Transcript OFFICE OF THE ATTORNEY GENERAL

OFFICE OF THE
ATTORNEY GENERAL
OPEN MEETINGS AND
PUBLIC RECORDS
PUBLIC RIGHTS:
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The public has a “right” to examine AND copy
records.
Regular office hours apply.
Copyright Law sometimes applies to making
copies.
PUBLIC RECORDS: NEW STANDARD
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“Presumption of Openness” --unless a
specific exemption exists.
2009 law repeals old “Required to be
kept” language.
FISCAL RECORDS: ALMOST ALWAYS
OPEN
Exceptions
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Payments to confidential informants/criminal
investigations
Present or Pending Contract Awards/Collective
Bargaining Negotiations
Appraisal and Negotiation Records on the purchase
or sale of real estate
PRIVATE CITIZEN INFORMATION
NOT PRESUMED OPEN :
Account #
Credit Information
Customer Lists
Library Patron Records
SSN#
Medical Records
Financial Acct. information
Driver License #
Test Questions & Answers for Licensing & Credit
Catchall: “Unreasonable” Release of Personal Information
PERSONNEL RECORDS
NOT PRESUMED OPEN :
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Personnel Information (Other Than Salaries/Directory
Information)
Employment Applications and Related Materials -(except records are presumed open for
executive/policymaking positions i.e. city manager)
Test Questions & Answers for Employment or
Promotion
EMPLOYEE WORK:
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Final records are open; DRAFT working
papers and memos are not presumed open.
Personal Letters, Memos, Notes, Calendars,
Other Personal Records of Public
Officials/Employees are not presumed open.
SAFETY/SECURITY RECORDS NOT
PRESUMED OPEN :
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Public Safety Information (including blueprints, etc)
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Most Law Enforcement Investigation Information
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Archaeological, Historical, Paleontological Sites
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Emergency Disaster Plans
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Records That Would Endanger Life/Safety of Any Person
COURTS/COURT ORDERS
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Records are not open if declared
confidential by a Court, Contract, or
Stipulation in Court Action
Records kept in Court files are subject
to separate court rules.
PRISON RECORDS
Prisoner Records are generally not open:
Juveniles in Custody
Inmate Disciplinary Matters
PRIVILEGED RECORDS NOT SUBJECT TO
“PRESUMPTION OF OPENNESS”
 Trade
Secrets/Research/Proprietary
Information
 Attorney Work Product
 Attorney Client
 Deliberative Process Privilege
DELIBERATIVE PROCESS
PRIVILEGE
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Applies to Elected and Appointed Officials
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Documents, Records, Communications
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Decisional or Deliberative Process
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Relating to Any Decision Arising From Official Duties
OTHER RECORDS
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Specific state laws
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Federal requirements
REDACTING INFORMATION:
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Information Specified as Confidential (SDCL 1-27-3)
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Material that Unreasonably Invades Personal Privacy
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Threatens Public Safety & Security
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Discloses Proprietary Information
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Disrupts Normal Government Operations
PUBLIC RECORD REQUESTS:
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INFORMAL
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WRITTEN REQUESTS
Informal Requests
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Made to custodian of the record
CUSTODIAN may provide document
Fees may be charged.
Public Record Requests-Fees
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Must provide cost estimate if the fee is
likely to exceed $50.00
Person requesting must confirm
acceptance of cost estimate in writing.
Discretion: fee may be waived or
reduced in the public interest
Public Record Requests-Fees
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May make payment of fees conditional on
providing records.
May charge actual cost of production or other fee
established by law
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May charge for staff time in excess of 1 hour
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Bureau of Administration rate
Public Record Requests- Format
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Record Maintained in Original Format; or
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Any Searchable Electronic Form; or
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Any Other Format
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No Requirement of a Particular Format
Public Records- Written Requests
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If Informal Request is denied (in whole
or in part)
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Written request may be made
Public Records Officer (PRO) becomes
involved.
PRO must respond in 10 days!!!!
PUBLIC RECORDS OFFICER
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Designated By Law:
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County-auditor
City-finance officer
Law enforcement-custodian of the record
Public Records-Written Requests
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PRO MUST:
1.
2.
3.
4.
Provide Record in Whole or in Part-same fees
as above.
Deny the Request.
Acknowledge Request and Provide an
Estimate of the Time Required to Respond.
Seek clarification.
Public Records- Written Requests
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Request clarification if request is
unclear.
If person requesting fails to respond
within 10 days –request is deemed
denied.
No further action.
Public Records – Written Requests
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Additional time:
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To clarify nature of request
To locate and assemble information
To notify third persons or agencies if
necessary
To determine whether the information is
subject to disclosure
Public Records Written Requests
PRO Denial in whole or in part:
1.
2.
Denial must be in writing and state
reasons
If PRO fails to respond, the written
request is “deemed denied.”
Public Records Written Requests
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2009 Requirement
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Maintain File of Denial Letters
File Available to Public Upon Request
Public Records-Appeals
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Appeals available
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If
If
If
If
PRO Denies Request
There is No Response-Deemed denied
there is a Fee Dispute
there is a Delay in Responding.
Requestor may start lawsuit or appeal
to Office of Hearing Examiners (OHE).
Public Records- OHE Appeals
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OHE Duties
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Notify PRO of Appeal.
Send PRO notice with Packet of
Information.
Hold Hearing if necessary.
Issue decision.
Public Records-OHE Appeals
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Responding to OHE
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File written response within 10 days.
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Ask OHE for extension of time if necessary
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Participate in hearing if required.
Public Records/ Court Appeals
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Persons requesting records may file suit
in court instead of filing with OHE.
After the OHE rules, either party may
appeal to the courts.
NO DOCUMENT NEED BE RELEASED
UNTIL APPEALS ARE FINAL.
Public Records/Personal Liability
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No Civil or Criminal Liability for
Denial/Production in “Good Faith”
OPEN MEETING LAWS
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SDCL §1-25
PUBLIC BUSINESS:
[MUST BE CONDUCTED IN PUBLIC]
“…to prohibit actions being taken
at secret meetings where it is
impossible for the interested
public to become fully informed
and to detect improper
influences.”
Olson v. Cass (1984)
All official meetings of Public
Agencies shall be open to the
public.
SDCL §1-25-1
What is an OFFICIAL MEETING?
(Not defined by statute or case law)
• AGO 89-08:
“When a majority or quorum of the body
is present and official business…of the
board…is discussed.”
REGULAR MEETINGS
Lunches?
Smoking breaks?
Sporting events?
Social events?
Others?
Allowed ONLY for:
1. Employee / Personnel Matters
2. Student Issues
3. Communication with your attorney
(lawsuits – contracts etc.)
4. Labor Negotiations
5. Marketing Strategies (Municipal Liquor
Stores)
6. EXCEPTION:
(ECONOMIC DEVELOPMENT / TRADE SECRETS EXCEPTION)
SDCL 9-34-19
“…Any discussion or consideration of such
trade secrets or commercial or financial
information by a municipal or county
corporation may be done in executive session
closed to the public, notwithstanding any
other provisions of law.”
Additional Limitations
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No official action
Motions, Seconds, & Majority vote to close
Purpose must be stated in Closure Motion
No discussions of any other matters
(Executive Session penalties are the same as open meeting violations)
CRIMINAL
Class II Misdemeanor:
* 30 days in Jail and
* $500 Fine plus Costs
CIVIL
• Action void or voidable
• Personal liability
PUBLIC REPRIMAND
Open Meeting Commission
NOTICE – FOR PUBLIC MEETINGS
• SDCL §1-25-1.1
• For ANY MEETING
• POST NOTICE & PROPOSED AGENDA
• AT THE PRINCIPAL OFFICE
• AND
ANY OTHER REQUIREMENTS-PUBLICATION
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Posting & Agenda requirements – same
ALSO: Notice to “LOCAL NEWS MEDIA”
In Person – Mail
Telephone – (honest effort)
Definition of
“LOCAL NEWS MEDIA”
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Legal Newspapers
Radio Stations
T.V. Stations
VIOLATIONS (Same as before)
CRIMINAL
Class II Midemeanor:
* 30 days in Jail and
* $500 Fine plus Costs
CIVIL
• Action void or voidable
• Personal liability
REPRIMAND
OPEN MEETING COMMISSION
TELEPHONIC MEETINGS –
IF:
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Give proper notice
AND – allow at least
one place for the
public to listen and
participate
Violations:
(Same as before)
E-MAIL COMMUNICATION
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Office Computers
Home Computers
Attachments
Chat Rooms
State’s AttorneyEnforcement
1.
Charge Class 2 Misdemeanor
2.
Dismiss
3.
Refer to Open Meeting Commission
Open Meeting Commission
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5 States Attorneys
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Appointed by Attorney General
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Grant County- Mark Reedstrom (Chairman)
Aurora County - John Steele
Sully County - Emily Sovell
Bon Homme County - Lisa Rothschadl
Pennington County - Glenn Brenner
Commission Duties
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Get file from states’ attorney
Consider material submitted
Issue written decision
File decision with Attorney General
Decision is public record
Open Meeting Commission:
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Cannot impose fines or jail time.
Cannot send matter back to the state’s
attorney for criminal prosecution
OMC
DECISIONS
City of Watertown
Q: Are appointed committees subject to the open
meeting laws?
A: It depends. Generally committees do not have
to comply if they are (1) not created by state
law & (2) not authorized to make final decisions
USD Student Government Assoc.
Q: Are student organizations subject to the
open meeting laws?
A: No. Student organizations generally do
not have authority to spend public
money or act on behalf of governmental
entities.
Kingsbury County
Q:
Is an informal meeting between a
quorum and the auditor an “official
meeting” when it is just for general
education?
A: Yes.
Minnehaha County
Q: Is an informal meeting between a
quorum of a county commission and the
manager of its Fairgrounds an “official
meeting”?
A. Yes. The open meeting laws apply.
Roberts County
Q: If a quorum goes on a tour and is
approached by others about official
business, does the public body violate
the law?
A: Yes, even if approached, the quorum
must not listen to otherwise engage in
official discussions when it has not
posted an agenda.
Melrose Township II
Q. Is a meeting between a quorum of a
public body and another public body an
“official meeting” for each body?
A:
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Yes - both must comply. (2006 decision)
No - under new law a quorum attending a
meeting of another body is not an “official
meeting” if the first body complies with the
open meeting laws.
Brown County
Q:
Must the agenda for a meeting be
posted at the front window and be
visible for the entire 24 hours?
A:
The agenda must be posted 24 hours
in advance. (Front windows are
advised but not required.)
Arcade Township
Q: When a meeting is adjourned or
carried over to a different day,
must a new agenda be posted?
A:
Yes, unless the original agenda
listed both days.
Brown County
Q:
If a County publishes notice of its
meetings but does not post an agenda,
is it in violation of the open meeting
law?
A:
Yes.
Black Hawk Fire District
Q: If a Fire District fails to publish notice of
its meetings as required by law and also
fails to post an agenda, is a reprimand
warranted for both?
A: Yes.
Butte County
Q: If an agenda only lists “employee
interviews” on its agenda, does the body
violate the open meeting laws if it also
makes the hiring decision?
A: No, it is apparent that an hiring decision
might be made.
Town of Herrick
Q. Is notice to the media and a posted agenda
required for a special meeting on a
continuing personnel matter?
A. Yes. The Open Meeting Law:
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Includes special meetings and “old business.”
Applies even when the only item is an executive
session.
Requires votes to be made in an open meeting
after the executive session.
City of Martin I
Q: If a city auditor knows about a special meeting
a couple of days in advance, but posts the
agenda only 12 hours in advance is that good
enough?
A: No. If known, the notice for special meetings
must be posted 24 hours in advance. For
emergencies an agenda should be posted to the
extent practical.
City of Lead
Q. If a public entity is in executive session for
personnel reasons, what may be discussed?
A. Discussions in executive session concerning
employees must relate to the work
performance, competence or qualifications of
specific employees.
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Discussing city reorganization is not proper in
executive session.
Discussing the wrongdoing of a city employee
or official is proper in executive session.
City of Tripp
Q: May a City vote on a personnel issue in
executive session?
A: No- Personnel issues may be discussed
in executive session provided proper
motion is made, but votes must be
public.
Gregory School Board
Q.
If a board is in executive session for personnel
matters, may it discuss another topic even if no official
action is taken?
A.
No. The additional topic should not be discussed
because:
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The topic was not listed in the agenda at all.
The topic was not a “personnel matter” or covered by
another announced exception.
Davison County
Q. If a task force report includes some personnel
recommendations, may the whole report be discussed
in executive session?
A. No.
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Presentations or reports are to be heard in open session except
for specific executive session matters.
Even if an ad hoc task force suggests the executive session, the
county is responsible for complying with the law.
The county should have had someone separately review the
report in advance to split the presentation into public and
executive sessions.
Faulkton Area Sch. Dist
Q. When a public body goes into executive session must it
vote in public afterward?
A. Not necessarily.
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If a public entity takes official action, it must vote in public.
If the executive session involves discussion and no official action is
necessary, there is no need to vote or take any public action after the
executive session.
S.D. Science & Tech. Authority
Q. May a public entity to go into executive
session for “discussing contracts”?
A. “Contracts” is not, in and of itself, enough
reason for an executive session.
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Preparation for or participation in employee
contract issues is a proper matter for an
executive session.
Consultation with legal counsel or consideration
of advice from legal counsel about contractual
matters is proper for an executive session.
Rapid City Regional Airport
Authority
Q. May third parties be included in executive
sessions for “contractual matters” or
“anticipated litigation”?
A. Not in this case.
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“Contractual matters” alone is not a proper executive
session.
“Anticipated litigation” generally means discussions
with legal counsel only.
City of Mitchell
Q: May a public entity to go into executive
session for any attorney-client
discussions or just those listed in the
open meeting law (contracts &
anticipated litigation)?
A: All attorney-client matters are covered,
not just contracts and anticipated
litigation.
Melrose Township I
Q. May a public entity to go into executive session for any
type of discussion with its lawyer?
A. It is proper for a public entity to meet with its lawyer in
executive session for legal matters:
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To discuss any litigation, anticipated litigation or action to prevent
violations of the law by the public entity
To discuss contractual matters or negotiations on public employment
issues
Board of Regents
Q: If a Board goes into executive session to
discuss contracts with its lawyer, may it
also discuss other related contract issues
that do not require legal advice?
A: No-The executive session must pertain to
legal issues only.
City of Martin II
Q: How specific must the motion be for
going into executive session?
A:The reason must be clear based on the
circumstances. If counsel asks for
executive session to discuss pending
litigation, “so moved” is adequate based
on the circumstances.
Open Meeting Question:
Adding Agenda items at the
beginning of the meeting??????
Thank You!!
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Office of Attorney General

605-773-3215 or 605-367-5880
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http://www.state.sd.us/attorney/office/opengov.asp
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Questions????????