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Corrine
Olson
Argus Leader
published:
9/22/2002
Frequent
exceptions, few penalties can hinder public involvement
Bison rancher Ridge Veal admits he never gave South Dakota's open
meetings law much thought.
That is, until the spring of 2000, when the Perkins County Commission
went behind closed doors to examine land sales and set assessments
that ultimately would determine what he and other area ranchers
would owe in property taxes.
"They shouldn't have done what they done," Veal said. "They were
trying to shut us out."
Veal and a group of ranchers decided to press the matter in court
- and won.
Circuit Court Judge John Bastian ruled that examining property
values and setting assessment rates should be done in an open
meeting, and he ordered the commission to repeat the process with
the ranchers present.
The ranchers' court challenge was a rarity in South Dakota, where
legal appeals involving citizen access to official meetings and
records are uncommon. Yet it's a classic example of the types
of governmental actions that public access laws are designed to
open.
Every state has laws opening the meetings of boards such as the
city council or school board to the public. State law also determines
what records will be open, giving citizens access to information
such as birth certificates, city officials' salaries and property
tax assessments.
South Dakota's public access laws are among the most restrictive
in the nation, according to a 2001 study by a government watchdog
group. For example:
• Unlike many states, South Dakota's open meetings and records
laws don't spell out what records are available, detail how a
citizen can request them or outline whom to turn to if the request
is denied.
• A state law requires public meetings to be open but provides
a liberal allowance for officials to go into private sessions
for personnel or legal discussions.
• And a vague open records law in South Dakota declares many
documents public. But additional laws over the years have written
dozens of exceptions to it.
"They (state laws) are drawn so generally that a public agency
can find one of those exceptions to cover almost everything,"
said Jack Getz, South Dakota State University journalism professor.
"If you look through the state code, confidentiality statutes
are scattered throughout. The public interest is never served
when the public business is done in closed session. I wish that
would be the starting point."
South Dakota's open meetings law was written in 1965 and was amended
in the 1980s and '90s. The open records law has been in place
since 1935.
Generally, the open meetings law requires public boards to meet
in open sessions unless they are discussing personnel, litigation,
contract negotiations or marketing strategies.
In addition, according to the law, records in South Dakota generally
are considered open to the public if the state requires that a
government official keep such records or unless the records are
specifically exempted by a different law. Over the years, legislators
have approved dozens of exemptions.
The Better Government Association in Chicago reviewed state public
access laws in a 2001 study which rated South Dakota's the worst
in the country.
The study graded states on the response time for records requests,
available appeals, fees or other costs and penalties for noncompliance.
South Dakota's law met none of the requirements that the Better
Government Association said a good law should contain.
"States that did poorly were states that didn't address the issues
or were very vague," said Jay Stewart, who helped compile the
survey results for the group.
No state received a perfect grade in the study, but neighboring
Nebraska ranked at the top. Nebraska's laws require public officials
to provide a written explanation within 15 days if records are
denied, allow the public to bring court action if requests are
denied and allow for the removal of officials if they violate
the law.
Iowa ranked 23rd in the study. North Dakota was 39th and Minnesota
40th.
Stewart said the watchdog group hopes the survey results will
trigger discussion and prompt states to look at improvements that
could be made in their laws.
Efforts to Change
Keith Jensen, former head of the South Dakota Newspaper Association,
agrees with that group's assessment of South Dakota's laws. For
years, he fought to improve those laws but got a chilly reception
before the Legislature in Pierre.
"The substantive changes we really wanted we could not accomplish,"
he said. "It's a very hard sell."
State Republican Rep. Mitch Richter said part of the hesitancy
to make changes is that legislators don't see major access problems
in South Dakota. "If there does become an issue, a lot of times
it's more that the elected officials didn't know they weren't
supposed to do something. It's more ignorance of the law than
a problem with the law."
Gov. Bill Janklow thinks the problem is that the issue is pushed
only by the media and not the general public. "Whenever a majority
of the public supports you, you'll be successful," he said.
The most recent attempt at change came in 1996. The South Dakota
Newspaper Association proposed legislation altering the open meetings
law. Attorney General Mark Barnett helped draft the changes and
supported the proposal after hearing dozens of members of the
media tell him it was impossible to get legal action against violators
of the open meetings law.
"No one has ever filed a criminal complaint," he said. "Probably
no one ever will." Barnett said a state's attorney could not collect
the evidence necessary for a successful prosecution under the
provisions of the current law.
The group recommended that boards be required to tape-record executive
sessions in order to allow a judge to determine if a violation
had occurred. It also suggested that violations be changed from
a criminal to a civil penalty.
The measures did not pass.
Jensen said without those changes, there is no practical way to
force public boards to operate in the open. "You can bring up
violations, but can you prove them? If you prove them, can you
get them prosecuted?" he asked.
In most communities in South Dakota, Jensen said, state's attorneys
are not prepared to bring charges against school board members
or city council members, the same people they probably meet daily
for morning coffee.
The Ranchers' Fight
Veal concedes that the Perkins County Commissioners weren't intentionally
trying to break the law two years ago. But he and other area ranchers
were concerned about their property values because out-of-state
residents had begun buying parcels of land in the area for private
hunting. They said high prices paid for those acres were artificially
driving up values of their land.
Patty de Hueck, the Pierre lawyer who represented the Perkins
County ranchers, said it was essential that the land-owners in
the area be allowed to hear the discussion on land values. The
fight over assessments had been going on for years and included
several court battles. When the court ordered the county to take
another look, it was to be public.
"My folks were determined to make sure the county commissioners
were revaluing the property. How could you be sure of that if
you couldn't even hear the discussion?" she asked. "We're talking
about the basic right of a citizen to be present and at least
listen to the debate of their public officials."
The ranchers had information to offer on how they thought their
land should be assessed. "Between 1991 and 1996, they doubled
the land values," Veal said. "It's not that we were trying to
get out of paying taxes, but the selling price of our land was
much lower."
Veal said it was important for ranchers to question those assessment
practices and state their case. That meant they had to have access
to the meeting.
"Afterwards, they (the commissioners) knew they shouldn't have
done what they did," he said, referring to the closed session.
Challenges to the state's access laws normally come from journalists
in search of information. But citizens, particularly those trying
to advocate for a change in policy, have taken on individual battles
in recent years.
And with technological advancements such as teleconference meetings
and Internet databases that citizens can search for information
becoming more common, media representatives say the state's public
access laws probably will come under continuing scrutiny.
Environmental Fight
In the early 1980s, Deb Rogers, then a member of an environmental
advocacy group called the Technical Information Project, learned
how difficult the fight for access to information from government
officials can be.
Rogers said she and her former husband, Don Pay, worked on mining
issues and were fighting the proposed location of large landfills
in western South Dakota. In July 1982, they heard a rumor that
a state official had attended a meeting of the Midwest Low-Level
Radioactive Compact Commission and had offered South Dakota as
a possible site for radioactive dumps, explaining that state officials
saw such operations as a form of economic development.
Rogers wanted to look at the records from that meeting to see
if such an offer had indeed been made. Initially, state officials
said the records were not public. But Rogers disagreed.
"We really went after it," she said. "I remember sitting in that
office, and I said I would be happy to sit there until they remembered
the law."
She eventually triumphed, and her group was successful in its
battle to prevent Chem-Nuclear from locating on 7,000 acres near
Igloo in southwestern South Dakota.
Rogers, who now works as a writer in Rapid City, said the key
is knowing the law and demanding your rights.
"The state of South Dakota has open records laws, and if we could
cite that law, we could generally get that information," she said.
Jo Dean Joy, a longtime gambling opponent, also talks about difficulties
she encountered trying to gain information on state-sponsored
gambling operations.
"I've attended a lot of video lottery commission meetings. They
give the reports and then go into executive session," she said.
"I cannot believe they aren't talking about things that should
be before the public." But once the door closes, she said, there's
no way to know.
Joy said that routine has forced her to stop attending the regular
meetings. "Over the years, there has been less and less discussed
at the meetings."
Joy said she also has run into roadblocks when requesting information
about who owns video lottery machines and casino businesses in
South Dakota.
"It's one of those things that there just needs to be more information
available," she said. "Even the legislators have trouble getting
information."
Joe Willingham of the lottery commission said Joy's characterization
is unfair. He said the lottery board is following the law, and
the matters it handles behind closed doors legitimately belong
there.
"We have anywhere from one to a half-dozen personnel or contractual
issues to deal with, and we meet quarterly," he said. "I've been
here 15 years, and that's the routine we have always followed."
State Records
Former state Rep. Pat Haley said he faced many obstacles seeking
information about state agencies.
For example, the Huron Democrat said a constituent once asked
him for information on one of the houses being built by prisoners
in South Dakota. The man was considering buying one and wanted
to know about the hours and materials it took to complete one.
When Haley approached the state housing authority with questions,
he was told he would have to speak to Gov. Bill Janklow first.
He eventually did speak to Janklow, who wouldn't release the information
and said he would call the interested buyer himself instead.
Haley said neither he nor the constituent ever heard from the
governor.
For years, Haley said, he continued his search for information
on the state prison home program.
"I went everywhere I could think of," he said. "It got to a point
where I wasn't even interested in the information, but more interested
in why they wouldn't give me the information."
Haley blames much of the state's secrecy measures on Janklow.
"After George Mickelson and Walter Dale Miller left office and
Janklow came in, the access to information slowly seeped away,"
he said.
Janklow said Haley is lying about problems with access. "He just
plain invents stuff," the governor said. "The housing authority
is audited every single year, and he could have had everything
he wanted if he asked. They (legislators) have access by law to
every single document."
Still, the governor's influence on the release of state information
is clear.
Reporters seeking information from state agencies - on gambling,
education or corrections, for example - are routinely directed
by state officials to the governor's office for clearance before
the information is released.
In 1996, Janklow was instrumental in getting the Legislature to
pass a controversial gag law, closing some corporate records and
prohibiting state officials from discussing or releasing information
on investigations or inquiries into the actions of corporations.
A state official can be charged with a felony for breaking the
law.
The law was enacted after a media investigation into Citibank's
payments to the state's unclaimed property fund.
The governor remains a strong supporter of the law. "Why should
the government be allowed to beat up on a defendant in a criminal
case?" he said.
But First Amendment lawyers have said the gag law is one of the
most restrictive of its kind in the country. Both candidates for
governor, Jim Abbott and Mike Rounds, have pledged to alter or
repeal that law if elected.
Wary of Change
Some media law experts say the problems with open meetings and
open records in South Dakota predate the Janklow administration.
In some ways, they are rooted in South Dakotans' traditional belief
and trust in their government officials.
In addition, the state's citizen Legislature approaches proposed
broadening of public access laws with a wary eye. That's partly
because legislators often come from local government backgrounds
and know how difficult the balancing act between public and private
actions can be. They oppose any changes to that process.
"Some legislators are former school board members or county commissioners,"
said Dave Bordewyk of the South Dakota Newspaper Association.
"They served in local government, so they tend to come at it with
a different outlook."
And with a lack of complaints from the general public, it's difficult
to persuade legislators that more access is needed, Bordewyk said.
Still, members of the media see a problem and say it's a difficult
one to battle.
Tim Waltner, publisher of the Freeman Courier, a weekly newspaper,
said he tries to remain vigilant in keeping public officials'
actions open. But he said he has few tools to use to fight a session
he considers illegal.
Just last year, for example, Waltner said the local school board
went behind closed doors to discuss whether to opt out of the
state-imposed tax limits.
"To this day, we don't know exactly what took place in that session,"
he said. "We immediately called officials and told them of our
concern. We told them they were discussions we thought should
have taken place in the open. We told them we were not going to
take legal action, but we felt we could."
Waltner said he doesn't think most city councils, county commissioners
and school board members set out to break the law.
Most come to those boards will little or no knowledge of the law
and may not even realize they are violating the rules. Sometimes
discussions that start on topics that are allowed in closed session
can easily drift to topics that are not, he said.
Jon Benedict, a University of South Dakota journalism student,
already has learned that getting information can be difficult.
As editor of The Volante, the student newspaper, Benedict has
sought information on local crime from the Vermillion Police Department.
"They don't let us see the (police) log. They read it to us. What
if they just want to skip over something that the public should
know?" he said. "I can understand in a way why they do that, but
I don't think it's right."
Neither does Dale Blegen, owner of the De Smet News, who for 25
years has been trying to get access to the police log in his town.
"If I've heard of something, they are always very cooperative.
They have not withheld information in those cases," Blegen said.
"But I have to depend on them to decide if it's newsworthy."
Reach reporter Corrine Olson at colson@argusleader.com or 331-2311.
©
2002 Copyright Argus Leader.
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