Capitol Notebook

State law protects public employees

against scrutiny by members of public

By Bob Mercer

State Capitol Bureau

South Dakota’s laws regarding public records are in some ways good and in other ways bad, depending on what a person is trying to learn about the everyday operations within a government or public school district.

The laws, rewritten in 2009, clearly favor public knowledge on financial matters.

That section directs the laws be “liberally construed” on financial records and citizens “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.”

But the laws also clearly shield government officials and employees from public scrutiny.

Their correspondence, memoranda, calendars or logs of appointments, working papers, and records of telephone calls made on the job – public or personal — aren’t considered public records.

The consequence is, in most instances, citizens can’t know what public employees are doing except at a public meeting.

Further, the open-records laws don’t apply to anyone in the judicial branch – and only to the Legislature when legislators agree.

Recently the correspondence exemption for officials and employees snagged this reporter.

At a meeting held months ago, a public body directed that two letters be sent to another organization. The discussions and the vote were shown in the meeting minutes.

The department in custody of the records provided one of the letters that I requested. But there wasn’t any mention of the second letter.

I followed up, asking if two letters were indeed sent. Yes, an official replied, but they weren’t releasing the second letter.

Initially they cited “personnel” as the reason for the denial. I asked for the specific exemption. The reason then became the correspondence exemption.

State law, thanks to former Attorney General Larry Long, contains a specific process for formally seeking a record.

I filed a formal request and cited two reasons the letter must be a public record. The two letters were transmittals of a public body’s official decision. The letters also dealt in some ways with financial matters.

If my formal request was denied, I was prepared to use the appeal process in state law, where an administrative hearing officer reviews the matter and gives a decision. If necessary, I was prepared to appeal an adverse decision to circuit court, the next step under state law.

The officials in custody of the letters decided to relinquish a copy of the second letter. They also mentioned in the course of the discussion they received a response to that letter from the other organization. I asked for and received a copy of the response letter.

The officials made clear they hoped I wouldn’t write a story. One of the officials declined to answer a question until he knew what I planned to do. I didn’t answer either way and moved on to another topic.

The letters aren’t the main point of what I am researching. I don’t know yet how the letters fit. But they are telling about attitude and relationship.

Citizens generally should have the right to know what official letters say.

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