South Dakota Bureau of Administration

office of Hearing Examiners

Resolution Process for Public Records Disputes

SDCL 1-27

Citizens of South Dakota can make a request for disclosure of documents or records from public entities. The requestor must start with an informal request, either written or oral, to the custodian of the record for the agency from which the records are requested.

The custodian of the records may then provide the requestor with the document or records upon payment of fees. (See SDCL 1-27-35) Requestors making informal requests requiring staff time in excess of one hour may be required to pay the cost of the staff time necessary for the location, assembly, or reproduction of the public record. The custodian of the records shall provide the requestor an estimate of cost for assembling records for any informal request reasonably likely to involve a fee in excess of fifty dollars. The requestor must confirm in writing his or her acceptance of the cost estimate and agreement to pay. The fee may be waived if reduction of the fee would be in the public interest. There may also be a fee charged for the retrieval of documents of any records that are not required or permitted to be made public upon request.

Formal Written Request for Disclosure

If an informal request is denied or ignored in whole or in part, a written request may be made by the requestor to the public records officer of the public entity involved. The public record officers for differing public entities are as follows:

State Offices: department secretary, constitutional officer, elected official, or commissioner of the department, office, or other division to which a request is directed.

County: county auditor or the custodian of the record for law enforcement records;

First or Second Class Municipality: finance officer or the clerk or custodian of the record for law enforcement records;

Third Class Municipality: president of the board of trustees or the custodian of the record for law enforcement records;

Organized Township: township clerk;

School District: district superintendent or CEO;

Special District: chairperson of the board of directors;

Any Other Entity Not Otherwise Designated: person who acts in the capacity of the chief financial officer or individual as designated by the entity.

Process for the written request is as follows:

A written request may be made to the public record officer of the public entity involved. The public record officer shall promptly respond to the written request; but in no event later than ten business days from receipt of the request. The public record officer shall respond to the request by:

(a)  Providing the record in whole or in part to the requestor upon payment of any applicable fees pursuant to §§ 1-27-35 and 1-27-36;

(b)  Denying the request for the record; or

(c)  Acknowledging that the public record officer has received the request and providing an estimate of the time reasonably required to further respond thereto;

Additional time to respond to the written request under subsection (1)(c) of this section may be based upon the need to clarify the nature and scope of the written request, to locate and assemble the information requested, to notify any third persons or government agencies affected by the written request, or to determine whether any of the information requested is not subject to disclosure and whether a denial should be made as to all or part of the written request.

If a written request is unclear, the public record officer may require the requestor to clarify which records are being sought. If the requestor fails to provide a written response to the public record officer's request for clarification within ten business days, the request shall be deemed withdrawn and no further action by the public records officer is required;

If the public record officer denies a written request in whole or in part, the denial shall be accompanied by a written statement of the reasons for the denial;

If the public record officer fails to respond to a written request within ten business days, or fails to comply with the estimate provided under subsection (1)(3) of this section without provision of a revised estimate, the request shall be deemed denied.

Denial of Written Request

If a public record officer denies a written request in whole or in part, or if the requestor objects to the public record officer's estimate of fees or time to respond to the request, a requestor may, within ninety days of the denial, commence a civil action by summons or, in the alternative, file a written notice of review with the Office of Hearing Examiners.

Filing Notice of Review with the Office of Hearing Examiners

The notice of review shall be mailed, via registered or certified mail, to the Office of Hearing Examiners and shall contain:

The name, address, and telephone number of the requestor;

The name and business address of the public record officer denying the request;

The name and business address of the agency, political subdivision, municipal corporation, or other entity from which the request has been denied;

A copy of the written request;

A copy of any denial or response from the public record officer; and

Any other information relevant to the request that the requestor desires to be considered.

Office of Hearing Examiners

Upon receipt, the Office of Hearing Examiners shall promptly mail a copy of the notice of review filed and all information submitted by the requestor to the public record officer named in the notice of review. The entity denying the written request may then file a written response to the Office of Hearing Examiners within ten business days. If the entity does not file a written response within ten business days, the Office of Hearing Examiners shall act on the information provided. The Office of Hearing Examiners shall provide a reasonable extension of time to file a written response upon written request or agreement of parties.

Upon receipt and review of the submissions of the parties, the Office of Hearing Examiners shall make written findings of fact and conclusions of law, and a decision as to the issue presented. Before issuing a decision, the Office of Hearing Examiners may hold a hearing pursuant to chapter 1-26 if good cause is shown.

Appeal of Office of Hearing Examiners Decision

The aggrieved party may appeal the decision of the Office of Hearing Examiners to the circuit court pursuant to chapter 1-26. In any action or proceeding under this Act, no document or record may be publicly released until a final decision or judgment is entered ordering its release.

Suggested But Not Required Forms