SDNA FOI Exchange

2009 = Open Government?

2009-01-03T19:59:00.000-08:00

The start of the 2009 legislative session is just days way. What will this session deliver in terms of open government? Will it be a positive? A negative? A toss-up?

Indications are that some momentum has built among key legislators to keep open government on the front burner this year.

We need open records legislation in South Dakota that creates a presumption of openness for government records and documents. With almost every other state there already, the time has long come for our state to pass comprehensive open records reform that reflects the size and scope and dynamics of state and local government today.

What can we do?
Talk to your legislators.
Editorialize why comprehensive open records legislation is needed.
Write stories about why legislation is needed.

You can track legislative action at: http://legis.state.sd.us/sessions/2009/index.aspx.

Op-Ed Column -- SDNA

2008-02-18T09:46:00.000-08:00

OPEN GOVERNMENT BILL GOOD FOR SOUTH DAKOTA

By David Bordewyk

South Dakota Newspaper Association

Citizens of South Dakota: Remain calm.

As Gov. Mike Rounds and some legislators tell it, your privacy is at grave risk because of Senate Bill 189.

Nothing could be farther from the truth.

The governor and some legislators are trying to scare the public into thinking that Senate Bill 189 will undo current privacy laws in South Dakota. It's one of their unfounded arguments meant to kill the bill.

SB 189, sponsored by Sen. Nancy Turbak Berry of Watertown, is good legislation for South Dakota. The bill gives us a modernized, comprehensive open records law that reflects the scope and dynamics of government in South Dakota. It creates an open government foundation that would serve all citizens of South Dakota well into the future.

The bill balances our fundamental right to inspect and access government information with our expectations that certain government records must be maintained confidentially.

SB 189 does not reverse current laws that already protect private information. SB 189 includes safeguards to protect against errant release of confidential information. In short, the bill has more than adequate protections for sensitive and confidential government information.

The governor also tells us that all the debate about open government legislation this session is because the news media alone is pushing this issue and no one else cares about it.

He's partly correct. It is a news media issue. Journalists poke and prod government for information on behalf of the public every day. It's the job of journalists to get at the truth and report it to the public. But government in South Dakota often hides that information behind one of the weakest open records laws in the country.

Ultimately, it's the public that is poorly served by the denial to basic government information. So, yes, it is a news media issue because South Dakota journalists know all too well the roadblocks created by government to keep secret essential information.

Members of the House State Affairs Committee have an opportunity Wednesday to advance open government in South Dakota and vote yes on SB 189. But first, they must reject the falsehoods put forth by the governor about SB 189.

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Open Records Q & A - Sioux Falls Argus Leader

2008-02-11T14:13:00.000-08:00

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.

Column - Watertown Public Opinion

2008-02-09T12:53:00.001-08:00

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 ...

Column -- SDOG

2008-02-08T06:54:00.000-08:00

Can run as editorial or column. Tag line is included, if published as a column.

For just a moment, all South Dakotans should applaud. Our Senate State Affairs Committee did something striking, maybe even courageous in opening government to the public. Certainly it was unexpected.

Don’t think this fight is over. But take just a short time to savor the success.

The committee took a bill sponsored by Sen. Dave Knudson, R-Sioux Falls, and with his blessing stripped it of all its perhaps well-meaning but damaging provisions that would have made our government more closed to its citizens.

It left intact a very good provision that establishes an appeals procedure – officially a dispute resolution process - when citizens and government can’t agree if information is open to the public – the very same provision recommended unanimously by Attorney General Larry Long’s government openness task force.

The committee also, on a 6-2 vote, approved a bill sponsored by Sen. Nancy Turbak Berry, D-Watertown, who thinks that government ought to prove why citizens shouldn’t have access to information – rather than the other way around.

"All we are doing is saying we recognize the democratic principles of open government," Turbak Berry said.

Yes, it’s that simple. So we shouldn’t be surprised that a Republican-dominated committee approved a bill supporting basic rights of South Dakotans, even if it is so vigorously opposed by Republican Gov. Mike Rounds.

But let’s be honest. Until the committee voted, it looked almost certain that South Dakotans would lose – and government would win.

Rounds has threatened – through minions, not directly to citizens – to veto any bill that presumes South Dakotans are more important than elected officials and bureaucrats. He doesn’t believe that South Dakotans have a right to know what government is doing, and that government should have to prove the need for secrecy.

We can take heart with the committee vote, which demonstrates not every legislator agrees with Rounds’ throne-room pronouncements.

Of course, there are legitimate concerns about privacy and security. That’s why there are exceptions in Turbak Berry’s bill. Not everything is open to the public. That’s why we have a provision for government to temporarily deny information to the public – pending an appeal arguing the information should remain confidential.

The goal is to make government more open to South Dakotans.

The goal isn’t to publicize private, confidential information. The goal isn’t to give terrorists or other criminals valuable security information.

That’s why we have exemptions – types of information that will remain confidential. That’s why we have the safety valve – a way to avoid mistakenly releasing personal and security information.

Committee chair Tom Dempster, R-Sioux Falls, asked Turbak Berry if she was sure information was protected.

"How can I as a private citizen be sure that you, in drafting this bill, have sought all those exceptions (for privacy of records)?" he asked.

He can be sure, because Turbak Berry’s bill has been modeled after others around the country that have a long history of success. And if we find a mistake, there’s still the safety valve.

But it’s important to look deeper into Dempster’s question, because it’s not private citizens at all who are opposed this bill. It’s government. It’s legislators. It’s city councils. It’s school boards. It’s county commissions. It’s the governor.

It’s not private citizens.

So applaud the Senate State Affairs Committee and its courageous, dramatic approval of these bills.

At least for a brief time, the sun shone on South Dakota government.

Chuck Baldwin is executive director of South Dakotans for Open Government. He also is journalist in residence at the Al Neuharth Media Center at the University of South Dakota.

Op-ed Column - Watertown Public Opinion

2008-02-04T13:38:00.000-08:00

By Tim Gebhart
for the Watertown Public Opinion

Why the current debate in the state Legislature over public records?
Journalists and others may point to specific instances but the core issue
arises from the seeming simplicity of our current law. It provides that if a
state law requires a public officer to keep a record or document, it must be
³available and open for inspection by any person during normal business
hours.² Initially enacted in 1935, problems exist because of what the
statute fails to say and the broad exceptions to it.
For example, there are countless documents public offices retain that they
may not be required to by statute. Why is that significant? Because last
year the South Dakota Supreme Court ruled that if a statute doesn¹t require
a record to be kept, it isn¹t open for public inspection.
As for exceptions, another statute says the law does not apply to records
specifically stated to be confidential or secret by the laws requiring their
keeping. As a result, exceptions are scattered throughout the state¹s laws
without specifically mentioning particular records and there are no specific
exceptions or guidance in the public records act itself.  While the Attorney
General¹s office recently created a ³South Dakota Records Catalog² listing
the types of records maintained by state and local government and whether
those records are public or not, no specific avenue exists for review of a
refusal to allow inspection of documents.

Two bills currently under consideration try to resolve those problems,
although with slightly different approaches. Watertown¹s Sen. Nancy Turbak
Berry has introduced a bill that starts simply and explicitly:  ³Except as
otherwise specifically provided by law, every record of a public entity is a
public record, open and accessible for inspection during reasonable office
hours.² A bill sponsored by Sen. Dave Knudson of Sioux Falls takes a
slightly narrower view: ³Any record or document required by state or federal
statute, ordinance, administrative rule, permit, or license to be filed with
or kept by any government entity or any elected or appointed government
official shall be open to public inspection during normal business hours.²
(Disclosure statement: Sen. Knudson is one of my law partners.)
While both bills allow other statutes to exempt records from inspection,
they do address whether material contained in other records can be
considered confidential. Knudson¹s bill identifies specific types of
information that cannot be disclosed. Turbak Berry¹s bill requires certain
criteria be met before information can be withheld. Yet both recognize that
allowing inspection of a record by redacting confidential information is
permissible.
Finally, both bills provide avenues of redress. Knudson¹s bill would allow a
person requesting a record to seek review by an administrative law judge if
informal and formal requests for the record have been denied. Turbak Berry
places the burden on the custodian of the record or a person claiming to be
adversely affected by its release, allowing them to seek a court order
preventing or limiting inspection of the record.
No one would contend that every piece of information collected or kept by
government should be open to anyone. Certainly, private health or financial
information shouldn¹t be considered public information. Likewise, businesses
have a right to protect proprietary information. And regulatory and law
enforcement agencies shouldn¹t be required to reveal files in an ongoing
investigation. Yet this illustrates the difficulty in finding the proper
balance between access and privacy in crafting a public records law.
Where there is little difficulty is recognizing that South Dakota¹s current
law is outdated. Despite their differing approaches, Turbak Berry, Knudson
and the other sponsors of these bills are to be commended for taking on the
challenge of fixing it. Individual philosophy undoubtedly leads to critics
of each bill. The important thing is to pass legislation that actually
eliminates some of the current gray areas and increases the likelihood of
public access and greater government accountability.

Tim Gebhart is a 1974 WHS graduate who is an attorney at Davenport, Evans,
Hurwitz and Smith, L.L.P. of Sioux Falls. Before attending law school he was
a reporter for United Press International and the Rapid City Journal.

Editorial -- Freeman Courier

2008-01-31T14:38:00.001-08:00

Bipartisan interest in opening government holds real promise

When we became the United States, the founders of this republic determined
the ultimate power of government should be in the hands of the people. For
230 years we have functioned as a government "of the people, by the people
and for the people."
This notion of "the power of the people" is reflected in South Dakota's
state motto: "Under God the people rule." Yet South Dakota has one of the -
if not the - weakest open record laws in the nation.
But now there is unprecedented hope that could change. There are two bills
before the 2008 South Dakota Legislature, both of which attempt to open
government records that are now cloaked in layers of statute that either
restrict or prevent public access. And the effort is bipartisan.
SB186 comes from the Republican Party whose 18 sponsors include GOP leaders
Sen. David Knudson, R-Sioux Falls and Rep. Larry Rhoden, R-Union Center. It
expands the definition of open records and lists specific exceptions that
address privacy concerns.
SB189, which comes from Sen. Nancy Turbak Berry, D-Watertown, has 15
sponsors from both parties. It begins with the presumption that government
records are open. Only those records for which specific and compelling
arguments can be made for limited access are closed to the public. It allows
for an injunction so a court could rule whether opening a specific record
would substantially and irreparably injure a person.
Turbak Berry emerged as a strong voice for public access to government
records last session and SB189 is the stronger measure. It best reflects the
principle under which we are to function as a government where people indeed
do rule. It is a measure that the citizens of South Dakota deserve because
it starts from the position of openness.
But political realities in the current legislature and the current
administration pose a significant challenge to SB189. Given the fact that
the GOP is the majority party in both houses, it appears SB186 will have the
best chance of passage.
Knudson and Rhoden deserve credit for seeking to strengthen open government
in South Dakota, particularly given the fact their party leader, Gov. Mike
Rounds, doesn't share their perspective on the issue. On the contrary, it
appears Rounds fails to understand the importance of the concept of open
government.
In an interview with South Dakota Public Radio several weeks ago Rounds said
"I'd prefer to say that the information that is required to be kept by
government is open unless it is specifically closed. All of the other
information which is kept in either a compilation form or is simply acquired
for decision-making processes, but is not required to be kept, I don't think
should be open - unless the person can show us a need to know it ... If
there are issues out there that people truly want to know then come in and
tell us."
Round's approach - "come talk to us and tell us if there's a problem" -
reflects a business approach to government. The problem is that Rounds
ignores the fact that the "business owners" in this case are the people.
During a panel discussion sponsored by the South Dakota Newspaper
Association in Pierre last week, Turbak Berry said her approach "challenges
government to share in a more open approach" to records. "I wish the efforts
would be directed at challenging the governor to share in a more open
approach."
In that same discussion, Knudson said what is important "is the size of the
box of open records, and just because you start with a presumption of
openness and then start laundry-listing (exceptions) doesn't mean the box is
bigger."
While that point might be debated, it appears there is genuine support for
expanding citizens' access to government on both sides of the aisle. Knudson
said he is "deeply committed" to passing an open-records bill that can pass
in both houses and be signed by the governor.
The upcoming days and weeks are critical as legislators debate SB186 and
SB189 and seek to strengthen the proposals to ensure improved public access
to government. The opportunities for progress are unprecedented and
lawmakers need to seize it.
"I think our biggest fear is that, in the end, we don't pass anything,"
Knudson said last week. "That would be the greatest failure of all."
It would indeed.

The Freeman Courier editorials reflect the opinion of Courier news editor
Jeremy Waltner and Courier publisher Tim L. Waltner

Editorial -- Rapid City Journal

2008-01-30T14:37:00.001-08:00

South Dakota, the closed-records state, is now working on becoming the closed-meetings state.
In Pierre yesterday, the state Senate's local government committee sent a bill to the full Senate that would allow elected officials from one public board to attend the meeting of another government entity, without giving the public notice beforehand.
The state's open meetings law requires that state and local boards, commissions and other agencies must give public notice 24 hours before holding a meeting. But SB199, if passed, would approve a big loophole to that law by stating that the "guest" entity does not have to adhere to the open meetings requirement.
Specifically, the public meeting law would be amended to say:
"It does not constitute an official meeting if members of a political subdivision of this state are attending a meeting of the state or one of its political subdivisions, a board, a commission, an association, an agency, or any other public entity for which public notice is provided pursuant to 1-25-1.1 for the purpose of providing information or observing, and the notice requirements in 1-25-1.1 do not apply."
SB199 stems from a Grant County open meetings violation in which a township board met with the Grant County Commission without posting an agenda prior to that meeting.
The township was reprimanded for that violation, but SB199 would make it legal for some elected officials to keep at least some of their dealings with other elected bodies unknown to their constituents until after the fact.
As we see it, the change would permit two school boards to meet to discuss anything from consolidation plans to sharing classes or sports programs without giving the people of at least one of those school districts notice of the meeting.
It means two city councils or two county commissions could discuss anything from purchases to tax policy without informing at least some of the taxpayers they represent.
This bill puts the convenience of governing boards above the interests of citizens who want to participate in government. The group of lawmakers that introduced this bill includes Rapid City legislators Dennis Schmidt, Mark Kirkeby and Jeff Haverly. We think it could have unintended consequences and we hope the full Senate recognizes it as the flawed legislation that it is.

Guest Column -- Watertown Public Opinion

2008-01-30T14:35:00.000-08:00

Nancy Turbak Berry
Guest Columnist
Watertown Public Opinion

I¹ve always taken this democracy stuff pretty seriously. Years ago, when
we¹d gather around the flagpole at school and recite a pledge that promised
liberty and justice for all,  I took it to heart. Now my life work is spent
trying to be sure that promise is kept.
Later, when I learned that Revolutionary War soldiers fought without decent
guns or even shoes, I was awed by their commitment to democracy. By the time
I learned the Gettysburg Address, I was hooked. How could there be anything
better than ³government of the people, by the people, and for the people²?
Now, as a legislator, I¹m determined to have government honor that
commitment.
Especially in South Dakota, we tend to just trust the government. After all,
whether it¹s elected officials or full time employees, we know these people.
They¹re our neighbors, our cousins, our friends. At the least, they seem a
lot like us.  So why worry about ³open government²?
It¹s easy to see the challenge to democratic principles when military
leaders from Iraq or Pakistan forcibly occupy those countries¹ governments.
With no one in uniform about to take over our state or nation, though, we
get complacent. Democracy depends on participation, not complacency, and
participation isn¹t very meaningful if it isn¹t informed.
Thomas Jefferson said, ³Information is the currency of democracy.² There are
ways to allow access to that currency while protecting the privacy of
individuals, security of institutions, and efficiency of government (to the
extent government can be efficient). Items held back from the public ought
to be the exception, not the rule. The presumption should be that unless
government can point to a good reason for keeping something secret, it
should be open. 
The other day, as I sat outside the South Dakota Senate chambers, a
delightful little lady joined me. Her accent was enchanting as she talked
about living under Hitler and spending years under the Soviets. Our
conversation wove through many topics. We did not agree on all of them. But
when we got to the subject of open government, she implored me to never give
up. 
According to Jefferson, experience has shown that even under the best forms
of government, those entrusted with power will slowly, bit by bit, pervert
it into tyranny. I believe Jefferson was right. Even here in friendly,
decent South Dakota, those with knowledge and power often would rather not
share it. They seem to forget that government belongs to the people, not to
those who happen to occupy a government office, however big or small, at any
given time.
The Declaration of Independence may say it is ³self-evident² that the only
just government is one that derives its power from the consent of the
governed, but it took a lot of frozen, bloody feet to establish that
reality. The least we can do is protect it.

Sen. Nancy Turbak Berry represents District 5. She serves on Judiciary,
Commerce, and Taxation Committees and on the Attorney General¹s Task Force
on Open Government. She also is the prime sponsor of SB189, a bill to create
a presumption of openness in South Dakota.

Jon Hunter Editorial -- Madison Daily Leader

2008-01-28T12:31:00.000-08:00

Two bills have been introduced in the South Dakota Legislature this session concerning open government. The prime sponsor of SB 186 is Republican Dave Knudson, while the prime sponsor of SB 189 is Democrat Nancy Turbak Berry. We're pleased that both parties have taken an interest in open government, spurred perhaps by the initiative taken by Attorney General Larry Long, who established a task force to forward the issue.

Even though both bills promote more accessibility to records in both state and local governments, there are differences. The Republican bill, in general, tries to better define which records should be open and which should be closed. One of the challenges of the current law is that the status of many records isn't clear, and the tendency of most government officials is to keep records closed. SB 186 also includes a number of recommendations from the Attorney General's task force.

SB 189, however, starts from a different premise: that all government records shall be open, except those that are specifically defined to be closed. The bill then lists items and reasons for certain information (such as social security numbers, for identity theft reasons) that should be closed. A key element is a provision that for records that aren't clearly defined as open or closed, an injunction can be granted until the matter is cleared up.

In some ways, both bills end up near the same place. At this point, the Republican bill has the edge because Knudson has discussed it with Gov. Mike Rounds, who isn't enthused about opening up government records further.

We prefer the Democrat bill, which has a structure similar to many other states with better open records laws. We're appreciative of the work legislators and the attorney general have done, and expect that progress will be made in this session that will help South Dakotans know more about what their government is doing.

-- Jon M. Hunter / Madison Daily Leader

Korrie Wenzel Column - Mitchell Daily Republic

2008-01-25T19:23:00.001-08:00

By Korrie Wenzel

The Daily Republic

Imagine calling a state office, seeking information. The official on the other line acknowledges that the information you want is, indeed, open to the public, but it’s too difficult and complicated to compile. He then lectures you on what he perceives as the dangers of giving out certain information.

Is that open government.

Or what if you call a state office and get routed through a series of roadblocks? Instead of getting through to the person in charge, you only speak to spokesmen. It may be days before you speak to the person you seek.

Maybe you ask to see a public record and later are followed, then harassed, by police. Or sequestered in a room for questioning.

At The Daily Republic, these things happen. They usually go unreported, and they are the hazards of the business as we pursue the news.

This week is Sunshine Week, a weeklong effort by the media to educate the public on the ills of closed government. All week, we publish Sunshine Week-based cartoons, columns and stories, hoping you’ll take notice and realize that without a fight, your world will close in on you.

Do you care?

It’s debatable.

And as we have said before on the editorial page of The Daily Republic, we feel most of you truly won’t care until it’s too late.

For each time the state Legislature votes to close its doors a little more — some lawmakers tried unsuccessfully in 2007 — in high-profile, publicized cases, there are myriad instances where the public, or the media, is turned away in attempts to gain basic public information.

For example, when The DailyRepublic a few years ago sought statistics for REDI Fund companies in the state, officials in the Governor’s Office of Economic Development swore those numbers were confidential, until the attorney general’s office persuaded them otherwise.

In 2002, when The DailyRepublic took part in a secret (and surprise) statewide audit of open records, a reporter was hauled in front of the police chief in Salem after the reporter asked to see records of crime logs and city salaries.

On the same day, a reporter who earlier had asked to see crime logs in Chamberlain was having lunch at an uptown restaurant when he was confronted by local police. An officer asked to see the reporter outside, questioned his motives and ran a check on his driver’s license.

Neither of these reporters said they were from a newspaper. They simply strolled in, posing as everyday residents, and asked to see records that are absolutely open to the public.

This is open government?

Another story: A reporter from this paper was covering an area county meeting in 2005 when the sheriff came into the room and asked to see commissioners in private. The visit was not on the agenda, nor was an executive session voted upon.

When the reporter asked the state’s attorney about the legality of the executive session, the reporter was berated with profanities.

These are good examples of how some officials in South Dakota operate. While we are assured by those in high places that our state is doing just fine with open government, people who seek public information often are harassed and delayed and must bypass roadblocks before that access is granted.

For the timid, or the people who simply don’t care to fight, real public access therefore is difficult to achieve.

So again, is this truly open government?

Try it yourself. Go to your city office and ask to see the salary of a key city employee. Or go to your police department and ask to see the crime log.

Does your school, city or county do a good job of conducting business in public? Are meetings announced and publicized, including committee meetings?

They should be.

Remember, the people still are in charge. If your elected officials try to keep you in the dark, vote them out of office. They are not elite — they are elected or hired to do a job for the people. If they have a reputation for doing things in secret or limiting public information, fire them.

Sunshine Week isn’t about media gripes; it’s about the media trying to help you realize that government cannot keep you in the dark. Newspaper editors and reporters see it all the time, and the good ones fight it.

As I sometimes tell people, it’s just business — nothing personal.

Open government isn’t just about gaining access — it’s also about being able to gain that access without fear, intimidation and roadblocks.

No matter what your leaders tell you, these roadblocks exist in South Dakota, and until they are gone, it’s impossible to say we are making headway in the quest for true open government.

Korrie Wenzel is editor of The Daily Republic in Mitchell, S.D. His e-mail is kwenzel@mitchellrepublic.com.