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MERCER: State's records aren't so open

PIERRE — Public records are one place where the public comes up short in South Dakota.

There was good intention, back in 2009, when the Legislature rewrote South Dakota's laws on public records.

But laws can come with loopholes. We have some big loopholes. They must be closed.

Here are specific examples: Public officials don't have to make public their official correspondence. They also don't have to make public their personal correspondence. These documents are among the many exceptions in the 2009 rewrite.

By making correspondence exempt, citizens can't learn about officials' decisions made by hundreds of division directors and cabinet secretaries. The exceptions extend to the governor, too.

Here's hoping our next governor leads the march to close those loopholes. Here's hoping our legislators agree to close them.

They are in section 1-27-1.5, subsections 11 and 19.

There's another unwieldy set needing attention. They deal with records of previous governors and lieutenant governors. They are at 1-27-1.19 through 1-27-1.21. The Legislature approved them in 2012.

In a nutshell, the laws requires the past governors' records "shall be opened to the public upon either the death of the former officer or ten years from the date the officer left office, whichever transpires last."

There are several flaws in these laws.

The first is another set of laws previously established a state board that decides how long records must be kept. None of those regulations calls for keeping records as long as 10 years. (This is another area that needs to be addressed.)

The second is the departing governor can place his records under the safeguard of a succeeding governor or the state archivist. The departing governor also can name someone to make decisions about whether the records should be opened.

A new state law took effect July 1 requiring government bodies in South Dakota to offer a public-comment period. Organizations for school boards and school administrators openly opposed it.

The amendment to 1-25-1 from Rep. Liz May, R-Kyle, allows discretion by a board or commission chair. At the state level, discussions have been when to take comments.

Decisions have split. Some put the periods near the start of meetings. Some are scheduling them at the end. The trouble with the end is no one knows when the end will be. Adding more definition to the law would help.

Nothing requires board or commission members respond to comments. If the issue deserves more attention, the members can schedule it for a future meeting.

There is another curious feature to South Dakota's public records laws. The state court system is exempt. The courts write their rules.

That raises a question. Would it be worthwhile for the South Dakota Supreme Court to oversee the next study of state laws on public records?

The two major candidates for governor, Republican U.S. Rep. Kristi Noem and state Senate Democratic leader Billie Sutton, have said they support more transparency.

Our Legislature tends to support the state court system's requests. Is this the time?

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