OFFICE OF THE ATTORNEY GENERAL OPEN MEETINGS AND PUBLIC RECORDS

PUBLIC RIGHTS: The public has a “right” to examine AND copy records. The public has a “right” to examine AND copy records. Regular office hours apply. Regular office hours apply. Copyright Law sometimes applies to making copies. Copyright Law sometimes applies to making copies.

PUBLIC RECORDS: NEW STANDARD “Presumption of Openness” --unless a specific exemption exists. “Presumption of Openness” --unless a specific exemption exists law repeals old “Required to be kept” language law repeals old “Required to be kept” language.

FISCAL RECORDS: ALMOST ALWAYS OPEN Exceptions Payments to confidential informants/criminal investigations Payments to confidential informants/criminal investigations Present or Pending Contract Awards/Collective Bargaining Negotiations Present or Pending Contract Awards/Collective Bargaining Negotiations Appraisal and Negotiation Records on the purchase or sale of real estate Appraisal and Negotiation Records on the purchase or sale of real estate

PRIVATE CITIZEN INFORMATION NOT PRESUMED OPEN : Account # Credit Information Customer Lists Library Patron Records SSN# Medical Records Financial Acct. information Driver License # Test Questions & Answers for Licensing & Credit Test Questions & Answers for Licensing & Credit Catchall: “Unreasonable” Release of Personal Information Catchall: “Unreasonable” Release of Personal Information

PERSONNEL RECORDS NOT PRESUMED OPEN : Personnel Information (Other Than Salaries/Directory Information) Personnel Information (Other Than Salaries/Directory Information) Employment Applications and Related Materials -- (except records are presumed open for executive/policymaking positions i.e. city manager) Employment Applications and Related Materials -- (except records are presumed open for executive/policymaking positions i.e. city manager) Test Questions & Answers for Employment or Promotion Test Questions & Answers for Employment or Promotion

EMPLOYEE WORK: Final records are open; DRAFT working papers and memos are not presumed open. Final records are open; DRAFT working papers and memos are not presumed open. Personal Letters, Memos, Notes, Calendars, Other Personal Records of Public Officials/Employees are not presumed open. Personal Letters, Memos, Notes, Calendars, Other Personal Records of Public Officials/Employees are not presumed open.

SAFETY/SECURITY RECORDS NOT PRESUMED OPEN : Public Safety Information (including blueprints, etc) Public Safety Information (including blueprints, etc) Most Law Enforcement Investigation Information Most Law Enforcement Investigation Information Archaeological, Historical, Paleontological Sites Archaeological, Historical, Paleontological Sites Emergency Disaster Plans Emergency Disaster Plans Records That Would Endanger Life/Safety of Any Person Records That Would Endanger Life/Safety of Any Person

COURTS/COURT ORDERS Records are not open if declared confidential by a Court, Contract, or Stipulation in Court Action Records are not open if declared confidential by a Court, Contract, or Stipulation in Court Action Records kept in Court files are subject to separate court rules. Records kept in Court files are subject to separate court rules.

PRISON RECORDS Prisoner Records are generally not open: Juveniles in Custody Juveniles in Custody Inmate Disciplinary Matters Inmate Disciplinary Matters

PRIVILEGED RECORDS NOT SUBJECT TO “PRESUMPTION OF OPENNESS” Trade Secrets/Research/Proprietary Information Trade Secrets/Research/Proprietary Information Attorney Work Product Attorney Work Product Attorney Client Attorney Client Deliberative Process Privilege Deliberative Process Privilege

DELIBERATIVE PROCESS PRIVILEGE Applies to Elected and Appointed Officials Applies to Elected and Appointed Officials Documents, Records, Communications Documents, Records, Communications Decisional or Deliberative Process Decisional or Deliberative Process Relating to Any Decision Arising From Official Duties Relating to Any Decision Arising From Official Duties

OTHER RECORDS Specific state laws Specific state laws Federal requirements Federal requirements

REDACTING INFORMATION: Information Specified as Confidential (SDCL ) Information Specified as Confidential (SDCL ) Material that Unreasonably Invades Personal Privacy Material that Unreasonably Invades Personal Privacy Threatens Public Safety & Security Threatens Public Safety & Security Discloses Proprietary Information Discloses Proprietary Information Disrupts Normal Government Operations Disrupts Normal Government Operations

REGISTER OF DEEDS : Redaction of SSN and other personal information- Not Necessary if: Redaction of SSN and other personal information- Not Necessary if: Recorded In Register of Deeds Office Recorded In Register of Deeds Office Before July 1, 2010 Before July 1, 2010

PUBLIC RECORD REQUESTS: INFORMAL WRITTEN REQUESTS

Informal Requests Made to custodian of the record CUSTODIAN may provide document Fees may be charged.

Public Record Requests-Fees Must provide cost estimate if the fee is likely to exceed $50.00 Person requesting must confirm acceptance of cost estimate in writing. Discretion: fee may be waived or reduced in the public interest

Public Record Requests-Fees May make payment of fees conditional on providing records. May charge actual cost of production or other fee established by law May charge for staff time in excess of 1 hour Bureau of Administration rate

Public Record Requests- Format Record Maintained in Original Format; or Any Searchable Electronic Form; or Any Other Format No Requirement of a Particular Format

Public Records- Written Requests If Informal Request is denied (in whole or in part) Written request may be made Public Records Officer (PRO) becomes involved. PRO must respond in 10 days!!!!

PUBLIC RECORDS OFFICER Designated By Law: County-auditor City-finance officer Law enforcement-custodian of the record

Public Records-Written Requests PRO MUST: 1. Provide Record in Whole or in Part-same fees as above. 2. Deny the Request. 3. Acknowledge Request and Provide an Estimate of the Time Required to Respond. 4. Seek clarification.

Public Records- Written Requests Request clarification if request is unclear. If person requesting fails to respond within 10 days –request is deemed denied. No further action.

Public Records – Written Requests Additional time: To clarify nature of request To locate and assemble information To notify third persons or agencies if necessary To determine whether the information is subject to disclosure

Public Records Written Requests PRO Denial in whole or in part: 1. Denial must be in writing and state reasons 2. If PRO fails to respond, the written request is “deemed denied.”

Public Records Written Requests 2009 Requirement Maintain File of Denial Letters File Available to Public Upon Request

Public Records-Appeals Appeals available If PRO Denies Request If There is No Response-Deemed denied If there is a Fee Dispute If there is a Delay in Responding. Requestor may start lawsuit or appeal to Office of Hearing Examiners (OHE).

Public Records- OHE Appeals OHE Duties Notify PRO of Appeal. Send PRO notice with Packet of Information. Hold Hearing if necessary. Issue decision.

Public Records-OHE Appeals Responding to OHE File written response within 10 days. Ask OHE for extension of time if necessary Participate in hearing if required.

Public Records/ Court Appeals Persons requesting records may file suit in court instead of filing with OHE. After the OHE rules, either party may appeal to the courts. NO DOCUMENT NEED BE RELEASED UNTIL APPEALS ARE FINAL.

Public Records/Personal Liability No Civil or Criminal Liability for Denial/Production in “Good Faith”

OPEN MEETING LAWS SDCL §1-25 SDCL §1-25 PUBLIC BUSINESS: PUBLIC BUSINESS: [MUST BE CONDUCTED IN PUBLIC]

“…to prohibit actions being taken at secret meetings where it is impossible for the interested public to become fully informed and to detect improper influences.” Olson v. Cass (1984)

All official meetings of Public Agencies shall be open to the public. SDCL §1-25-1

What is an OFFICIAL MEETING? AGO 89-08: “When a majority or quorum of the body is present and official business…of the board…is discussed.” (Not defined by statute or case law)

REGULAR MEETINGS Lunches? Smoking breaks? Sporting events? Social events? Others?

Allowed ONLY for: 1.Employee / Personnel Matters 2.Student Issues 3.Communication with your attorney (lawsuits – contracts etc.) 4.Labor Negotiations 5.Marketing Strategies (Municipal Liquor Stores)

6. EXCEPTION: (ECONOMIC DEVELOPMENT / TRADE SECRETS EXCEPTION) SDCL “…Any discussion or consideration of such trade secrets or commercial or financial information by a municipal or county corporation may be done in executive session closed to the public, notwithstanding any other provisions of law.”

Additional Limitations No official action Motions, Seconds, & Majority vote to close Purpose must be stated in Closure Motion No discussions of any other matters

CRIMINAL Class II Misdemeanor: * 30 days in Jail and * $500 Fine plus Costs CIVIL Action void or voidable Personal liability PUBLIC REPRIMAND Open Meeting Commission (Executive Session penalties are the same as open meeting violations)

NOTICE – FOR PUBLIC MEETINGS SDCL § For ANY MEETING POST NOTICE & PROPOSED AGENDA AT THE PRINCIPAL OFFICE AND ANY OTHER REQUIREMENTS-PUBLICATION

Posting & Agenda requirements – same ALSO: Notice to “LOCAL NEWS MEDIA” In Person – Mail Telephone – (honest effort)

Definition of “LOCAL NEWS MEDIA” Legal Newspapers Radio Stations T.V. Stations VIOLATIONS (Same as before) CRIMINAL Class II Midemeanor: * 30 days in Jail and * $500 Fine plus Costs CIVIL Action void or voidable Personal liability REPRIMAND OPEN MEETING COMMISSION

TELEPHONIC MEETINGS – IF: Give proper notice AND – allow at least one place for the public to listen and participate Violations: (Same as before)

COMMUNICATION Office Computers Home Computers Attachments Chat Rooms

State’s Attorney- Enforcement 1. Charge Class 2 Misdemeanor 2. Dismiss 3. Refer to Open Meeting Commission

Open Meeting Commission 5 States Attorneys Appointed by Attorney General Grant County- Mark Reedstrom (Chairman) Aurora County - John Steele Sully County - Emily Sovell Bon Homme County - Lisa Rothschadl Pennington County - Glenn Brenner

Commission Duties Get file from states’ attorney Consider material submitted Issue written decision File decision with Attorney General Decision is public record

Cannot impose fines or jail time. Cannot send matter back to the state’s attorney for criminal prosecution Open Meeting Commission:

OMC DECISIONS

City of Watertown Q: Are appointed committees subject to the open meeting laws? A: It depends. Generally committees do not have to comply if they are (1) not created by state law & (2) not authorized to make final decisions

USD Student Government Assoc. Q: Are student organizations subject to the open meeting laws? A: No. Student organizations generally do not have authority to spend public money or act on behalf of governmental entities.

Kingsbury County Q: Is an informal meeting between a quorum and the auditor an “official meeting” when it is just for general education? A: Yes. A: Yes.

Minnehaha County Q: Is an informal meeting between a quorum of a county commission and the manager of its Fairgrounds an “official meeting”? A. Yes. The open meeting laws apply.

Roberts County Q: If a quorum goes on a tour and is approached by others about official business, does the public body violate the law? A: Yes, even if approached, the quorum must not listen to otherwise engage in official discussions when it has not posted an agenda.

Melrose Township II Q. Is a meeting between a quorum of a public body and another public body an “official meeting” for each body? A: Yes - both must comply. (2006 decision) Yes - both must comply. (2006 decision) No - under new law a quorum attending a meeting of another body is not an “official meeting” if the first body complies with the open meeting laws. No - under new law a quorum attending a meeting of another body is not an “official meeting” if the first body complies with the open meeting laws.

Brown County Q: Must the agenda for a meeting be posted at the front window and be visible for the entire 24 hours? A: The agenda must be posted 24 hours in advance. (Front windows are advised but not required.)

Arcade Township Q: When a meeting is adjourned or carried over to a different day, must a new agenda be posted? A: Yes, unless the original agenda listed both days.

Brown County Q: If a County publishes notice of its meetings but does not post an agenda, is it in violation of the open meeting law? A: Yes.

Black Hawk Fire District Q: If a Fire District fails to publish notice of its meetings as required by law and also fails to post an agenda, is a reprimand warranted for both? A: Yes.

Butte County Q: If an agenda only lists “employee interviews” on its agenda, does the body violate the open meeting laws if it also makes the hiring decision? A: No, it is apparent that an hiring decision might be made.

Town of Herrick Q. Is notice to the media and a posted agenda required for a special meeting on a continuing personnel matter? A. Yes. The Open Meeting Law: Includes special meetings and “old business.” Applies even when the only item is an executive session. Requires votes to be made in an open meeting after the executive session.

City of Martin I City of Martin I Q: If a city auditor knows about a special meeting a couple of days in advance, but posts the agenda only 12 hours in advance is that good enough? A: No. If known, the notice for special meetings must be posted 24 hours in advance. For emergencies an agenda should be posted to the extent practical.

City of Lead Q. If a public entity is in executive session for personnel reasons, what may be discussed? A. Discussions in executive session concerning employees must relate to the work performance, competence or qualifications of specific employees. Discussing city reorganization is not proper in executive session. Discussing city reorganization is not proper in executive session. Discussing the wrongdoing of a city employee or official is proper in executive session. Discussing the wrongdoing of a city employee or official is proper in executive session.

City of Tripp Q: May a City vote on a personnel issue in executive session? A: No- Personnel issues may be discussed in executive session provided proper motion is made, but votes must be public.

Gregory School Board Q. If a board is in executive session for personnel matters, may it discuss another topic even if no official action is taken? A. No. The additional topic should not be discussed because: The topic was not listed in the agenda at all. The topic was not a “personnel matter” or covered by another announced exception.

Davison County Q. If a task force report includes some personnel recommendations, may the whole report be discussed in executive session? A. No. Presentations or reports are to be heard in open session except for specific executive session matters. Presentations or reports are to be heard in open session except for specific executive session matters. Even if an ad hoc task force suggests the executive session, the county is responsible for complying with the law. Even if an ad hoc task force suggests the executive session, the county is responsible for complying with the law. The county should have had someone separately review the report in advance to split the presentation into public and executive sessions. The county should have had someone separately review the report in advance to split the presentation into public and executive sessions.

Faulkton Area Sch. Dist Q. When a public body goes into executive session must it vote in public afterward? A. Not necessarily. If a public entity takes official action, it must vote in public. If a public entity takes official action, it must vote in public. If the executive session involves discussion and no official action is necessary, there is no need to vote or take any public action after the executive session. If the executive session involves discussion and no official action is necessary, there is no need to vote or take any public action after the executive session.

S.D. Science & Tech. Authority Q. May a public entity to go into executive session for “discussing contracts”? A. “Contracts” is not, in and of itself, enough reason for an executive session. Preparation for or participation in employee contract issues is a proper matter for an executive session. Preparation for or participation in employee contract issues is a proper matter for an executive session. Consultation with legal counsel or consideration of advice from legal counsel about contractual matters is proper for an executive session. Consultation with legal counsel or consideration of advice from legal counsel about contractual matters is proper for an executive session.

Rapid City Regional Airport Authority Q. May third parties be included in executive sessions for “contractual matters” or “anticipated litigation”? A. Not in this case. “Contractual matters” alone is not a proper executive session. “Contractual matters” alone is not a proper executive session. “Anticipated litigation” generally means discussions with legal counsel only. “Anticipated litigation” generally means discussions with legal counsel only.

City of Mitchell Q: May a public entity to go into executive session for any attorney-client discussions or just those listed in the open meeting law (contracts & anticipated litigation)? A: All attorney-client matters are covered, not just contracts and anticipated litigation.

Melrose Township I Q. May a public entity to go into executive session for any type of discussion with its lawyer? A. It is proper for a public entity to meet with its lawyer in executive session for legal matters: To discuss any litigation, anticipated litigation or action to prevent violations of the law by the public entity To discuss any litigation, anticipated litigation or action to prevent violations of the law by the public entity To discuss contractual matters or negotiations on public employment issues To discuss contractual matters or negotiations on public employment issues

Board of Regents Q: If a Board goes into executive session to discuss contracts with its lawyer, may it also discuss other related contract issues that do not require legal advice? A: No-The executive session must pertain to legal issues only.

City of Martin II Q: How specific must the motion be for going into executive session? A:The reason must be clear based on the circumstances. If counsel asks for executive session to discuss pending litigation, “so moved” is adequate based on the circumstances.

Open Meeting Question: Adding Agenda items at the beginning of the meeting??????

Thank You!! Office of Attorney General Office of Attorney General or or Questions???????? Questions????????