South Dakota media put public records law to the test

From the Fall 2002 issue of The News Media & The Law, page 38.

By Liz Fong

Through Moody and Sully, and from Custer to Deuel, media employees traveled 10,000 miles through 66 South Dakota counties, made 300 stops and spent just $20.44 on copies to rate their state on openness. And they did it all in one day.

In an unannounced check of public records accessibility conducted June 26, representatives from 11 South Dakota newspapers and The Associated Press requested records as ordinary citizens. The goal of the project was to check how easily an ordinary person could access public documents.

They found most agencies willing to turn over public records with one exception: law enforcement. Police departments and sheriff’s offices were, in most cases, unwilling to turn over the most basic documents.

It took one day for the representatives to request from public offices information such as tax assessment records, athletic director’s salaries, police logs and crime incident reports.

The results revealed that although tax, school and city government documents are easily accessible to the public, law enforcement information is not.

Only 14 percent of the sheriff’s offices tested complied with specific information requests. Police stations around the state complied 23 percent of the time.

One reason for law enforcement’s low compliance rate is that state law does not clearly define a public record, said Kim Dohrer, president of the South Dakota Associated Press Managing Editors and an organizer of the audit.

South Dakota state law says that if a record is required to be kept, it is public. However, Attorney General Mark Barnett decided in a 1991 opinion that police and sheriff’s logs are not required to be kept and therefore are not subject to the open records law.

South Dakota media attorney John Arneson describes this conflict as ambiguous. “A new statute needs to be written,” he said, so that state law is more clear on what a public record is and what exceptions apply.

The project reported law enforcement’s poor ratings in order to make the public aware of the need for clearer laws.

Public response

Public response to the South Dakota audit has been good so far, Dohrer said.

“I think most people found it informative and it helped them understand how their government works and if it’s working,” she said. “There were some in the public who felt like the media was playing a good watchdog role on their behalf.”

All 11 newspapers involved in organizing the audit also wrote about it. Stories ranged from how well tax agencies complied to how poorly law enforcement agencies rated.

Some wrote about the trouble requesters encountered while trying to obtain records. One man was followed by the sheriff. Another was interrogated and detained by a police chief. Some articles focused on the public’s right to access information. Other stories about the audit findings appeared in weekly newspapers and newsletters throughout the state, and a number of local television stations broadcast the story.

“The echo factor — hearing the story on the news or reading about it in a newspaper — reinforces the project’s goal,” said Tena Haraldson, AP bureau chief for South Dakota and North Dakota. Merely mentioning the audit and explaining how it affects the public educates people, she said.

Training

From newspaper editors to press operators, 64 requesters traded their normal duties for roles as ordinary citizens.

“The most important thing,” said Dohrer, “is to provide training to survey-takers prior to conducting the audit.”

South Dakota established a protocol for all its survey-takers to study. The 13-page protocol contained information such as the project’s purpose, specific records to request, suggested wording for making requests and important instructions.

Bold-faced, capitalized warnings such as “do not lie” and “do not explain that you are checking for open records” stood out among other instructions for auditors.

The protocol emphasized that obtaining the physical records was not as important as the process of getting them.

Other guidelines listed in the protocol included finer details regarding what not to wear (“no insignia of a news organization on your clothing”), what not to bring into agency offices (“do not carry a reporter’s notebook”) and where to fill out audit forms (“go back to your car”).

The rule emphasized most to survey-takers was: “It is important for all auditors to conduct themselves just as an ordinary person would.”

Learning from mistakes

Completing the project took about a year, said Haraldson, who orchestrated everything from research and training to dispatching requesters. She worked with a group of representatives from media around the state.

Research played a crucial role in the process. To conduct a successful audit, South Dakota organizers learned from the experiences of those who had conducted similar checks in other states.

By studying the Iowa Open Records Survey of 2000, South Dakota organizers found that it would be best to make all the requests in one day because they “did not want to skew the outcome,” Haraldson said.

Iowa requesters sought public records from government agencies over a period of two days. Word spread quickly throughout the state. A sheriff posted an advisory to warn other sheriffs that someone was asking for public records.

Iowa auditors also found the most problems among law enforcement officials who routinely denied access to public records.

Groups in other states have conducted audits over various periods of time, ranging from one day to two weeks.

Indiana, often pointed to as the pioneer of statewide audits, checked compliance rates in all of its 99 counties over a period of two weeks.

According to Kyle Niederpruem, a former Indianapolis Star reporter who coordinated Indiana’s audit, theirs was different from others conducted in the past because they surveyed every county, making it the first comprehensive audit.

Making a change

Open records audits have paved the way for change in several states.

“After the audit, editors of newspapers met with the governor [of Indiana] and asked what he was going to do about records access,” said Don Asher, deputy executive editor of The (Munster) Times, who also worked on the Indiana audit.

The governor set up a task force to open records complaints and appointed a public access counselor to head the Governor’s Public Access Task Force and “mediate problems with public records access.”

As a result of open records audits, other states have better educated government officials in public records law.

According to Bill Rogers, executive director of the South Carolina Press Association, many law enforcement officers in South Carolina were unaware of public records law before a 2000 audit in that state. The study found that law enforcement agencies had only about a 70 percent compliance rate.

The audit helped with awareness, Rogers said. “Police were willing to take seminars to learn more about public records access.”

South Dakota media hope to continue their efforts. As a result of its open records audit, South Dakota formed a freedom of information committee as part of the state’s Associated Press Managing Editors group. The group will focus on ways to continue educating the public on government openness.

Education seemed to be the main goal of all audit conductors.The most common answer given when asked what main goal auditors hope to achieve was “education.”

“Records audits are an opportunity to educate the public about what they have a right to know and see in their state. Those of us in the media think about these issues every day,” Dohrer said. “But sometimes the public doesn’t realize it has that exact same access, too. So an audit provides you with an opportunity to educate on a number of fronts.”

“Any state, whether it’s full of sunshine or not, should consider doing an open records audit,” Dohrer said. “If a state has already done an audit, it might be good to consider whether it’s time to do another one. The main thing is to keep the momentum going.”

Indiana media hope to repeat their study next year, five years after the initial audit, but organizers said there are no set plans.

Asher encourages media in other states to conduct their own studies.

“There are widespread abuses,” Asher said. It’s time to inform the public and “stop the abuse.”