ENTITLED, An Act to
provide for public access to public records, to provide certain exemptions,
and to provide for judicial remedies for noncompliance.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1.
That
§
1-27-1
be amended to read as follows:
1-27-1.
Except as otherwise expressly provided by statute, all citizens of this state, and all other
persons interested in the examination of the public records, as defined in section 2 of this Act, are
hereby fully empowered and authorized to examine such public record, and make memoranda and
abstracts therefrom during the hours the respective offices are open for the ordinary transaction of
business and, unless federal copyright law otherwise provides, obtain copies of public records in
accordance with this chapter.
Each government entity or elected or appointed government official shall, during normal business
hours, make available to the public for inspection and copying in the manner set forth in this chapter
all public records held by that entity or official.
Section 2.
That chapter
1-27
be amended by adding thereto a NEW SECTION to read as follows:
Unless any other statute, ordinance, or rule expressly provides that particular information or
records may not be made public, public records include all records and documents, regardless of
physical form, of or belonging to this state, any county, municipality, political subdivision, or
tax-supported district in this state, or any agency, branch, department, board, bureau, commission,
council, subunit, or committee of any of the foregoing. Data which is a public record in its original
form remains a public record when maintained in any other form. For the purposes of this Act, a tax-
supported district includes any business improvement district created pursuant to chapter 9-55.
Section 3.
That chapter
1-27
be amended by adding thereto a NEW SECTION to read as follows:
If a custodian of a public record of a county, municipality, political subdivision, or tax-supported
district provides to a member of the public, upon request, a copy of the public record by transmitting
it from a modem to an outside modem, a reasonable fee may be charged for such specialized service.
Such fee may include a reasonable amount representing a portion of the amortization of the cost of
computer equipment, including software, necessarily added in order to provide such specialized
service. This section does not require a governmental entity to acquire computer capability to
generate public records in a new or different form if that new form would require additional
computer equipment or software not already possessed by the governmental entity.
Section 4.
That chapter
1-27
be amended by adding thereto a NEW SECTION to read as follows:
The provisions of this Act shall be liberally construed whenever any state, county, or political
subdivision fiscal records, audit, warrant, voucher, invoice, purchase order, requisition, payroll,
check, receipt, or other record of receipt, cash, or expenditure involving public funds is involved in
order that the citizens of this state shall have the full right to know of and have full access to
information on the public finances of the government and the public bodies and entities created to
serve them. Use of funds as needed for criminal investigatory/confidential informant purposes is not
subject to this section, but any budgetary information summarizing total sums used for such purposes
is public. Records which, if disclosed, would impair present or pending contract awards or collective
bargaining negotiations are exempt from disclosure.
Section 5.
That chapter
1-27
be amended by adding thereto a NEW SECTION to read as follows:
Each public body shall maintain a file of all letters of denial of requests for records. This file
shall be made available to any person on request.
Section 6.
That chapter
1-27
be amended by adding thereto a NEW SECTION to read as follows:
The following records are not subject to sections 1, 2, and 4 of this Act:
(1) Personal information in records regarding any student, prospective student, or former
student of any educational institution if such records are maintained by and in the
possession of a public entity, other than routine directory information specified and made
public consistent with 20 U.S.C. 1232g, as such section existed on January 1, 2009;
(2) Medical records, including all records of drug or alcohol testing, treatment, or counseling,
other than records of births and deaths. This law in no way abrogates or changes existing
state and federal law pertaining to birth and death records;
(3) Trade secrets, the specific details of bona fide research, applied research, or scholarly or
creative artistic projects being conducted at a school, postsecondary institution or
laboratory funded in whole or in part by the state, and other proprietary or commercial
information which if released would infringe intellectual property rights, give advantage
to business competitors, or serve no material public purpose;
(4) Records which consist of attorney work product or which are subject to any privilege
recognized in chapter 19-13;
(5) Records developed or received by law enforcement agencies and other public bodies
charged with duties of investigation or examination of persons, institutions, or businesses,
if the records constitute a part of the examination, investigation, intelligence information,
citizen complaints or inquiries, informant identification, or strategic or tactical
information used in law enforcement training. However, this subdivision does not apply
to records so developed or received relating to the presence of and amount or
concentration of alcohol or drugs in any body fluid of any person, and this subdivision
does not apply to a 911 recording or a transcript of a 911 recording, if the agency or a
court determines that the public interest in disclosure outweighs the interest in
nondisclosure. This law in no way abrogates or changes
§
§
23-5-7 and 23-5-11 or
testimonial privileges applying to the use of information from confidential informants;
(6) Appraisals or appraisal information and negotiation records concerning the purchase or
sale, by a public body, of any interest in real or personal property;
(7) Personnel information other than salaries and routine directory information;
(8) Information solely pertaining to protection of the security of public or private property and
persons on or within public or private property, such as specific, unique vulnerability
assessments or specific, unique response plans, either of which is intended to prevent or
mitigate criminal acts, emergency management or response, or public safety, the public
disclosure of which would create a substantial likelihood of endangering public safety or
property; computer or communications network schema, passwords, and user
identification names; guard schedules; lock combinations; or any blueprints, building
plans, or infrastructure records regarding any building or facility that expose or create
vulnerability through disclosure of the location, configuration, or security of critical
systems;
(9) The security standards, procedures, policies, plans, specifications, diagrams, access lists,
and other security-related records of the Gaming Commission and those persons or
entities with which the commission has entered into contractual relationships. Nothing in
this subdivision allows the commission to withhold from the public any information
relating to amounts paid persons or entities with which the commission has entered into
contractual relationships, amounts of prizes paid, the name of the prize winner, and the
municipality, or county where the prize winner resides;
(10) Personally identified private citizen account payment information, credit information on
others supplied in confidence, and customer lists;
(11) Records or portions of records kept by a publicly funded library which, when examined
with or without other records, reveal the identity of any library patron using the library's
materials or services;
(12) Correspondence, memoranda, calendars or logs of appointments, working papers, and
records of telephone calls of public officials or employees;
(13) Records or portions of records kept by public bodies which would reveal the location,
character, or ownership of any known archaeological, historical, or paleontological site
in South Dakota if necessary to protect the site from a reasonably held fear of theft,
vandalism, or trespass. This subdivision does not apply to the release of information for
the purpose of scholarly research, examination by other public bodies for the protection
of the resource or by recognized tribes, or the federal Native American Graves Protection
and Repatriation Act;
(14) Records or portions of records kept by public bodies which maintain collections of
archeological, historical, or paleontological significance which nongovernmental donors
have requested to remain closed or which reveal the names and addresses of donors of
such articles of archaeological, historical, or paleontological significance unless the donor
approves disclosure, except as the records or portions thereof may be needed to carry out
the purposes of the federal Native American Graves Protection and Repatriation Act and
the Archeological Resources Protection Act;
(15) Employment applications and related materials, except for applications and related
materials submitted by individuals hired into executive or policymaking positions of any
public body;
(16) Social security numbers; credit card, charge card, or debit card numbers and expiration
dates; passport numbers, driver license numbers; or other personally identifying numbers
or codes; and financial account numbers supplied to state and local governments by
citizens or held by state and local governments regarding employees or contractors;
(17) Any emergency or disaster response plans or protocols, safety or security audits or
reviews, or lists of emergency or disaster response personnel or material; any location or
listing of weapons or ammunition; nuclear, chemical, or biological agents; or other
military or law enforcement equipment or personnel;
(18) Any test questions, scoring keys, results, or other examination data for any examination
to obtain licensure, employment, promotion or reclassification, or academic credit;
(19) Personal correspondence, memoranda, notes, calendars or appointment logs, or other
personal records or documents of any public official or employee;
(20) Any document declared closed or confidential by court order, contract, or stipulation of
the parties to any civil or criminal action or proceeding;
(21) Any list of names or other personally identifying data of occupants of camping or lodging
facilities from the Department of Game, Fish and Parks;
(22) Records which, if disclosed, would constitute an unreasonable release of personal
information;
(23) Records which, if released, could endanger the life or safety of any person;
(24) Internal agency record or information received by agencies that are not required to be filed
with such agencies, if the records do not constitute final statistical or factual tabulations,
final instructions to staff that affect the public, or final agency policy or determinations,
or any completed state or federal audit and if the information is not otherwise public
under other state law, including chapter 15-15A and
§
1-26-21;
(25) Records of individual children regarding commitment to the Department of Corrections
pursuant to chapters 26-8B and 26-8C;
(26) Records regarding inmate disciplinary matters pursuant to
§
1-15-20; and
(27) Any other record made closed or confidential by state or federal statute or rule or as
necessary to participate in federal programs and benefits.
Section 7.
That chapter
1-27
be amended by adding thereto a NEW SECTION to read as follows:
The following financial, commercial, and proprietary information is specifically exempt from
disclosure pursuant to this Act:
(1) Valuable formulae, designs, drawings, computer source code or object code, and research
data invented, discovered, authored, developed, or obtained by any agency if disclosure
would produce private gain or public loss;
(2) Financial information supplied by or on behalf of a person, firm, or corporation for the
purpose of qualifying to submit a bid or proposal;
(3) Financial and commercial information and records supplied by private persons pertaining
to export services;
(4) Financial and commercial information and records supplied by businesses or individuals
as part of an application for loans or program services or application for economic
development loans or program services;
(5) Financial and commercial information, including related legal assistance and advice,
supplied to or developed by the state investment council or the division of investment if
the information relates to investment strategies or research, potential investments, or
existing investments of public funds;
(6) Proprietary data, trade secrets, or other information that relates to:
(a) A vendor's unique methods of conducting business;
(b) Data unique to the product or services of the vendor; or
(c) Determining prices or rates to be charged for services, submitted by any vendor to
any public body;
(7) Financial, commercial, and proprietary information supplied in conjunction with
applications or proposals for funded scientific research, for participation in joint scientific
research projects, for projects to commercialize scientific research results, or for use in
conjunction with commercial or government testing;
(8) Any production records, mineral assessments, and trade secrets submitted by a permit
holder, mine operator, or landowner to any public body.
Section 8.
That chapter
1-27
be amended by adding thereto a NEW SECTION to read as follows:
Drafts, notes, recommendations, and memoranda in which opinions are expressed or policies
formulated or recommended are exempt from disclosure pursuant to this Act.
Section 9.
That chapter
1-27
be amended by adding thereto a NEW SECTION to read as follows:
Any record that is relevant to a controversy to which a public body is a party but which record
would not be available to another party under the rules of pretrial discovery for causes pending in
circuit court are exempt from disclosure pursuant to this Act.
Section 10.
That
§
1-27-4
be amended to read as follows:
1-27-4.
Any record made open to the public pursuant to this chapter shall be maintained in its
original format or in any searchable and reproducible electronic or other format. This chapter does
not mandate that any record or document be kept in a particular format nor does it require that a
record be provided to the public in any format or media other than that in which it is stored.
Section 11.
That
§
1-27-6
be repealed.
Section 12.
That
§
1-27-7
be repealed.
Section 13.
That
§
1-27-8
be repealed.
Section 14.
That chapter
1-27
be amended by adding thereto a NEW SECTION to read as
follows:
No elected or appointed official or employee of the state or any political subdivision may be
compelled to provide documents, records, or communications used for the purpose of the decisional
or deliberative process relating to any decision arising from that person's official duties.
Section 15.
That chapter
1-27
be amended by adding thereto a NEW SECTION to read as
follows:
In response to any request pursuant to
§
1-27-36 or 1-27-37, a public record officer may redact
any portion of a document which contains information precluded from public disclosure by
§
1-27-3
or which would unreasonably invade personal privacy, threaten public safety and security, disclose
proprietary information, or disrupt normal government operations. A redaction under this section is
considered a partial denial for the application of
§
1-27-37.
Section 16.
That chapter
1-27
be amended by adding thereto a NEW SECTION to read as
follows:
Any subscription or license holder list maintained by the Department of Game, Fish and Parks
may be made available to the public for a reasonable fee. State agencies are exempt from payment
of this fee for approved state use. The Game, Fish and Parks Commission may promulgate rules
pursuant to chapter 1-26 to establish criteria for the sale and to establish the fee for the sale of such
lists.
Any automobile liability insurer licensed in the state, or its certified authorized agent, may have
access to the name and address of any person licensed or permitted to drive a motor vehicle solely
for the purpose of verifying insurance applicant and policyholder information. An insurer requesting
any such name and address shall pay a reasonable fee to cover the costs of producing such name and
address. The Department of Public Safety shall set such fee by rules promulgated pursuant to chapter
1-26.
Any list released or distributed under this section may not be resold or redistributed. Violation
of this section by the resale or redistribution of any such list is a Class 2 misdemeanor.
Section 17.
That chapter
1-27
be amended by adding thereto a NEW SECTION to read as
follows:
The provisions of this chapter do not apply to records and documents of the Unified Judicial
System.
Section 18.
That
§
23-5-11
be amended to read as follows:
23-5-11.
Confidential criminal justice information and criminal history information are
specifically exempt from disclosure pursuant to this Act and may be withheld by the lawful custodian
of the records. Information about calls for service revealing the date, time, and general location and
general subject matter of the call is not confidential criminal justice information and may be released
to the public, at the discretion of the executive of the law enforcement agency involved, unless the
information contains intelligence or identity information that would jeopardize an ongoing
investigation. The provisions of this section do not supersede more specific provisions regarding
public access or confidentiality elsewhere in state or federal law.
Section 19.
That chapter
1-27
be amended by adding thereto a NEW SECTION to read as
follows:
The secretary of corrections may prohibit the release of information to inmates or their agents
regarding correctional operations, department policies and procedures, and inmate records of the
requesting inmate or other inmates if the release would jeopardize the safety or security of a person,
the operation of a correctional facility, or the safety of the public. This section does not apply to an
inmate's attorney requesting information that is subject to disclosure under this chapter.
Section 20.
That
§
1-15-20.1
be amended to read as follows:
1-15-20.1.
For the purposes of § 1-15-20 and chapter 1-27, an inmate is any person, adult, or
juvenile, who has been sentenced or committed to or placed in a facility or program under the control
of the Department of Corrections pursuant to § 1-15-1.4.
Section 21.
That chapter
1-27
be amended by adding thereto a NEW SECTION to read as
follows:
This chapter does not require the redaction of any record, or any portion of a record, which is
recorded in the office of the register of deeds prior to July 1, 2010.
Section 22.
That chapter
1-27
be amended by adding thereto a NEW SECTION to read as
follows:
No civil or criminal liability may attach to a public official for the mistaken denial or provision
of a record pursuant to this chapter if that action is taken in good faith.
Section 23.
That chapter 10-45B be amended by adding thereto a NEW SECTION to read as
follows:
The name of any person or entity that receives a refund or credit of sales, use, or contractors
excise tax pursuant to this chapter and the amount of any such refund or credit is public information
and shall be available and open to public inspection as provided in
§
1-27-1.
An Act to provide for public access to public records, to provide certain exemptions, and to provide
for judicial remedies for noncompliance.
=========================
I certify that the attached
Act
originated in the
SENATE as
Bill
No.
147
____________________________
Secretary of the Senate
=========================
____________________________
President of the Senate
____________________________
Secretary of the Senate
____________________________
Speaker of the House
____________________________
Chief Clerk
Senate
Bill
No.
147
File No. ____
Chapter No. ______
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=========================
Received at this Executive Office
this _____ day of _____________ ,
20____ at ____________ M.
By _________________________
for the Governor
=========================
The attached Act is hereby
approved this ________ day of
______________ , A.D., 20___
____________________________
Governor
=========================
STATE OF SOUTH DAKOTA,
ss.
Office of the Secretary of State
Filed ____________ , 20___
at _________ o'clock __ M.
____________________________
Secretary of State
By _________________________
Asst. Secretary of State
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