Transcript PUBLIC RECORDS DISPUTE RESOLUTION PROCEDURE

PUBLIC RECORDS
DISPUTE RESOLUTION
PROCEDURE
SCOTT R. SWIER
ASSISTANT ATTORNEY GENERAL
WHAT IS A “PUBLIC” RECORD IN
SOUTH DAKOTA?
SDCL 1-27-1
• EXISTING LAW PROVIDES THAT RECORDS
THAT ARE “REQUIRED TO BE KEPT BY STATE
STATUTE” ARE “PUBLIC RECORDS”
– UNLESS:
• STATE OR FEDERAL LAW REQUIRES THEM TO BE HELD
CONFIDENTIAL
• SIGNIFICANT NUMBER OF RECORDS
MAINTAINED ARE NOT “REQUIRED TO BE KEPT
BY STATE STATUTE”
• PUBLIC ENTITIES HAVE GREAT DEAL OF
DISCRETION
History of Dispute Resolution
Procedure
 JULY 1, 2007 – ATTORNEY GENERAL LONG ISSUES
OPEN GOVERNMENT REPORT
www.state.sd.us/attorney
 AUGUST 15, 2007 – ATTORNEY GENERAL’S OPEN
GOVERNMENT TASK FORCE
RECONVENED
OVER FORTY MEMBERS OF TASK FORCE
• SD ASSOCIATION OF COUNTY
COMMISSIONERS
• SD ASSOCIATION OF COUNTY OFFICIALS
• SD LAW ENFORCEMENT
• SD MEDIA
• STATE AGENCIES
• SD BUSINESS COMMUNITY
GOAL – CREATE A SIMPLE, INEXPENSIVE, “SMALL
CLAIMS”-TYPE PROCEDURE
2008 LEGISLATIVE SESSION
• SB 186
• SENATOR KNUDSON
• REPRESENTATIVE RHODEN
• “AN ACT TO REVISE CERTAIN PROVISIONS
REGARDING PUBLIC RECORDS”
2008 LEGISLATIVE SESSION
• SENATE – 32-0
• HOUSE – 68-1
• SIGNED BY GOVERNOR ROUNDS ON MARCH
17
• AMENDS SDCL 1-27
SB 186
SECTION 1.
• HEARING EXAMINERS AUTHORITY
SECTION 2.
• EXCLUDES UJS AND PUC
SB 186
SECTION 3.
• INFORMAL REQUEST
• MADE TO CUSTODIAN OF RECORD
• CUSTODIAN MAY: PROVIDE DOCUMENT
 UPON PAYMENT OF COST OF MAILING/
TRANSMITTAL
 ACTUAL COST OF REPRODUCTION; or
 OTHER FEE ESTABLISHED BY LAW
 DEDICATION OF STAFF TIME IN EXCESS OF ONE
HOUR – MAY BE REQUIRED TO PAY COST OF STAFF
TIME
 IF NO RATE IS PRESCRIBED, BOA SHALL ESTABLISH
MAXIMUM RATE
SB 186
SECTION 4.
• ANY INFORMAL REQUEST LIKELY TO EXCEED $50.00
FEE
• CUSTODIAN SHALL:
– PROVIDE COST ESTIMATE PRIOR TO ASSEMBLING
DOCUMENTS
• REQUESTOR SHALL:
– CONFIRM ACCEPTANCE OF COST ESTIMATE IN
WRITING AND AGREE TO PAY
• CUSTODIAN MAY EXERCISE DISCRETION TO WAIVE
OR REDUCE ANY FEE IF IN THE “PUBLIC INTEREST”
SB 186
SECTION 5.
• IF INFORMAL REQUEST IS DENIED IN WHOLE
OR IN PART –
WRITTEN REQUEST MAY BE MADE BY
REQUESTOR
TO PUBLIC RECORD OFFICER (“PRO”) OF
GOVERNMENTAL ENTITY INVOLVED
PRO SHALL RESPOND TO WRITTEN REQUEST
WITHIN TEN BUSINESS DAYS OF RECEIPT
SB 186
PRO CAN RESPOND IN THREE WAYS:
1. PROVIDE RECORD IN WHOLE OR IN
PART (UPON PAYMENT OF FEES);
2. DENY THE REQUEST; or
3. ACKNOWLEDGE REQUEST AND
PROVIDE ESTIMATE OF TIME
REQUIRED TO RESPOND
SB 186
• ADDITIONAL TIME MAY BE NEEDED TO:
•CLARIFY NATURE AND SCOPE OF
WRITTEN REQUEST;
•LOCATE AND ASSEMBLE INFORMATION;
•NOTIFY THIRD PERSONS OR AGENCIES
AFFECTED BY WRITTEN REQUEST; or
•DETERMINE WHETHER INFORMATION IS
NOT SUBJECT TO DISCLOSURE AND
WHETHER DENIAL SHOULD BE MADE AS
TO ALL OR PART OF WRITTEN REQUEST
SB 186
IF WRITTEN REQUEST IS UNCLEAR:
• PRO MAY REQUEST CLARIFICATION
• IF REQUESTOR FAILS TO PROVIDE WRITTEN
RESPONSE TO PRO’s CLARIFICATION
REQUEST WITHIN TEN BUSINESS DAYS
• REQUEST SHALL BE DEEMED WITHDRAWN AND NO
FURTHER ACTION IS REQUIRED
SB 186
IF PRO DENIES WRITTEN REQUEST IN
WHOLE OR IN PART
• DENIAL SHALL BE IN WRITING AND STATE
REASONS FOR DENIAL
IF PRO FAILS TO RESPOND TO WRITTEN
REQUEST WITHIN TEN DAYS, REQUEST
SHALL BE DEEMED DENIED
SB 186
SECTION 6.
• IF PRO DENIES WRITTEN REQUEST IN WHOLE
OR IN PART; or
• IF REQUESTOR OBJECTS TO PRO’s ESTIMATE
OF FEES OR TIME TO RESPOND;
• REQUESTOR MAY WITHIN NINETY DAYS COMMENCE
LAWSUIT OR FILE WRITTEN NOTICE OF REVIEW WITH
OFFICE OF HEARING EXAMINERS (“OHE”)
SB 186
SECTION 7.
• OHE SHALL NOTIFY PRO OF APPEAL
• OHE SHALL PROVIDE PRO WITH THE
INFORMATION
• ENTITY DENYING REQUEST MAY FILE WRITTEN
RESPONSE TO OHE WITHIN TEN BUSINESS
DAYS
• IF ENTITY DOES NOT FILE WRITTEN RESPONSE,
OHE ACTS ON INFORMATION PROVIDED
• REASONABLE EXTENSION OF TIME CAN BE
PROVIDED BY OHE
SB 186
SECTION 8.
• OHE MAY HOLD HEARING IF GOOD
CAUSE SHOWN
• OHE TO ISSUE DECISION
SB 186
SECTION 9.
• AGGRIEVED PARTY MAY APPEAL OHE
DECISION TO CIRCUIT COURT
• NO DOCUMENT TO BE RELEASED UNTIL
FINAL DECISION IS ENTERED
SB 186
SECTION 10.
• DESIGNATED PRO
• COUNTY – AUDITOR; or
• CUSTODIAN OF RECORD FOR LAW
ENFORCEMENT RECORDS
SB 186
SECTION 11.
– FORMS