Open records changes elusive

By Chet Brokaw, The Associated Press | Monday, March 12, 2007

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PIERRE — Attorney General Larry Long is disappointed the Legislature rejected creating a commission that would help him recommend which government records should be open to the public, but he still hopes he can make such recommendations.

“We’ve got another plan,” Long said.

The attorney general said he likely will revive a task force that helped him make other recommendations about open government a few years ago. That group would include representatives of news organizations, state government, local government, law enforcement and private business.

“If we proceed to try to reach consensus on a set of recommendations, I think that our chances in the Legislature will be pretty good,” Long said.

The 2007 Legislature had a mixed record on open government issues.

SB198 originally would have created the Open Government Commission to help Long recommend which records should be open. The Senate passed the measure, but the House changed the panel so it would be a legislative study committee. The House then rejected the entire bill 31-38.

Long has been working for a couple of years to determine what records are kept by state agencies and local governments in South Dakota and which of those records are now open. The Legislature last year passed a law requiring the attorney general to submit a report of the study by July 1.

The bill had sought to give him until Sept. 1.

Long said he wishes the bill would have passed to give him an extra two months and to set up the open records committee. But he said he can still accomplish his goals by reactivating the task force to help make those recommendations to next year’s session.

Dave Bordewyk, general manager of the South Dakota Newspaper Association, said he hopes the task force can be revived. Someone needs to study the attorney general’s report, he said.

“The last thing I want to see is that thing just collect dust,” Bordewyk said.

Existing state law generally provides that government records are open only if an agency is required by law to keep those records. Other parts of the law specifically designate some records as closed because they deal with criminal investigations, personal health records, business secrets and other issues.

A Senate committee rejected another bill that would have expanded public access to government records. SB217 would have presumed records were open unless specifically designated as closed.

Its sponsor, Sen. Nancy Turbak, D-Watertown, said government officials are sometimes too inclined to treat records as confidential.

“In the end, it undermines the faith people have in government,” Turbak said during a committee hearing.

Bordewyk said he was pleased that the Legislature, acting on a bill suggested by the state Health Department, reinstated public access to marriage records. The Legislature two years ago restricted access to marriage, birth and death records because federal officials were expected to require the closure of such records to improve national security and protect against identity theft, he said.

However, federal officials now say they will not require the closing of marriage records, so the Health Department decided to restore public access to them. SB130 was approved by lawmakers.

That’s good news because it means newspapers can resume printing the names of people who get marriage licenses, Bordewyk said. Newspapers ran those names for decades but had to stop in the past two years.

Bordewyk said he also was glad the Legislature rejected a measure that would have weakened the requirement that government boards provide public notice of meetings. HB1201 said that if two boards met so one could give information to the other, only one would have to give notice.

The Legislature passed a bill requiring the state archaeologist to keep confidential records on ancient burial grounds and other archaeological and cultural sites, but the Newspaper Association did not oppose it.

“Our board said, look, there are instances where it makes sense to maintain confidentiality,” Bordewyk said. “This is one we could see the rationale.”

Officials said the state archaeologist’s office has records dealing with about 20,000 sites that include ancient Indian villages, burial grounds, old mines and homesteads. The records need to be kept confidential so looters do not use them in an attempt to rob such sites, they said.

HB1286 would allow state archaeologist to make the information available to any government agency that might conduct an activity that affects a site, and information about a site would be provided to the owner of land containing the site.