The South Dakota Public Records Dispute Resolution Procedure and Public Records Act: A Fundamental Change in South Dakota Law

Article excerpt

I. 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)

I. 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.

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

A. The "Keeping of a Record" Requirement

The South Dakota Constitution does not provide citizens with the right to access public records. …