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Supreme Court shoots down public records request

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Sep. 14, 2007  ·   The South Dakota Supreme Court ruled Thursday that a list of business invitees to an…

Sep. 14, 2007  ·   The South Dakota Supreme Court ruled Thursday that a list of business invitees to an exclusive pheasant hunt hosted by the governor is not a public agency record, and therefore not open to inspection under the public records law.

The court’s decision marks the end of a nearly two-year-old battle waged by the Sioux Falls Argus Leader against James Hagen, the secretary of the Tourism and State Development Board, for access to the list of what he had claimed included “targeted business prospects and individuals in the business community who can facilitate the expansion or introduction of business in the state.”

The 16-page opinion was delivered by Circuit Court Judge John W. Bastian, who along with four other circuit court judges, replaced the regular supreme court justices who had all recused themselves from hearing the case.

Hagen testified in an affidavit to the court that a previously disclosed list of attendees to the governor’s Invitational Buffalo Roundup had been used by others for solicitation and “resulted in an adverse reaction by attendees.”

For this reason, Hagen refused to release the pheasant hunt list for fear that its public accessibility might disrupt future business opportunities and business development, the opinion stated.

The court, strictly tracking existing language in public records law, found “no statutory provision which creates a clear and unequivocal duty for the Secretary to make the invitation list available to the public.” Therefore, the court opined, Hagen’s decision not to turn over the list would not be overturned.

Jon Arneson, the Argus Leader’s attorney, said it was the first public records case he knew of that had been argued to all the way to the state Supreme Court. Arneson also said that while he was disappointed he wasn’t shocked at the outcome:”The generic open records law in South Dakota is very, very bad.”

“The Supreme Court said, unless there is a statute . . . that says there will be a Governor’s hunt invitation list, and it will be maintained or kept by the Secretary of Tourism, there’s not going to be access to that,” Arneson said. “It gets to be kind of a joke.”

According to the opinion, broader access to public records, beyond the specific language of the current statute, will have to come from lawmakers, rather than the courts. “The remedy sought by the Argus Leader lies with the legislature,” the court said.

Arneson said agrees that a complete statutory overhaul is necessary if legislators want citizens to have reasonable access to government records.

“Start with a presumption of openness and then carve out the exceptions, rather than force the legislature to identify every conceivable piece of information that might be of value for citizens. And that’s the way it is now,” Arneson said. “It’s backwards.”

(Argus Leader v. Hagen; Media counsel: Jon E. Arneson, Sioux Falls)LC

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