BY TERRY WOSTER
Argus Leader of Sioux Falls
PIERRE – Open government, particularly citizen access to government records and documents, is among the 2008 legislative session’s hot topics.
Legislative leaders and Gov. Mike Rounds have weighed in. So have lobbyists for various interests, the newspaper and broadcast world, cities and counties and law enforcement.
South Dakota is consistently cited among the least-open states in the nation when it comes to records laws.
Everyone, it seems, wants a bill that works for citizens who want records but that shields personal information and protects other areas such as sensitive law enforcement and business information.
Compromise must span a wide chasm as illustrated by these views of the status of open records today in South Dakota:
§ “We need to get past this attitude that government belongs to a few people, and the rest of us … are going to be treated like somebody that’s storming the castle gates,” Sen. Nancy Turbak Berry, a Watertown Democrat, said last week. She has a bill that works from the presumption that government records are open unless a clear case can be made for secrecy.
§ “We believe that presumption of openness exists in reality out there,” said Yvonne Taylor of the South Dakota Municipal League. She favors a different bill, one that said records required by law to be kept and filed are open, a more cautious approach. “We want to keep this a simple process where people do get the information they request at city hall.”
Last week, the bill Taylor preferred was stripped of everything but a way to settle fights over records. In that form, it’s ready for Senate debate. Turbak Berry’s bill is waiting Senate action, too.
With action pending on those two bills, perhaps it’s a good time to look at the basics of how we got to this point. Here’s a primer on open records, what’s driving the discussion and what the proposed legislation might do.
Q: Isn’t it really just the news media that wants the information?
A: Sometimes it seems that way, for sure. Newspapers and broadcasters often are the ones who seek government information. For the most part, though, they do it to print or broadcast it with the idea that it might be information citizens want to know or might need to know. But the information they are seeking, if it is public at all, is information that ought to be available to any citizen who asks.
Q: Well, why doesn’t somebody just say whether the thing is open or closed, then?
A: That seems simple enough, doesn’t it? Problem is, the state of open records in South Dakota doesn’t always lend itself to those kinds of quick decisions. Turbak Berry’s bill heads that way, with its “if you can’t prove it’s closed, give it to the citizen” approach. There are concerns about that, though, as we’ll see a bit later.
Q: Why has it gotten so much attention this year compared to past sessions?
A: One reason is a review of records by Attorney General Larry Long. We’ll talk about that in a bit. Another reason is that the state Supreme Court issued a ruling in a case involving the Argus Leader trying to get a look at the invitation list to the annual governor’s hunt. South Dakota hasn’t had many Supreme Court decisions in this area, and the most recent one seems to suggest a fairly conservative approach to open records.
Q: Can’t the attorney general or somebody just tell us what to do?
A: In some instances, sure. But that office doesn’t pass the laws. The 2006 Legislature passed a bill, sponsored by Republican Sen. Jason Gant of Sioux Falls, that directed the attorney general’s office to jump into the issue. Long issued a report last summer.
Q: What did he find out?
A: The basic findings? Lots of records are specifically required by law to be open. Lots of records are specifically required to be confidential. Those are easy. People may argue whether a record belongs in one category or the other, but at least it’s clear what the law says. The part of the report that highlighted the whole problem was this: “A significant number of records maintained by state agencies and by local governments … fall outside the scope of (open records laws). Accordingly, public entities at various levels hold a great deal of discretion in determining whether to release such records.”
Q: What did the attorney general say about that?
A: He said the law needs “a more standardized definition” of public record that doesn’t rely on whether the document is required by law to be kept. He also said that, to the extent that government bodies have discretion over records, standards should be developed that weigh the relative merits of disclosure and confidentiality. And he said there should be a simple and inexpensive way for a citizen and a government agency to settle disputes over documents.
Q: Where’s the governor on this thing?
A: Gov. Rounds tends to be an incrementalist, meaning his default position generally is to bump the status quo a step or two at a time. That puts him more in the camp of those who would like to take the attorney general’s report and gradually open a few things at a time. Rounds has criticized – and he sent top staffers on two separate occasions to criticize – the Turbak Berry presumption of openness approach.
Q: Why doesn’t the governor like the concept of presumed openess?
A: Rounds says such an approach might force open letters or other communications between constituents and legislators and might pry open personal information that citizens are required by law to give government. That shouldn’t be done, the governor says.
Q: Is that true?
A: Sen. Turbak Berry says no. Her bill isn’t simply a presumption of openness but a rebuttable presumption, she says. Simply put, that means the openness can be reversed with a clear and convincing argument for confidentiality. She also notes that in her bill, virtually all of the records currently closed by law would remain that way.
Q: What sorts of records would her bill specifically close?
A: The list includes personal information; pending contracts or collective bargaining negotiations; trade secrets and intellectual property; financial, research and development information; work product, deliberative process and attorney-client records; records that could endanger any persons life or safety; internal agency records; test questions and answers before the exam; security information on critical infrastructure, and records from private sources involving potential or existing investment of agency funds or investment strategies.
Q: What if an agency thought the list missed something that ought to be on it?
A: Turbak Berry’s bill has what she says is a fail-safe feature that lets an agency go to circuit court to protect a record it believes shouldn’t be open. The court would have the authority to keep the record closed, Turbak Berry says, “if it’s clear that disclosure of the information is contrary to the public interest and would cause irreparable harm.”
Q: What if I’m just a citizen who gets turned down? I can’t afford to hire a lawyer. Does that mean I lose just because I don’t have the money or time to fight the government? Which, by the way, will be using my tax money to fight me?
A: That’s where that dispute resolution thing we mentioned earlier comes in. Remember Larry Long’s recommendation about a simple, inexpensive way to settle records fights? Well a separate plan by Senate Majority Leader Dave Knudson has been stripped down to include just that.
Q: In a nutshell, how would that work?
A: If a request were denied, a citizen could make a written request to the person in charge of the record. Within 10 days, the official would be required to respond, providing the record, denying it or saying more time is needed to figure out whether to comply. If it were a denial, the response would have to include a reason. The official could also say the record is available but for a fee. At that point, the citizen could go to court – which is what happens now unless the fight is dropped – or file a request with the state Office of Hearing Examiners. The OHE would collect arguments and facts, might hold a hearing, and then would make a decision.
Q: Is that the end of it?
A: The idea is that, in most cases, if it went as far as a hearing before examiner and a decision, that would be the end of it. The decision, of course, could be appealed to circuit court. That’s a pretty standard opening at the end of most administrative hearings.
Q: What’s this business about “available for a fee?”
A: Yes, there’s always that, isn’t there? The dispute resolution provisions say an agency could charge actual costs of mailing or transmission of the document, not more than $1 per page in most instances. If the requested information would take more than an hour of staff time, payment for that staff time might be required. And, for requests that involve volumes of material, if it appeared the cost to provide the information would be more than $50, the government official would give an estimate of the cost. The person seeking the record would have to agree to pay that cost. The citizen could challenge the cost estimate, too, in court or through the hearing process.
Q: So I still might be shut out of a record if the one I wanted would cost a lot to provide and I had little money?
A: That’s possible, and it’s a concern of open-records advocates. Many states have laws that set “actual costs” or reasonable costs” to produce records. “We need to use caution so the price doesn’t become the barrier to citizen access,” David Bordewyk of the South Dakota Newspaper Association says. The dispute resolution bills in this year’s Legislature include a provision that says the keeper of the record has discretion “to waive or reduce any fee required … if the waiver or reduction of the fee would be in the public interest.”
Q: What did the attorney general’s report say about costs?
A: Long’s report recommended a standard way to let government at all levels “recover reasonable fees for data retrieval, redaction, production of copies and delivery of document requests.” It also said the system should distinguish between individual requests and commercial requests and recommended that “commercial interests pay the full cost of such data requests.”
Q: What’s the status of the open records bills?
A: Both the Turbak Berry and the Knudson bills are scheduled for debate this afternoon (Monday, Feb. 11) on the Senate floor. The floor session starts at 2 p.m. The Rave-Dempster bill is set for a hearing this morning (Monday) at 10 a.m. in the House State Affairs Committee, Room 412.
Terry Woster is the Capital Bureau reporter for the Argus Leader. He’s covered state government in South Dakota for nearly 40 years. Reach him at twoster@midco.net.
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