Media advocates say North Dakota and Minnesota "sunshine laws" generally work well to keep government open — but South Dakota lags behind its neighbors in open records and open meeting laws.
By Pat Springer
Editor's note: This is one in a series of news stories and editorials from Forum Communications in support of open government. Sunshine Week, which champions open government and celebrates access to public information, is March 12-18.
FARGO — Valhalla is a rustic cabin tucked away near the Needles Highway in the heart of the Black Hills that serves as a retreat for South Dakota’s governor and her family, friends and guests.
The 1½-story cabin features a large main room dominated by a massive stone fireplace and provides comfortable seating on bison leather-upholstered furniture on a site overlooking Grace Coolidge Creek.
It’s owned by the state of South Dakota — whose taxpayers have spent $120,000 in upgrades — but the administration of Gov. Kristi Noem won’t disclose the Valhalla guest list, which South Dakota News Watch recently requested.
As a result of the “hidden” guest list, it’s unclear if the cabin is being used for political purposes, South Dakota New Watch reported in a story that appeared in the Mitchell Republic .
A lawyer for the South Dakota Department of Game, Fish and Parks, which maintains the property, said “no such record exists as no list is maintained” — and also asserted that such a list, if kept, would be exempted under South Dakota open records law.
In North Dakota, the state’s $8.5 billion Legacy Fund, a financial reserve that taps oil and gas revenues, has recently begun investing in ventures inside the state.
So far, the fund has funneled $62.5 million into equity investments — but the state investment office will only divulge the five funds that it has invested in, withholding details about how much is being invested in each and how that money is being put to work in the state.
The reason for the secrecy, according to the Retirement and Investment Office: The investments are exempted from open records law because they involve confidential business information .
In Minnesota, the Modern Montessori Charter School in Champlin, a northern suburb of Minneapolis, gave notice of a special meeting last fall. The meeting, according to the notice, was for “preliminary consideration of allegations or charges against an individual subject to the board’s authority.”
The special meeting entered executive session, with the board meeting behind closed doors. When the meeting reopened to the public, the board disclosed that it had fired the school’s director.
“The Director and public school community was not informed, provided an agenda, nor given a reasonable expectation that a vote was going to occur based on the content of the special meeting notice and previous meeting precedent,” Minnesota’s Commissioner of Administration, which interprets the Minnesota Government Data Practices Act, said in a Dec. 8, 2022, advisory opinion.
The three examples illustrate how open records and open meetings laws, often referred to as “sunshine laws,” work to keep the workings of government transparent — within limitations that frustrate journalists trying to inform the public.
North Dakota, South Dakota and Minnesota open records laws all provide that government records are presumed to be open to the public — unless exempted, which journalists and advocates say can provide loopholes that conceal important information.
In North Dakota and Minnesota, media representatives said the laws protecting open records and open meetings are generally good and rank among the best in the country.
“Generally speaking we're in good shape in the open records, open meetings law,” said Jack McDonald, a lawyer for the North Dakota Newspaper Association. “It’s accepted as fact that meetings and records are public. Now we’re fighting over the fringes.”
One emerging fringe area: access to electronic messages on laptop computers, cellphones and other devices, which can involve emails, texts, chats or recordings of video teleconferences, he said.
“I think the biggest challenge we’re facing now is technology,” McDonald said. Although the law is clear — electronic communications fall under open records law — the “practicalities” can be difficult to sort through, he said.
Significantly, North Dakota is one of the few states that enshrines open records and open meetings law in the state constitution, McDonald said.
Chad Koenen, co-owner of Henning Publications and president of the Minnesota Newspaper Association, said public access to records and meetings is generally good.
“As a whole I think Minnesota is in pretty good shape in our open meetings and open records law,” he said.
Still, Koenen added, “You need the people in power to actually follow the law.” Minnesota continually works to revise its open records and open meetings laws, said Koenen, whose company publishes the Citizens Advocate in Henning, New York Mills Dispatch and Frazee-Vergas Forum.
Mark Anfinson, a lawyer for the Minnesota Newspaper Association, agrees that sunshine laws generally are working well in Minnesota. He also agrees that technology — especially communications on personal devices by public officials — poses increasing challenges.
“It’s incredibly hard to detect that kind of evasion of the law,” Anfinson said. “There’s no easy way to do that.”
Reporters covering a governmental body develop strong instincts, and sometimes are left with the impression that when an important issue comes up in a public meeting with little or no discussion, the discussion already occurred privately, often in emails or texts, he said.
One possible partial remedy is to allow public officials to discuss issues on social media platforms, but require them to make those discussions open to the public, he said.
In Minnesota, a common misperception is that the open meetings law requires that city and county commissions as well as school boards are obligated to allow members of the public to speak at meetings.
That isn’t the case, Anfinson said, although many boards do allow public comments, with restrictions of time or content. Legislators are considering a requirement to allow for public comments.
Exemptions are the rule in South Dakota
In South Dakota, the list of exemptions to the open records law is both long and, in some cases, broad, allowing officials the ability to withhold certain information, said David Bordewyk, executive director of the South Dakota Newspaper Association.
One of the gaping exemptions involves written communications. “There is no authority under law to compel release of emails or correspondence,” Bordewyk said.
Another roadblock is a law that keeps police investigation reports secret — even after a case has been decided or dismissed, unless an official decides to release the information or the case goes to court, he said.
“It’s really hard to get information out of law enforcement,” Bordewyk said.
One notable recent exception to the withholding of information from criminal investigations came in the case of former South Dakota Attorney General Jason Ravnsborg, who was impeached and removed from office in 2022 after a car he was driving struck and killed a pedestrian walking along a highway.
Before the legislative impeachment proceedings, Gov. Noem ordered the release of investigation records, including a video recording of Ravnsborg being interviewed by investigators.
“That’s never happened before that I can recall,” said Bordewyk, who noted the case was high-profile, involving the conduct of a public official and of significant public interest. “You don’t see that happening at the local level or other statewide cases that I’m familiar with.”
Fees charged by local governments can also make it difficult — or prohibitively expensive — to get public information, Bordewyck and others said.
Minnehaha County, which includes Sioux Falls, is considering increasing its hourly fee for handling record requests from $15 to $50 — an increase of 233% — for instance. Fees can get exorbitantly high when lawyers review documents, Bordewyk said.
“That obviously can become a barrier,” he said.
Although journalists routinely use open records and open meetings laws, people shouldn’t forget that the open government laws are for everyone, Bordewyk said.
“It’s all about the public’s right to know,” he said. “It’s not the media’s right to know.”
