FOREWORD

The antiquated South Dakota open records law finally was overhauled completely during the 2009 legislative session. The revamped law is modeled on and closely parallels Nebraska’s in most respects, although the South Dakota Legislature has added a handful of provisions. Since the new law went into effect on July 1, 2009, there is no body of case law establishing precedent. Therefore, most of this outline is based on common sense reading of the new statutes.  Whether the South Dakota courts look to Nebraska case law for interpretative guidance is anybody’s guess.

 

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 of this Act, 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 this Act, 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.

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 chapter 19-13;

(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;

(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.     

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 prohibit 

          ed––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 of office of register of deeds recorded prior to July 1, 2010

   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.

1-27-4.     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.

1-27-41.         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.