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Jonathan Ellis is a reporter for the Argus Leader in Sioux Falls, S.D. and a correspondent for USA Today. He won the Sigma Delta Chi award from the Society of Professional Journalists in 2008 for investigative reporting.
South Dakota is known for its vast prairie, supreme pheasant hunting and the presidential faces carved into Mount Rushmore. In open government circles, it’s also known as one of the most insular and backward states in the republic.
Until 2009, the state didn’t have a “presumption of openness” law on the books when it came to government records. Prior to 2009, the law identified public records as any record required to be kept in state law. So naturally, there were tons of records that government had, but they weren’t considered public because they weren’t identified in state law. Example: The Argus Leader sued to get the guest list of people invited to an annual pheasant hunt held by the governor’s office. The state Supreme Court ruled the list wasn’t public because it wasn’t identified in state law.
So the new law passed in 2009 opened the door to records that previously hadn’t been available. But with the new law came a host of exemptions to what was considered public. And it triggered a cat-and-mouse game as officials tried to dodge the law. The superintendent of the state’s largest school district refused to release a copy of her employment contract because she argued her contract fell under an exemption regarding employee personnel information (the state Legislature this year fixed that problem).
Now a new task force has been appointed by Gov. Dennis Daugaard and Attorney General Marty Jackley to review the law regarding open records and meetings. The target is to make recommendations by November, which would then be taken to state lawmakers for consideration. The nearly three dozen members include representatives of cities, townships, counties, state government and members of the media (myself included). Our first meeting was held Aug. 19. Daugaard and Jackley — both came into office in 2011 — addressed the task force at the onset, and both said they were committed to making government more transparent.
That’s welcome, to be sure. But is it enough to reverse a statewide culture among government officials who too often have an attitude that government records belong to the government and not the people who pay for the whole enterprise of government?
Media representatives have their priorities. On the open meetings front, there are suspicions that public bodies are abusing executive sessions to discuss matters that should be discussed in public. Other states require that executive sessions be recorded, or to at least require the keeping of minutes. If there’s a question about what went on in an executive session, a judge or independent body can review a recording to determine if there was a violation. South Dakota doesn’t have such a provision.
When it comes to records, South Dakota has a long way to go in matching other state open record laws. Correspondence among public officials — including emails — are exempted from disclosure, as are their calendars.
Want a database? Good luck. Sioux Falls, the state’s largest city, refused to release the record layout of a database that tracks something as banal as the history of road maintenance. The reason: the layout was proprietary to the business that created the database, according to a lawyer for the city.
By rejecting a request for a record layout, a government is refusing to disclose the information it collects. If you don’t know what the government collects, how can you ask to review those records? In the world of law enforcement, some records commonly open in other states are closed in South Dakota. Police, or incident reports? Closed. Mug shots can only be released if someone escapes from jail. Transcripts or recordings of 911 calls can be released at the discretion of law enforcement officials, if they deem it’s in the public interest.
The worst exemption of many bad exemptions could be this: Public bodies in civil lawsuits are citing SDCL 1-27-1.5 (20) to keep settlements secret. In other words, public bodies are settling lawsuits under a veil of confidentiality. Thus, when the mayor was sued by a former police chief for sexual harassment, the case was settled and the city declared the settlement confidential. How much was paid to settle the case? Not public. What were the terms of the settlement? Again, not public. Remember, the public pays the bills.
South Dakota has a long way to go to become more open. Pre-2009, the state’s laws on the issue were in the Pony Express age. Today, we’ve got the telegraph in the age of the Internet.
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