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South Dakota Freedom of Information Act

What is the South Dakota Freedom of Information Act?

The Freedom of Information Act (FOIA) gives a person the right to access government records, provided they are not protected from release by another law. It requires all government agencies to allow interested persons to inspect all non-exempt public records and provide copies where needed. The FOIA is essential to make the government accountable to its citizens and ensure transparency in all their dealings while checking government corruption.

The South Dakota Freedom of Information Act is commonly referred to as the South Dakota Sunshine Law. It is contained in Title 1, Chapter 27 of the South Dakota Codified Laws. This Act is a set of laws that ensures the public has unhindered access to non-exempt public records held by all government agencies in the state. Under this law, a person can request copies of a public record without stating the reason for making such a request or the intended use. While the executive branch of the South Dakota Government is subject to the state's FOIA, the law protects the confidentiality of public employees' records, calendars, correspondence, and telephone calls records. The legislative branch is also subject to this law. South Dakota courts are not covered under the state's sunshine laws.

In 2009, the South Dakota FOIA had a comprehensive revamp when Governor Rounds approved Senate Bill 147. Before then, the general belief was that all public records were confidential in South Dakota. However, with the passage of SB 147, the state reversed that public assumption, and now nobody doubts that all records are public unless expressly exempted from public disclosure. That same year, the governor signed Senate Bill 143, requiring South Dakota to maintain a website where the public can access government financial information at the local and state levels. Also, the governor approved Senate Bill 144, which mandates the posting of all contracts involving money expenditure on the state's website for accountability purposes.

What is Covered Under the South Dakota Freedom of Information Act?

Generally, all non-exempt records are covered under the South Dakota Freedom of Information Act. According to Section 1-27-1.1 of the South Dakota Codified Laws, they include all documents and records, regardless of physical form, in the custody of a public body. The public body may be any state municipality, county, or political subdivision or their boards, agencies, commissions, bureaus, councils, committees, branches, or departments.

What Records are Exempt from the Freedom of Information Act in South Dakota?

Certain records are exempt from the South Dakota Freedom of Information Act as outlined in Section 1-27-1.5 to Section 1-27-1.9 of the state's Codified Laws. These exemptions are essential to avoid the unnecessary exposure of confidential information that can intrude on a person's privacy and jeopardize state security. They include:

  • Negotiation records and appraisal information relating to the sale or purchase of any interest in real or personal property by a public body
  • Security procedures, plans, policies, standards, or any other security-related information of the Gaming Commission
  • Information concerning the protection of private or public property and any individual within or on such a property
  • Trade secrets which, if disclosed, would give an advantage to a business competitor
  • Medical records, including all alcohol or drug counseling, testing, or treatment, besides deaths and births records
  • Personal information of students of any educational institution possessed by a public agency, aside from typical directory information
  • Attorney work product
  • Records collated by law enforcement and other agencies responsible for investigations, especially if they form a part of intelligence information or investigation
  • Calendars, personal correspondence, and telephone call records of public officials
  • Individuals' credit information and account payment information which is given in confidence
  • Employment applications except those submitted by persons employed into policymaking and executive positions of any public agency
  • The financial information provided by or on behalf of a person or enterprise in the quest of qualifying to submit a bid
  • Examination questions, results, or other test questions of employment, licensure, academic credit, or promotion examination
  • Passport numbers, social security numbers, driver license numbers, and other personally identifying numbers
  • Any commercial and financial information submitted by private individuals in respect of export services
  • Disaster or emergency response plans
  • Any list containing personally identifying information of occupants from the Department of Game, Fish, and Parks lodging facilities
  • Any record declared as confidential by state or federal statute
  • Proprietary information relating to a vendor's unique methods of doing business, products or services, and determining product prices or service rates submitted to any public agency
  • Commercial and financial information submitted by individuals or businesses as part of economic development loans applications
  • Any record that is relevant to a dispute to which a public agency is a party
  • Recommendations, notes, and drafts expressing opinions and formulating policies
  • Documents or communications of the state elected or appointed official or employee used in the deliberative or decisional process regarding any decision arising from their official duties

How Do I File a South Dakota Freedom of Information Act Request?

To file an open record request in South Dakota, a person must make an informal request to the public record officer of their record of interest. However, it is essential to determine the public agency in charge of such a record. The South Dakota Freedom of Information Act does not stipulate a specific procedure or way interested persons can file public records requests in the state. Hence, public agencies mainly determine how to receive them and the procedure may vary by agency. However, the state's open records law permits oral requests.

When intending to file a South Dakota FOIA request, contact the public body maintaining the sought record via every available means for inquiries. The state government website contains a list of all South Dakota public agencies where anyone can retrieve their contact information. For instance, a person that needs a public record in the custody of the South Dakota Department of Corrections (DOC) can make inquiries via a telephone call, mail, or visit their physical office located at:

South Dakota Department of Corrections
3200 East Highway 34, c/o 500 East Capitol Avenue
Pierre, SD 57501
Phone: (605) 773-6810

Similarly, inquiries on filing open records requests with the South Dakota Department of Revenue (DOR) can be made by telephone call or in-person at:

South Dakota Department of Revenue
445 East Capitol Avenue
Pierre, SD 57501-3185
Phone: (605) 773-3311

Once a public agency informs a record requester of the acceptable request means, the requester must provide detailed information on the sought record. This will assist the public record officer in locating it without delay.

What is the Cost of a Freedom of Information Act Request in South Dakota?

The South Dakota FOIA does not establish a specific cost for obtaining public records from public bodies. However, Section 1-27-35 of the South Dakota Codified Laws stipulates that a record custodian may charge requesters certain fees. These fees include the actual cost of reproducing copies of sought records, the actual cost of mailing or transmittal, or other costs established by administrative rule or statute. If the time it takes to retrieve and reproduce a record exceeds one hour, a public agency may charge the requester the cost of staff time expended on the task.

According to Section 1-27-1.2 of the South Dakota Codified Laws, a public agency may charge a record requester a reasonable fee for rendering a specialized service. The fee for specialized service may include an amortized cost of computer equipment, including the software used in providing the service. To determine the exact cost of obtaining a public record from any public body in South Dakota, an individual should contact the relevant agency directly. Anyone can retrieve each agency's contact information using the list of all South Dakota public agencies.

How Long Does it Take to Respond to a Freedom of Information Act Request in South Dakota?

According to Section 1-27-37 of the South Dakota Codified Laws, a public agency must promptly respond to a public record request within ten business days of receiving the request. It must either respond by providing the record in whole or in part or denying the request outrightly. If a public agency cannot make a requested record available within ten business days, the public record officer must acknowledge receiving the request in writing. Such an acknowledgment letter must provide a reasonable estimated time the agency will make copies of the sought record available.

A public agency may require an extended time to further respond to a record requester due to the following reasons:

  • The need to determine whether a request contains exempt information and whether to deny all or part of the request
  • The need to understand the nature and scope of the request
  • The need to notify other government agencies or third parties affected by the record request

Where a public agency denies a record request in part or whole, it must notify the requester in writing stating the reasons for the denial. If a public agency fails to respond to a record request or make copies of the sought record available within ten business days, such an act is tantamount to a denial. In such a situation, a record requester may commence a civil action by summons or file a notice of review with the Office of Hearing Examiners.