SIOUX FALLS, S.D. (KELO) — On December 12, 2022, KELOLAND News submitted a public records request to the South Dakota Legislature’s Legislative Research Council (LRC), asking for a report on the total costs for lawmakers who travelled to the Council of State Governments conference held in Hawaii in December of 2022.

On December 14, 2022, the LRC responded to the request, acknowledging its receipt, and outlining some details of the process.

For public record requests involving legislator travel, prior the requestor receiving the information, the legislators who are subject of the query are informed and provided a copy of their information prior to the information being released to the requestor. This takes time to complete. Public record requests are managed on a first-in, first-out basis.

Portion of the December 14 letter from the LRC.

The letter also noted that the then-upcoming legislative session would be the priority of the LRC, and noted that the information requested could be expected to be obtained by no later than April 24.

1-27-37 outlines the procedure which public records officers must follow when responding to a records request.

This includes providing written confirmation of reception of the request within 10 business-days of receiving it, providing the record upon payment of any applicable fees, denying the request if applicable, and providing an estimate for the time expected to respond to the request.

While 1-27-37 does state that requests must be acknowledged in writing within 10 business-days, this is undercut somewhat further on in the statute, where it is stated; “If the public record officer fails to respond to a written request within ten business days, or fails to comply with the estimate provided under subsection (1)(3) of this section without provision of a revised estimate, the request shall be deemed denied.“

On April 4, 2023, 20 days before the deadline given by the LRC, KELOLAND News received the information requested, pictured below.

Though the request took time to complete, it was indeed completed, unlike a number of other official requests KELOLAND News has made to state government in the past, rejected for one reason or another.

These have included requests to the governor’s office for travel costs, and to the Department of Ed for information on the social studies standards revision process, as well as others.

Under South Dakota law 1-27-1.1, “…public records include all records and documents, regardless of physical form, of or belonging to this 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. Data which is a public record in its original form remains a public record when maintained in any other form.“

When this law was created in 2009, a provision was added stating that it should be construed liberally, in order to provide the most information possible.

According to 1-27-1.3, the provisions of the open records law, “…shall be liberally construed whenever any state, county, or political subdivision fiscal records, audit, warrant, voucher, invoice, purchase order, requisition, payroll, check, receipt, or other record of receipt, cash, or expenditure involving public funds is involved in order that the citizens of this state shall have the full right to know of and have full access to information on the public finances of the government and the public bodies and entities created to serve them.“

While these statutes lay out what is open to public record, as well as how the law should be applied, 1-27-1.1 also includes a passage on restriction, preceding that copied above, reading “Unless any other statute, ordinance, or rule expressly provides that particular information or records may not be made public…“

1-27-1.5 outlines these various restrictions in 29 points, listed below.

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(1)    Personal information in records regarding any student, prospective student, or former student of any educational institution if such records are maintained by and in the possession of a public entity, other than routine directory information specified and made public in accordance with 20 U.S.C. § 1232g as the law existed on January 1, 2009.

This section bars disclosure of the personal info of students of a public institution.

(2)    Medical records, including all records of drug or alcohol testing, treatment, or counseling, other than records of births and deaths. This law in no way abrogates or changes existing state and federal law pertaining to birth and death records.

This provision excludes medical records from public records requests.

(3)    Trade secrets, the specific details of bona fide research, applied research, or scholarly or creative artistic projects being conducted at a school, postsecondary institution, or laboratory funded in whole or in part by the state, and other proprietary or commercial information which if released would infringe intellectual property rights, give advantage to business competitors or serve no material public purpose

This provision seeks to protect the intellectual property of those at public institutions and prevent the details of their work from being improperly accessed by competitors for business purposes.

(4)    Records which consist of attorney work product or which are subject to any privilege recognized in article V of chapter 19-19.

This section bars access to records considered to fall under attorney-client privilege, as well as physician-client, religious and spousal privilege.

(5)    Records developed or received by law enforcement agencies and other public bodies charged with duties of investigation or examination of persons, institutions, or businesses, if the records constitute a part of the examination, investigation, intelligence information, citizen complaints or inquiries, informant identification, or strategic or tactical information used in law enforcement training. However, this subdivision does not apply to records so developed or received relating to the presence of and amount or concentration of alcohol or drugs in any body fluid of any person, and this subdivision does not apply to a 911 recording or a transcript of a 911 recording if the agency or a court determines that the public interest in disclosure outweighs the interest in nondisclosure. This law in no way abrogates or changes §§ 23-5-7 and 23-5-11 or testimonial privileges applying to the use of information from confidential informants

This section bars the release of information such as the identities of police confidential informants, investigation strategies, tactical strategies and complaints by citizens.

It does however explicitly allow for the release of information on drugs and alcohol a person may have had in their system, as well as the release of 911 calls in most cases.

(6)    Appraisals or appraisal information and negotiation records concerning the purchase or sale, by a public body, of any interest in real or personal property

This section says a public institution does not need to disclose the appraisal info or negotiations they have made while attempting to buy or sell property.

(7)    Personnel information other than salaries and routine directory information. However, this subdivision does not apply to the public inspection or copying of any current or prior contract with any public employee and any related document that specifies the consideration to be paid to the employee

This section bars the disclosure of personnel information other than salaries and directory info.

Section 8 protects security-type info at public institutions. Due to this, a person could not, for example, request and be given the door codes for electronic locks at a state prison, or passwords for state owned computers.

(9)    The security standards, procedures, policies, plans, specifications, diagrams, access lists, and other security-related records of the Gaming Commission and those persons or entities with which the commission has entered into contractual relationships. Nothing in this subdivision allows the commission to withhold from the public any information relating to amounts paid persons or entities with which the commission has entered into contractual relationships, amounts of prizes paid, the name of the prize winner, and the municipality, or county where the prize winner resides

This section prevents people from obtaining security-related records dealing with casinos and other gaming establishments held by the Gaming Commission.

(10)    Personally identified private citizen account payment information, credit information on others supplied in confidence, and customer lists

This protects the financial information of private citizens interacting public entities. For instance, a person could not request and receive another private citizen’s credit card number if they had used it to make a payment.

(11)    Records or portions of records kept by a publicly funded library which, when examined with or without other records, reveal the identity of any library patron using the library’s materials or services

This very specific section prevents people from requesting and receiving information about what others are doing within a public library system.

(12)    Correspondence, memoranda, calendars or logs of appointments, working papers, and records of telephone calls of public officials or employees

One of the more sweeping exemptions, this provision bars access to any messages, memos, working papers, and phone records of public officials and employees, as well as their calendars or logs of appointments.

Due to this, records of where government officials such as the governor are not accessible, as even calendars or appointment logs from years past are not open to examination.

This section of statute was recently cited by Governor Noem when denying access to visitor logs at the state-owned Valhalla cabin in Custer State Park.

The issue of public access to a calendar/schedule for the governor has also been raised in the past, with Noem’s attorney citing the statute in a 2021 response to KELOLAND News regarding the subject.

(13)    Records or portions of records kept by public bodies which would reveal the location, character, or ownership of any known archaeological, historical, or paleontological site in South Dakota if necessary to protect the site from a reasonably held fear of theft, vandalism, or trespass. This subdivision does not apply to the release of information for the purpose of scholarly research, examination by other public bodies for the protection of the resource or by recognized tribes, or the federal Native American Graves Protection and Repatriation Act.

This section protects information regarding the location of sensitive historical sites.

(14)    Records or portions of records kept by public bodies which maintain collections of archeological, historical, or paleontological significance which nongovernmental donors have requested to remain closed or which reveal the names and addresses of donors of such articles of archaeological, historical, or paleontological significance unless the donor approves disclosure, except as the records or portions thereof may be needed to carry out the purposes of the federal Native American Graves Protection and Repatriation Act and the Archeological Resources Protection Act.

This statute blocks the accessing of information regarding those who donate to historical sites.

(15)    Employment applications and related materials, except for applications and related materials submitted by individuals hired into executive or policymaking positions of any public body.

This section blocks access to employee applications for non-executive and policymaking positions.

(16)    Social security numbers; credit card, charge card, or debit card numbers and expiration dates; passport numbers, driver license numbers; or other personally identifying numbers or codes; and financial account numbers supplied to state and local governments by citizens or held by state and local governments regarding employees or contractors.

A fairly straight forward section, this protects peoples personal identifying information.

(17)    Any emergency or disaster response plans or protocols, safety or security audits or reviews, or lists of emergency or disaster response personnel or material; any location or listing of weapons or ammunition; nuclear, chemical, or biological agents; or other military or law enforcement equipment or personnel.

Similar to section 8, section 17 deals with emergency and disaster response, as well as the location of things such as weapons, toxic agents and more.

(18)    Any test questions, scoring keys, results, or other examination data for any examination to obtain licensure, employment, promotion or reclassification, or academic credit.

This section bars students from obtaining the answers to tests and other such things through records requests.

(19)    Personal correspondence, memoranda, notes, calendars or appointment logs, or other personal records or documents of any public official or employee.

Section 19 is just like section 12, though it deals with personal records as opposed to those used for work.

(20)    Any document declared closed or confidential by court order, contract, or stipulation of the parties to any civil or criminal action or proceeding except as provided under § 1-27-1.23.

This section allows for courts to seal records.

(21)    Any list of names or other personally identifying data of occupants of camping or lodging facilities from the Department of Game, Fish and Parks.

Section 21 blocks access to the names and info of those using state owned camping or lodging facilities.

(22)    Records which, if disclosed, would constitute an unreasonable release of personal information.

By far the most vague of the exemptions, nowhere is it defined what exactly would constitute an ‘unreasonable release’ of personal information.

(23)    Records which, if released, could endanger the life or safety of any person.

Also extremely vague, this section purports to be attempting to protect the life of anyone who may be at risk due to a public records request.

(24)    Internal agency record or information received by agencies that are not required to be filed with such agencies, if the records do not constitute final statistical or factual tabulations, final instructions to staff that affect the public, or final agency policy or determinations, or any completed state or federal audit and if the information is not otherwise public under other state law, including chapter 15-15A and § 1-26-21.

This statute looks to bar access to information that is not the final form of a tabulation, instruction, policy or determination.

(25)    Records of individual children regarding commitment to the Department of Corrections pursuant to chapters 26-8B and 26-8C.

This section bars access to the records of child inmates in South Dakota DOC facilities.

(26)    Records regarding inmate disciplinary matters pursuant to § 1-15-20.

This section prevents public disclosure of the ways in which DOC inmates, including children, are disciplined within South Dakota facilities.

(27)    Any other record made closed or confidential by state or federal statute or rule or as necessary to participate in federal programs and benefits.

Section 27 allows for the confidentiality of records needed to participate in federal programs.

(28)    A record of a settlement agreement or litigation regarding investment or bankruptcy and involving the South Dakota Investment Council or the South Dakota Retirement System, or both, unless the settlement or litigation results in a finding of liability against the council or system, or both.

This section blocks access to records of litigation surrounding the South Dakota Investment Council and the South Dakota Retirement System, unless they are found to be at fault.

(29)    A record of a settlement agreement or litigation regarding medical services involving any county hospital established under chapter 34-8 or any municipal hospital established under chapter 34-9.

This blocks access to records of litigation against county and municipal hospitals.