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For a small state with high participation in local government, South Dakota has a surprisingly closed government. Unlike most states, South Dakota does not have open records statutes that immediately make all government records open to public and then create exceptions. These exceptions close certain records, for example, those dealing with taxes, health, or other personally identifying information.
Instead, the South Dakotan government just makes all records closed to the public, unless there is a prior statute that requires a certain record to be kept open. Of course, if you just happen to know someone, those records are easily accessed, but we don't all "know someone" and it's a matter of course that those records should just be open to the public ,regardless of who you know.
Finally, South Dakotans might have the chance to access those records that were previously closed. Two bills are currently in committee in the Senate. The first bill, sponsored by Senator Dave Knudson, does not seriously alter current law.
While the bill does require that any records must be public if they are ordered to be so by either state or federal statutes, it also says that if any of these records are declared to be closed or confidential then they no longer have to be public.
It also makes government records like information regarding ongoing criminal investigations, emergency disaster plans and blueprints of buildings all to be closed. While some believe that SB 186 is taking the first steps toward a more open government, the bill actually closes government in a way which more documents become restricted.
A second bill is also sitting in a Senate committee that deals with current open records statutes. Unlike SB-186, SB-189 completely turns current South Dakota law on its head. This bill, sponsored by Senator Nancy Turbak Berry, immediately makes all government record open to the public unless it is otherwise specified to be private by law.
After stating this, SB-189 begins to provide exceptions to what constitutes an open record. Most importantly it includes provisions that close records that would endanger the life or health of a person if they were disclosed, or if the record provides trade secrets.
The people who have objections to passing laws like SB-189 tend to say that if government records were more open then personal information would be more readily available leading to a violation of personal privacy. The fact is that no one has ever suggested opening records that would reveal personal information like driver's license numbers, Social Security numbers, healthcare information, etc. to the general public.
Overall, SB-189 is the better choice of these two laws. Aside from bringing South Dakota out of a past where government is conducted in smoke-filled rooms behind laws, this bill will also bring South Dakota up to par with other states. It will make records easily accessible, unlike SB-186, which does not require that a record be in both hard and electronic copy.
Unfortunately, SB-189 has some tough opponents, if it even manages to make it out of committee. Gov. Mike Rounds is not in favor of creating a more open government, but will probably be more likely to pass the more conservative SB-186 if it makes it to his desk.
Reach columnist Lauren Hollister at Lauren.Hollister@usd.edu
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