– By David Bordewyk
Executive Director of South Dakota Newspaper Association –
This week we celebrate the public’s right to know what our government is doing. “Sunshine Week” is a nationwide observance and in South Dakota we have open government issues worth celebrating and others sorely needing our attention.
As South Dakota legislators put the finishing touches on the 2019 legislative session, there are notable open government achievements coming out of it.
Chief among them are the journalist’s shield law and a bill to prohibit government confidential settlements.
Kudos to Gov. Kristi Noem for promoting the need for a journalist’s shield law at the outset of the legislative session and for her support of the bill as it made its way through the process.
The journalist’s shield law protects newspaper and broadcast journalists in the state from unwarranted legal attacks to divulge their sources or obtain their unpublished notes and other news gathering material. It is important for the public because this new law will help protect and embolden investigative and public affairs reporting in our state. South Dakota now joins 40 states that have these specific protections for journalists.
A rewrite of the state’s open records laws in 2009 created a loophole to allow government to keep confidential all settlements made with third parties. It blew up in the public’s eye a few years ago in a settlement involving the city of Sioux Falls and construction contractors over warped siding on the then-new Denny Sanford Premier Center. The Sioux Falls Argus Leader sued for the settlement details to be public, and ultimately, the state Supreme Court ordered the city to release them.
Fast forward to 2018 and Republican Sen. Art Rusch of Vermillion. He sponsored a bill to make public any settlements stemming from lawsuits between government and third parties. That bill was killed in the legislative process.
Undeterred, this year Sen. Rusch revived the legislation with a few tweaks to it. As importantly, Gov. Noem voiced support for it and her legislative team testified in favor it. The bill was approved by the Legislature on March 6 and delivered to the governor’s desk for her consideration.
While this proposed new law may not have prevented the Premier Center confidential settlement because it didn’t arise from a lawsuit, it will help close a significant loophole in our open records laws.
And speaking of our open records laws, this week is a good time to contemplate the work that lies ahead to make South Dakota government more transparent and more accessible to not just reporters but all citizens.
The to-do list is long: government correspondence and email, government appointment calendars and law enforcement incident reports. These are just a few of the glaring weaknesses in our open records laws. Government records that most all other states in our nation consider to be a no-brainer in terms of being available to the public. But not yet here in South Dakota.
Add our state’s open meetings laws to the to-do list. Why is it a government board can meet in secret to decide who to appoint to a vacancy on that very board? Doesn’t seem appropriate but it’s legal under current open meetings law.
Legislators this year added another exception for when public boards can meet behind closed doors. It involves discussions regarding security plans and records for public entities and public buildings and it is logical those discussions can and sometimes should be done confidentially.
Still, South Dakota lacks an effective enforcement mechanism in our open meetings laws to ensure that executive session discussions stick to the intended purpose and don’t wander into topics government boards should not be talking about behind closed doors. South Dakota’s open meetings laws need effective and meaningful enforcement provisions, especially when it comes to executive session abuses.
South Dakota indeed could use more sunshine. (And I don’t mean just so we can melt all this snow.) Let’s keep working for a brighter, more transparent government at all levels in South Dakota.