PUBLIC RECORDS DISPUTE RESOLUTION PROCEDURE SCOTT R. SWIER ASSISTANT ATTORNEY GENERAL

WHAT IS A “PUBLIC” RECORD IN SOUTH DAKOTA? SDCL EXISTING LAW PROVIDES THAT RECORDS THAT ARE “REQUIRED TO BE KEPT BY STATE STATUTE” ARE “PUBLIC RECORDS” –UNLESS: STATE OR FEDERAL LAW REQUIRES THEM TO BE HELD CONFIDENTIAL SIGNIFICANT NUMBER OF RECORDS MAINTAINED ARE NOT “REQUIRED TO BE KEPT BY STATE STATUTE” PUBLIC ENTITIES HAVE GREAT DEAL OF DISCRETION

History of Dispute Resolution Procedure  JULY 1, 2007 – ATTORNEY GENERAL LONG ISSUES OPEN GOVERNMENT REPORT  AUGUST 15, 2007 – ATTORNEY GENERAL’S OPEN GOVERNMENT TASK FORCE RECONVENED

OVER FORTY MEMBERS OF TASK FORCE SD ASSOCIATION OF COUNTY COMMISSIONERS SD ASSOCIATION OF COUNTY OFFICIALS SD LAW ENFORCEMENT SD MEDIA STATE AGENCIES SD BUSINESS COMMUNITY GOAL – CREATE A SIMPLE, INEXPENSIVE, “SMALL CLAIMS”-TYPE PROCEDURE

2008 LEGISLATIVE SESSION SB 186 SENATOR KNUDSON REPRESENTATIVE RHODEN “AN ACT TO REVISE CERTAIN PROVISIONS REGARDING PUBLIC RECORDS”

2008 LEGISLATIVE SESSION SENATE – 32-0 HOUSE – 68-1 SIGNED BY GOVERNOR ROUNDS ON MARCH 17 AMENDS SDCL 1-27

SB 186 SECTION 1. HEARING EXAMINERS AUTHORITY SECTION 2. EXCLUDES UJS AND PUC

SB 186 SECTION 3. INFORMAL REQUEST MADE TO CUSTODIAN OF RECORD CUSTODIAN MAY: PROVIDE DOCUMENT  UPON PAYMENT OF COST OF MAILING/ TRANSMITTAL  ACTUAL COST OF REPRODUCTION; or  OTHER FEE ESTABLISHED BY LAW  DEDICATION OF STAFF TIME IN EXCESS OF ONE HOUR – MAY BE REQUIRED TO PAY COST OF STAFF TIME  IF NO RATE IS PRESCRIBED, BOA SHALL ESTABLISH MAXIMUM RATE

SB 186 SECTION 4. ANY INFORMAL REQUEST LIKELY TO EXCEED $50.00 FEE CUSTODIAN SHALL: –PROVIDE COST ESTIMATE PRIOR TO ASSEMBLING DOCUMENTS REQUESTOR SHALL: –CONFIRM ACCEPTANCE OF COST ESTIMATE IN WRITING AND AGREE TO PAY CUSTODIAN MAY EXERCISE DISCRETION TO WAIVE OR REDUCE ANY FEE IF IN THE “PUBLIC INTEREST”

SB 186 SECTION 5. IF INFORMAL REQUEST IS DENIED IN WHOLE OR IN PART –  WRITTEN REQUEST MAY BE MADE BY REQUESTOR  TO PUBLIC RECORD OFFICER (“PRO”) OF GOVERNMENTAL ENTITY INVOLVED  PRO SHALL RESPOND TO WRITTEN REQUEST WITHIN TEN BUSINESS DAYS OF RECEIPT

SB 186 PRO CAN RESPOND IN THREE WAYS: 1.PROVIDE RECORD IN WHOLE OR IN PART (UPON PAYMENT OF FEES); 2.DENY THE REQUEST; or 3.ACKNOWLEDGE REQUEST AND PROVIDE ESTIMATE OF TIME REQUIRED TO RESPOND

SB 186 ADDITIONAL TIME MAY BE NEEDED TO: CLARIFY NATURE AND SCOPE OF WRITTEN REQUEST; LOCATE AND ASSEMBLE INFORMATION; NOTIFY THIRD PERSONS OR AGENCIES AFFECTED BY WRITTEN REQUEST; or DETERMINE WHETHER INFORMATION IS NOT SUBJECT TO DISCLOSURE AND WHETHER DENIAL SHOULD BE MADE AS TO ALL OR PART OF WRITTEN REQUEST

SB 186 IF WRITTEN REQUEST IS UNCLEAR: PRO MAY REQUEST CLARIFICATION IF REQUESTOR FAILS TO PROVIDE WRITTEN RESPONSE TO PRO’s CLARIFICATION REQUEST WITHIN TEN BUSINESS DAYS REQUEST SHALL BE DEEMED WITHDRAWN AND NO FURTHER ACTION IS REQUIRED

SB 186 IF PRO DENIES WRITTEN REQUEST IN WHOLE OR IN PART DENIAL SHALL BE IN WRITING AND STATE REASONS FOR DENIAL IF PRO FAILS TO RESPOND TO WRITTEN REQUEST WITHIN TEN DAYS, REQUEST SHALL BE DEEMED DENIED

SB 186 SECTION 6. IF PRO DENIES WRITTEN REQUEST IN WHOLE OR IN PART; or IF REQUESTOR OBJECTS TO PRO’s ESTIMATE OF FEES OR TIME TO RESPOND; REQUESTOR MAY WITHIN NINETY DAYS COMMENCE LAWSUIT OR FILE WRITTEN NOTICE OF REVIEW WITH OFFICE OF HEARING EXAMINERS (“OHE”)

SB 186 SECTION 7. OHE SHALL NOTIFY PRO OF APPEAL OHE SHALL PROVIDE PRO WITH THE INFORMATION ENTITY DENYING REQUEST MAY FILE WRITTEN RESPONSE TO OHE WITHIN TEN BUSINESS DAYS IF ENTITY DOES NOT FILE WRITTEN RESPONSE, OHE ACTS ON INFORMATION PROVIDED REASONABLE EXTENSION OF TIME CAN BE PROVIDED BY OHE

SB 186 SECTION 8. OHE MAY HOLD HEARING IF GOOD CAUSE SHOWN OHE TO ISSUE DECISION

SB 186 SECTION 9. AGGRIEVED PARTY MAY APPEAL OHE DECISION TO CIRCUIT COURT NO DOCUMENT TO BE RELEASED UNTIL FINAL DECISION IS ENTERED

SB 186 SECTION 10. DESIGNATED PRO COUNTY – AUDITOR; or CUSTODIAN OF RECORD FOR LAW ENFORCEMENT RECORDS

SB 186 SECTION 11. –FORMS