5. A method should be developed to reliably satisfy federal privacy requirements imposed on custodians of state records. (30)

      6. The law should be clarified regarding access to predecisional deliberative process documents, i.e. documents crafted by staff members to assist decision makers in making legislative type decisions. (31)

      7. A standard method should be adopted to allow governmental entities at all levels to recover reasonable fees for data retrieval, redaction, production of copies and delivery of document requests. (32)

      8. A method should be developed for distinguishing between commercial and individual requests for data, taking care to ensure that commercial interests pay the full costs of such data requests. (33)

      9. A procedure should be developed for quickly and economically resolving disputes when access to records is denied by the agency maintaining the records. (34)

      These recommendations played an essential role in the Legislature's recent review and revision of South Dakota's open records laws. In fact, a vast majority of Attorney General Long's recommendations were adopted during the 2008 and 2009 legislative sessions. (35)

   3. ARGUS LEADER V. HAGEN

      A few months after Attorney General Long released his Report, the South Dakota Supreme Court issued its decision in Argus Leader v. Hagen. (36) In Hagen, the Sioux Falls Argus Leader (Argus Leader) sought a writ of mandamus compelling the South Dakota Secretary of Tourism and State Development (Secretary) to allow public inspection of the invitation list for the 2005 Governor's Invitational Pheasant Hunt (Governor's Hunt). (37) The circuit court denied the Argus Leader's application for writ of mandamus, finding that South Dakota law did not require the Secretary to "keep" the invitation list available for public inspection. (38)

      On appeal, the Argus Leader advanced three principal claims. (39) First, it alleged that the Governor's Hunt was an "official government function" and the invitation list was a record open to public inspection under S.D.C.L. section 127-1. (40) In rejecting this claim, the Supreme Court noted that S.D.C.L. section 127-1's language is "clear and unambiguous" and a document is open to public inspection only "if the record or document is required by statute to be kept or maintained." (41) There was simply no statutory requirement for the Secretary to keep or maintain a list of Governor's Hunt invitees. (42) The Supreme Court opined that the Argus Leader's "expansive interpretation" would result in "every document generated by or in the possession of government [being] a public record with the accompanying requirement that it be maintained." (43)

      Second, the Argus Leader asserted that a separate statute applying to state regulatory procedures required public inspection of the invitation list because the list constituted...