Overview

The South Dakota Open Records Law was entirely overhauled in 2009. It is in a very early stage of being molded by case law and legal opinion. There are 35 exemptions in the law, many of which are borrowed from the federal FOIA and also the Nebraska public records law. The exemptions cover many of the exemption categories one can find in other state FOIA laws. Because the law is so new, case law around the exemptions is hard to come by. If you know of any relevant legal opinions concerning these exemptions, let us know at info@Muckrock.com.

The law covers requesters around the country, not just South Dakota residents. The executive and legislative branches are covered, although the judiciary is not subject to the law. Fees must be kept to actual cost, and for those requesting in the public’s interest, fee waivers may be granted. Enforcement has not often been used to the fullest extent of the law in South Dakota, according to the RCFP. While South Dakota law allows for violations of the open records law to be charged as a felony, this so far has never occurred. There are no other possible sanctions written into the law.

Appeals can be heard administratively by the Office of the Hearing Examiner, though a requester only has thirty days before this option expires so it is important to keep that in mind. If the OHE does not judge your appeal favorably, further appeal routes are available in the circuit court system of South Dakota. Granted you win your case, attorney’s fees are possible, though not likely.

The Law

• No citizenship requirement
• Judiciary is exempt
• Fees must be kept to actual cost
• Office of Hearing Examiner deals with administrative appeals
• 10 day response time

Supplemental

South Dakota Records Retention Schedules

South Dakota Court Records Search

The Details

Can you submit a request if you’re not a resident?

Yes.

To whom does this apply?

Executive?

Yes.

Legislative?

Yes.

Judicial?

No.

Who is exempted?

The courts.

Is there a designated records custodian?

While there is no specified records custodian or ombudsman, the Office of Hearing Examiners deals with administrative appeals of public records decisions.

How long do they have to respond?

South Dakota agencies have ten days to either grant, deny, or extend your request.

Does the agency have to give you a tracking number or estimated date of completion?

No.

Can they ask why you ask?

No.

What enforcement?

No specific sanctions exist in the act itself. However, under South Dakota criminal code to “destroy, conceal, remove or impair the availability of any public record,” SDCL § 22-1-24, is a felony. No open records violations have thus far resulted in any prosecutions.

Fees?

The state’s fee provision states that fees must be kept to actual cost for mailing, transmittal, or reproduction. Fees can be incurred after one hour of employee labor time.

Are there fee waivers for media requests or those made in the public interest?

Yes, if the request can be proved to be in the public interest then there are waivers available.

Attorney’s fees - Can you win them?

It is possible, but the RCFP guide to South Dakota public records states that they are unlikely to be granted.

Exemptions and Appeals

What exemptions exist?

Since the South Dakota Open Records Law is so young, very little case law has accumulated to understand kinds of information exempted by the law.

The 35 exemptions deal with bids that government has received from private companies, trade secrets, financial information given to the government by an individual in order to apply for program services or loans, personal information that might constitute unwarranted privacy violations, work product, law enforcement methods, tactics, and investigations, personnel information other than salaries and routine directory information, information that could compromise public or individual safety, records relating to inmate disciplinary matters, and employment applications for public agencies. Personal correspondence, memoranda, notes, calendars or appointment logs, or other personal records or documents of any public official or employee is perhaps the most unique of the exemptions, with many others taken from the Nebraska public records law, which SDORL borrowed from extensively.

Do they have to tell you why a portion or pages were redacted or withheld?

Yes.

How much time do you have to appeal?

30 days after the records decision is made.

Can you appeal the courts?

Yes. If administrative appeal to the Office of Hearing Examiners has failed, one can file with the circuit court of the jurisdiction in which the agency is located.

Resources

Organizations

South Dakota Newspaper Association

Attorneys and Law Firms

The following attorneys and law firms have practiced public records law. Names marked with an asterisk have indicated a willingness to offer pro bono services on a case by case basis.

There are currently no experienced public records law attorneys that we know of in South Dakota. Write to us at info@MuckRock.com if you know of any and want to help us out!

Successful appeals

News Stories on Public Records Laws in the State

South Dakota Media Audits the State’s Open Records Law

Blogs and feeds primarily focused on public records in South Dakota

Public Records Guide and Advice

RCFP South Dakota open government guide

Newsletters

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Big FOIA wins

Have a public records success story? Let us know!