South Dakota Office of the Attorney General Bethanna Feist

South Dakota Office of the Attorney General
Bethanna Feist
Assistant Attorney General
Consumer Protection Division
A police officer in a small town stopped a
motorist who was speeding down Main Street.
''But officer,'' the man said, ''I can explain.''
''Just be quiet!!!'' snapped the officer. ''Or I'm
going to let you cool off in jail until the chief gets
back.''
 ''But officer, I just wanted to say...'‘
''And I said KEEP QUIET! Now you're going to
jail!''
 A few hours later, the officer checked up on his
prisoner and said, ''Lucky for you the chief is at
his daughter's wedding. He'll be in a great
mood when he gets here.''
 ''Don't count on it,'' said the prisoner. ''I'm the
groom.''

 Basic
Rule: SDCL 1-25-1
 All official meetings of
public bodies SHALL be
open to the public.
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“…to prohibit actions being
taken at secret meetings where it
is impossible for the interested
public to become fully informed
and to detect improper
influences.”
Olson v. Cass, 349 N.W.2d 435 (S.D. 1984)
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“When a majority or quorum of
the body is present and official
business…of the board…is
discussed.”
Attorney General Opinion 89-09
Not defined by statute or case law
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Lunches?
Smoking breaks?
Sporting events?
Social events?
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Post:
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Proposed agenda
 Including date, time and location of meeting
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Notice of meeting
In visible, readable, and accessible location
24 hours before meeting
At the principal office of the public body (clerk)
Posted on website upon dissemination of the
notice (if have website)
SDCL 1-25-1.1
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Must be made public when provided to the
members prior to meeting
Posted on website OR
 Available at PPOB at least 24 hours prior to meeting OR
 When provided to the members
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 Whichever is later
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If not posted on website:
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At least ONE copy in the meeting room
Not required for material exempt under SDCL 1-25
Attorney-client confidential material
 Executive/closed meeting
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Must keep detailed minutes of regular or
special meetings
Must be available for inspection of public
at all times at principal place of business
Made available within 10 business days
after meeting
 Does not apply if audio/video
recording is available on website
within 5 business days after meeting
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Posting and Agenda Requirements are
SAME
Notice SHALL be delivered:
 In person-by mail, email or telephone
 Must make honest effort
 To local news media
 Those who have requested notice
SDCL 1-25-1.1
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Teleconference: information exchanged
by audio or video medium
May be used to conduct a hearing or take
final disposition on an administrative
rule
Member is present if answers present
during roll call
Every vote SHALL be taken by roll call
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Posting and Agenda Requirements are
SAME
Allow AT LEAST ONE place for the
public to listen and participate
If less than quorum of members present,
must provide public the opportunity to
listen via telephone or internet
Doesn’t apply to executive or closed
meetings
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Must follow open meetings rules if
appointed by governing body
 Final recommendation, finding, or report
SHALL be reported in open meeting
 Governing body MUST DELAY final
action until next meeting
If not created by statute, ordinance or
proclamation, or are advisory:
 May not be subject to open meetings rules
 Ask legal advice if unsure
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May only be held for the sole purpose of:
 Employee/Personnel Matters
 Student Issues
 Communications with attorney regarding
proposed or pending litigation, or contracts
 Labor Negotiations
 Marketing Strategies
 Economic Development
SDCL 9-34-19
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NO official action
 Official action must be taken at open
meeting
Majority of the members of body must be
present and voting
NO discussions of any other matters
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Charge Class 2 Misdemeanor
Dismiss (“no merits” letter)
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Send copy of complaint and investigation to AG
Refer to Open Meeting Commission
Refer to another SA or AG for prosecution
ONLY if complaint against Board of County
Commissioners
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Began in 2004
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No jurisdiction over complaints prior to 2004
39 decisions
Various open meeting issues
Found on Attorney General’s website:
http://atg.sd.gov/OpenGovernment.asp
x
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Comprised of 5 State’s Attorneys appointed by
Attorney General
Chair chosen annually from commission by
majority vote
Issues written determination of whether
conduct violates SDCL 1-25, which includes:
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Statement of reasons
Findings of fact on each issue
Conclusions of Law

Final Decision:

Made by majority of commission members
 Each vote set forth in written decision
Filed with Attorney General
 Provided to public entity involved, State’s Attorney, and
anyone requesting the final decision
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If find violation:
Issue public reprimand
 Cannot send back to State’s Attorney or to Attorney
General for criminal prosecution
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All findings/public censures are be public record
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Failed
 Expand teleconference definition to include
email, text messages, chat services or other
similar media if official business is discussed
 Expand open meeting provisions to apply to
any committee or subcommittee of a public
body
 Require minutes to be kept of executive or
closed sessions and define how they will be
viewed

Signed by Governor
 “If a quorum of township supervisors, road
district trustees, or trustees for a municipality of
the third class meet solely for purposes of
implementing previously publicly-adopted
policy, carrying out ministerial functions of that
township, district, or municipality, or
undertaking a factual investigation of conditions
related to public safety, the meeting is not
subject to the provisions of this chapter.”

Amended SDCL 1-25-1

Signed by Governor
 Proposed agenda shall include date,
time and location of the meeting

Amended SDCL 1-25-1.1
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Any record or document belonging to the state,
any county, municipality, political subdivision,
or tax-supported district in this state, or any
agency, branch, department, board, bureau,
commission, council, subunit, or committee of
any of the foregoing
Any data that is public record in original form
is public record in any other form
SDCL 1-27-1.1
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The public has a “right” to examine AND copy
records.
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Regular office hours apply.
Federal Copyright Law sometimes applies to making
copies.
SDCL 1-27-1
Exceptions (SDCL 1-27-1.6):

Payments to confidential informants/criminal
investigations
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
SDCL 1-27-1.3
Present or Pending Contract Awards/Collective
Bargaining Negotiations


SDCL 1-27-1.3
Appraisal and Negotiation Records on the purchase
or sale of real estate
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
SDCL 1-27-1.5(6)
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SDCL 1-27-1.5(10)
Account #
Credit Information
Customer Lists
SDCL 1-27-1.5(11)
Library Patron Records
SDCL 1-27-1.5(16)
SSN#
Financial Acct. Information
Driver License #
SDCL 1-27-1.5(2)
Medical Records
SDCL 1-27-1.5(18)
Test Questions & Answers for Licensing & Credit
SDCL 1-27-1.5(22)
Catchall: “Unreasonable” Release of Personal Information
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Personnel Information
 Other Than Salaries/Directory Information
 SDCL 1-27-1.5(7)
Employment Applications and Related Materials
 Except those records presumed open for
executive/policymaking positions i.e. city
manager
 SDCL 1-27-1.5(15)
Test Questions & Answers for Employment or
Promotion
 SDCL 1-27-1.5(18)
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OPEN:
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Final records
SDCL 1-27-1.5(24)
NOT OPEN:
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DRAFT working papers and memos
Personal Letters
Notes
Calendars
Other Personal Records of Public
Officials/Employees
SDCL 1-27-1.5(12) and (19)
Public Safety Information Emergency Disaster Plans
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Blueprints, security systems
SDCL 1-27-1.5(8)
Emergency Disaster Plans
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Protocols, emergency personnel, location of weapons or ammunition
SDCL 1-27-1.5(17)
Most Law Enforcement Investigation Information
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SDCL 1-27-1.5(5)
Archaeological, Historical, Paleontological Sites or
Significance
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SDCL 1-27-1.5(13) and (14)
Catchall: Records That Would Endanger Life/Safety
of Any Person
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SDCL 1-27-1.5(23)
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Confidential Criminal Justice/Criminal History
Information is exempt from public disclosure
 Exceptions:
 Calls For Service (Date, Time, Location, General
Subject Matter)
 911 Records- Law Enforcement Retains Discretion
 fugitive situations
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SDCL 1-27-1.5(5)
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Trade Secrets/Research/Proprietary
Information
 SDCL 1-27-1.5(3) and 1-27-30
Attorney Client and Work Product
 SDCL 1-27-1.5(4)
Deliberative Process Privilege
 SDCL 1-27-1.9
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Records of Elected and Appointed
Officials NOT presumed open:
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Documents, Records,
Communications
Decisional or Deliberative Process
Relating to Any Decision Arising
From Official Duties
SDCL 1-27-1.9
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Records are not open if declared
confidential by a Court, Contract, or
Stipulation in Court Action
Records kept in Court files are subject to
separate court rules.
SDCL 1-27-1.5(20)
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Juveniles in Custody
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Inmate Disciplinary Matters
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SDCL 1-27-1.5(25)
SDCL 1-27-1.5(26)
Secretary of Corrections may prohibit
release of information to inmates or their
agents
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SDCL 1-27-1.13
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Specific state laws
Federal requirements
SDCL 1-27-1.5(27)
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Made to custodian of the record
Custodian may provide document
Fees same as written requests
SDCL 1-27-35
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Made to the custodian of the record
Custodian may:
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Provide record in whole or in part
 Same fees as before
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Deny the request
 Send denial letter with reasons for denial
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Acknowledge request and provide estimate of time required to
respond
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To clarify nature of request
To locate and assemble information
To notify third persons or agencies if necessary
To determine whether the information is subject to disclosure
Seek clarification
If fail to respond in 10 days, request is deemed denied
SDCL 1-27-37
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Must provide cost estimate if fee is likely to
exceed $50.00
Person requesting must confirm acceptance of
cost estimate IN WRITING
Discretion allowed
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Fee may be waived or reduced if in the public
interest
SDCL 1-27-36
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May make payment of fees conditional on
providing records
May charge actual cost of production or other
fee established by law
May charge for staff time in excess of 1 hour
If no set rate, use Bureau of Administration rate
SDCL 1-27-35
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Record Maintained in original format OR
Any searchable electronic form OR
Any other format
No requirement of particular format
SDCL 1-27-4
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Information Specified as Confidential
Material that Unreasonably Invades Personal
Privacy
 Threatens Public Safety & Security
 Discloses Proprietary Information
 Disrupts Normal Government Operations
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SDCL 1-27-1.10
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Must maintain file of denial letters
File available to public upon request
SDCL 1-27-1.4
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Review available if:
PRO denies request
 There is no response-deemed denied
 There is a fee dispute
 There is a delay in responding
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Requestor may start lawsuit within 90 days of
denial or appeal to Office of Hearing
Examiners (OHE)
SDCL 1-27-38
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Designated by SDCL 1-27-42
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State-Secretary/Constitutional Officer/Elected
Official/Commissioner of department/office/division
County-County Auditor
1st and 2nd Class Municipality-Finance Officer or Clerk
3rd Class Municipality-President of Board of Trustees
Township-Township Clerk
School District-District Superintendent or CEO
Special District-Chairperson of Board of Directors
Law enforcement-custodian of the record
Other-person who acts as Chief Financial Officer

OHE will send notice of review and all information
submitted by requestor to PRO
 SDCL 1-27-39
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PRO may file written response within 10 business
days
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If no response, OHE will act on information
provided, including hold hearing if necessary
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SDCL 1-27-39
SDCL 1-27-39, 1-27-40
OHE will issue findings of fact and conclusions of
law

SDCL 1-27-40
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Either party may appeal to the courts within 30
days
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If PRO must release records or fee is excessive,
have 30 days to comply
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SDCL 1-27-40.1
SDCL 1-27-40.1
NO documents need to be released until
appeals are FINAL
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SDCL 1-27-41
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Good faith
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No Civil or Criminal Liability for Denial/Production
in “Good Faith”
SDCL 1-27-1.15
Bad faith/unreasonable denial
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$50 fine & costs for each day that record was delayed
through fault of public entity
SDCL 1-27-40.2
Phone: 605-773-3215
 Email: [email protected]
 Website:

http://atg.sd.gov/OpenGovernment.aspx