PUBLIC RECORDSDISPUTE RESOLUTION

PROCEDURE

SCOTT R. SWIERASSISTANT ATTORNEY GENERAL

WHAT IS A “PUBLIC” RECORD IN SOUTH DAKOTA?

SDCL 1-27-1• 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

www.state.sd.us/attorney

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; orOTHER FEE ESTABLISHED BY LAWDEDICATION 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

REQUESTORTO PUBLIC RECORD OFFICER (“PRO”) OF

GOVERNMENTAL ENTITY INVOLVEDPRO 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; or3. 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