OFFICE OF THE OFFICE OF THE ATTORNEY GENERAL ATTORNEY GENERAL

OPEN MEETINGS AND OPEN MEETINGS AND PUBLIC RECORDS PUBLIC RECORDS

PUBLIC RIGHTS:PUBLIC RIGHTS:

The public has a “right” to examine AND The public has a “right” to examine AND copy records. copy records.

Regular office hours apply.Regular office hours apply.

Copyright Law sometimes applies to Copyright Law sometimes applies to making copies. making copies.

PUBLIC RECORDS: NEW STANDARDPUBLIC RECORDS: NEW STANDARD

“ “Presumption of Openness” --unless Presumption of Openness” --unless a specific exemption exists. a specific exemption exists.

2009 law repeals old “Required to 2009 law repeals old “Required to be kept” language.be kept” language.

FISCAL RECORDS: ALMOST FISCAL RECORDS: ALMOST ALWAYS OPENALWAYS OPEN

ExceptionsExceptions Payments to confidential informants/criminal Payments to confidential informants/criminal

investigations investigations

Present or Pending Contract Present or Pending Contract Awards/Collective Bargaining Negotiations Awards/Collective Bargaining Negotiations

Appraisal and Negotiation Records on the Appraisal and Negotiation Records on the purchase or sale of real estatepurchase or sale of real estate

PRIVATE CITIZEN INFORMATION PRIVATE CITIZEN INFORMATION NOTNOT PRESUMED OPEN : PRESUMED OPEN :

Account #Account #

Credit Information Credit Information

Customer ListsCustomer Lists

Library Patron Records Library Patron Records

SSN#SSN#

Medical RecordsMedical Records

Financial Acct. informationFinancial Acct. information

Driver License #Driver License #

Test Questions & Answers for Licensing & Credit Test Questions & Answers for Licensing & Credit

Catchall:Catchall: “Unreasonable” Release of Personal Information “Unreasonable” Release of Personal Information

PERSONNEL RECORDS PERSONNEL RECORDS NOT NOT PRESUMED OPEN : PRESUMED OPEN :

Personnel Information (Other Than Personnel Information (Other Than Salaries/Directory Information)Salaries/Directory Information)

Employment Applications and Related Materials -- Employment Applications and Related Materials -- (except records are presumed open for (except records are presumed open for executive/policymaking positions i.e. city executive/policymaking positions i.e. city manager)manager)

Test Questions & Answers for Employment or Test Questions & Answers for Employment or PromotionPromotion

EMPLOYEE WORK:EMPLOYEE WORK:

Final records are open; DRAFT working Final records are open; DRAFT working papers and memos are not presumed papers and memos are not presumed open.open.

Personal Letters, Memos, Notes, Personal Letters, Memos, Notes, Calendars, Other Personal Records of Calendars, Other Personal Records of Public Officials/Employees are not Public Officials/Employees are not presumed open. presumed open.

SAFETY/SECURITY RECORDS SAFETY/SECURITY RECORDS NOT NOT PRESUMED OPEN :PRESUMED OPEN :

Public Safety Information (including blueprints, etc)Public Safety Information (including blueprints, etc)

Most Law Enforcement Investigation InformationMost Law Enforcement Investigation Information

Archaeological, Historical, Paleontological SitesArchaeological, Historical, Paleontological Sites

Emergency Disaster Plans Emergency Disaster Plans

Records That Would Endanger Life/Safety of Any PersonRecords That Would Endanger Life/Safety of Any Person

COURTS/COURT ORDERSCOURTS/COURT ORDERS

Records are not open if declared Records are not open if declared confidential by a Court, Contract, confidential by a Court, Contract, or Stipulation in Court Action or Stipulation in Court Action

Records kept in Court files are Records kept in Court files are subject to separate court rules.subject to separate court rules.

PRISON RECORDSPRISON RECORDS

Prisoner Records are generally not Prisoner Records are generally not open:open:

Juveniles in Custody Juveniles in Custody

Inmate Disciplinary Matters Inmate Disciplinary Matters

PRIVILEGED RECORDS PRIVILEGED RECORDS NOTNOT SUBJECT TO SUBJECT TO “PRESUMPTION OF OPENNESS”“PRESUMPTION OF OPENNESS”

Trade Trade Secrets/Research/Proprietary Secrets/Research/Proprietary InformationInformation

Attorney Work Product Attorney Work Product Attorney Client Attorney Client Deliberative Process PrivilegeDeliberative Process Privilege

DELIBERATIVE PROCESS DELIBERATIVE PROCESS PRIVILEGE PRIVILEGE

Applies to Elected and Appointed Officials Applies to Elected and Appointed Officials

Documents, Records, Communications Documents, Records, Communications

Decisional or Deliberative ProcessDecisional or Deliberative Process

Relating to Any Decision Arising From Official Duties Relating to Any Decision Arising From Official Duties

OTHER RECORDSOTHER RECORDS

Specific state laws Specific state laws

Federal requirementsFederal requirements

REDACTING INFORMATION: REDACTING INFORMATION:

Information Specified as Confidential (SDCL 1-27-3)Information Specified as Confidential (SDCL 1-27-3)

Material that Unreasonably Invades Personal Privacy Material that Unreasonably Invades Personal Privacy

Threatens Public Safety & SecurityThreatens Public Safety & Security

Discloses Proprietary InformationDiscloses Proprietary Information

Disrupts Normal Government OperationsDisrupts Normal Government Operations

PUBLIC RECORD REQUESTS:

INFORMAL

WRITTEN REQUESTS

Informal Requests

Made to custodian of the record CUSTODIAN may provide

document Fees may be charged.

Public Record Requests-Fees 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

May make payment of fees conditional on providing records.

May charge actual cost of production or other fee established by law

May charge for staff time in excess of 1 hour

Bureau of Administration rate

Public Record Requests- Format

Record Maintained in Original Format; or

Any Searchable Electronic Form; or

Any Other Format

No Requirement of a Particular Format

Public Records- Written Requests

If Informal Request is denied (in whole or in part) Written request may be made Public Records Officer (PRO) becomes

involved. PRO must respond in 10 days!!!!

PUBLIC RECORDS OFFICER Designated By Law:

County-auditor City-finance officer Law enforcement-custodian of the

record

Public Records-Written Requests

PRO MUST:

1. Provide Record in Whole or in Part-same fees as above.

2. Deny the Request.3. Acknowledge Request and Provide an

Estimate of the Time Required to Respond.

4. Seek clarification.

Public Records- Written Requests

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

Additional time: 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. Denial must be in writing and state reasons

2. If PRO fails to respond, the written request is “deemed denied.”

Public Records Written Requests

2009 Requirement

Maintain File of Denial Letters

File Available to Public Upon Request

Public Records-Appeals Appeals available

If PRO Denies Request If There is No Response-Deemed denied If there is a Fee Dispute If there is a Delay in Responding.

Requestor may start lawsuit or appeal to Office of Hearing Examiners (OHE).

Public Records- OHE Appeals

OHE Duties Notify PRO of Appeal. Send PRO notice with Packet of

Information. Hold Hearing if necessary. Issue decision.

Public Records-OHE Appeals

Responding to OHE File written response within 10 days.

Ask OHE for extension of time if necessary

Participate in hearing if required.

Public Records/ Court Appeals

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

No Civil or Criminal Liability for Denial/Production in “Good Faith”

OPEN MEETING LAWSOPEN MEETING LAWS

SDCL §1-25SDCL §1-25

PUBLIC BUSINESS:PUBLIC BUSINESS:[MUST BE CONDUCTED IN PUBLIC][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?

• AGO 89-08:

“When a majority or quorum of the body is present and official business…of the board…is discussed.”

(Not defined by statute or case law)

REGULAR MEETINGSREGULAR MEETINGS

Lunches?Lunches?

Smoking breaks?Smoking breaks?

Sporting events?Sporting events?

Social events?Social events?

Others?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

• No official action

• Motions, Seconds, & Majority vote to close

• Purpose must be stated in Closure Motion

• No discussions of any other matters

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

(Executive Session penalties are the same as open meeting violations)

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

• Posting & Agenda requirements – same

• ALSO: Notice to “LOCAL NEWS MEDIA”

• In Person – Mail

• Telephone – (honest effort)

Definition of “LOCAL NEWS MEDIA”

• 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:

Give proper notice

AND – allow at least one place for the public to listen and participate

Violations: (Same as before)

E-MAIL COMMUNICATION

Office Computers

Home Computers

Attachments Chat Rooms

State’s Attorney-Enforcement

1. Charge Class 2 Misdemeanor

2. Dismiss

3. Refer to Open Meeting Commission

Open Meeting Commission 5 States Attorneys

Appointed by Attorney General Grant County- Mark Reedstrom (Chairman) Aurora County - John Steele Sully County - Emily Sovell Bon Homme County - Lisa Rothschadl Pennington County - Glenn Brenner

Commission Duties

Get file from states’ attorney Consider material submitted Issue written decision File decision with Attorney General Decision is public record

Cannot impose fines or jail time.

Cannot send matter back to the state’s attorney for criminal prosecution

Open Meeting Commission:

OMC OMC DECISIONSDECISIONS

City of WatertownCity of Watertown

Q: Are appointed committees subject to the Q: Are appointed committees subject to the open meeting laws?open meeting laws?

A: It depends. Generally committees do not A: It depends. Generally committees do not have to comply if they are (1) not created have to comply if they are (1) not created by state law & (2) not authorized to make by state law & (2) not authorized to make final decisionsfinal decisions

USD Student Government Assoc.USD Student Government Assoc.

Q: Are student organizations subject to Q: Are student organizations subject to the open meeting laws?the open meeting laws?

A: No. Student organizations generally A: No. Student organizations generally do not have authority to spend do not have authority to spend public money or act on behalf of public money or act on behalf of governmental entities. governmental entities.

Kingsbury CountyKingsbury County

Q:Q: Is an informal meeting Is an informal meeting between a between a quorum and the quorum and the auditor an “official auditor an “official meeting” meeting” when it is just for general when it is just for general education?education?

A: A: Yes.Yes.

Minnehaha County Minnehaha County

Q: Is an informal meeting between a Q: Is an informal meeting between a quorum of a county commission and quorum of a county commission and the manager of its Fairgrounds an the manager of its Fairgrounds an “official meeting”?“official meeting”?

A. Yes. The open meeting laws apply.A. Yes. The open meeting laws apply.

Roberts CountyRoberts County

Q: If a quorum goes on a tour and is Q: If a quorum goes on a tour and is approached by others about official approached by others about official business, does the public body business, does the public body violate the law?violate the law?

A: Yes, even if approached, the A: Yes, even if approached, the quorum must not listen to otherwise quorum must not listen to otherwise engage in official discussions when engage in official discussions when it has not posted an agenda.it has not posted an agenda.

Melrose Township IIMelrose Township II

Q. Is a meeting between a quorum of a Q. Is a meeting between a quorum of a public body and another public body public body and another public body an “official meeting” for each body?an “official meeting” for each body?

A:A: Yes - both must comply. (2006 decision)Yes - both must comply. (2006 decision) No - under new law a quorum attending No - under new law a quorum attending

a meeting of another body is not an a meeting of another body is not an “official meeting” if the first body “official meeting” if the first body complies with the open meeting laws.complies with the open meeting laws.

Brown CountyBrown County

Q: Q: Must the agenda for a meeting Must the agenda for a meeting be be posted at the front window and posted at the front window and be be visible for the entire 24 hours?visible for the entire 24 hours?

A: A: The agenda must be posted 24 The agenda must be posted 24 hours hours in advance. (Front windows in advance. (Front windows are are advised but not required.)advised but not required.)

Arcade TownshipArcade Township

Q: Q: When a meeting is When a meeting is adjourned or adjourned or carried over to a carried over to a different day, different day, must a new must a new agenda be posted?agenda be posted?

A: A: Yes, unless the original Yes, unless the original agenda agenda listed both days.listed both days.

Brown CountyBrown County

Q: Q: If a County publishes notice of If a County publishes notice of its its meetings but does not post an meetings but does not post an agenda, agenda, is it in violation of the open is it in violation of the open meeting meeting law? law?

A: A: Yes.Yes.

Black Hawk Fire District Black Hawk Fire District

Q: If a Fire District fails to publish Q: If a Fire District fails to publish notice of its meetings as required by notice of its meetings as required by law and also fails to post an agenda, law and also fails to post an agenda, is a reprimand warranted for both?is a reprimand warranted for both?

A: Yes.A: Yes.

Butte County Butte County

Q: If an agenda only lists “employee Q: If an agenda only lists “employee interviews” on its agenda, does the interviews” on its agenda, does the body violate the open meeting laws body violate the open meeting laws if it also makes the hiring decision?if it also makes the hiring decision?

A: No, it is apparent that an hiring A: No, it is apparent that an hiring decision might be made.decision might be made.

Town of HerrickTown of Herrick

     Q. Q. Is notice to the media and a posted Is notice to the media and a posted agenda agenda required for a special meeting on required for a special meeting on a a continuing personnel matter?continuing personnel matter?

A.A. Yes. The Open Meeting Law: Yes. The Open Meeting Law:

Includes special meetings and “old Includes special meetings and “old business.”business.”

Applies even when the only item is an Applies even when the only item is an executive session. executive session.

Requires votes to be made in an open Requires votes to be made in an open meeting after the executive session.meeting after the executive session.

City of Martin ICity of Martin I

Q: Q: If a city auditor knows about a special If a city auditor knows about a special meeting a couple of days in advance, but meeting a couple of days in advance, but posts the agenda only 12 hours in posts the agenda only 12 hours in advance is that good enough?advance is that good enough?

A: A: No. If known, the notice for special No. If known, the notice for special meetings must be posted 24 hours in meetings must be posted 24 hours in advance. For emergencies an agenda advance. For emergencies an agenda should be posted to the extent practical. should be posted to the extent practical.

City of Lead City of Lead

Q. If a public entity is in executive session for Q. If a public entity is in executive session for personnel reasons, what may be discussed?personnel reasons, what may be discussed?

A. A. Discussions in executive session Discussions in executive session concerning employees must relate to the concerning employees must relate to the work performance, competence or work performance, competence or qualifications of specific employees.qualifications of specific employees.

Discussing city reorganization is Discussing city reorganization is notnot proper proper in executive session.in executive session.

Discussing the wrongdoing of a city Discussing the wrongdoing of a city employee or official employee or official isis proper in executive proper in executive session.session.

City of TrippCity of Tripp

Q: May a City vote on a personnel Q: May a City vote on a personnel issue in executive session?issue in executive session?

A: No- Personnel issues may be A: No- Personnel issues may be discussed in executive session discussed in executive session provided proper motion is made, provided proper motion is made, but votes must be public. but votes must be public.

Gregory School BoardGregory School Board

Q. Q. If a board is in executive session for personnel If a board is in executive session for personnel matters, may it discuss another topic even if no matters, may it discuss another topic even if no official action is taken?official action is taken?

A. A. No. The additional topic should not be No. The additional topic should not be discussed because:discussed because:

The topic was not listed in the agenda at all.The topic was not listed in the agenda at all. The topic was not a “personnel matter” or The topic was not a “personnel matter” or

covered by another announced exception.covered by another announced exception.

Davison CountyDavison County

Q. Q. If a task force report includes some personnel If a task force report includes some personnel recommendations, may the whole report be recommendations, may the whole report be discussed in executive session?discussed in executive session?

A. A. No. No. Presentations or reports are to be heard in open session Presentations or reports are to be heard in open session

except for specific executive session matters.except for specific executive session matters. Even if an ad hoc task force suggests the executive Even if an ad hoc task force suggests the executive

session, the county is responsible for complying with session, the county is responsible for complying with the law.the law.

The county should have had someone separately The county should have had someone separately review the report in advance to split the presentation review the report in advance to split the presentation into public and executive sessions.into public and executive sessions.

Faulkton Area Sch. DistFaulkton Area Sch. Dist

Q. Q. When a public body goes into executive session When a public body goes into executive session must it vote in public afterward?must it vote in public afterward?

A. Not necessarilyA. Not necessarily.. If a public entity takes official action, it must vote in public.If a public entity takes official action, it must vote in public. If the executive session involves discussion and no official If the executive session involves discussion and no official

action is necessary, there is no need to vote or take any action is necessary, there is no need to vote or take any public action after the executive session.public action after the executive session.

S.D. Science & Tech. AuthorityS.D. Science & Tech. Authority

Q. May a public entity to go into executive Q. May a public entity to go into executive session for “discussing contracts”?session for “discussing contracts”?

A. “Contracts” is not, A. “Contracts” is not, in and of itselfin and of itself, enough , enough reason for an executive session. reason for an executive session.

Preparation for or participation in employee Preparation for or participation in employee contract issues is a proper matter for an contract issues is a proper matter for an executive session.executive session.

Consultation with legal counsel or Consultation with legal counsel or consideration of advice from legal counsel consideration of advice from legal counsel about contractual matters is proper for an about contractual matters is proper for an executive session.executive session.

Rapid City Regional Airport Rapid City Regional Airport Authority Authority

Q. May third parties be included in executive Q. May third parties be included in executive sessions for “contractual matters” or sessions for “contractual matters” or “anticipated litigation”?“anticipated litigation”?

A. Not in this case.A. Not in this case. ““Contractual matters” alone is not a proper Contractual matters” alone is not a proper

executive session.executive session.

““Anticipated litigation” generally means Anticipated litigation” generally means discussions with legal counsel only.discussions with legal counsel only.

City of MitchellCity of Mitchell

Q: May a public entity to go into Q: May a public entity to go into executive session for any attorney-executive session for any attorney-client discussions or just those listed client discussions or just those listed in the open meeting law (contracts in the open meeting law (contracts & anticipated litigation)?& anticipated litigation)?

A: All attorney-client matters are A: All attorney-client matters are covered, not just contracts and covered, not just contracts and anticipated litigation.anticipated litigation.

Melrose Township IMelrose Township I

Q. May a public entity to go into executive session Q. May a public entity to go into executive session for any type of discussion with its lawyer?for any type of discussion with its lawyer?

A. It is proper for a public entity to meet with its A. It is proper for a public entity to meet with its lawyer in executive session for legal matters:lawyer in executive session for legal matters: To discuss any litigation, anticipated litigation or action to To discuss any litigation, anticipated litigation or action to

prevent violations of the law by the public entityprevent violations of the law by the public entity To discuss contractual matters or negotiations on public To discuss contractual matters or negotiations on public

employment issuesemployment issues

Board of RegentsBoard of Regents

Q: If a Board goes into executive Q: If a Board goes into executive session to discuss contracts with its session to discuss contracts with its lawyer, may it also discuss other lawyer, may it also discuss other related contract issues that do not related contract issues that do not require legal advice?require legal advice?

A: No-The executive session must A: No-The executive session must pertain to legal issues only. pertain to legal issues only.

City of Martin IICity of Martin II

Q: How specific must the motion be for Q: How specific must the motion be for going into executive session?going into executive session?

A:The reason must be clear based on A:The reason must be clear based on the circumstances. If counsel asks the circumstances. If counsel asks for executive session to discuss for executive session to discuss pending litigation, “so moved” is pending litigation, “so moved” is adequate based on the adequate based on the circumstances.circumstances.

Open Meeting Question:Open Meeting Question:

Adding Agenda items at the Adding Agenda items at the beginning of the beginning of the meeting??????meeting??????

Thank You!!Thank You!! Office of Attorney GeneralOffice of Attorney General

605-773-3215 or 605-367-5880605-773-3215 or 605-367-5880

http://www.state.sd.us/attorney/office/opengov.ashttp://www.state.sd.us/attorney/office/opengov.aspp

Questions????????Questions????????