Video: Taking Time to Open Records

Scott Swier
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Founding Member, Attorney At Law
Posted on Feb 28, 2013

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The public's right to know what is going on with its government is why South Dakota's new open records law passed the legislature this year.

The law is only three months old but it may take time to tell just how much of an impact it will have, because it took decades for South Dakota's government to adopt a law that says all records are open to the public.

"I think we've gone from a place where obviously we did not have a presumption of openness as other states did, to a point now where we joined a large majority of states with the presumptions of openness," Scott Swier with the South Dakota Attorney General's Office said.

Only a few requests for records have trickled in since the new law took effect, including a few from KELOLAND News.

Records that have been denied include the 911 tapes from the day Turner County Deputy Chad Mechels was shot near Marion, and the list of people who attend the Governor's annual Pheasant Hunt, which is considered proprietary information. 

"I think when you talk about proprietary information, when you talk about the state's business dealings with out of state companies, those obviously go to potential trade secrets or proprietary information for those business decisions. And, according to our legislature has deemed those to be worthy of some level of protection," Swier said.

But so far none of the denials for open records requests have been challenged to a state board set up to deal with the issue. Swier wrote part of the law and says challenging requests will be the real test for the new law. 

"It provides a rather fast, hopefully inexpensive, small claims type procedure to determine whether public records should be open or not if there's a dispute," Swier said.

Swier says because it's taken years to pass an open records law, it will take time to see just how effective the law is going to be in getting South Dakota residents all the information they want to know about the government.

"I think the law is going to have to be fleshed out. This overturns decades of law that we've had in South Dakota regarding public records, so I think as everyone gets more familiar, both state agencies and the public, with the new law I think things will shake down where the purpose of the law is in fact gone forward with," Swier said.

And Swier says finding out just how open the doors of South Dakota's government are will take more than a few months.

"We do now have the presumption of openness, but on a case by case basis I think it's going to be hard after just one or two cases to see how everything is going to shake down," Swier said.

The Attorney General's Office thinks the law will be tweaked by the legislature in the next few years, and several exceptions to the new law could be added or taken out in the future.