SD Supreme Court Looks At Flawed Statute And Its Effect On Open Records

Jan 12, 2017

Justices listen as Jon Arneson argues on behalf of the Argus Leader.

The importance of punctuation and grammar was at issue in the South Dakota Supreme Court on Wednesday. In a case involving open records, justices heard from lawyers representing the Argus Leader and the City of Sioux Falls. The dispute revolves around the wording of one short paragraph in the open records chapter and whether it allows government entities to keep records closed when they’ve entered into a contract.

Prior to 2009, South Dakota law established that government records were closed unless there was some reason to open them.

In 2009, the South Dakota Legislature flipped that concept and passed statutes to support the presumption that government documents are open unless there’s a reason they should be kept closed.

Some of those reasons are outlined in the open records chapter.

Now jump forward to October 2015, when the Argus Leader asked for a copy of the settlement agreement between the city of Sioux Falls and other parties involving sub-par siding on the Denny Sanford Premier Center. The contractual parties agreed to keep the particulars confidential, except that the amount of settlement was one million dollars.

The city turned down the Argus Leader’s request, relying on SDCL §1-27-1.5 (20), or “Exemption 20,” in the open records laws.

That exemption allows governments to keep confidential, quote, “Any document declared closed or confidential by court order, contract, or stipulation of the parties to any civil or criminal action or proceeding.”

Much discussion revolved around that second comma. Does it set the word “contract” apart? The city says it does.

The Argus Leader, represented by Jon Arneson, holds that the city’s interpretation of the statute defeats the objective of the open records chapter.

“This simply says ‘documents’ that anybody can, by means of contract, keep confidential,” Arneson tells justices. “It doesn’t describe what documents, it doesn’t have any limitation on the type of documents, it simply says if you want to keep a document, un-described, unspecified, a secret, just make a contract and say it’s a secret and you’re okay.”

Arneson says that reading of the statute comes from faulty punctuation.

James Moore represents the City of Sioux Falls. He says that comma leads to a correct interpretation. He says the language of the statute is clear, and it intends to allow exemptions when a contract is in place.

He says in this case, the city did not act unilaterally. It entered into a contract with other parties, and they all agreed to keep details confidential.

“A contract is a judicially enforceable document,” Moore says. “It requires offer and acceptance, it requires consideration, it requires mutuality. It’s judicially enforceable, and that’s why it fits. That’s why it fits in that series. Court order, contract, stipulation of the parties to a proceeding.”

Moore says if the exemption leads to abuses, the political system will correct it, and the legislature will change the statute if need be.

Justices will rule on the issue at a later date.