One open-records bill fails, another passes

'Presumption of openness' killed, Open-records appeal route OK'd

By Bill Harlan, Journal staff | Thursday, February 21, 2008

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PIERRE -- A legislative committee killed a bill Wednesday that would have made all state government records open unless specifically closed.

However, the House State Affairs Committee unanimously approved another bill that sets up a civil procedure to appeal decisions of government officials to withhold records.

Both bills are based in part on work by an open-records task force that Attorney General Larry Long headed last year.

Sen. Nancy Turbak Berry, D-Watertown, who was on the task force, is the main sponsor of SB189, which would have enacted a "presumption of openness." In other words, records would have been open unless there was a reason, in law, to close them.

SB189 would bring South Dakota in line with the other 49 states, which have similar laws, Turbak Berry said. Under current state law, records are open only if state law requires that they be kept. "It's an unusual and irrational hurdle that would be eliminated through SB189," Turbak Berry told the state affairs committee.

Committee Chairman Larry Rhoden, R-Union Center, who voted with the 7 to 6 majority to kill the bill, said he had been warned he would be in political trouble if he opposed the measure. But Rhoden said most people he talked to agreed with him that SB189 would make some records too easy to get. "As I've rubbed shoulders with my constituents, I've not heard the concern about the openness in government," Rhoden said. "The only concern I've heard has come forward from the press."

Rhoden also cited the Sioux Falls Argus-Leader, which collected the names of South Dakotans who had concealed-weapons permits. The paper got the names legally, just before a new state law went into effect making those records private, then published them on the paper's Web site.

"That created a great deal of heartburn with me," Rhoden said. "The citizens of this state agreed that that list should not be public."

Dave Bordewyk, general manager of the South Dakota Newspaper Association, said news media had legitimate reasons for concern.

"It is a news media issue," he said. "As reporters and editors, we're out there every day getting at the truth. We run into those roadblocks and see those hurdles."

For example, Bordewyk said that under current state law, counties don't even have to disclose the names of people in jail.

Gov. Mike Rounds, however, also opposes the bill, saying the privacy of citizens would be a risk. Turbak Berry said opponents had distributed a "scare sheet" making that point. "That's not true," she said. "Individual privacy is still protected under state statutes and regulations."

Turbak Berry said SB189 would leave all the current privacy protections in place, including the confidentiality of gun permits, social security numbers, medical information and other data.

"There is a long list," she said.

SB189 also lists other kinds of information that would not be covered by the presumption of openness, such as architectural drawings of public buildings.

A third "fail safe" section of the bill would allow government agencies to go to court to keep records closed, Turbak Berry said.

State Bureau of Administration Commissioner Jeff Bloomberg, representing the Rounds administration, said city, county and state officials already did a good job providing access to public records, closing them only when it was in the public interest.

"What this bill does is presume that the government employees -- the teachers, the county officials -- aren't utilizing good faith when they deal with these issues," Bloomberg said.

Bloomberg also argued that the presumption of open records would apply to any "public entity." He said that might even include a business that had contracts with the state. "Someone said publishing minutes from a meeting was a governmental function, and therefore, newspapers would be a public entity," Bloomberg said.

On Feb. 11, the Senate passed SB189 by a vote of 18 to 15, but the House committee on Wednesday deferred the bill to the 36th legislative day. In this year's 35-day session, that kills the measure unless supporters can get enough votes to force it back to committee.

The House State Affairs Committee did, however, pass SB186, which establishes a quick, inexpensive civil procedure for appealing the decision of a government official to withhold a government record.

The Board of Hearing Examiners would hear the appeals in a process similar to small-claims court. Senate Republican Leader Dave Knudson, the main sponsor of SB186, said the procedure would be "simple, easy to follow and inexpensive."

SB186 goes to the House floor with a unanimous "do pass" recommendation.

Contact Bill Harlan at 394-8424 or bill.harlan@rapidcityjournal.com