Joe Kafka, The Associated Press | Posted: Wednesday, September 12, 2007 11:00 pm
|
PIERRE - The
state's largest newspaper has failed in its legal quest to gain
access to the list of people invited to the annual governor's
pheasant hunt in 2005.
The South Dakota
Supreme Court ruled unanimously Thursday against The Argus Leader
of Sioux Falls, which had argued that the list is a public record
that must be released. People are entitled to know what government
officials are doing, the newspaper said.
The high court said
no state law requires release of the information, upholding an
earlier ruling by a circuit judge who said the list is not a record
that is required by state law to be kept.
Generally, records
that must be kept by law are public documents unless otherwise
specified.
Circuit Judge Max
Gors ruled against the newspaper in April 2006.
The invitation list
for the hunt, which state officials use to attract businesses to
locate in South Dakota, should be made public because it is an
official work product of the state economic development office, an
Argus Leader lawyer had also argued.
Setting that claim
aside, too, the high court said state law gives discretion to the
economic development secretary to withhold most of the information
the agency receives.
"The right to
public inspection is conditional," Circuit Judge John Bastian wrote
in the high court ruling.
Bastian and four
other circuit judges were appointed as acting justices to consider
the case after all five Supreme Court justices disqualified
themselves.
State officials
have argued that release of the list of those invited to the
exclusive pheasant hunt could jeopardize future business prospects.
They also feared that identifying invitees could cause them to
become targets for unwanted solicitations.
Thursday's decision
said the language is clear in a state law declaring documents to be
open to the public if the information also is required by law to be
kept. But not every government record is public, the high court
ruling said.
"There is no
statutory provision which creates a clear and unequivocal duty for
the secretary to make the invitation list available to the public,"
Bastian continued.
"The remedy sought
by the Argus Leader lies with the Legislature," he
added.
The Supreme Court
refused to consider a constitutional argument by The Associated
Press, South Dakota Broadcasters Association and South Dakota
Newspaper Association that a state law allowing state economic
development officials to keep certain business information secret
violates the First Amendment to the U.S. Constitution.
The allegation was
not raised earlier by the Argus Leader and thus was not considered
by Gors, the high court noted.
As a matter of
practice, issues not raised in circuit court rarely are considered
by the state Supreme Court.
