Column - Watertown Public Opinion

By Mark S. Roby
Publisher, Watertown Public Opinion

A conversation with the Governor

We met with Governor Rounds yesterday at a meeting of our editorial 
board.
We enjoy seeing our Governor and hope he enjoys getting out of Pierre, 
especially during the legislative session.
Our conversation centered around an issue we like to think is 
important to the people of Northeastern South Dakota and for our 
readers in Western Minnesota: open government and open records.
First off, I’ll admit I was quite frustrated during the conversation 
with the Governor, and I ‘m guessing he was equally frustrated.
As our editor, Jerry Steinley said after the editorial board meeting: 
“No wonder ... this is simply a difference of philosophies.”
Yup. That is where we are.
On one hand, we see a need to fix our laws due to the inconsistencies 
of our open records and open meeting laws at the county, city, school 
board and township level in the Glacial Lakes Region. It’s not an 
everyday occurrence, but it has happened enough to where we do need to 
update our laws.
But according to our Governor we don’t have a problem. This records 
and open meetings problem is simply a news media issue. He (more than 
once) said his office has not received one phone call, e-mail or 
letter on problems with South Dakota ‘s laws. Not one. Therefore, it 
is not an issue.
Yet we see issues all the time. Most recent example: why is our 
legislature working on a bill to make the voter’s record card a public 
document? Because after last year’s SD Supreme Court ruling, that 
document is now closed and not open to public inspection. Nearly 
everyone, locally and in Pierre thought they were open. That ruling is 
just yet another reason why we need to change our open records laws.
When I presented him with that and other examples over the past few 
years, all on the local level, rather than agree there is a problem, 
he suggested all these matters could be fixed under current law - 
simply take each problem with current law or create new laws, as we 
are doing with voter registration cards.
That could turn out to be quite a list of new laws each and every time 
we come across a closed record, don’t you think?
But, our Governor wouldn’t come close to buying the premise we have 
issues with open records/government. Therefore, not buying the 
premise, means there’s nothing to fix, and there is no issue.
And it’s there, while not said out loud, we agreed to disagree.
He didn’t budge in his position. And, in the end, neither did I.
Ironically we did agree, though, on the need for continuing education 
and training local elected officials and public employees on how the 
current laws are interpreted, so the inconsistencies across local 
governments could be solved.
When asked specifically about his support of SB186, a bill to create a 
dispute resolution process for government records access by the 
public, the Governor indicated yes, he would support this measure.
When asked specifically about his support of SB189, a measure written 
by District 5 legislator, Sen. Nancy Turbak Berry, a bill to change 
South Dakota’s laws from one where records are closed unless state law 
requires them to be open, to one where government records are open 
(”presumed assumption of openness”) (except where specifically closed 
(i.e., social security numbers, birth dates, and other private 
personal data)), the Governor was quite emphatic: no.
I don’t agree with the Governor’s position on SB189. Sen. Turbak Berry 
and her co-sponsors from both sides of the aisle, have it right. Her 
bill has ample protections for privacy rights. Plus more importantly, 
it has a provision whereby if an elected official or government 
employee does not want to release the record, they can go to court and 
ask for injunctive relief. SB189 thus, has a fail safe lever in case 
something is overlooked that should not be released to the public.
But, our Governor isn’t interested in this bill, nor is he willing to 
work with the sponsor and co-sponsors to fix the bill so he can 
support it. “I’ve already done that with SB186” Governor Rounds said 
(before it was amended and stripped of all the provisions except for 
the dispute resolution process).
What to make of all of this?
I hope the Governor heard the local examples we gave him of where we 
see fatal holes in South Dakota’s current laws that are in need of a 
fix. I believe his sensitivity to these local issues needs 
improvement. Maybe from a State perspective, he has a handle on all 
that‘s going on in Pierre, but he doesn’t at the local level and he 
should be more aware and more willing to work with legislators on both 
sides of the aisle for a fix like what SB189 will do for the local 
level.
If phone calls and e-mails are key to getting the Governor to move off 
his position, well then maybe folks who think having an open 
government and open records ought to write and call the Governors 
office.
But you know what? I don’t think we should base our decision on this 
important matter on the “number of phone calls and e-mails” to decide 
if we do or do not need a new law, should we?
If that is the litmus test on changing our laws, how many people 
called our legislature and Governor and requested we raise the pay of 
our legislators? Yup, you have the same answer as I do: none, nada, 
zero.
Why then, are we attempting to raise legislative pay?
So, that’s really a spurious argument. We do have examples of both 
open records/meetings problems that make an update and change to our 
laws a very reasonable and prudent decision.
Sen. Turbak Berry is quite persuasive in her comments that South 
Dakota is the only state in the nation without a  presumption of 
openness. Rhetorically, she and others ask, why can’t we join the rest 
of the nation on this topic? Good point. I don’t know why we can’t.
And contrary to what the Governor says this is not “just a media 
problem” ... it ‘s a problem for all the citizens of South Dakota, and 
you’ll know the problem for real when you ask and then are denied a 
government record as many in this state have had happen to them. 
Rather than wait until it happens to you, why not fix this problem 
proactively, as SB189 does?
Oh yes, because there are no problems in South Dakota ...