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BY
KEVIN DOBBS
Argus Leader
published:
9/24/2002
When
a man strolled into the Sioux Falls school district's administrative
offices unannounced and asked how much certain officials are paid,
Bev Chase, executive assistant to the business manager, quickly
jotted down their names and salaries without giving it a second
thought.
When a woman ap-proached Yankton County Sheriff David Hunhoff
wanting to see the previous day's crime log, Hunhoff asked why,
but only so he could explain how to best sort through the records.
Such is the spirit of South Dakota's open records law, which says
that records or documents which public servants are required to
keep also are open for public inspection.
A statewide check of city and county public agencies found that
most government employees are quick to hand over public records,
with few, if any, questions asked.
But the survey also uncovered exceptions, including instances
in which officials withheld documents and gave reasons that had
no legal basis.
On June 26, staffers from the Argus Leader and 10 other South
Dakota newspapers, in conjunction with The Associated Press, canvassed
the state asking to see public records.
Making their requests as ordinary citizens, the surveyors asked
to see a range of records including officials' salaries, crime
logs and property tax assessments.
The goal was to learn how difficult it would be to get public
records and how people are treated when they made such requests.
The reporters did not give their names or occupations unless asked.
South Dakota rated worst in the nation for its public-access laws
when the Better Government Association of Chicago surveyed states
in 2001. That's based on vague language, an unclear appeals process
and weak provisions for punishing violators.
Still, the newspapers' survey found the majority of requests were
successful.
Employees at city halls and county courthouses almost always obliged,
handing over records 95 percent and 98.5 percent of the time,
respectively. School districts also were generally accommodating,
with 78.5 percent providing the salary information.
"Everything that is public record is easily accessible," Chase
says of the Sioux Falls schools.
Says Sheriff Hunhoff: "The purpose of what government is supposed
to be doing is built around serving and informing the public.
When information is withheld, that only creates second-guessing
and suspicion. You're better off keeping people up to date."
His position was an exception in law enforcement, which was least
likely to comply with the requests. That's largely because state
code is vague as it applies to crime logs. Only 14 percent of
sheriff's offices and 22 percent of city police stations allowed
access to their daily logs, if they kept them at all.
And even when requests were granted, there sometimes were problems.
Often, people asking for the records were pressed to give their
names and the reasons they wanted the information, which state
law does not require. In other cases, often because staff did
not know whether information should be released or not, requests
were delayed.
Cause for concern
Enough requests were denied, observers say, that South Dakotans
should be concerned about their access to public information held
by local government agencies.
The denials are problematic, says David Day, a law professor at
the University of South Dakota, because they hinder the public's
ability to evaluate the work of publicly funded agencies and the
officials who run them. In addition, lack of access can make it
difficult to participate in government proceedings or to benefit
from information gathered in the public's interest.
"The law exists to make records that clearly are supposed to be
open actually open to people," Day says. Problem is, he adds,
"So much of this depends on attitude," on whether a public agency
views the law as important.
The South Dakota audit followed similar efforts in 26 states and
the District of Columbia, according to research by the Reporters
Committee for Freedom of the Press, a national group that monitors
media issues.
In some of those states, the surveys prompted revisions in laws
or other steps to make it easier for the public to get government
records. After 13 Iowa newspapers did a similar test, the state
hired a special assistant in its ombudsman's office to handle
questions and complaints about public records, public meetings
and privacy involving local or state government.
Focusing South Dakotans' attention on open government issues was
the goal of the project, says Kim Dohrer, president of the South
Dakota Associated Press Managing Editors Association and editor
of the Mitchell Daily Republic.
"If anything comes out of this, it is that we were able to educate
the public that they have a right to access, too," she says.
And that access can prove important on many fronts, Day and others
say.
Before Sioux Falls' recent opt-out vote, for instance, a citizen
may have wanted to gauge whether the school district was managing
its resources wisely by comparing what top administrators earn
to the cost of programs they operate.
Or someone heading a neighborhood watch may want to see the local
crime log to learn why police made an arrest on a neighbor's front
lawn.
"Those things are the public's business, so people ought to have
the right to relevant information," says Don Holloway, Pennington
County sheriff, whose office openly displays its crime log.
Holloway's colleagues in larger counties and cities generally
take a similar approach. But for law enforcement agencies overall,
including most in South Dakota, they are the exception.
Uncertainty
Why? It seems no one in South Dakota - from police to the attorney
general to private lawyers to academics - is sure whether law
enforcement records are required to be public.
While state code reads that any record required to be kept must
be opened to the public, it also provides for numerous exceptions.
In this case, the words "crime log" are not included in the state
code, so it's not clear whether police have to keep an official
tally of crimes and arrests. And if they are, police can withhold
information that, if released, would serve as a detriment to an
investigation or violate a victim's privacy rights. Suspected
youth offenders, for example, most often are barred from being
identified.
"In a perfect world, all the laws would be clear, but it's not
a perfect world," says Attorney General Mark Barnett.
That being the case, an argument could be made for keeping almost
all information related to police investigations private, many
authorities say.
A clerk at the Moody County sheriff's office, for instance, told
a reporter that only law enforcement officials and state's attorneys
can view crime logs. At the Vermillion police department, a visitor
was told simply that the logs were not public information.
A police officer in Salem, the seat in McCook County, said not
even the City Council could see his logs.
"If Joe Blow walks off the street and says he wants to see a copy
of the crime log, it wouldn't surprise me if they didn't give
it to him or if they at least wanted to know why," says Roger
Gerlach, McCook County state's attorney. "It's because they want
to protect the individuals in those" records.
He says employees in McCook rarely get requests for public records,
especially the police blotter, because it's not large enough to
have news media asking for them.
He and his counterparts in other sparsely populated counties say
that if average residents want to know about a crime, they'll
probably find out everything that would be on a log just by asking
among neighbors.
"There might not be a crime or even an accident for four, five,
six days or longer. So there's not always much to keep a log for,"
Gerlach says. "In that way, it's different here than some place
like Sioux Falls or Rapid City."
Moreover, he says, "When there is a report, everybody here knows
just about everybody else, so the privacy issue is different here,
too."
Reasons for denials
Confusion and differing views about the law, of course, are not
limited to police and sheriff's departments. That applies even
to data widely considered covered under the open records law.
Case in point: Requests for salary information for school officials
were denied in 14 districts during the records audit.
Diane Buchholz, business manager for the Highmore district, refused
to release that information, insisting it was not for public review
until after the school board approved it and published it in the
local newspaper.
In other cases, the requests for records were not denied, but
people seeking information left empty-handed nonetheless.
A common scenario played out at Tyndall's city hall: An office
staffer, when asked for the city finance officer's salary, said
that only a supervisor could release the information. But the
supervisor was not there, and the woman asking for information
was told to come back another day.
The same thing happened at the courthouse in Hutchinson County
and at Bon Homme's school administration offices, among other
places.
Even when such information is made available on the first trip,
often the person seeking it may have to jump through hoops or
answer questions that are irrelevant under the law.
At City Hall in Olivet, for example, a woman seeking a city official's
salary was asked to give her name, where she was from and why
she wanted the information before it was released.
In Gregory County, officials released the property tax assessment
for the county commission chairman only after the man asking for
the information, Nicholas Buchholz, gave his name, and they were
able to confirm that he worked for a newspaper.
The reason, Buchholz was told, was that county officials had just
attended a series of meetings on spotting suspicious behavior
in the wake of the Sept. 11 terrorist attacks and the ensuing
anthrax scare.
"If we think something is suspicious, we are to turn it in," Buchholz
quoted an official as saying in a report on his visit. "We don't
have a problem with public records, but I guess we would like
to know why somebody is wanting them. I know that we don't have
a right to know that," but after Sept. 11, "we are all a little
bit paranoid."
That thought was echoed by government employees from Mitchell
to Chamberlain to Parker.
Training issues
But in many other cases, access was denied simply because of an
employee lacked knowledge of the law. Asked for the Canton city
finance officer's salary, an official said she first needed that
person's permission to release the figure. When he couldn't be
found, the official consulted with the city attorney, who later
said to release the information.
Some city and county officials offered no explanations for the
holdups, other than to say their staffs were too busy to stay
apprised of every law.
Others are like Dan Amert, Canton's city finance officer, who
says he regrets that his salary information was not immediately
made available. Amert, an advocate for open records, says it was
probably the result of a miscommunication within his office, not
an intentional move to squelch information.
At the same time, he says, even lawyers struggle to define the
law, making it difficult for even the best-trained staffs to know
immediately which information they can release.
Indeed, open records law allows for myriad exemptions - everything
from student performance records kept by schools to medical records
to some financial information provided to public offices by private
businesses.
"You want to make sure that you don't release something you shouldn't
because that can be just as big a problem," Amert says.
For all the disparate views and factors that may impede the flow
of information, though, the news media records audit did show
that, more often than not, people who want access to public information
usually can get it sooner or later.
That's particularly true in South Dakota's most populated counties,
where officials are accustomed to such queries.
Every public office in Minnehaha, Brown and Yankton counties,
for example, made all requested information available. And a handful
of rural counties also complied with all requests, including Marshall,
Roberts, Sanborn and Ziebach.
Says Chase, the Sioux Falls school official: "There are things
like student records, which are clearly private, and we guard
them with our lives. But at the same time, most records are public
information, and we're happy to give people that information whenever
they want it.
"It's the taxpayer's right to know."
Reach reporter Kevin Dobbs at kdobbs@argusleader.com or 977-3924.
©
2002 Copyright Argus Leader.
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