State High Court Sides With Jackley In Records Disclosure
PIERRE, S.D. (AP) — Attorney General Marty Jackley used appropriate discretion and followed state law when he declined to release to a journalist the death records of a former state official who was involved in South Dakota’s investment-for-visa scandal, the state Supreme Court said in an opinion released Thursday.
The high court also affirmed an administrative law judge’s conclusion that the records are exempt from disclosure under state public records law. Reporter Bob Mercer argued before the court in March that the death records of former state economic development official Richard Benda should be released with some sensitive information redacted.
Mercer, who writes for several daily newspapers, had appealed a circuit judge’s ruling from September, which said Jackley was justified in not releasing investigation records into Benda’s October 2013 suicide out of privacy concerns for his immediate family members. The Supreme Court said Jackley has discretion over the release of the records as their custodian.
“I am pleased that the (Supreme) Court has applied the rule of law, and recognized the balancing of open transparency with the privacy interests of the family members faced with a tragic situation,” Jackley said in a statement after the ruling.
Mercer’s appeal to the Supreme Court requested it establish a review methodology for future requests of death-investigation records that are of significant public interest. But the court said in its decision that the judicial officials aren’t required to establish “an alternative manner of release” because the law enforcement files are exempt from disclosure.
“I wouldn’t have asked if I didn’t think there was a chance that the court would find in favor of release of the record, or at least partial release of the record, and the questions about Richard Benda’s death now remain unresolved for the most part in the public mind,” Mercer told The Associated Press. “He was at the center of one of the largest scandals in state government in recent decades, and there are many things we still don’t know about that entire episode.”
At the time of Benda’s death, Jackley was preparing to file felony theft charges against Benda amid allegations of financial misconduct at the Governor’s Office of Economic Development surrounding the EB-5 visa program. The program recruits wealthy immigrant investors for projects in exchange for green cards.
Jackley had agreed to release more information about Benda’s death to Mercer but only under certain conditions, chiefly that Benda’s family had to consent. After Benda’s family declined to authorize the release and Jackley wouldn’t provide access to the records, Mercer sought the intervention of an administrative law judge and later the circuit judge.
The Supreme Court said Mercer’s case should be made before the Legislature to change South Dakota law.
