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South Dakota

Open Government Guide

Author

Jon E. Arneson
123 South Main Avenue, Suite 202
Sioux Falls, South Dakota 57104
E-mail: Jea44@aol.com
Telephone: (605) 335-0083

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Foreword

In 2009, the South Dakota Legislature enacted a relatively comprehensive open records law that finally established a clear presumption that government records were open records in the absence of specific law to exempting or excluding it.  Although there have been some statutory tweaks to the law, as well as lower court and administrative decisions, the South Dakota Supreme Court­­­­––the only state appellate-level court––has had limited occasion to interpret the law.

1-27-1. Public records open to inspection and copying

Except as otherwise expressly provided by statute, all citizens of this state, and all other persons interested in the examination of the public records, as defined in §1-27-1.1, are hereby fully empowered and authorized to examine such public record, and make memoranda and abstracts therefrom during the hours the respective offices are open for the ordinary transaction of business and, unless federal copyright law otherwise provides, obtain copies of public records in accordance with this chapter.

Each government entity or elected or appointed government official shall, during normal business hours, make available to the public for inspection and copying in the manner set forth in this chapter all public records held by that entity or official.

1-27-1.1.   Public records defined

Unless any other statute, ordinance, or rule expressly provides that particular information or records may not be made public, public records include all records and documents, regardless of physical form, of or belonging to this state, any county, municipality, political subdivision, or tax-supported district in this state, or any agency, branch, department, board, bureau, commission, council, subunit, or committee of any of the foregoing. Data which is a public record in its original form remains a public record when maintained in any other form. For the purposes of §§1-27-1 to 1-27-1.15, inclusive, a tax- supported district includes any business improvement district created pursuant to chapter 9-55.

1-27-1.2.   Fees for specialized service

If a custodian of a public record of a county, municipality, political subdivision, or tax-supported district provides to a member of the public, upon request, a copy of the public record by transmitting it from a modem to an outside modem, a reasonable fee may be charged for such specialized service. Such fee may include a reasonable amount representing a portion of the amortization of the cost of computer equipment, including software, necessarily added in order to provide such specialized service. This section does not require a governmental entity to acquire computer capability to generate public records in a new or different form if that new form would require additional computer equipment or software not already possessed by the governmental entity.

No fee may be charged for the electronic transfer of any minutes of open meeting actions of a political subdivision, board or agency of a political subdivision, or the governing board of an agency that levies property taxes that were recorded in the last three years.

1-27-1.3.     Liberal construction of public access to public records law––Certain criminal investigation and contract negotiation records exempt

The provisions of §§1-27-1 to 1-27-1.15, inclusive, and 1-27-4 shall be liberally construed whenever any state, county, or political subdivision fiscal records, audit, warrant, voucher, invoice, purchase order, requisition, payroll, check, receipt, or other record of receipt, cash, or expenditure involving public funds is involved in order that the citizens of this state shall have the full right to know of and have full access to information on the public finances of the government and the public bodies and entities created to serve them. Use of funds as needed for criminal investigatory/confidential informant purposes is not subject to this section, but any budgetary information summarizing total sums used for such purposes is public. Records which, if disclosed, would impair present or pending contract awards or collective bargaining negotiations are exempt from disclosure.

1-27-1.4.   Denial letter to be kept on file

Each public body shall maintain a file of all letters of denial of requests for records. This file shall be made available to any person on request.

1-27-1.5.   Certain records not open to inspection and copying

The following records are not subject to §§1-27-1 to 1-27-1.1, and 1-27-1.3:

(1) Personal information in records regarding any student, prospective student, or former student of any educational institution if such records are maintained by and in the possession of a public entity, other than routine directory information specified and made public consistent with 20 U.S.C. 1232g, as such section existed on January 1, 2009;

 

(2) Medical records, including all records of drug or alcohol testing, treatment, or counseling, other than records of births and deaths. This law in no way abrogates or changes existing state and federal law pertaining to birth and death records;

(3)  Trade secrets, the specific details of bona fide research, applied research, or scholarly or creative artistic projects being conducted at a school, postsecondary institution or laboratory funded in whole or in part by the state, and other proprietary or commercial information which if released would infringe intellectual property rights, give advantage to business competitors, or serve no material public purpose;

(4) Records which consist of attorney work product or which are subject to any privilege recognized in article V of chapter 19-19;

(5) Records developed or received by law enforcement agencies and other public bodies charged with duties of investigation or examination of persons, institutions, or businesses, if the records constitute a part of the examination, investigation, intelligence information, citizen complaints or inquiries, informant identification, or strategic or tactical information used in law enforcement training. However, this subdivision does not apply to records so developed or received relating to the presence of and amount or concentration of alcohol or drugs in any body fluid of any person, and this subdivision does not apply to a 911 recording or a transcript of a 911 recording, if the agency or a court determines that the public interest in disclosure outweighs the interest in nondisclosure. This law in no way abrogates or changes §§23-5-7 and 23-5-11 or testimonial privileges applying to the use of information from confidential informants;

(6) Appraisals or appraisal information and negotiation records concerning the purchase or sale, by a public body, of any interest in real or personal property;

(7) Personnel information other than salaries and routine directory information;   However, this subdivision does not apply to the public inspection or copying of any current or prior contract with any public employee and any related document that specifies that consideration to be paid to the employee;

(8) Information solely pertaining to protection of the security of public or private property and persons on or within public or private property, such as specific, unique vulnerability assessments or specific, unique response plans, either of which is intended to prevent or mitigate criminal acts, emergency management or response, or public safety, the public disclosure of which would create a substantial likelihood of endangering public safety or property; computer or communications network schema, passwords, and user identification names; guard schedules; lock combinations; or any blueprints, building plans, or infrastructure records regarding any building or facility that expose or create vulnerability through disclosure of the location, configuration, or security of critical systems;

(9) The security standards, procedures, policies, plans, specifications, diagrams, access lists, and other security-related records of the Gaming Commission and those persons or entities with which the commission has entered into contractual relationships. Nothing in this subdivision allows the commission to withhold from the public any information relating to amounts paid persons or entities with which the commission has entered into contractual relationships, amounts of prizes paid, the name of the prize winner, and the municipality, or county where the prize winner resides;

(10) Personally identified private citizen account payment information, credit information on others supplied in confidence, and customer lists;

(11) Records or portions of records kept by a publicly funded library which, when examined with or without other records, reveal the identity of any library patron using the library's materials or services;

(12) Correspondence, memoranda, calendars or logs of appointments, working papers, and records of telephone calls of public officials or employees;

(13) Records or portions of records kept by public bodies which would reveal the location, character, or ownership of any known archaeological, historical, or paleontological site in South Dakota if necessary to protect the site from a reasonably held fear of theft, vandalism, or trespass. This subdivision does not apply to the release of information for the purpose of scholarly research, examination by other public bodies for the protection of the resource or by recognized tribes, or the federal Native American Graves Protection and Repatriation Act;

(14) Records or portions of records kept by public bodies which maintain collections of archeological, historical, or paleontological significance which nongovernmental donors have requested to remain closed or which reveal the names and addresses of donors of such articles of archaeological, historical, or paleontological significance unless the donor approves disclosure, except as the records or portions thereof may be needed to carry out the purposes of the federal Native American Graves Protection and Repatriation Act and the Archeological Resources Protection Act;

(15) Employment applications and related materials, except for applications and related materials submitted by individuals hired into executive or policymaking positions of any public body;

(16) Social security numbers; credit card, charge card, or debit card numbers and expiration dates; passport numbers, driver license numbers; or other personally identifying numbers or codes; and financial account numbers supplied to state and local governments by citizens or held by state and local governments regarding employees or contractors;

(17) Any emergency or disaster response plans or protocols, safety or security audits or reviews, or lists of emergency or disaster response personnel or material; any location or listing of weapons or ammunition; nuclear, chemical, or biological agents; or other military or law enforcement equipment or personnel;

(18) Any test questions, scoring keys, results, or other examination data for any examination to obtain licensure, employment, promotion or reclassification, or academic credit;

(19) Personal correspondence, memoranda, notes, calendars or appointment logs, or other personal records or documents of any public official or employee;

(20) Any document declared closed or confidential by court order, contract, or stipulation of the parties to any civil or criminal action or proceeding;

(21) Any list of names or other personally identifying data of occupants of camping or lodging facilities from the Department of Game, Fish and Parks;

(22) Records which, if disclosed, would constitute an unreasonable release of personal information;

(23) Records which, if released, could endanger the life or safety of any person;

(24) Internal agency record or information received by agencies that are not required to be filed with such agencies, if the records do not constitute final statistical or factual tabulations, final instructions to staff that affect the public, or final agency policy or determinations, or any completed state or federal audit and if the information is not otherwise public under other state law, including chapter 15-15A and §1-26-21;

(25) Records of individual children regarding commitment to the Department of Corrections pursuant to chapters 26-8B and 26-8C;

(26) Records regarding inmate disciplinary matters pursuant to §1-15-20; and

(27) Any other record made closed or confidential by state or federal statute or rule or as necessary to participate in federal programs and benefits.

1-27-1.6.  Certain financial, commercial, and proprietary information exempt from disclosure

The following financial, commercial, and proprietary information is specifically exempt from disclosure pursuant to §§1-27-1 to 1-27-1.15, inclusive:

(1)  Valuable formulae, designs, drawings, computer source code or object code, and research data invented, discovered, authored, developed, or obtained by any agency if disclosure would produce private gain or public loss;

(2)  Financial information supplied by or on behalf of a person, firm, or corporation for the purpose of qualifying to submit a bid or proposal;

(3)  Financial and commercial information and records supplied by private persons pertaining to export services;

(4)  Financial and commercial information and records supplied by businesses or individuals as part of an application for loans or program services or application for economic development loans or program services;

(5)  Financial and commercial information, including related legal assistance and advice, supplied to or developed by the state investment council or the division of investment if the information relates to investment strategies or research, potential investments, or existing investments of public funds;

(6)  Proprietary data, trade secrets, or other information that relates to:

(a)   A vendor's unique methods of conducting business;

(b)   Data unique to the product or services of the vendor; or

(c)   Determining prices or rates to be charged for services, submitted by any vendor to any public body;

(7)  Financial, commercial, and proprietary information supplied in conjunction with applications or proposals for funded scientific research, for participation in joint scientific research projects, for projects to commercialize scientific research results, or for use in conjunction with commercial or government testing;

(8)  Any production records, mineral assessments, and trade secrets submitted by a permit holder, mine operator, or landowner to any public body.

1-27-1.7.   Certain drafts, notes, and memoranda exempt from disclosure

Drafts, notes, recommendations, and memoranda in which opinions are expressed or policies formulated or recommended are exempt from disclosure pursuant to §§1-27-1 to 1-27-1.15, inclusive.

1-27-1.8.   Certain records, relevant to court actions, exempt from disclosure

Any record that is relevant to a controversy to which a public body is a party but which record would not be available to another party under the rules of pretrial discovery for causes pending in circuit court are exempt from disclosure pursuant to §§1-27-1 to 1-27-1.15, inclusive.

1-27-1.9.     Documents or communications used for decisional process arising from person’s official duties not subject to compulsory disclosure

No elected or appointed official or employee of the state or any political subdivision may be compelled to provide documents, records, or communications used for the purpose of the decisional or deliberative process relating to any decision arising from that person's official duties.  Any document that is otherwise already public is not made confidential by reason of having been used in deliberations.

1-27-1.10.   Redaction of certain information

In response to any request pursuant to § 1-27-36 or 1-27-37, a public record officer may redact any portion of a document which contains information precluded from public disclosure by § 1-27-3 or which would unreasonably invade personal privacy, threaten public safety and security, disclose proprietary information, or disrupt normal government operations. A redaction under this section is considered a partial denial for the application of §1-27-37.

1-27-1.11.  Subscription or license holder list of Department of Game, Fish and Parks and certain insurance applicant and policyholder information available for fee––Resale or redistribution prohibited––Misdemeanor

Any subscription or license holder list maintained by the Department of Game, Fish and Parks may be made available to the public for a reasonable fee. State agencies are exempt from payment of this fee for approved state use. The Game, Fish and Parks Commission may promulgate rules pursuant to chapter 1-26 to establish criteria for the sale and to establish the fee for the sale of such lists.

Any automobile liability insurer licensed in the state, or its certified authorized agent, may have access to the name and address of any person licensed or permitted to drive a motor vehicle solely for the purpose of verifying insurance applicant and policyholder information. An insurer requesting any such name and address shall pay a reasonable fee to cover the costs of producing such name and address. The Department of Public Safety shall set such fee by rules promulgated pursuant to chapter 1-26.

Any list released or distributed under this section may not be resold or redistributed. Violation of this section by the resale or redistribution of any such list is a Class 2 misdemeanor.

1-27-1.12.   Chapter inapplicable to Unified Judicial System

The provisions of this chapter do not apply to records and documents of the Unified Judicial System.

1-27-1.13.   Certain records not available to inmates

The secretary of corrections may prohibit the release of information to inmates or their agents regarding correctional operations, department policies and procedures, and inmate records of the requesting inmate or other inmates if the release would jeopardize the safety or security of a person, the operation of a correctional facility, or the safety of the public. This section does not apply to an inmate's attorney requesting information that is subject to disclosure under this chapter.

1-27-1.14.   Redaction of records in office of register of deeds not required

This chapter does not require the redaction of any record, or any portion of a record, which is recorded in the office of the register of deeds prior to July 1, 2010.

1-27-1.15.   Immunity for good faith denial or provision of record

No civil or criminal liability may attach to a public official for the mistaken denial or provision of a record pursuant to this chapter if that action is taken in good faith.

1-27-1.16.   Material relating to open meeting agenda item to be available--Exceptions--Violation as misdemeanor.

 

If a meeting is required to be open to the public pursuant to § 1-25-1 and if any printed material relating to an agenda item of the meeting is prepared or distributed by or at the direction of the governing body or any of its employees and the printed material is distributed before the meeting to all members of the governing body, the material shall either be posted on the governing body's website or made available at the official business office of the governing body at least twenty-four hours prior to the meeting or at the time the material is distributed to the governing body, whichever is later. If the material is not posted to the governing body's website, at least one copy of the printed material shall be available in the meeting room for inspection by any person while the governing body is considering the printed material. However, the provisions of this section do not apply to any printed material or record that is specifically exempt from disclosure under the provisions of this chapter or to any printed material or record regarding the agenda item of an executive or closed meeting held in accordance with § 1-25-2. A violation of this section is a Class 2 misdemeanor. However, the provisions of this section do not apply to printed material, records, or exhibits involving contested case proceedings held in accordance with the provisions of chapter 1-26.

 

1-27-1.17.   Draft minutes of public meeting to be available--Exceptions--Violation as misdemeanor.

 

The unapproved, draft minutes of any public meeting held pursuant to § 1-25-1 that are required to be kept by law shall be available for inspection by any person within ten business days after the meeting. However, this section does not apply if an audio or video recording of the meeting is available to the public on the governing body's website within five business days after the meeting. A violation of this section is a Class 2 misdemeanor. However, the provisions of this section do not apply to draft minutes of contested case proceedings held in accordance with the provisions of chapter 1-26.

 

1-27-1.18.   Recommendations, findings, and reports of appointed working groups to be reported in open meeting--Action by governing body.

 

Any final recommendations, findings, or reports that result from a meeting of a committee, subcommittee, task force, or other working group which does not meet the definition of a political subdivision or public body pursuant to § 1-25-1, but was appointed by the governing body, shall be reported in open meeting to the governing body which appointed the committee, subcommittee, task force, or other working group. The governing body shall delay taking any official action on the recommendations, findings, or reports until the next meeting of the governing body.

 

1-27-1.19.   Public access to records of former Governors and lieutenant governors.

 

The records of any Governor and any lieutenant governor are the property of the state and shall be transferred to his or her successor or the state archivist upon leaving office. Once transferred, public access to such records is subject to the provisions of chapter 1-27.

 

1-27-1.20.   Exempt records to be opened upon death or ten years after leaving office. 

 

Unless released to the public pursuant to § 1-27-1.21, any record of an officer designated in § 1-27-1.19, exempted from the provisions of § 1-27-1, shall be opened to the public upon either the death of the former officer or ten years from the date the officer left office, whichever transpires last.

 

1-27-1.21.   Right of former Governor and lieutenant governor to approve or deny release of exempt records. 

 

  Whenever an officer designated in § 1-27-1.19 leaves office and transfers his or her records to the state archivist, the former officer shall retain the right to approve or deny the release of any record exempted from the provisions of § 1-27-1. The former officer may exercise that right either personally or may designate in writing a person to do so to the archivist.

 

 

1-27-1.22.   Agreement for transfer of records to suitable repository.

 

The state archivist may enter into agreements with any officer designated in § 1-27-1.19 for the transfer of the former officer's records to a museum, institution of higher learning, or other suitable repository within South Dakota upon determining that such repository will allow for the preservation, study, and public access of such records consistent with §§ 1-27-1.19 to 1-27-1.21, inclusive. Such agreements shall be entered into only after a public hearing.

 

  1-27-3.   Records declared confidential or secret. 

 

Section 1-27-1 shall not apply to such records as are specifically enjoined to be held confidential or secret by the laws requiring them to be so kept.

1-27-4.     Format of open record

   Any record made open to the public pursuant to this chapter shall be maintained in its original format or in any searchable and reproducible electronic or other format.  This chapter does not mandate that any record or document be kept in a particular format nor does it require that a record be provided to the public in any format or media other than that in which it is stored.

1-27-4.1.   Format of written contracts––Storage with records retention officer or designee––Duration

   Any written contract entered by the state, a county, a municipality, or a political subdivision shall be retained in the contract’s original format or a searchable and reproducible format.  Each contract shall be stored with the records retention officer of that entity or with the designee of the records retention officer unless the contract is required by law to be retained by some other person.  Each contract shall be stored during the term of the contract and for two years after the expiration of the contract term.

1-27-4.2.   Availability of contract through internet website or database

   Any contract retained pursuant to §1-27-4.1 may be made available to the public through a publicly accessible internet website or database.

In advance of the new open records law, the 2009 legislature passed a bill that created a formalized record request process, including a hearing and appeal procedure in contested cases.  Those provisions are as follows:

1-27-35.  Informal requests for disclosure of records--Costs of retrieval or reproduction.

Any informal request for disclosure of documents or records shall be made to the custodian of the record. The custodian of the record may then provide the requestor with the document or record upon payment of the actual cost of mailing or transmittal, the actual cost of reproduction, or other fee established by statute or administrative rule. A requestor that makes an informal request requiring the dedication of staff time in excess of one hour may be required to pay the cost of the staff time necessary for the location, assembly, or reproduction of the public record. If any records are required or permitted to be made public upon request and no other rate is prescribed for reproduction or retrieval of such records, the Bureau of Administration shall establish, by rules promulgated pursuant to chapter 1-26, the maximum rate, or the formula for calculating rates, for reproduction and retrieval.

1-27-36.  Estimate of retrieval and reproduction cost--Waiver or reduction of fee.

For any informal request reasonably likely to involve a fee in excess of fifty dollars, the custodian shall provide an estimate of cost to the requestor prior to assembling the documents or records and the requestor shall confirm in writing his or her acceptance of the cost estimate and agreement to pay. The custodian may exercise discretion to waive or reduce any fee required under this section if the waiver or reduction of the fee would be in the public interest.

1-27-37.  Written request for disclosure of records.

   If an informal request is denied in whole or in part by the custodian of a document or record, a written request may be made by the requestor pursuant to this section:

(1)  A written request may be made to the public record officer of the public entity involved. The public record officer shall promptly respond to the written request but in no event later than ten business days from receipt of the request. The public record officer shall respond to the request by:

(a) Providing the record in whole or in part to the requestor upon payment of

any applicable fees pursuant to §§ 1-27-35 and 1-27-36;

(b) Denying the request for the record; or

(c) Acknowledging that the public record officer has received the request and providing an estimate of the time reasonably required to further respond thereto;

(2)  Additional time to respond to the written request under subsection (1)(c) of this section may be based upon the need to clarify the nature and scope of the written request, to locate and assemble the information requested, to notify any third persons or government agencies affected by the written request, or to determine whether any of the information requested is not subject to disclosure and whether a denial should be made as to all or part of the written request;

(3)  If a written request is unclear, the public record officer may require the requestor to clarify which records are being sought. If the requestor fails to provide a written response to the public record officer's request for clarification within ten business days, the request shall be deemed withdrawn and no further action by the public records officer is required;

(4)  If the public record officer denies a written request in whole or in part, the denial shall be accompanied by a written statement of the reasons for the denial;

(5)  If the public record officer fails to respond to a written request within ten business days, or fails to comply with the estimate provided under subsection (1)(3) of this section without provision of a revised estimate, the request shall be deemed denied.

1-27-38.  Civil action or administrative review of denial of written request or estimate of fees.

   If a public record officer denies a written request in whole or in part, or if the requestor objects to the public record officer's estimate of fees or time to respond to the request, a requestor may within ninety days of the denial commence a civil action by summons or, in the alternative, file a written notice of review with the Office of Hearing Examiners. The notice of review shall be mailed, via registered or certified mail, to the Office of Hearing Examiners and shall contain:

(1) The name, address, and telephone number of the requestor;

(2) The name and business address of the public record officer denying the

request;

(3) The name and business address of the agency, political subdivision, municipal

corporation, or other entity from which the request has been denied;

(4) A copy of the written request;

(5) A copy of any denial or response from the public record officer; and

(6) Any other information relevant to the request that the requestor desires to be

considered.

1-27-39.  Response to notice of review.

   Upon receipt, the Office of Hearing Examiners shall promptly mail a copy of the notice of review filed pursuant to § 1-27-38 and all information submitted by the requestor to the public record officer named in the notice of review. The entity denying the written request may then file a written response to the Office of Hearing Examiners within ten business days. If the entity does not file a written response within ten business days, the Office of Hearing Examiners shall act on the information provided. The Office of Hearing Examiners shall provide a reasonable extension of time to file a written response upon written request or agreement of parties.

1-27-40.  Findings and decision of Office of Hearing Examiners.

Upon receipt and review of the submissions of the parties, the Office of Hearing Examiners shall make written findings of fact and conclusions of law, and a decision as to the issue presented. Before issuing a decision, the Office of Hearing Examiners may hold a hearing pursuant to chapter 1-26 if good cause is shown.

1-27-40.1. Time for compliance with decision or appeal. 

 

If the office of hearing examiners enters a decision pursuant to § 1-27-40 concluding that certain records shall be released or that the fee charged pursuant to §§ 1-27-35 and 1-27-36 was excessive, the public entity has thirty days after the opinion is issued to comply with the order or to file an appeal pursuant to § 1-27-41.

 

1-27-40.2. Costs, disbursements, and civil penalty for unreasonable, bad faith denial of access. 

 

In a civil action filed pursuant to § 1-27-38 or upon an appeal filed pursuant to § 1-27-41, if the court determines that the public entity acted unreasonably and in bad faith the court may award costs, disbursements, and a civil penalty not to exceed fifty dollars for each day that the record or records were delayed through the fault of the public entity. Any civil penalty collected pursuant to this section shall be deposited into the state general fund.

1-27-41. Appeal.

The aggrieved party may appeal the decision of the Office of Hearing Examiners to the circuit court pursuant to chapter 1-26. In any action or proceeding under §§ 1-27-35 to 1-27-43, inclusive, no document or record may be publicly released until a final decision or judgment is entered ordering its release.

1-27-42.  Public record officer for the state, county, municipality, township, school district, special district, or other entity.

The public record officer for the state is the secretary, constitutional officer, elected official, or commissioner of the department, office, or other division to which a request is directed. The public record officer for a county is the county auditor or the custodian of the record for law enforcement records. The public record officer for a first or second class municipality is the finance officer or the clerk or the custodian of the record for law enforcement records. The public record officer for a third class municipality is the president of the board of trustees or the custodian of the record for law enforcement records. The public record officer for an organized township is the township clerk. The public record officer for a school district is the district superintendent or CEO. The public record officer for a special district is the chairperson of the board of directors. The public record officer for any other entity not otherwise designated is the person who acts in the capacity of the chief financial officer or individual as designated by the entity.

1-27-43. Form of notice of review--Office of Hearing Examiners' notice.

The following forms are prescribed for use in the procedures provided for in §§ 1-27-35 to 1-27-42, inclusive, but failure to use or fill out completely or accurately any of the forms does not void acts done pursuant to those sections provided compliance with the information required by those sections is provided in writing.

NOTICE OF REVIEW

REQUEST FOR DISCLOSURE OF PUBLIC RECORDS

Date of Request: ________________________________________

Name of Requestor: ________________________________________

Address of Requestor: ________________________________________

Telephone Number of Requestor: ________________________________________

Type of Review Being Sought:

______ Request for Specific Record

______ Estimate of Fees

______ Estimate of Time to Respond

Short Explanation of Review Being Sought Including Specific Records Requested:

____________________________________________________________________

____________________________________________________________________

____________________________________________________________________

Name of Public Record Officer: ________________________________________

Address of Public Record Officer: ________________________________________

Name of Governmental Entity: ________________________________________

Address of Governmental Entity: ________________________________________

You must include with the submission of this Notice of Review--Request for Disclosure of Public Records form the following information: (1) A copy of your written request to the public record officer; (2) A copy of the public record officer's denial or response to your written request, if any; and (3) Any other information relevant to the request that you desire to be considered.

I hereby certify that the above information is true and correct to the best of my knowledge.

Signature of Requestor:___________________________________________________

The Notice of Review--Request for Disclosure of Public Records form shall be completed and submitted, via registered or certified mail, return receipt, to the following address:

Office of Hearing Examiners

500 E. Capitol Avenue

Pierre, South Dakota 57501

605-773-6811

SOUTH DAKOTA OFFICE OF HEARING EXAMINERS

NOTICE OF REQUEST FOR DISCLOSURE OF PUBLIC RECORDS

TO: (Public Record Officer & Governmental Entity) ______________________________ has filed a Notice of Review--Request for Disclosure of Public Records. A copy of the Notice of Review-- Request for Disclosure of Public Records is attached for your review.

You may file a written response to the Notice of Review--Request for Disclosure of Public Records within ten (10) business days of receiving this notice, exclusive of the day of service, at the following address:

Office of Hearing Examiners

500 E. Capitol Avenue

Pierre, South Dakota 57501

605-773-6811

The Office of Hearing Examiners may issue its written decision on the information provided and will only hold a hearing if it deems a hearing necessary.

If you have any questions, please contact the Office of Hearing Examiners.

Dated this ____ day of ________________, 20____.

___________________________

Office of Hearing Examiners

1-27-44.   Restriction on internet use of social security numbers by state agencies and political subdivisions.

No state agency or any of its political subdivisions or any official, agent, or employee of any state agency or political subdivision may:

(1) Knowingly release or post any person's social security number on the internet; or

(2) Require any person to transmit the person's social security number over the

internet, unless the connection is secure or the social security number is

encrypted; or

(3) Require any person to use the person's social security number to access an

internet website, unless a password or unique personal identification number or

other authentication device is also required to access the internet website.

 

1-27-45.   Searchable internet website for posting and access of public records and financial information. 

 

The state shall maintain a searchable internet website for the posting and access of public records and financial information of the state, municipalities, counties, school districts, and other political subdivisions. The content and operation of the website shall be administered jointly by the Bureau of Administration, Bureau of Finance and Management, and Bureau of Information and Telecommunications.

 

1-27-46.   Contracts to be displayed on searchable internet website.

 

The state shall display on the searchable internet website created pursuant to § 1-27-45 copies of each written contract for supplies, services, or professional services of ten thousand dollars or more, each written contract filed with the state auditor pursuant to § 1-24A-1, and each written contract filed with the attorney general pursuant to § 1-11-15. Each contract shall be displayed electronically not less than sixty days after commencement of the contract term and for not less than one year following the end of the contract term.

 

1-27-47.   Affordability of public access to electronic records database. 

 

A public entity that creates or maintains an electronic public records database or that enters into a contract for an electronic public records database shall consider the cost and affordability of public access.

 

 1-27-48.   Documentation regarding information stored in electronic records system. 

 

A public entity shall make available, upon request, the following documentation for each electronic records system:

 

(1)   A narrative description of the system purpose and functionality; and

(2)   Such information as may be reasonably necessary for a member of the public to

request the public information that is stored in the electronic records system.

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Open Records

I. Statute

A. Who can request records?

1. Status of requester

“[A]ll citizens of [South Dakota], and all other persons interested….” SDCL §1-27-1.

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2. Purpose of request

The requester’s purpose is generally not relevant under the law. However, resale or redistribution of certain subscription or licensing lists — presumably as “mailing lists” — is prohibited. SDCL §1-27-1.11.

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3. Use of records

Use of records generally irrelevant, but for resale/redistribution of certain subscription or license holder lists purchased from the Department of Game, Fish and Parks or Department of Public Safety. SDCL §1-27-1.11.

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B. Whose records are and are not subject to the act

Act covers records “of or belonging to this state, any county, municipality, political subdivision, or tax-supported district [and all subordinate agencies, boards, commissions, etc.]….” SDCL § 1-27-1.1.

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1. Executive branch

Presumably, an executive’s records are covered as “of or belonging to” state and its subdivisions.  The act does protect confidentiality, generally of public officials and employees’ “[c]orrespondence, memoranda, calendars…working papers, and records of telephone calls” as well as their “personal records or documents.” SDCL §1-27-1.5(12) and (19).  There is specific exclusion for documents and records “used for the purpose of the decisional or deliberative process….” SDCL §1-27-1.9.  There also is an exclusion for materials “in which opinions are expressed or policies formulated or recommended….” SDCL §1-27-1.7.

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2. Legislative bodies

Legislative bodies are included as a “branch” of the state. SDCL §1-27-1.1.

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3. Courts

The act does not apply to “records and documents of the Unified Judicial System.” SDCL §1-27-1.12.

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4. Nongovernmental bodies

Nongovernmental bodies receiving public funds or benefits are not specifically covered. Note, however, the liberal construction of open records laws when public funds are involved. Only bodies that are “of’ the state or its political subdivisions. It is uncertain whether a record might be considered public because it could be attributed to an individual government official. SDCL §1-27-1.1.

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5. Multi-state or regional bodies

It is uncertain whether a body that includes the state would be considered “of’” the state, making that body’s records public. SDCL § 1-27-1.1.

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6. Advisory boards and commissions, quasi-governmental entities

These entities are probably covered, but subject to “decisional or deliberative” process exception. SDCL §1-27-1.9.

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7. Others

None

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C. What records are and are not subject to the act?

Public records “include all records and documents, regardless of physical form….” SDCL § 1-27-1.1.

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1. What kinds of records are covered?

Public records “include all records and documents, regardless of physical form….” SDCL § 1-27-1.1.

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2. What physical form of records are covered

All forms are covered. SDCL §1-27-1.1.

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3. Are certain records available for inspection but not copying?

No.

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4. Telephone call logs

Records of telephone calls are specifically exempted. SDCL §1-27-1.5(12).

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5. Electronic records

a. Can the requester choose a format for receiving records?

No. SDCL §1-27-4.

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b. Can the requester obtain a customized search of computer databases to fit particular needs

No, but records may be “maintained . . . in any searchable and reproducible electronic or other format . . .” suggesting that this will be allowed in practice. SDCL §1-27-4.

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c. Does the existence of information in electronic format affect its openness?

No.  Public entities are required, upon request, to describe the “purpose and functionality” of each electronic records system and to provide sufficient information to allow public to request information stored in the system.  SDCL §1-27-48.

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d. Online dissemination

State government has a home page and provides access to a variety of information via the internet. Contracts, in particular, may be made accessible to the public via internet. SDCL §1-27-4.2.

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6. How is email treated?

Email is not specifically addressed.  Generally, the physical form of a record is irrelevant under SDCL §1-27-1.1. Theoretically, at least, email can be a record.  However, work-related "correspondence" and "personal correspondence" are protected under SDCL §§1-27-1.5 (12) and (19).  If email does not fall within “correspondence” exception, presumably accessible.   Private matter in government email is likely confidential.  The status of public matter in private email is uncertain, but presumably private matter in private email is confidential.

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7. How are text messages and instant messages treated?

Text and instant messages are not specifically addressed, but will likely be treated as emails are treated.

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8. How are social media postings treated?

Social media postings, also, presumably, will get the same treatment as email.

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9. Computer software

Form and format do not alter a record’s essence. SDCL §1-27-1.1 and SDCL  §1-27-4.

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D. Fee provisions or practices

1. Levels or limitations on fees

The record custodian may charge “actual cost of mailing or transmittal, the actual cost of reproduction, or other fee established by statute or administrative rule . . . [and] staff time in excess of one hour . . . .” SDCL § 1-27-35.

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2. Particular fee specifications or provisions

See SDCL §1-27-35.  A “reasonable amount representing a portion of the amortization of the cost of computer equipment” may be charged for modem to modem transfer. SDCL §1-27-1.2.

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3. Provisions for fee waivers

Fees may be waived or reduced if it “would be in the public interest.” SDCL §1-27-36.

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4. Requirements or prohibitions regarding advance payment

Law authorizes advance payment or promise to pay. SDCL §1-27-35, 36. Although not expressly applicable to record production, SDCL §4-3-1 authorizes public officers to require advance payment from persons for whom they perform any service.

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5. Have agencies imposed prohibitive fees to discourage requesters?

Not yet under the new law. Under previous law, there were occasional problems with unreasonable fee demands.

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6. How are fees for electronic records determined?

If there is a “modem to modem” transfer, law allows “reasonable fee . . . for specialized service,” including amortization of computer hardware and software. SDCL §1-27-1.2.

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E. Who enforces the act?

Enforcement can be either civil or criminal. The civil options are a lawsuit or administrative hearing with appeal to circuit court. SDCL §1-27-38. Although the open records statutes do not provide any specific criminal sanctions, the criminal code, itself, makes it a felony to destroy, conceal, remove or impair the availability of any public record. SDCL §22-1-24. Therefore, it is logical to conclude that the local states attorneys would/should enforce the act. However, there are no recorded cases of prosecutions for open records violations.

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1. Attorney General's role

None specified, but a state’s attorney may ask the attorney general to assume the case.

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2. Availability of an ombudsman

No provision.

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3. Commission or agency enforcement

Yes. As of 2008 there has been a hearing examiner procedure, but no cases have been presented yet that involve the open records law that went into effect on July 1, 2009. SDCL §1-27-38.

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F. Are there sanctions for noncompliance?

No specific sanctions, but there are generic criminal sanctions.

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G. Record-holder obligations

1. Processing records requests

Informal record requests are directed to record custodian who may provide the record upon receipt of “actual costs” and/or fees.  If fee is apt to be in excess of fifty dollars, requestor must confirm it will be paid before custodian is obligated to assemble records.  SDCL §1-27-35 and SDCL §1-27-36.  Denial of an informal request triggers formal written request process.  The public record officer has ten days to respond by providing the record upon payment of costs and fees, denying the request, or acknowledging request and estimating further response time required.  Denials are required to be explained in writing; however, failure of the record custodian to respond to the formal request in ten days is also considered a denial.  SDCL §1-27-37.

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2. Proactive disclosure requirements

A variety of contracts are required to be displayed “on the [state’s] searchable internet website.  SDCL §1-27-46.  The state’s website is to be maintained “for the posting and access of public records and financial information” of public entities.  SDCL §1-27-45.  This appears to be more of a public accommodation that depends upon the government’s discretion regarding content.

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3. Records retention requirements

Public records are property of the state and are subject to administrative rules that apply to the state records management program.  Destruction of records must be approved by the state records destruction board.  SDCL §1-27-12 and S.D. Admin.R. 10:03 and 10:04.

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A. Exemptions in the open records statute

Twenty-seven categories of records are “not open to general inspection and copying.” SDCL §1-27-1.5. In addition, the law provides specific exemptions for a handful of other records. SDCL §1-27-1.6, 1.7, 1.8 and 1.9.

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1. Character of exemptions

The exemptions are fairly specific.  The statutory exemption and redaction language, while not explicitly mandatory, will likely be interpreted to be mandatory. SDCL §§1-27-1.5 through 1.8 and 1-27-1.10. However, the “deliberative process” exemption is expressly discretionary. SDCL §1-27-1.9.   The exemptions more closely follow Nebraska than the federal FOIA.

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2. Discussion of each exemption

The only pertinent case law addresses SDCL §§1-27-1.5(7) and (20).  In Milstead v. Johnson, 883 N.W.2d 725 (S.D. 2016) and Milstead v. Smith, 883 N.W.2d (S.D. 2016), the South Dakota Supreme Court held the statutory protection of law enforcement personnel records is not absolute and are “not shielded from discovery when a constitutional right of an accused is implicated.”  Disclosure is dependent on a showing by defendant that personnel file is relevant, admissible and requested with “reasonable specificity.”  Further, disclosure must be “carefully tailored to the legitimate need [of the defendant].”  In Argus Leader Media v. Hogstad, 902 N.W.2d 778 (S.D. 2017) the Supreme Court rejected the City of Sioux Falls argument and lower held that despite its dubious punctuation, SDCL §1-27-1.5(20) did not allow parties, by contract, to agree to confidential settlements outside the context of actual litigation.

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B. Other statutory exclusions

Abortion trial information, specifically patient’s name (SDCL §§34-23A-7.1 and 34-23A-23);

Absence excuse certificates of students “alternatively schooled” (SDCL §13-27-9);

Adoption records (SDCL §§25-6-15.1, 26-4-9.1, and 28-1-31);

Adult services program and aging program records kept by department of social services (SDCL §28-1-45.1);

Affidavit of consent to disbarment (SDCL § 16-19-66);

Alcohol and drug abuse treatment facilities’ records (SDCL § 34-20A-90);

Banking commission records generally open, but subject to division of banking directors’ discretion (SDCL § 51A-2-35);

Board of accountancy peer review records (SDCL §36-20A-15);

Board of technical professions examination, application and investigation material (SDCL §36-18A-24);

Business information (trade secrets, commercial and financial information concerning operations) received by economic development board/office and Science and Technology Authority (SDCL §§1-16G-11 and 1-16H-28);

Business information (trade secrets, commercial and financial information concerning operations) received by economic development finance authority (SDCL §1-16B-14.1)

Campground and lodging registration information (SDCL §34-18-21);

Child support enforcement case records, including obligor’s bank records, (SDCL §§25-7A-56.6 and 56.9 and SDCL §28-1-68);

Child welfare agency records regarding children and their families (SDCL §26-6-20);

Commercial feed trade secrets (SDCL §39-14-70);

Commercial fertilizer tonnage information furnished secretary of agriculture (SDCL §38-19-12);

Communicable disease reports (SDCL §§34-22-12, 12.1 and 12.2);

County fair board contracts with performers may be kept confidential for 60 days (SDCL §7-27-20);

Court services records (SDCL §23A-27-47);

Crime victim records obtained by department of social services under crime victim compensation program (SDCL §23A-28B-36);

Crime victim’s notification of wish to participate in certain phase(s) of case (SDCL §23A-28C-2);

Criminal identification, intelligence, investigative and statistical information (SDCL §23-5-10,11,17; SDCL §23-6-16);

Cruelty to animal report may be confidential (SDCL §40-1-30);

Data or financial information made or received by Secretary of Agriculture with respect to state beef program (SDCL § 39-24-5);

Division of insurance files and records (SDCL §§58-3-22, 58-4-44, 58-23A-6, 58-29B-30, and 58-29D-9);

Division of insurance internal memos and telephone notes and medical records in general (SDCL §58-4-45);

DNA records and samples filed with state laboratory (SDCL §23-5A-23);

Drug screening test results of applicants for “safety-sensitive” law enforcement positions (SDCL §23-2-67);

Employment records obtained by the secretary of labor in administration of unemployment compensation law (SDCL §61-3-4);

Gaming commission records and information concerning gambling applicants/licensees in Deadwood (SDCL §42-7B-58);

Guardianship preliminary evaluations and financial information (SDCL § 29A-5-207,311,508);

Health care services arbitration panel — records of proceedings confidential until entry of judgment (SDCL § 21-25B-24);

Health professionals diversion program records (SDCL § 36-2A-12);

Hospital licensing and inspection information received by the department of health (SDCL § 34-12-17);

Information gathered by department of labor in connection with worker’s compensation cases (SDCL § 62-6-5).

Information in court record not accessible under federal law, state law, court rule or case law (SDCL §15-15A-7);

Insurance fraud prevention unit’s files and records (SDCL §58-4A-12);

Insurance holding company information received by director of the division of insurance in the course of examination or investigation (SDCL §58-5A-41);

Investigative materials related to discrimination complaints filed with State Commission of Human Rights (SDCL §20-13-32.2);

Juvenile delinquency case records prepared by court services officers (SDCL §26-7A-120);

Juvenile delinquency court records (SDCL §§26-7A-37 and 38);

Medical records inspected by board of medical and osteopathic examiners (SDCL §36-4-22.1);

Medical research information obtained by the department of health, state medical association, hospital staffs, etc. in the course of medical study (SDCL §34-14-1);

Mental health records, including those of law enforcement (SDCL §§27A-12-25, 25.1, 27A-12-26, and 26.1);

Mental retardation records (SDCL §27B-8-28);

Mineral lessee’s records furnished to or inspected by commissioner of school and public lands (SDCL §5-7-58);

Mining permit application information filed with state agencies (SDCL §45-6B-19);

Names of victims included in otherwise public sex offender registration records (SDCL §22-22-40);

Neglected, abused child reports (SDCL §26-8A-13);

Original birth certificates when new certificate has been issued (SDCL §§34-25-16.4,16.5);

Parental relations termination proceedings files and records (SDCL §25-5A-20);

Patient information received by ambulance service (SDCL §34-11-5.1);

Pesticide formulas (SDCL §38-20A-15);

Prearranged funeral trust contract reports filed with board of funeral service (SDCL §55-11-9);

Public assistance information filed with the department of social services (SDCL §28-1-29);

Public library records containing identification information (SDCL §14-2-51);

Records sealed by statute or court order, impounded or communicated in camera, offered in grand jury proceedings or included in presentencing reports, dependency cases or psychiatric reports” (Code of Judicial Conduct (Appendix to SDCL §16-2));

State agency information related to investigation, audit or examination of private entity (SDCL §§1-27-29,30); disclosure is a Class 1 misdemeanor (SDCL §1-27-32);

State agency information that is “derogatory to a person” (SDCL §1-26-2);

State fair commission’s contracts and negotiations with entertainers (SDCL §1-21-17);

State farm mediation board records (SDCL §54-13-18);

State lottery records, including applications, credit/security checks, audit work papers, licensees tax returns (SDCL §42-7A-50);

Tax return records and lists of taxpayers, licensees and applicants (SDCL §10-1-28.2, 28.3);

Test hole information in mineral exploration permit filings confidential for 2 years (SDCL §45-6C-14,15);

Trade secrets and financial information contained in request for financial assistance for water management or waste management business filed with department of environment and natural resources (SDCL §46A-1-98);

Trade secrets of hazardous waste disposal facility (SDCL §34A-11-22);

Trade secrets of owner/operator of air contaminant source (SDCL §34A-1-14);

Trade secrets of owner/operator of water contaminant source (SDCL §34A-2-94);

Trade secrets or financial information provided by business in request for financial assistance from municipal corporation or economic development corporation (SDCL §9-34-19);

Trust company information (SDCL §51A-6A-2);

Uranium exploration permit filings (SDCL §§45-6D-11, 15, 40, 42 and 45);

Various corporate records obtained or required under Uniform Securities Act, including private party information, trade secrets, or records obtained during audit, inspection or investigation (SDCL §47-31B-607);

Veterans’ files compiled by state agencies in connection with claims for benefits (SDCL §33-16-23);

Welfare fraud investigative records (SDCL §28-1-80);

Worker’s compensation fraud investigation records (SDCL §62-4-49);

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

No significant non-statutory exclusions have been created.

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D. Are segregable portions of records containing exempt material available?

Yes. SDCL §1-27-1.10.

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III. Record categories - open or closed

A. Autopsy and coroners reports

Arguably these are open once arrest is made following inquest. SDCL §23-14-12. Although coroners must file reports and inquest verdicts with bureau of criminal statistics, in the bureau’s hands, those records are not public. SDCL §§23-6-14 and 23-6-17. See also SDCL §1-27-1.5 (4). Autopsy performed by order of department of labor in worker’s compensation occupational disease death claim case is public record. SDCL § 2-8-41. University of South Dakota medical school must keep record of bodies received.  SDCL §34-26-9. Physician or coroner fetal death report filed with department of health. SDCL §34-25-32.2.

Coroner’s report should be open when in coroner’s possession. In hands of law enforcement could be exempt. SDCL §1-27-1.5(5). When report is “return[ed] to circuit court” it would be covered by Unified Judicial System rules and not open records law. SDCL §§23-14-16 and 1-27-1.12.

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

These records are presumably closed. See SDCL §1-27-1.5(5).  There is no distinction made between active and closed investigations.

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C. Bank records

Personal bank records are closed. SDCL §§1-27-1.5 (10), (16), (22), and 1-27-1.6. Division of banking records open, subject to director’s discretion or federal law. SDCL §51A-2-35. Bank statements of condition are published. SDCL §51A-13-2.

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D. Budgets

Presumably open if final product. See SDCL §1-27-1.7 regarding “recommendations.”

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E. Business records, financial data, trade secrets

All generally closed. SDCL §§1-27-1.5 (3) and 1-27-1.6.

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F. Contracts, proposals and bids

Public contracts are open. SDCL §1-27-4.1. Proposals and bids should also be open, in the absence of a specific exemption or exclusion. See SDCL §5-18, generally, regarding bidding process.

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G. Collective bargaining records

Those involving public employees should be open. Private agreements that are filed with the Department of Labor should also be open.

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H. Economic development records

If not “proprietary” or “trade secret” information, open.

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I. Election Records

There is no provision excepting election records from presumption of openness. Further, there are specific openness requirements. A county auditor’s tabulations of unofficial returns are public. SDCL §12-20-13. Absentee ballots counted in public. SDCL §12-19-44. Official county canvasses filed by auditors with secretary of state are permanent state records. SDCL §12-20-38.1. Board of state canvassers abstracts also are filed and kept by secretary of state. SDCL §12-20-48.   Voter registration records are open. SDCL §12-4-9   Voting results are open. SDCL §12-20-38.1.

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J. Emergency Medical Services records

Presumably closed as medical records.  SDCL 1-27-1.5(2).  See also SDCL 1-27-1.5(17).

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K. Gun permits

State law is designed to prevent release of information concerning those licensed to own owning a firearm or carry a concealed pistol. SDCL §23-7-8.10.

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L. Homeland security and anti-terrorism measures

Though not specifically named as such, these are seemingly covered under the listed exclusions. SDCL §1-27-1.5(8).

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M. Hospital reports

Information obtained by department of health from hospitals is confidential (SDCL §34-12-17).

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N. Personnel records

Confidential, other than “salaries and routine directory information.” SDCL §1-27-1.5 (7).

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1. Salary

Open, generally. SDCL §1-27-1.5(7). More specifically, counties, municipalities and school boards publish salaries. SDCL §6-1-10.

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2. Disciplinary records

Presumably closed. SDCL §1-27-1.5 (7).

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3. Applications

Closed, except for those “submitted by individuals hired into executive or policymaking positions of any public body.” SDCL §1-27-1.5 (15).

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4. Personally identifying information

Closed. SDCL §1-27-1.5(7).

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5. Expense reports

Presumably open.

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6. Other

O. Police records

In absence of case law, this whole area is difficult to predict, making the advice tenuous. The open records exception for law enforcement agencies and the laws on confidential criminal justice information might lead to different conclusions. SDCL §§1-27-1.5 (5) and 23-5.

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1. Accident reports

Open. SDCL §32-34-13, 13.1.

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2. Police blotter

Open conditionally. “Information about calls for service revealing the date, time, and general location and general subject matter of the call…may be released….” SDCL §23-5-11.

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3. 911 tapes

Open conditionally. Must be determined that “public interest in disclosure outweighs interest in nondisclosure.” SDCL §1-27-1.5 (5).

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4. Investigatory records

Investigatory records are presumptively closed. SDCL §§1-27-1.5 (5) and 23-5, generally.  In active investigations they are closed. SDCL §§1-27-1.5 (5) and 23-5-10.  The basic open records law does not specifically distinguish between active and closed investigations.  SDCL §1-27-1.5 (5). However, the more specific law making “criminal investigative information” confidential might be interpreted to make that distinction. SDCL §§23-5-10 and 23-5-11.

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5. Arrest records

Open, presumably, but not from all sources, e.g. attorney general. SDCL §23-5-12.

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6. Compilations of criminal histories

Closed, generally. SDCL §23-6-14.

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7. Victims

Falls under UJS rules. SDCL §1-27-1.12. Generally open, but victim in sex-crime can suppress name until arraignment. SDCL §23A-6-22. Victim compensation hearings open. SDCL §23A-28B-37). Victim identification information confidential under sex offender registration law. SDCL §22-24B-15.

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8. Confessions

Closed, presumably, during investigative stage. SDCL §1-27-1.5 (5).

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9. Confidential informants

Closed, presumably, in possession of law enforcement. SDCL §1-27-1.5 (5). However, possibly different as court document. Temporary sealing of affidavit in support of search warrant suggests possibility of disclosure. SDCL §23A-35-4.1.

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10. Police techniques

Closed, presumably. SDCL §§1-27-1.5 (5) and (8).

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11. Mugshots

Restricted access. SDCL §§23-5-7 and 1-27-1.5 (5).

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12. Sex offender records

Open. See SDCL §§22-24B-2, 15 and 21.

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13. Emergency medical services records

Uncertain, but likely closed. SDCL §§1-27-1.5(2) and (5).

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14. Police video (i.e., “body camera footage”)

P. Prison, parole and probation reports

Jail records are presumably open, since they are essentially non-investigatory. SDCL §24-11-16. Files and case histories of penitentiary inmates are confidential. SDCL §24-15-1. Records and reports of Board of Pardons and Paroles, which meets in public, may be open. SDCL §§24-13-3 and 24-13-10. Probation reports are not specifically addressed by statute, but court services records generally confidential. SDCL §23A-27-47. Pardons remain public record for five years. SDCL §24-14-11. Some information under these categories might also be closed if it constitutes part of a “court record.” SDCL §15-5A-7.

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Q. Professional licensing records

Presumably, the names of those with professional licenses are open records.  The status of disciplinary records is less certain.  See SDCL 1-25-2, which has an internal conflict.

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R. Public utility records

Commission records open. SDCL §49-1-12. Utility companies’ records generally open only to stockholders. SDCL §49-33-18.

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S. Real estate appraisals, negotiations

1. Appraisals

Closed. SDCL §1-27-1.5(6).

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2. Negotiations

Closed. SDCL §1-27-1.5(6).

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3. Transactions

Open

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4. Deeds, liens, foreclosures, title history

Open

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5. Zoning records

Open

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T. School and university records

Generally open. SDCL §§13-49-21 and 13-8-43.

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1. Athletic records

2. Trustee records

Open. SDCL §13-49-7.

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3. Student records

Closed. SDCL §1-27-1.5 (1).

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4. Other

U. State guard records

Presumably closed to the extent they are “personnel” files under SDCL 1-27-1.5(7).  See also SDCL 3-6D-24.

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V. Tax records

Property taxes are open records.  Sales, use and excise taxes are presumably closed.  See SDCL 1-27-1.5(3).  See also SDCL 10-45-45 and SDCL 10-46-43.  However, tax benefits under a government program are, arguably, open records.  E.g. SDCL 10-45B-15.

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W. Vital Statistics

1. Birth certificates

Open. SDCL §§34-25-1, 34-25-8 and 1-27-1.5 (2). However, access to “out-of-wedlock” information is limited. SDCL §34-25-52.

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2. Marriage and divorce

Open. SDCL §34-25-1.

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3. Death certificates

Open. SDCL §§34-25-1 and 1-27-1.5 (2).

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4. Infectious disease and health epidemics

Generally closed. See SDCL §34-22-12.1

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IV. Procedure for obtaining records

A. How to start

An “informal request” can be made. SDCL §1-27-35. If that is denied in whole or in part, then a formal written request can be made. SDCL §1-27-27.

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1. Who receives a request?

Informal request is directed to the “custodian of the record.” SDCL §1-27-35. The formal written request is made to the “public record officer of the public entity involved.” SDCL §1-27-37.

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2. Does the law cover oral requests?

The law covers oral requests. SDCL §1-27-35.   If an oral request granted, then arrangements made with custodian of the record. SDCL §1-27-35.   If an oral request is denied, written request should be sent to the public record officer of the agency. SDCL §1-27-37.  There is no specific procedure established for denial of an informal request by a custodian. It should be noted, however, that if a denial in whole or in part is made in writing, it is to be kept on file with the agency. SDCL §§1-27-35 and 1-27-1.4.   Subsequent steps should be taken in written form. SDCL §1-27-37.

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3. Contents of a written request

No specific requirements for a written request, but clarity is strongly recommended to avoid delays. SDCL §1-27-37 (3).  Again, although not required, to the degree possible, the record should be plainly identified to eliminate confusion and delay.  With respect to fees, a promise to pay is a prerequisite to receiving records. SDCL §§1-27-35 thru 37.  There are no provisions to expedite response or to request future records.

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B. How long to wait

There is no time limit for the response to an informal request. However, there is no reason to wait longer than ten days.

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1. Statutory, regulatory or court-set time limits for agency response

A public records officer has ten days from receipt of a request to grant, deny or seek additional time. SDCL §1-27-37.

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2. Informal telephone inquiry as to status

No provision.

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3. Is delay recognized as a denial for appeal purposes?

Yes. Failure to respond in ten days is tantamount to a denial. SDCL §1-27-37.

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4. Any other recourse to encourage a response

Nothing in particular.

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C. Administrative appeal

The 2008 amendments added an administrative review of whole or partial denials of record requests. SDCL §1-27-35 to §1-27-43.

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1. Time limit

Within ninety days of denial. SDCL §1-27-38.

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2. To whom is an appeal directed?

Notice of review is filed with Office of Hearing Examiners. SDCL §1-27-38.   The involved agency should be notified by Office of Hearing Examiners, which sends copy of notice of review. SDCL §1-27-39.

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3. Fee issues

No provision.

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4. Contents of appeal letter

See SDCL §§1-27-38 (1) through (6).   A copy of the written request is required. SDCL §1-27-38 (4).   A copy of any denial or response is required, but no refutation is required. SDCL §1-27-38(5)

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5. Waiting for a response

No time limit in which Office of Hearing Examiners must hold hearing of decide case.

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6. Subsequent remedies

Decision of Office of Hearing Officer may be appealed to circuit court.

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D. Court action

Alternative to administrative review is to “commence a civil action by summons” within same 90-day time frame. SDCL § 1-27-38.

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1. Who may sue?

Presumably any requestor who has had request denied in whole or in part by a public records officer or objects to the officer’s fee or time estimate. SDCL §1-27-38.

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2. Priority

No provision.

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3. Pro se

Permissible

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4. Issues the court will address

Presumably the court will address whatever is necessary to implement open records law, either allowing or denying access. However, there are no procedural or substantive provisions under the open records law regarding enforcement by lawsuit.

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a. Denial

Presumably.

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b. Fees for records

Presumably.

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c. Delays

Presumably.

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d. Patterns for future access (declaratory judgment)

Presumably.

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5. Pleading format

A simple pleading alleging failure to comply with open records law might suffice. Certainly the usual remedies such as mandamus, prohibition, injunction or declaratory judgment action would seem appropriate, too. However, mandamus and prohibition do not employ a summons, making the “summons” directive problematic. SDCL §1-27-37.

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6. Time limit for filing suit

Ninety days from receipt of denial or fee/time estimate. SDCL §1-27-38.   It should be noted that this relatively short statute of limitations can likely be circumvented by simply making another open records request.  It is doubtful that a denial of an open records request by a public record officer will serve as a bar to future litigation over that record.

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7. What court

Circuit court.

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8. Judicial remedies available

Writs of mandamus or prohibition.

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9. Litigation expenses

Unlikely

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a. Attorney fees

Unlikely

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b. Court and litigation costs

Unlikely

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10. Fines

Unlikely

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11. Other penalties

Unlikely

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12. Settlement, pros and cons

Depends entirely on merits of specific case and value of case as precedent.

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E. Appealing initial court decisions

1. Appeal routes

Circuit Court decisions may be appealed to the South Dakota Supreme Court.

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2. Time limits for filing appeals

Within 30 days. SDCL §15-26A-6.

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3. Contact of interested amici

Interested amici can contact the South Dakota Newspaper Association in Brookings, South Dakota, or the Associated Press or Argus Leader in Sioux Falls, South Dakota, both of which are active in asserting the press and public's rights of access. The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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F. Addressing government suits against disclosure

Has not been raised in the specific context. However, in Hobart v. Ferebee, 2004 S.D. 138 (2004), the South Dakota Supreme Court struck down a protection order granted to a private citizen against his neighbor that required the neighbor to obtain court permission in advance of filing any complaints with any governmental agency on the grounds that it violated the First Amendment right of free speech and the right to petition the government.

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Open Meetings

I. Statute - basic application

South Dakota rewrote the bulk of its open meetings law, SDCL Chapter 1-25, in 1980.  The general statute, SDCL §1-25-1, below, has been amended a handful of times.

1-25-1.   Official meetings open to the public--Exceptions--Teleconferences--Violation as misdemeanor.

 

The official meetings of the state, its political subdivisions, and any public body of the state or its political subdivisions are open to the public unless a specific law is cited by the state, the political subdivision, or the public body to close the official meeting to the public. For the purposes of this section, a political subdivision or a public body of a political subdivision means any association, authority, board, commission, committee, council, task force, school district, county, city, town, township, or other agency of the state, which is created or appointed by statute, ordinance, or resolution and is vested with the authority to exercise any sovereign power derived from state law. For the purposes of this section, an official meeting is any meeting of a quorum of a public body at which official business of that public body is discussed or decided, or public policy is formulated, whether in person or by means of teleconference.

It is not an official meeting of one political subdivision or public body if its members provide information or attend the official meeting of another political subdivision or public body for which the notice requirements of § 1-25-1.1 have been met.

Any official meeting may be conducted by teleconference as defined in § 1-25-1.2. A teleconference may be used to conduct a hearing or take final disposition regarding an administrative rule pursuant to § 1-26-4. A member is deemed present if the member answers present to the roll call conducted by teleconference for the purpose of determining a quorum. Each vote at an official meeting held by teleconference shall be taken by roll call.

If the state, a political subdivision, or a public body conducts an official meeting by teleconference, the state, the political subdivision, or public body shall provide one or more places at which the public may listen to and participate in the teleconference meeting. For any official meeting held by teleconference, which has less than a quorum of the members of the public body participating in the meeting who are present at the location open to the public, arrangements shall be provided for the public to listen to the meeting via telephone or internet. The requirement to provide one or more places for the public to listen to the teleconference does not apply to an executive or closed meeting.

If a quorum of township supervisors, road district trustees, or trustees for a municipality of the third class meet solely for purposes of implementing previously publicly-adopted policy, carrying out ministerial functions of that township, district, or municipality, or undertaking a factual investigation of conditions related to public safety, the meeting is not subject to the provisions of this chapter.

A violation of this section is a Class 2 misdemeanor.

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A. Who may attend?

The "public" may attend. (SDCL §1-25-1)

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B. What governments are subject to the law?

1. State

Subject to law.

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2. County

Subject to law.

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3. Local or municipal

Subject to law.

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C. What bodies are covered by the law?

1. Executive branch agencies

Covered.

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a. What officials are covered?

The law does not refer to meetings of officials acting in an individual capacity.

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b. Are certain executive functions covered?

Particular executive functions are not specified.

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c. Are only certain agencies subject to the act?

The law contains no specific agency exceptions, but does have the general exception "except as otherwise provided by law." The main category of exceptions is the professional review boards and committees. E.g., physicians (SDCL §36-4-26.1); lawyers (SDCL §16-19-99); accountants (SDCL §36-20A-4).

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2. Legislative bodies

SDCL §1-25-1, arguably, is directed toward the executive branch. It does not specifically cover the state legislature or its committees. (S.D. Const. Art. III, §15, requires open legislative sessions, unless "business is such as ought to be kept secret." A proposal to eliminate the secrecy clause and to extend the requirement of openness to legislative committee and commission meetings has twice been rejected.)

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3. Courts

Courts are not covered by the act. (Court access is typically a matter of state and federal constitution. See S.D. Const. Art. VI, § 20.)

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4. Nongovernmental bodies receiving public funds or benefits

These bodies are covered. (SDCL §1-25-1)

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5. Nongovernmental groups whose members include governmental officials

These groups are probably not covered.

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6. Multi-state or regional bodies

These bodies are not specifically covered.

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7. Advisory boards and commissions, quasi-governmental entities

These groups are at least covered to the extent there is interaction with the appointing body. See Op. Att'y Gen. No.86-27 (1986).

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8. Other bodies to which governmental or public functions are delegated

These bodies are probably covered to the same extent. Id.

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9. Appointed as well as elected bodies

No distinction is made between elected or appointed bodies.

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D. What constitutes a meeting subject to the law

SDCL §1-25-1 does not define "meeting."

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1. Number that must be present

a. Must a minimum number be present to constitute a "meeting"?

A quorum must be present to constitute a "meeting."

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b. What effect does absence of a quorum have?

A meeting would not be official in the absence of a quorum.

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2. Nature of business subject to the law

a. "Information gathering" and "fact-finding" sessions

These sessions are subject to the law.

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b. Deliberation toward decisions

These deliberations are subject to the law.

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3. Electronic meetings

a. Conference calls and video/Internet conferencing

Specifically authorized. (SDCL §1-25-1).

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b. E-mail

Presumably open. Teleconference defined at SDCL §1-25-1.2 to include exchange of information by audio or video medium. Arguably, reading electronic messages is application of “video” medium.

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c. Text messages

Presumably open

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d. Instant messaging

Presumably open

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e. Social media and online discussion boards

Presumably open

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E. Categories of meetings subject to the law

1. Regular meetings

a. Definition

Not defined, but includes teleconferences.

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b. Notice

South Dakota has separate notice laws for state and non-state entities.

1-25-1.1  Notice of meetings of public bodies other than the state and its boards, commissions, and departments––Violation as misdemeanor

   All public bodies [except the state] shall provide public notice, with proposed agenda, that is visible, readable, and accessible for at least an entire, continuous twenty-four hours immediately preceding any meeting, by posting a copy of the notice, visible to the public, at the principal office of the public body holding the meeting.  The proposed agenda shall include the date, time, and location of the meeting.  The notice shall also be posted on the public body’s website upon dissemination of the notice, if such a website exists.  For any special or rescheduled meeting, the information in the notice shall be delivered in person, by mail, by email, or by telephone, to members of the local news media who have requested notice.  For any special or rescheduled meeting, each public body shall also comply with the public notice provisions of this section for a regular meeting to the extent that circumstances permit. A violation of this section is a Class 2 misdemeanor.”

The statute that expressly applies to the state is virtually the same, but requires posting of the notice at least seventy-two hours prior to meeting. SDCL §1-25-1.1.

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c. Minutes

State agencies are required to keep “detailed minutes of the proceedings of all regular and special meetings” under the generic open meetings chapter. SDCL §1-25-3. Those minutes are open to public inspection.  Various other governmental bodies covered under specific statutes interspersed throughout the code. E.g., county commissions (SDCL §7-18-3); townships (SDCL §8-6-3); municipalities (SDCL §9-18-1); school boards (SDCL §13-8-34).

SDCL §1-27-1.17 provides that “unapproved, draft minutes of any public meeting…that are required to be kept by law shall be available for inspection by any person within ten business days after the meeting.  The requirement is waived if an audio or video recording of the meeting is available on the governing body’s website within five days.

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2. Special or emergency meetings

a. Definition

Not defined.

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b. Notice requirements

Public bodies must comply with notice components of statute “to the extent that circumstances permit.” SDCL §1-25-1.1.   Compliance with notice requirements for regular meetings is required to the  "extent circumstances permit." (SDCL §1-25-1.1).   Notice is posted for the general public and delivered to "local news media" who have requested notice in person, by mail or by phone (SDCL §1-25-1.1).  Notice, including a proposed agenda, must be posted at the public body's principal office (SDCL §1-25.1.1).  Violations are a Class 2 misdemeanor (30 days jail and/or up to $200 fine).

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c. Minutes

"[D]etailed minutes of proceedings" are required to be kept (SDCL §1-25-3).  Minutes are presumably public record. (SDCL §1-27-1).

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3. Closed meetings or executive sessions

 The exceptions to the general requirement that government’s official meetings be open are set out below and permit––but do not require––the closing a portion of an official meeting for one of the limited purposes.  It should be noted that there are very few statutes that actually require that a meeting be closed.

 

1-25-2.   Executive or closed meetings––Purposes––Authorization––Misdemeanor

 

Executive or closed meetings may be held for the sole purposes of:

 

(1)  Discussing the qualifications, competence, performance, character or fitness of

any public officer or employee or prospective public officer or employee. The term

"employee" does not include any independent contractor;

 

(2)   Discussing the expulsion, suspension, discipline, assignment of or the educational

program of a student or the eligibility of a student to participate in interscholastic

activities provided by the South Dakota High School Activities Association;

 

(3)   Consulting with legal counsel or reviewing communications from legal counsel

about proposed or pending litigation or contractual matters;

 

(4)   Preparing for contract negotiations or negotiating with employees or employee

representatives;

 

(5)   Discussing marketing or pricing strategies by a board or commission of a business

owned by the state or any of its political subdivisions, when public discussion may

be harmful to the competitive position of the business.

However, any official action concerning such matters shall be made at an open official meeting. An executive or closed meeting shall be held only upon a majority vote of the members of such body present and voting, and discussion during the closed meeting is restricted to the purpose specified in the closure motion. Nothing in § 1-25-1 or this section may be construed to prevent an executive or closed meeting if the federal or state Constitution or the federal or state statutes require or permit it. A violation of this section is a Class 2 misdemeanor.

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a. Definition

Not defined, other than by permissible subject matter categories; SDCL §1-25-2, however, prohibits any official action in a closed meeting and restricts discussion to "purpose specified in the closure motion."

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b. Notice requirements

Executive sessions, if planned, should be noticed as part of the agenda of an open meeting under SDCL §1-25-1.1. In essence, executive sessions are meetings within meetings, and "notice" is technically given by the vote of the public body in the course of an open meeting, a requirement of SDCL §1-25-2.   Maximum penalty for failure to close meeting properly and for a proper purpose is 30 days and/or $100 fine.

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c. Minutes

SDCL §1-25-3 requires state agencies to keep “detailed minutes of the proceedings of all regular and special meetings….”  Since executive sessions are part of official meetings, whether regular or special, it stands to reason minutes must be kept.  SDCL §1-25-3 further requires that minutes be “available for inspection by the public.”  Despite the non-exclusive language, however, it is unlikely that a court will force any public body to disclose minutes––if kept––of an executive session.

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d. Requirement to meet in public before closing meeting

Yes. SDCL §1-25-2).

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e. Requirement to state statutory authority for closing meetings before closure

Yes. SDCL §1-25-2).

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f. Tape recording requirements

None.

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F. Recording/broadcast of meetings

1. Sound recordings allowed

SDCL §1-25-11 allows a person to record a public meeting “through video or audio technology…as long as the recording is reasonable, obvious, and not disruptive.”

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2. Photographic recordings allowed

SDCL §1-25-11 allows a person to record a public meeting “through video or audio technology…as long as the recording is reasonable, obvious, and not disruptive.”

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G. Access to meeting materials, reports and agendas

The public has access to certain meeting materials umder SDCL §1-27-1.16.  That statute provides that “any printed material relating to an [open meeting] agenda item [that] is prepared or distributed by or at the direction of the governing body or any or its employees and…distributed before the meeting to all members of the governing body...shall either be posted on the governing body’s website or made available at the official business office…at least twenty-four hours prior to the meeting or at the time the material is distributed to the governing body, whichever is later.  If the material is not posted to the governing body’s website, at least one copy…shall be available in the meeting room….”  A violation is a Class 2 misdemeanor.

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H. Are there sanctions for noncompliance?

In 2004 the South Dakota Legislature passed SDCL §§1-25-6 through 1-25-9 establishing an Open Meeting Commission, the sole function of which is to consider complaints of open meetings law violations that local states attorneys have passed along. The Commission, comprising five states attorneys appointed by the attorney general, reviews any investigatory file and written submissions by the parties and then determines whether a violation has occurred. The Commission enters findings of face, conclusions of law and its decision. The sanction for a violation is a "public reprimand." The Commission's decision is a bar to further prosecution.

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A. Exemptions in the open meetings statute

SDCL§1-25-2 describes the specific subject matter that “may” be discussed in executive session.  Closure is discretionary.

 

(1)  Discussing the qualifications, competence, performance, character or fitness of any public officer or employee or prospective public officer or employee. The term "employee" does not include any independent contractor;

(2)   Discussing the expulsion, suspension, discipline, assignment of or the educational program of a student or the eligibility of a student to participate in interscholastic activities provided by the South Dakota High School Activities Association;

(3)   Consulting with legal counsel or reviewing communications from legal counsel  about proposed or pending litigation or contractual matters;

   (4)   Preparing for contract negotiations or negotiating with employees or employee representatives;

(5)   Discussing marketing or pricing strategies by a board or commission of a business  owned by the state or any of its political subdivisions, when public discussion may be harmful to the competitive position of the business.

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1. Character of exemptions

2. Description of each exemption

B. Any other statutory requirements for closed or open meetings

No.

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C. Court mandated opening, closing

It is possible.

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III. Meeting categories - open or closed

A. Adjudications by administrative bodies

Except in cases of professional review, they are presumably open. SDCL Chap. 1-26.

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1. Deliberations closed, but not fact-finding

Uncertain.

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2. Only certain adjudications closed, i.e. under certain statutes

If routine hearings are presumably open and professional licensing investigations are generally closed.

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B. Budget sessions

Presumably open. E.g., state agencies (SDCL §§4-7-1, 10); counties (SDCL §§7-21-8, 9); school boards (SDCL §13-11-2); municipalities (SDCL §9-21-2).

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C. Business and industry relations

These meetings are presumably open, unless discussions of competitive marketing or pricing strategies are involved. (SDCL §1-25-2(5))

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D. Federal programs

Presumably open.

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E. Financial data of public bodies

Presumably open.

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

Presumably closed, in light of various confidential records provisions.

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G. Gifts, trusts and honorary degrees

Presumably open.

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H. Grand jury testimony by public employees

Presumably closed. See SDCL §23A-5-16 for secrecy of grand jury proceedings generally.Presumably open.

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I. Licensing examinations

J. Litigation, pending litigation or other attorney-client privileges

Closed. SDCL §1-25-2(3).

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K. Negotiations and collective bargaining of public employees

1. Any sessions regarding collective bargaining

Closed. SDCL §1-25-2(4).

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2. Only those between the public employees and the public body

Closed. SDCL §1-25-2(4).

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L. Parole board meetings, or meetings involving parole board decisions

Regular meetings and meetings to hear parole applications are open. SDCL§§ 24-13-4 and 24-13-6.

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M. Patients, discussions on individual patients

Presumably closed. SDCL §19-13-6. But see SDCL §19-2-3 concerning waiver if health is an issue in any proceeding.

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N. Personnel matters

Presumably closed. SDCL §1-25-2(1).

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1. Interviews for public employment

Presumably closed. SDCL §1-25-2(1).

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2. Disciplinary matters, performance or ethics of public employees

Closed. SDCL §1-25-2(1).

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3. Dismissal, considering dismissal of public employees

Closed. SDCL §1-25-2(1).

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O. Real estate negotiations

Closed in cases of state-owned businesses, but it is uncertain whether this applies to agencies in general. SDCL §1-25-2(5).

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P. Security, national and/or state, of buildings, personnel or other

No special exemption, but presumably closed.

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Q. Students, discussions on individual students

Closed. SDCL §1-25-2(2).

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IV. Procedure for asserting right of access

A. When to challenge

A person contesting closure should advise the public body of that fact and attempt to convince them that a closed meeting would be improper in the first instance. The public body might be persuaded to postpone holding such a meeting until counsel have had an opportunity to confer about its legality.

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

No, but as a practical matter mandamus or prohibition actions are generally expedited remedies. SDCL Chaps. 21-29 and 21-30.

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2. When barred from attending

Must be careful to assert that matter is not moot because it is capable of being repeated without any opportunity to make a timely challenge.

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3. To set aside decision

As soon as possible.

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4. For ruling on future meetings

As soon as possible with declaratory judgment action. SDCL Chap. 21-24.

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5. Other

See Olson v. Cass, 349 N.W.2d 435 (S.D. 1984) in which the South Dakota Supreme Court indicated that "substantial compliance" with the open meetings law was sufficient.

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B. How to start

1. Where to ask for ruling

a. Administrative forum

In 2004 the South Dakota Legislature passed SDCL §§1-25-6 through 1-25-9 establishing an Open Meeting Commission, the sole function of which is to consider complaints of open meetings law violations that local states attorneys have passed along. The Commission, comprising five states attorneys appointed by the attorney general, reviews any investigatory file and written submissions by the parties and then determines whether a violation has occurred. The Commission enters findings of face, conclusions of law and its decision. The sanction for a violation is a "public reprimand." The Commission's decision is a bar to further prosecution by either the state’s attorney or the attorney general.  SDCL §1-27-7.

It bears emphasis that the South Dakota Open Meetings Commission’s decisions, while intended to influence and guide the conduct of the state’s public bodies, are not legal precedents.  Although public bodies are not apt to ignore or challenge an OMC ruling, a member of the public can litigate the same issue in court, de novo.

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b. State attorney general

Violation of open meetings law has been a Class 2 misdemeanor for many years, but prosecution has been non-existent. So although a complaint could be filed with the local states attorney, nothing was likely to come of it. Now, however, with the recently established Open Meeting Commission (above), a state’s attorney has three options: 1) prosecuting; 2) finding "no merit to prosecuting" and filing copies of the complaint and any investigative file with the attorney general; 3) deferring to the South Dakota Open Meetings Commission "for further action."

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1. Applicable time limits

None.

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2. Contents of request

Specifically set out facts of incident, cite relevant law, establish standing and assert grounds why the issue is not moot.

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3. How long should you wait for a response?

If an informal request is made of an agency in a non-emergency situation, then give a reasonable time (30-60 days) to respond.

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c. Court

The South Dakota Supreme Court and circuit courts have concurrent jurisdiction in mandamus, prohibition or injunction actions. In addition, depending on the circumstances, a declaratory judgment action may be appropriate.

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2. Applicable time limits

None.

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3. Contents of request for ruling

Specifically set out facts of incident, cite relevant law, establish standing and assert grounds why the issue is not moot.

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4. How long should you wait for a response

If an informal request is made of an agency in a non-emergency situation, then give a reasonable time (30-60 days) to respond.

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5. Are subsequent or concurrent measures (formal or informal) available?

There is nothing to prohibit duplicity, but separate legal actions should not be taken.

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C. Court review of administrative decision

Technically, there is not a review, but an original court proceeding.

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1. Who may sue?

Presumably any aggrieved member of the public, but courts' concept of standing may vary in cases in which a party is not affected or not a resident of a particular body's jurisdiction.

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2. Will the court give priority to the pleading?

Not known.

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3. Pro se possibility, advisability

Inadvisable, if only because of procedural pitfalls, but possible.

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4. What issues will the court address?

a. Open the meeting

Presumably.

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b. Invalidate the decision

Possible.

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c. Order future meetings open

Questionable.

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5. Pleading format

Often this genre of actions requires pleading in the form of an affidavit.

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6. Time limit for filing suit

There is no special limitation.

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7. What court

Circuit court is the usual choice, but if the case is exceedingly strong and there is little likelihood of setting a bad precedent, thought should be given to an original proceeding before the South Dakota Supreme Court, if permissible.

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8. Judicial remedies available

Mandamus, prohibition, injunction, declaratory judgment.

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9. Availability of court costs and attorney's fees

Costs available, but not attorney fees. SDCL §§15-17-1 and 15-17-7.

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10. Fines

No civil fine, but possible criminal fine of up to $200. SDCL §22-6-2.

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11. Other penalties

Criminal penalty of up to 30 days and/or up to $200 fine. SDCL §22-6-2.

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D. Appealing initial court decisions

1. Appeal routes

Appeal from circuit court to the South Dakota Supreme Court.

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2. Time limits for filing appeals

60 days.

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3. Contact of interested amici

South Dakota Newspaper Association in Brookings South Dakota, or the Associated Press or Argus Leader in Sioux Falls, South Dakota.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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V. Asserting a right to comment

This matter has not been legislated or litigated. Presumably, there is a generic right to comment at a public meeting, subject to reasonable time, place and manner restrictions.

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A. Is there a right to participate in public meetings?

Yes.

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B. Must a commenter give notice of intentions to comment?

Uncertain. Likely will be a matter of chair discretion or the rule of a particular public body.

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C. Can a public body limit comment?

Yes

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D. How can a participant assert rights to comment?

Presumably attend the meeting and give as much notice as possible of intention to comment.

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E. Are there sanctions for unapproved comment?

There are no special sanctions.

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Appendix

Open records request model letter

Dear [Public Record Officer]:

My client [the Associated Press] has advised me that on [date] they requested of you/your office an opportunity to inspect/copy [record/document description]. It is my understanding that you/your office denied them that right.

It is my belief that under state law [cite any statutes that might pertain] and fundamental democratic principle that such a record/document is open and should be available for public inspection and/or copying.

Finally, in order to save us all some time, I would appreciate it if you would specify any statutory or case law upon which you rely in making your decision to deny access.

I thank you for your attention to this matter.

Respectfully,

[Name]

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