Governor Rounds Statement on Open Records
Tuesday, Jan. 15, 2008
South Dakota Public Radio
QUESTION:
South Dakota has arguably the weakest open record law in the nation. In South Dakota we have a presumption that state and local records are confidential unless there is a specific law requiring them to be open. In the other 49 states and the federal government the presumption is exactly the opposite. Records are assumed to be open unless there’s a good reason to keep them confidential. How, in your opinion governor, should South Dakota balance the public’s right to know, to see how government is functioning and spending money, versus the need to protect certain information to prevent harm?
ANSWER:
Governor Rounds: “Well, I’m not sure about your facts about all the different states. I do know in talking with some of the other governors, while they may have what they call a presumption of openness, they’ve been able to identify broad language which allows them to hold certain items out.
“What we’ve said in South Dakota is, anything which is required to be kept by a public official is open unless there’s a reason specifically to keep it private. My point of view on the issue is, is I start from that premise. If there’s something that’s out there that’s not available right now that should be made available, tell me what it is, and then let’s move from there.
“Once we get to the point where people say everything in government is open unless you have a specific law to take it off that means that any correspondence, any contact with a public official, whether it be a legislator, a member of the judiciary, an elected official, now all becomes a public record. And for that matter unless you have a specific law in place, information that individuals are required to provide — whether it be health information, whether it be tax information, whether it be business information — is all open unless you have a specific law to exclude it.
“I’d prefer to say that the information that is required to be kept by government is open unless it is specifically closed. All of the other information which is kept in either a compilation form or is simply acquired for decision making processes, but is not required to be kept, I don’t think should be open — unless the person can show us a need to know it. Because I don’t want to take the chance on violating individuals’ rights to privacy or the confidence that they can have in an individual when they share information with a public official.
“Another part of it, and I understand as I shared with one press person that said, ‘Well, but we want to know who you’re meeting with.’ And I said, so what you’re telling me is that if I have a business prospect or I have an individual you would expect that the governor should publicly disclose anyone that he has a conversation with? I don’t buy that. I don’t think that that’s appropriate, and I don’t think it’s good for economic development purposes. At the same time if a constituent has a concern, and I write down a note, I talk with him, suddenly now that is that is an open note that should be shared? Or that someone could find out? I’d rather take the approach saying if I’m required to keep the information then it is a public record unless its is specifically excluded, and if there are issues out there that people truly want to know then come in and tell us…
“Now, there’s one more part. There is some stuff in government which is gray. That literally it may not be open simply because it’s never been asked for, or it may not be open because it’s not compiled. It’s not in a public report. For those things or if people really want to know it, or for businesses that want to compile it and sell it to people, or put it out as a marketing program, they should pay the cost of having us actually detail it and keep the records up. I don’t think the taxpayer should have to pay for the compilation of records that aren’t normally kept.”