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Corrine
Olson
Argus Leader
published:
9/23/2002
Attorney
general hopefuls favor revision, but lawmakers hesitate
Weekly newspaper owner Dale Blegen sees every reason to change
the state's open meeting and open records laws.
Blegen, who has owned the De Smet News for 25 years, knows he's
publishing his newspaper in a state with some of the nation's
weakest laws on meetings and records.
And as a member of the South Dakota Newspaper Association's legislative
committee, he not merely interested in telling his own readers
what their government officials are doing. He wants to improve
public access to government records and meetings across South
Dakota.
But one concern gives him pause when he discusses changing the
state's laws:
"We might end up with something worse than what we have," he said.
Although he thinks the laws are vague and hard to enforce, he
said the Legislature's
Argus Leader
attitude
makes the media hesitate to open discussion of change, fearful
of losing ground.
"There are certainly legislators and other public officials who
aren't that interested in keeping records and meetings open,"
he said.
Some lawmakers, for their part, say they haven't seen a groundswell
of public interest in changing the laws. While South Dakota ranked
last in the nation in a Better Government Association survey of
states' public access laws, the legislators say they don't hear
citizens complaining.
"I would guess people think it's working fine the way it is,"
said Rep. Mitch Richter, R-Sioux Falls.
Still, Republican Larry Long and Democrat Ron Volesky, candidates
for attorney general in November, both say vague language and
other problems with the laws point to the need for revisions.
Yet even with the state's top legal official pushing for change,
the Legislature would have to act. And observers of South Dakota's
public access laws acknowledge that's going to be a challenge.
Public interest remains the missing ingredient, says Dave Bordewyk
of the South Dakota Newspaper Association.
Too often, he says, a reporter is the only member of the public
present when a government board meets.
That leaves the media to fight the battle for access - and puts
media representatives in an awkward position when it's time to
work with lawmakers to advocate changes.
"What it's really going to take is a high-profile, messy case,"
Bordewyk said. "It's going to take a lot of people to show up,
and that's when the change will come."
Possible Change
Attorney general candidates Long and Volesky both have experience
with the state's open-government laws. Long has worked in the
attorney general's office; Volesky has served in the Legislature.
And both say it's time for revisions.
The Chicago-based Better Government Association found in its survey
that South Dakota laws didn't meet any of the criteria it considered
key for citizen access. One flaw is that the law is difficult
to enforce because penalties rely on criminal prosecution that
must be initiated by state's attorneys. Current Attorney General
Mark Barnett says no such prosecution has ever taken place.
Another flaw is that the state lacks a single statute clearly
listing what's open and what's not. So while it has a law stating
that any record a public official is required to keep is open,
dozens of exemptions are written into other laws.
Long is ready to start working on changes, saying he will create
a task force to clean up and clarify the laws.
"A comprehensive review has never been done and is overdue," Long
said.
"It makes sense to get all the people together. By bringing everyone
to the table, we can write a bill that the Legislature will pass.
There are statutes that make some records public and statutes
that make other records private. Most government records are not
addressed at all, leading to confusion."
If the matter is handled correctly, Long said, there is no reason
the legislators won't support changes.
Volesky said he has long fought for better access laws and will
continue to do so.
Like Long, Volesky is a lawyer and said he would work to get an
open records law in South Dakota similar to North Dakota's law,
where all records are presumed to be open unless the Legislature
rules they are not.
Starting with a presumption of openness makes a better law, he
said.
Volesky remembers the 1996 arguments over the open meetings law.
One change on the table was a requirement that closed meetings
held under executive-session rules be tape-recorded. If the closed
session was challenged, a judge could then listen to the tape
and rule on whether the meeting should have been closed or not.
At the time, Volesky recalls, some legislators argued that the
changes would be too difficult for small communities because officials
might not know how to operate a tape recorder.
"It was pretty wild," he said.
Barnett, who worked on that 1996 legislation, also recalls the
fight as tough. Ultimately, the changes failed to pass.
"That bill was dead on arrival," he said. "I still have the treadmarks
across my forehead."
Difficult Fight
Todd Epp, a Harrisburg lawyer who used to work as a reporter,
said he thinks several factors have made the fight for better
access laws difficult.
"Part of it is the mindset of public officials," he said. "Do
they want the stuff of government to be open, or do they want
it closed? Government should not be a big mystery."
Epp suggested that the background of many public officials may
play a role.
"If you come out of business, business deals are done in private,"
he said. "That carries over when they serve on the public board."
Keith Jensen, former head of the South Dakota Newspaper Association,
echoed that concern.
"About half of the legislators have served as school board members
or county commissioners and are sympathetic to the idea that it's
hard to discuss some issues in public," he said. "That's when
boards should stand up and be boards and discuss it in public."
Epp also blames the absence of an even divide between political
parties in Pierre for keeping the current laws. With a more even
balance, he says, Republicans and Democrats would keep an eye
on each other and would welcome a more thorough review of their
actions by the public.
Finally, he, too, thinks that someone other than the news media
has to care about openness for real changes to occur. "It has
to be more than the Argus Leader that thinks open meetings are
a good thing. The public has to care, too."
Public Perception
Bordewyk, of the South Dakota Newspaper Association, agrees that
the battle to change or improve laws is too often seen as the
media vs. the government. That's because often a reporter is the
only representative of the public at a government meeting.
"If you had 100 patrons of the public there at the school board
or the county commission, they would see the problem, too," he
said. "They aren't there at the meeting from 7 p.m. to midnight;
just the reporter is."
Tim Waltner, publisher of the Freeman Courier, said it is important
that the media help the public understand why news organizations
battle for access to information.
"We try to impress on them that it's not important to us. It's
important to them," he said. "It's not that we have any special
rights. It's their right to be at a meeting."
Melanie Bliss is a 17-year member of the League of Women Voters
in Sioux Falls and a former Sioux Falls school board member, serving
from 1988 to 1994.
"I believe in open government. That's why I am a part of the League
of Women Voters," said Bliss. "Government should not be hard for
general citizens to access."
And she thinks her fellow South Dakotans are interested in open
government, too. But she also thinks the state's small size makes
it easier to get informed without fighting legal battles.
"I have found our government officials in South Dakota to be very
approachable because everybody knows each other because we are
a very small state," she said.
State Democratic Sen. Garry Moore said convincing the public that
it's an important issue might be the key to getting legislators
interested in the issue.
Moore said legislators also have to be convinced there's a problem.
"They don't see it being abused statewide," he said. "The legislators
are going to have to see a lot of abuse. Otherwise, I don't think
we'll see a lot of changes."
Jensen, the former newspaper association leader, said the struggle
to improve access laws has been difficult.
"The Legislature itself does not lend itself to openness," he
said. "For years, we had a system where the leadership could pocket
a bill, and it would never see the light of day."
It wasn't until the the 1970s, following Watergate, that rules
were changed to require that every bill get a hearing and to mandate
the posting of agendas for the legislative day.
Those who support changes in the law don't buy the arguments that
it would open public officials to frivolous complaints or charges
that they have violated privacy rights of employees.
They argue that other states with more liberal laws than South
Dakota's haven't experienced those problems.
National View
States set their own open government rules, while the federal
government sets laws regarding federal access.
Every year, rules get rewritten in legislatures as lawmakers react
to new technology, concerns such as terrorism or other developments.
Some changes increase access; others reduce it.
A prominent recent example came in Florida, where family members
of the late NASCAR driver Dale Earnhardt asked that photographs
from his autopsy records be sealed, although such records are
public documents in that state. While the family was concerned
about privacy, media representatives wanted access to information
that would allow them to report on racing safety issues raised
by Earnhardt's death.
Florida legislators acted quickly to pass a bill exempting photographs
and audiotapes made during an autopsy from public disclosure.
The law was promptly contested, but two state courts have upheld
it.
Earnhardt's celebrity and the national telecast of the crash that
killed him fueled interest in the Florida debate, and at least
a half-dozen other states also moved to exempt autopsy photographs
from public disclosure. Some took a middle ground, requiring the
photographs to be available for inspection but prohibiting anyone
from copying them.
States have seen erosion in other types of access as well. Some
examples from a national survey by the Reporters Committee for
Freedom of the Press:
• In Georgia, the Legislature exempted addresses, telephone
numbers and other personal information about public schoolteachers
from open records requirements after Atlanta newspapers published
a series on the criminal history of school employees.
• In Louisiana, the Legislature exempted disciplinary records
of pharmacists from public disclosure.
• Several states have exempted or tried to exempt searches
for university presidents from laws that require the hiring process
to be public.
States also make changes that help the public get information:
• Several states have required committees appointed by government
bodies to meet in public. Some have required nonprofit organizations
that receive substantial public money to comply with open meetings
rules.
• Nevada passed a law requiring lawsuit settlements involving
defective products or environmental hazards to be open, and several
other states have considered similar legislation.
S.D.'s Future
If South Dakota's laws aren't changed, Bordewyk said, the media
have the obligation to train reporters to inform public officials
about what the laws require and to force compliance. Reporters,
he said, "need to know the laws better than the people who they
cover."
When officials unintentionally break the law, a letter from a
media lawyer often will improve the situation, he said.
Bordewyk said the issue has to be seen as more than a disagreement
between media and public officials. If it is seen as an issue
of the public's right to know, he said, changes will come.
Bob Burns, a South Dakota State University professor, said the
current law is workable if the public asserts its rights. He doesn't
argue against openness as a worthy goal.
"Freedom of expression is meaningless if you have an uninformed
public," he said.
Reach reporter Corrine Olson at colson@argusleader.com or 331-2311
© 2002 Copyright Argus Leader..
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