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PUBLIC RECORDS DISPUTE RESOLUTION PROCEDURE. SCOTT R. SWIER ASSISTANT 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:

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public records dispute resolution procedure

PUBLIC RECORDSDISPUTE RESOLUTION PROCEDURE

SCOTT R. SWIER

ASSISTANT ATTORNEY GENERAL

what is a public record in south dakota
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
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
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
2008 LEGISLATIVE SESSION
  • SB 186
  • SENATOR KNUDSON
  • REPRESENTATIVE RHODEN
  • “AN ACT TO REVISE CERTAIN PROVISIONS REGARDING PUBLIC RECORDS”
2008 legislative session6
2008 LEGISLATIVE SESSION
  • SENATE – 32-0
  • HOUSE – 68-1
  • SIGNED BY GOVERNOR ROUNDS ON MARCH 17
  • AMENDS SDCL 1-27
sb 186
SB 186

SECTION 1.

  • HEARING EXAMINERS AUTHORITY

SECTION 2.

  • EXCLUDES UJS AND PUC
sb 1868
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 1869
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 18610
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 18611
SB 186

PRO CAN RESPOND IN THREE WAYS:

  • PROVIDE RECORD IN WHOLE OR IN PART (UPON PAYMENT OF FEES);
  • DENY THE REQUEST; or
  • ACKNOWLEDGE REQUEST AND PROVIDE ESTIMATE OF TIME REQUIRED TO RESPOND
sb 18612
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 18613
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 18614
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 18615
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 18616
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 18617
SB 186

SECTION 8.

  • OHE MAY HOLD HEARING IF GOOD CAUSE SHOWN
  • OHE TO ISSUE DECISION
sb 18618
SB 186

SECTION 9.

  • AGGRIEVED PARTY MAY APPEAL OHE DECISION TO CIRCUIT COURT
  • NO DOCUMENT TO BE RELEASED UNTIL FINAL DECISION IS ENTERED
sb 18619
SB 186

SECTION 10.

  • DESIGNATED PRO
  • COUNTY – AUDITOR; or
  • CUSTODIAN OF RECORD FOR LAW ENFORCEMENT RECORDS
sb 18620
SB 186

SECTION 11.

  • FORMS