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S.D. journalists check whether public records are really 'public'

By The Associated Press


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PIERRE, S.D. — Want to see county documents about your neighbor's property taxes?

No problem.

Want to know how much your city finance officer makes?

A breeze.

But if you want to find out what your sheriff or city police did yesterday, good luck.

A new survey shows South Dakotans have good access to county tax records and school and city government documents. But law enforcement information is another matter.

Reporters, editors and other staff of South Dakota's 11 daily newspapers and the Associated Press visited city, county and school offices in all county seats on June 26 to check whether records are available to the public. College students, publishers and a press operator also acted as surveyors.

"We ran a test. Does it work? If Joe Blow comes off the street to get information — a salary or property-tax information, whatever it might be — is the public able to access that information?" said Kim Dohrer, editor of The Daily Republic in Mitchell and president of the South Dakota Associated Press Managing Editors.

A separate study by the Better Government Association in Chicago in 2001 found South Dakota's public-access laws to be the nation's most restrictive. The government-watchdog group reviewed state laws on public access to records and meetings and declared them the worst in the country.

Dohrer says she hopes the new project carried out by South Dakota newspapers and the AP will help educate both the public and government officials about the importance of making public records easily available.

In a democratic society, citizens must be able to get information about government, Dohrer said. Open government can help prevent graft and corruption or just help people find out what is going on, she said.

"Open records are part and parcel of an open government. We all know what government is like when it's closed," Dohrer said.

Because the information sought in the project was selected not for its news value but to test whether an average citizen could get it, the surveyors did not identify themselves as reporters. Unless pressed, they were not to reveal their identity or that the questions were part of a statewide project.

Some officials said their suspicions, already heightened by last year's terror attacks, were aroused by the surveyors' reluctance to explain why they wanted the records.

"I know it's public information. But what are they going to use it for? That's the kind of thing that's kind of scary, you know," said Mellette County Equalization Director Richard McKee, who provided the information requested. "We weren't so strict on it before 9/11."

What was sought
Equalization directors were asked for the current property-tax assessment of each county's commission chairman. Each county treasurer was asked for the commission chairman's tax bill. At city offices, documents showing the city finance officer's salary were requested.

Sheriff's offices and city police departments were asked to show the previous day's crime log. School districts were asked to provide a document showing the athletic director's pay.

The property tax information was provided in all but one county, and the officials who handle the information in that county were gone the day of the test. In nearly every city, officials also provided information on the finance officer's pay.

More than three-quarters of the school districts surveyed supplied information on their athletic directors' pay. When asked, 77% or 50 of the 65 school districts checked, gave the name and total compensation of the district's athletic or activities director. Of those, more than half first wanted to know why the information was requested.

But few sheriff's departments or city police would turn over their crime logs. Only 19 of 109 law enforcement agencies provided information from crime logs. Many law enforcement officials said those records were not considered public.

South Dakota law generally provides that any record that's required to be kept becomes a public record open to inspection by anyone during normal business hours. Other laws specifically prevent some documents from being made public.

Dohrer said the survey results show that when people use their right to get public information, the system works. County property-tax documents are frequently sought, so they are readily available. But the response rate was a little lower in school districts and cities because people request such information less frequently, she said.

The response rate was good for counties and cities, but it should be 100%, Dohrer said.

Law enforcement records
State law does not require law enforcement agencies to keep daily logs, so it's not surprising that many don't make those logs public, she said.

A 1991 written opinion by Attorney General Mark Barnett said a sheriff's dispatch logs do not appear to be public records because no law requires them to be kept. Any confidential information on criminal investigations should not be disclosed, the opinion said.

Barnett's nonbinding opinion also said the courts might interpret the open-records law differently.

Codington County Sheriff Keith Olson said he didn't provide the information because he understood the questioner to be asking for an unspecified incident report. He said he routinely provides his department's logs to reporters with the understanding they won't release some confidential information about juveniles or ongoing investigations.

Other sheriffs said they would not release logs but were willing to talk about specific cases.

In Rapid City, the Pennington County Sheriff's Department and the Rapid City Police Department post a combined daily log that hangs in a place plainly visible and accessible to the public.

'Look them in the eye'
Of all the information requested, property-tax records are the documents most routinely sought because they are used in the real estate business and by people checking if their taxes are comparable to their neighbors'.

Some people call the Mellette County Equalization Office and ask for tax information without saying who they are or why they want it, McKee said. He sometimes tells them to put their request in writing.

When the open-records project representative visited his office, McKee provided the requested information. But he and an assistant required the person to give his name and where he worked. In a polite series of questions, they also sought to find out why the surveyor wanted the information.

Most visitors explain who they are and what they are up to, but some won't say much, McKee said. "I realize it's strictly public information in my office, but I do like sometimes to see who it is and look them in the eye."

It's natural for government officials to ask visitors who they are and why they want a document, said Dave Bordewyk, manager of the South Dakota Newspaper Association, which includes both dailies and weeklies.

"But at the same time, that should not be the test. Access to public records should not be tested as to who you are or why you want it," Bordewyk said.

The 2001 terrorist attacks made people more wary, but their right to get government information also must be protected, he said. The key is to strike the right balance that protects people's right to public information, Bordewyk said.

The Newspaper Association was not involved in the open-records test but often deals with the same issues.

"Access to public records is fundamental to our way of government, period. When that access is denied or challenged, our government suffers and more importantly, we think the public suffers as well," Bordewyk said.


State audit: Public records often more closed than open in Washington
Survey by 26 news organizations finds Washington state residents can’t be certain that local government will give them information to which they’re entitled.  10.22.01

Public-records advocates form state group
State's 'sunshine laws are a patchwork quilt of statutes,' says president of South Dakotans for Open Government.  01.31.03

Prospects grim for open access to state's public records
Analysis Sept. 11 attacks prompt governor to call for new exemption; newspaper advocate hopes to hold the line on current law.  01.19.02

Report: Texas law enforcement agencies frequently violate FOI law
Survey of 14 counties finds officers often respond to information requests with personal questions, ID requests, lectures about privacy.  01.06.03