864 N.W.2d 299
S.D.2015Background
- Robert M. Mercer requested DCI/Attorney General records relating to the death investigation of Richard Benda, a former state official whose body was found in Oct. 2013. Mercer acknowledged SDCL 1-27-1.5(5) generally precludes release but argued public interest warranted disclosure.
- The Attorney General’s Office advised the records were exempt but offered conditional release (e.g., written release by an immediate family member); Mercer could not obtain the family release and sought removal of that condition.
- Mercer appealed the denial to the Office of Hearing Examiners (OHE); the OHE upheld the denial, concluding the records were not the type required to be disclosed under SDCL chapter 1-27.
- Mercer appealed to circuit court, which affirmed, finding SDCL 1-27-1.5(5) and SDCL 23-5-11 unambiguously exempted investigative/criminal-justice records and that the AG could condition any discretionary release.
- The Supreme Court reviewed the OHE decision de novo and affirmed: the investigative death records qualify as confidential criminal justice information and are expressly exempt from disclosure; neither the OHE nor courts were required to review or redact records for partial release.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Benda’s death-investigation records are subject to disclosure under South Dakota Public Records Act | Mercer: public interest (Benda’s public role, related EB-5 inquiry) warrants access despite exemption | AG: records are investigative/confidential criminal-justice information expressly exempt under SDCL 1-27-1.5(5) and SDCL 23-5-11 | Held: Records are exempt; statute prohibits disclosure. |
| Whether the Attorney General exceeded authority or lacked standards when imposing conditions on release | Mercer: AG abused authority; statute lacks standards to measure discretion and cannot impose conditions | AG: As custodian under SDCL 1-27-37, AG may grant, deny, or condition release and must state reasons for denial | Held: AG acted within statutory discretion; conditioning release was proper. |
| Whether the agency/courts were required to review records and craft alternatives (e.g., redaction) to enable partial disclosure | Mercer: Favish and public-interest principles required review and consideration of redaction to protect privacy while disclosing material | AG: No statutory basis compelled review or redaction; SDCL 1-27-1.10 does not create a right to redaction here because records are statutorily exempt | Held: No obligation to examine or redact exempt investigative records; redaction presumes record is subject to disclosure and is not required. |
| Whether federal Favish privacy balancing governs disclosure under state law | Mercer: Favish supports balancing and consideration of alternatives to wholesale denial | AG: Favish interprets FOIA (federal law) and is inapplicable; South Dakota statutes control | Held: Favish is inapplicable; state statutory scheme controls. |
Key Cases Cited
- Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1979) (public and press rights of access to criminal trials)
- Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984) (test for presumptive public access to criminal proceedings)
- National Archives & Records Administration v. Favish, 541 U.S. 157 (2004) (FOIA privacy exemption analysis for law-enforcement records)