S.D. needs to make more progress on open records

SIOUX FALLS — While South Dakota has made progress on opening government records to the public, more needs to be done. That was one of the conclusions from a panel discussion about open records hosted Friday by the South Dakota Newspaper Association at the Minnehaha Country Club. 

The discussion marked the 10-year anniversary of major open records legislation that presumed South Dakota records are open unless they are noted as closed. Panelists for the discussion included former state senator Dave Knudson of Sioux Falls, Argus Leader reporter Jonathan Ellis, SDNA Legal Hotline attorney Jon Arneson and Tony Venhuizen, who served as chief of staff to former Gov. Dennis Daugaard. The panel was moderated by Jack Marsh of S.D. News Watch.

Knudson, the sponsor of the open records legislation in 2009, said getting the bill through the Legislature was not an easy process with opponents that included Gov. Mike Rounds, the South Dakota Municipal League, the Board of Regents and the Secretary of State’s office.

“The overriding concern for me through the session was I wanted a presumption of openness and I wanted to have a bill that was not going to be vetoed,” Knudson said. “Even though this got passed by very wide margins all along the way, there was an element of a mile wide and an inch-deep support for it, particularly on the House side.”

Similar open records bills were discussed in 2008.

“I just felt this was an idea whose time had come,” Knudson said. “It wasn’t quite right in 2008 but was clearly so in 2009.”

Arneson, known for his work on First Amendment issues, took exception to Knudson’s description of the timing.

“I would say a long, long time before that we should have been ready for a presumption of openness,” Arneson said, noting that prior to the 2009 legislation records were open only if a specific state statute said they were open. Otherwise they were closed. 

Arneson said about 15 years ago he worked with The Associated Press to get a list of South Dakota vanity license plates, “which of course are publicly displayed license plates,” Arneson said. 

According to Arneson, the state agency in charge of license plates said, “Until you show us a statute that says you must open up vanity plate records, you’re not going to get it.”

As Daugaard’s chief of staff, Venhuizen was appointed chairman of a 2012 open government task force consisting of representatives from law enforcement, state and local governments and the media.

Five of the eight bills proposed by the 2012 task force eventually became law, with the most recent one happening in 2017 when a law requiring certain police booking photos to be a public record was passed.

“I would say the open government task force did a good job of trying to move the ball forward,” Venhuizen said. “These are always incremental changes.”

During Daugaard’s eight years in Pierre, Venhuizen said the governor’s office worked hard to change the attitude of government employees who were faced with a request for information. 

“The law had changed, but in a lot of ways the mindset really hadn’t,” Venhuizen said. “There used to be a real sense that these are our records and this is our department and why are you calling us. There is still a lot of that, probably.”

Ellis, the Argus Leader reporter, said he was “astounded” to find out that police reports aren’t open records in South Dakota. He also agreed with Venhuizen about the attitudes of public employees when it comes to giving out information. 

“That mentality that ‘these are our records,’ that’s still very prevalent in Pierre,” Ellis said. “Department people, administration people just assume that these are their records and not the taxpayers’ records.”

Asked for their top open records priority moving forward, Venhuizen and Knudson said that making government records easily accessible and searchable online should be a priority. Ellis said that most other states have deemed government correspondence and emails as public records and South Dakota should, too.  

Arneson said he would like to see a change of philosophy in state government’s executive branch, ensuring that employees know they are working with the public and not against the public. 

“If you want to work in government, you’re still working for the public,” Arneson said. “You are our employee. Those are our records. If you don’t like that, move into the private sector.”

Prior to the panel discussion, the Eagle Award, sponsored by SDNA’s First Amendment Committee, was presented to Sen. Arthur Rusch, R-Vermillion, for his work on legislation that prohibits certain confidential court settlements in government lawsuits.

“The people of South Dakota are fortunate to have people like Sen. Arthur Rusch as an advocate,” said former Freeman Courier publisher and First Amendment Committee chair Tim Waltner while presenting the award. 

Rusch, who served as a judge for 18 years, told about 50 people gathered for the presentation and the panel discussion that he presided over many cases in which confidential settlements were reached.

“I always wondered about that,” Rusch said, because even in those cases where a settlement was reached between private parties, they were reaching that conclusion in a court system and courthouse that was paid for by taxpayers. 

As he worked for two years to get the bill passed, Rusch said he heard some critics say that making the terms of court settlements public could prove to be embarrassing.  

“If it’s embarrassing, then it’s even more reason people ought to know about it,” Rusch said.