CHAPTER 1-27

PUBLIC RECORDS AND FILES

1-27-1    Public records open to inspection and copying.

1-27-1.1    Public records defined.

1-27-1.2    Fees for specialized service.

1-27-1.3    Liberal construction of public access to public records law--Certain criminal investigation and contract negotiation records exempt.

1-27-1.4    Denial letters to be kept on file.

1-27-1.5    Certain records not open to inspection and copying.

1-27-1.6    Certain financial, commercial, and proprietary information exempt from disclosure.

1-27-1.7    Certain drafts, notes, and memoranda exempt from disclosure.

1-27-1.8    Certain records relevant to court actions exempt from disclosure.

1-27-1.9    Documents or communications used for decisional process arising from person's official duties not subject to compulsory disclosure.

1-27-1.10    Redaction of certain information.

1-27-1.11    Subscription or license holder list of Department of Game, Fish and Parks and certain insurance applicant and policyholder information available for fee--Resale or redistribution prohibited--Misdemeanor.

1-27-1.12    Chapter inapplicable to Unified Judicial System.

1-27-1.13    Certain records not available to inmates.

1-27-1.14    Redaction of records in office of register of deeds not required.

1-27-1.15    Immunity for good faith denial or provision of record.

1-27-1.16    Material relating to open meeting agenda item to be available--Exceptions--Violation as misdemeanor.

1-27-1.17    Draft minutes of public meeting to be available--Exceptions--Violation as misdemeanor.

1-27-1.18    Recommendations, findings, and reports of appointed working groups to be reported in open meeting--Action by governing body.

1-27-1.19    Public access to records of former Governors and lieutenant governors.

1-27-1.20    Exempt records to be opened upon death or ten years after leaving office.

1-27-1.21    Right of former Governor and lieutenant governor to approve or deny release of exempt records.

1-27-1.22    Agreement for transfer of records to suitable repository.

1-27-1.23    Settlement agreements to be public records--Redaction of victim information--Temporary confidentiality for ongoing litigation.

1-27-2    1-27-2. Repealed by SL 1977, ch 16, § 3

1-27-3    Records declared confidential or secret.

1-27-4    Format of open record.

1-27-4.1    Format of written contracts--Storage with records retention officer or designee--Duration.

1-27-4.2    Availability of contract through internet website or database.

1-27-5    1-27-5. Repealed by SL 1970, ch 10, § 1

1-27-6    1-27-6 to 1-27-8. Repealed by SL 2009, ch 10, §§ 11 to 13.

1-27-9    Records management programs--Definition of terms.

1-27-10    Records as property of state--Damage or disposal only as authorized by law.

1-27-11    Board to supervise destruction of records--State records manager as ex officio member--Permission required for destruction.

1-27-11.1    Direction and supervision of board by Bureau of Human Resources and Administration--Independent functions retained.

1-27-12    State records management program to be established.

1-27-12.1    Records management internal service fund.

1-27-13    Records management procedures proposed by state agencies.

1-27-14    Obsolete records listed by state agencies.

1-27-14.1    Transfer of records by outgoing agency heads--Terminated agency records.

1-27-14.2    Transfer of jeopardized nonessential agency material to state archivist.

1-27-14.3    Title to transferred records pending formal transfer.

1-27-15    Destruction of nonrecord materials.

1-27-16    Rules, standards, and procedures.

1-27-17    Legislative and judicial records management programs.

1-27-18    Local records management programs.

1-27-19    Annual meeting to authorize destruction of political subdivision records--Record of disposition.

1-27-20    Common language used in public documents, records, and meetings--Official indigenous language.

1-27-21    Public document or record defined--Public meeting.

1-27-22    Application of English as common language requirement.

1-27-23    1-27-23. Repealed by SL 2016, ch 13, § 2.

1-27-24    Effect of common language requirement on state employment.

1-27-25    Common language requirements not applicable to private activities.

1-27-26    1-27-26. Repealed by SL 2016, ch 13, § 3.

1-27-27    Requesting information or data from a state agency.

1-27-28    Definition of terms.

1-27-29    Disclosure of information concerning private entity restricted.

1-27-30    Confidentiality of proprietary or trade information of private entity.

1-27-31    Circumstances allowing for disclosure of information concerning private entity.

1-27-32    Disclosure of confidential information as misdemeanor.

1-27-33    Specific public access or confidentiality provisions not superseded by chapter provisions.

1-27-34    Unified Judicial System and Public Utilities Commission exempt from certain records procedures.

1-27-35    Informal requests for disclosure of records--Costs of retrieval or reproduction.

1-27-36    Estimate of retrieval and reproduction cost--Waiver or reduction of fee.

1-27-37    Written request for disclosure of records.

1-27-38    Civil action or administrative review of denial of written request or estimate of fees.

1-27-39    Response to notice of review.

1-27-40    Findings and decision of Office of Hearing Examiners.

1-27-40.1    Time for compliance with decision or appeal.

1-27-40.2    Costs, disbursements, and civil penalty for unreasonable, bad faith denial of access.

1-27-41    Appeal.

1-27-42    Public record officer for the state, county, municipality, township, school district, special district, or other entity.

1-27-43    Form of notice of review--Office of Hearing Examiners' notice.

1-27-44    Restriction on internet use of social security numbers by state agencies and political subdivisions.

1-27-45    Searchable internet website for posting and access of public records and financial information.

1-27-46    Contracts to be displayed on searchable internet website.

1-27-47    Affordability of public access to electronic records database.

1-27-48    Documentation regarding information stored in electronic records system.

1-27-1. Public records open to inspection and copying.

Except as otherwise expressly provided by statute, all citizens of this state, and all other persons interested in the examination of the public records, as defined in § 1-27-1.1, are hereby fully empowered and authorized to examine such public record, and make memoranda and abstracts therefrom during the hours the respective offices are open for the ordinary transaction of business and, unless federal copyright law otherwise provides, obtain copies of public records in accordance with this chapter.

Each government entity or elected or appointed government official shall, during normal business hours, make available to the public for inspection and copying in the manner set forth in this chapter all public records held by that entity or official.

Source: SDC 1939, § 48.0701; SL 1977, ch 16, § 2; SL 1982, ch 30, § 1; SL 1987, ch 24; SL 1991, ch 13; SL 1992, ch 10; SL 1994, ch 21; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2004, ch 17, § 2; SL 2009, ch 10, § 1.

1-27-1.1. Public records defined.

Unless any other statute, ordinance, or rule expressly provides that particular information or records may not be made public, public records include all records and documents, regardless of physical form, of or belonging to this state, any county, municipality, political subdivision, or tax-supported district in this state, or any agency, branch, department, board, bureau, commission, council, subunit, or committee of any of the foregoing. Data which is a public record in its original form remains a public record when maintained in any other form. For the purposes of §§ 1-27-1 to 1-27-1.15, inclusive, a tax-supported district includes any business improvement district created pursuant to chapter 9-55.

Source: SL 2009, ch 10, § 2.

1-27-1.2. Fees for specialized service.

If a custodian of a public record of a county, municipality, political subdivision, or tax-supported district provides to a member of the public, upon request, a copy of the public record, a reasonable fee may be charged for any specialized service. Such fee may include a reasonable amount representing a portion of the amortization of the cost of computer equipment, including software, necessarily added in order to provide such specialized service. This section does not require a governmental entity to acquire computer capability to generate public records in a new or different form if that new form would require additional computer equipment or software not already possessed by the governmental entity.

No fee may be charged for the electronic transfer of any minutes of open meeting actions of a political subdivision, board or agency of a political subdivision, or the governing board of an agency that levies property taxes that were recorded in the last three years.

Source: SL 2009, ch 10, § 3; SL 2012, ch 10, § 1.

1-27-1.3. Liberal construction of public access to public records law--Certain criminal investigation and contract negotiation records exempt.

The provisions of §§ 1-27-1 to 1-27-1.15, inclusive, and 1-27-4 shall be liberally construed whenever any state, county, or political subdivision fiscal records, audit, warrant, voucher, invoice, purchase order, requisition, payroll, check, receipt, or other record of receipt, cash, or expenditure involving public funds is involved in order that the citizens of this state shall have the full right to know of and have full access to information on the public finances of the government and the public bodies and entities created to serve them. Use of funds as needed for criminal investigatory/confidential informant purposes is not subject to this section, but any budgetary information summarizing total sums used for such purposes is public. Records which, if disclosed, would impair present or pending contract awards or collective bargaining negotiations are exempt from disclosure.

Source: SL 2009, ch 10, § 4.

1-27-1.4. Denial letters to be kept on file.

Each public body shall maintain a file of all letters of denial of requests for records. This file shall be made available to any person on request.

Source: SL 2009, ch 10, § 5.

1-27-1.5. Certain records not open to inspection and copying.

The following records are not subject to §§ 1-27-1, 1-27-1.1, 1-27-1.3, and § 1-27-1.23:

(1)    Personal information in records regarding any student, prospective student, or former student of any educational institution if such records are maintained by and in the possession of a public entity, other than routine directory information specified and made public in accordance with 20 U.S.C. § 1232g as the law existed on January 1, 2009;

(2)    Medical records, including all records of drug or alcohol testing, treatment, or counseling, other than records of births and deaths. This subdivision in no way abrogates or changes existing state and federal law pertaining to birth and death records;

(3)    Trade secrets, the specific details of bona fide research, applied research, or scholarly or creative artistic projects being conducted at a school, postsecondary institution, or laboratory funded in whole or in part by the state, and other proprietary or commercial information which if released would infringe intellectual property rights, give advantage to business competitors, or serve no material public purpose;

(4)    Records which consist of attorney work product or which are subject to any privilege recognized in article V of chapter 19-19;

(5)    Records developed or received by law enforcement agencies and other public bodies charged with duties of investigation or examination of persons, institutions, or businesses, if the records constitute a part of the examination, investigation, intelligence information, citizen complaint or inquiry, informant identification, or strategic or tactical information used in law enforcement training. This subdivision does not apply to records so developed or received relating to the presence of and amount or concentration of alcohol or drugs in any body fluid of any person, and this subdivision does not apply to a 911 recording or a transcript of a 911 recording if the agency or a court determines that the public interest in disclosure outweighs the interest in nondisclosure. This law in no way abrogates or changes §§ 23-5-7 and 23-5-11 or testimonial privileges applying to the use of information from confidential informants;

(6)    Appraisals or appraisal information and negotiation records concerning the purchase or sale, by a public body, of any interest in real or personal property;

(7)    Personnel information other than salaries and routine directory information. This subdivision does not apply to the public inspection or copying of any current or prior contract with any public employee and any related document that specifies the consideration to be paid to the employee;

(8)    Information pertaining to the protection of public or private property and any person on or within public or private property including:

(a)    Any vulnerability assessment or response plan intended to prevent or mitigate criminal acts;

(b)    Emergency management or response;

(c)    Public safety information that would create a substantial likelihood of endangering public safety or property, if disclosed;

(d)    Cyber security plans, computer or communications network schema, passwords, or user identification names;

(e)    Guard schedules;

(f)    Lock combinations; and

(g)    Any blueprint, building plan, or infrastructure record regarding any building or facility that would expose or create vulnerability through disclosure of the location, configuration, or security of critical systems of the building or facility;

(9)    The security standards, procedures, policies, plans, specifications, diagrams, access lists, and other security-related records of the Gaming Commission and those persons or entities with which the commission has entered into contractual relationships. Nothing in this subdivision allows the commission to withhold from the public any information relating to amounts paid persons or entities with which the commission has entered into contractual relationships, amounts of prizes paid, the name of the prize winner, and the municipality, or county where the prize winner resides;

(10)    Personally identified private citizen account payment information, credit information on others supplied in confidence, and customer lists;

(11)    Records or portions of records kept by a publicly funded library which, when examined with or without other records, reveal the identity of any library patron using the library's materials or services;

(12)    Correspondence, memoranda, calendars or logs of appointments, working papers, and records of telephone calls of public officials or employees;

(13)    Records or portions of records kept by public bodies which would reveal the location, character, or ownership of any known archaeological, historical, or paleontological site in South Dakota if necessary to protect the site from a reasonably held fear of theft, vandalism, or trespass. This subdivision does not apply to the release of information for the purpose of scholarly research, examination by other public bodies for the protection of the resource or by recognized tribes, or the federal Native American Graves Protection and Repatriation Act;

(14)    Records or portions of records kept by public bodies which maintain collections of archeological, historical, or paleontological significance which nongovernmental donors have requested to remain closed or which reveal the names and addresses of donors of such articles of archaeological, historical, or paleontological significance unless the donor approves disclosure, except as the records or portions thereof may be needed to carry out the purposes of the federal Native American Graves Protection and Repatriation Act and the Archeological Resources Protection Act;

(15)    Employment applications and related materials, except for applications and related materials submitted by individuals hired into executive or policymaking positions of any public body;

(16)    Social security numbers; credit card, charge card, or debit card numbers and expiration dates; passport numbers; driver license numbers; or other personally identifying numbers or codes; and financial account numbers supplied to state and local governments by citizens or held by state and local governments regarding employees or contractors;

(17)    Any emergency or disaster response plans or protocols, safety or security audits or reviews, or lists of emergency or disaster response personnel or material; any location or listing of weapons or ammunition; nuclear, chemical, or biological agents; or other military or law enforcement equipment or personnel;

(18)    Any test questions, scoring keys, results, or other examination data for any examination to obtain licensure, employment, promotion or reclassification, or academic credit;

(19)    Personal correspondence, memoranda, notes, calendars or appointment logs, or other personal records or documents of any public official or employee;

(20)    Any document declared closed or confidential by court order, contract, or stipulation of the parties to any civil or criminal action or proceeding, except as provided under § 1-27-1.23;

(21)    Any list of names or other personally identifying data of occupants of camping or lodging facilities from the Department of Game, Fish and Parks;

(22)    Records which, if disclosed, would constitute an unreasonable release of personal information;

(23)    Records which, if released, could endanger the life or safety of any person;

(24)    Internal agency record or information received by agencies that are not required to be filed with such agencies, if the records do not constitute final statistical or factual tabulations, final instructions to staff that affect the public, or final agency policy or determinations, or any completed state or federal audit and if the information is not otherwise public under other state law, including chapter 15-15A and § 1-26-21;

(25)    Records of individual children regarding commitment to the Department of Corrections pursuant to chapters 26-8B and 26-8C;

(26)    Records regarding inmate disciplinary matters pursuant to § 1-15-20, and records regarding jail inmate disciplinary matters pursuant to § 24-11-23;

(27)    Any other record made closed or confidential by state or federal statute or rule or as necessary to participate in federal programs and benefits;

(28)    A record of a settlement agreement or litigation regarding investment or bankruptcy and involving the South Dakota Investment Council or the South Dakota Retirement System, or both, unless the settlement or litigation results in a finding of liability against the council or system, or both; and

(29)    A record of a settlement agreement or litigation regarding medical services involving any county hospital established under chapter 34-8 or any municipal hospital established under chapter 34-9.

Source: SL 2009, ch 10, § 6; SL 2012, ch 11, § 1; SL 2019, ch 5, § 2; SL 2022, ch 4, § 1; SL 2023, ch 6, § 1.

1-27-1.6. Certain financial, commercial, and proprietary information exempt from disclosure.

The following financial, commercial, and proprietary information is specifically exempt from disclosure pursuant to §§ 1-27-1 to 1-27-1.15, inclusive:

(1)    Valuable formulae, designs, drawings, computer source code or object code, and research data invented, discovered, authored, developed, or obtained by any agency if disclosure would produce private gain or public loss;

(2)    Financial information supplied by or on behalf of a person, firm, or corporation for the purpose of qualifying to submit a bid or proposal;

(3)    Financial and commercial information and records supplied by private persons pertaining to export services;

(4)    Financial and commercial information and records supplied by businesses or individuals as part of an application for loans or program services or application for economic development loans or program services;

(5)    Financial and commercial information, including related legal assistance and advice, supplied to or developed by the state investment council or the division of investment if the information relates to investment strategies or research, potential investments, or existing investments of public funds;

(6)    Proprietary data, trade secrets, or other information that relates to:

(a)    A vendor's unique methods of conducting business;

(b)    Data unique to the product or services of the vendor; or

(c)    Determining prices or rates to be charged for services, submitted by any vendor to any public body;

(7)    Financial, commercial, and proprietary information supplied in conjunction with applications or proposals for funded scientific research, for participation in joint scientific research projects, for projects to commercialize scientific research results, or for use in conjunction with commercial or government testing;

(8)    Any production records, mineral assessments, and trade secrets submitted by a permit holder, mine operator, or landowner to any public body.

Source: SL 2009, ch 10, § 7.

1-27-1.7. Certain drafts, notes, and memoranda exempt from disclosure.

Drafts, notes, recommendations, and memoranda in which opinions are expressed or policies formulated or recommended are exempt from disclosure pursuant to §§ 1-27-1 to 1-27-1.15, inclusive.

Source: SL 2009, ch 10, § 8.

1-27-1.8. Certain records relevant to court actions exempt from disclosure.

Any record that is relevant to a controversy to which a public body is a party but which record would not be available to another party under the rules of pretrial discovery for causes pending in circuit court are exempt from disclosure pursuant to §§ 1-27-1 to 1-27-1.15, inclusive.

Source: SL 2009, ch 10, § 9.

1-27-1.9. Documents or communications used for decisional process arising from person's official duties not subject to compulsory disclosure.

No elected or appointed official or employee of the state or any political subdivision may be compelled to provide documents, records, or communications used for the purpose of the decisional or deliberative process relating to any decision arising from that person's official duties. Any document that is otherwise already public is not made confidential by reason of having been used in deliberations.

Source: SL 2009, ch 10, § 14; SL 2013, ch 11, § 1.

1-27-1.10. Redaction of certain information.

In response to any request pursuant to § 1-27-36 or 1-27-37, a public record officer may redact any portion of a document which contains information precluded from public disclosure by § 1-27-3 or which would unreasonably invade personal privacy, threaten public safety and security, disclose proprietary information, or disrupt normal government operations. A redaction under this section is considered a partial denial for the application of § 1-27-37.

Source: SL 2009, ch 10, § 15.

1-27-1.11. Subscription or license holder list of Department of Game, Fish and Parks and certain insurance applicant and policyholder information available for fee--Resale or redistribution prohibited--Misdemeanor.

Any subscription or license holder list maintained by the Department of Game, Fish and Parks may be made available to the public for a reasonable fee. State agencies are exempt from payment of this fee for approved state use. The Game, Fish and Parks Commission may promulgate rules pursuant to chapter 1-26 to establish criteria for the sale and to establish the fee for the sale of such lists.

Any automobile liability insurer licensed in the state, or its certified authorized agent, may have access to the name and address of any person licensed or permitted to drive a motor vehicle solely for the purpose of verifying insurance applicant and policyholder information. An insurer requesting any such name and address shall pay a reasonable fee to cover the costs of producing such name and address. The Department of Public Safety shall set such fee by rules promulgated pursuant to chapter 1-26.

Any list released or distributed under this section may not be resold or redistributed. Violation of this section by the resale or redistribution of any such list is a Class 2 misdemeanor.

Source: SL 2009, ch 10, § 16.

1-27-1.12. Chapter inapplicable to Unified Judicial System.

The provisions of this chapter do not apply to records and documents of the Unified Judicial System.

Source: SL 2009, ch 10, § 17.

1-27-1.13. Certain records not available to inmates.

The secretary of corrections may prohibit the release of information to inmates or their agents regarding correctional operations, department policies and procedures, and inmate records of the requesting inmate or other inmates if the release would jeopardize the safety or security of a person, the operation of a correctional facility, or the safety of the public. This section does not apply to an inmate's attorney requesting information that is subject to disclosure under this chapter.

Source: SL 2009, ch 10, § 19.

1-27-1.14. Redaction of records in office of register of deeds not required.

This chapter does not require the redaction of any record, or any portion of a record, which is recorded in the office of the register of deeds.

Source: SL 2009, ch 10, § 21; SL 2010, ch 214, § 1.

1-27-1.15. Immunity for good faith denial or provision of record.

No civil or criminal liability may attach to a public official for the mistaken denial or provision of a record pursuant to this chapter if that action is taken in good faith.

Source: SL 2009, ch 10, § 22.

1-27-1.16. Material relating to open meeting agenda item to be available--Exceptions--Violation as misdemeanor.

If a meeting is required to be open to the public pursuant to § 1-25-1 and if any printed material relating to an agenda item of the meeting is prepared or distributed by or at the direction of the governing body or any of its employees and the printed material is distributed before the meeting to all members of the governing body, the material shall either be posted on the governing body's website or made available at the official business office of the governing body at least twenty-four hours prior to the meeting or at the time the material is distributed to the governing body, whichever is later. If the material is not posted to the governing body's website, at least one copy of the printed material shall be available in the meeting room for inspection by any person while the governing body is considering the printed material. However, the provisions of this section do not apply to any printed material or record that is specifically exempt from disclosure under the provisions of this chapter or to any printed material or record regarding the agenda item of an executive or closed meeting held in accordance with § 1-25-2. A violation of this section is a Class 2 misdemeanor. However, the provisions of this section do not apply to printed material, records, or exhibits involving contested case proceedings held in accordance with the provisions of chapter 1-26.

Source: SL 2010, ch 9, § 1.

1-27-1.17. Draft minutes of public meeting to be available--Exceptions--Violation as misdemeanor.

The unapproved, draft minutes of any public meeting held pursuant to § 1-25-1 that are required to be kept by law shall be available for inspection by any person within ten business days after the meeting. However, this section does not apply if an audio or video recording of the meeting is available to the public on the governing body's website within five business days after the meeting. A violation of this section is a Class 2 misdemeanor. However, the provisions of this section do not apply to draft minutes of contested case proceedings held in accordance with the provisions of chapter 1-26.

Source: SL 2010, ch 9, § 3.

1-27-1.18. Recommendations, findings, and reports of appointed working groups to be reported in open meeting--Action by governing body.

Any final recommendations, findings, or reports that result from a meeting of a committee, subcommittee, task force, or other working group which does not meet the definition of a political subdivision or public body pursuant to § 1-25-1, but was appointed by the governing body, shall be reported in open meeting to the governing body which appointed the committee, subcommittee, task force, or other working group. The governing body shall delay taking any official action on the recommendations, findings, or reports until the next meeting of the governing body.

Source: SL 2010, ch 9, § 4.

1-27-1.19. Public access to records of former Governors and lieutenant governors.

The records of any Governor and any lieutenant governor are the property of the state and shall be transferred to his or her successor or the state archivist upon leaving office. Once transferred, public access to such records is subject to the provisions of chapter 1-27.

Source: SL 2012, ch 12, § 1.

1-27-1.20. Exempt records to be opened upon death or ten years after leaving office.

Unless released to the public pursuant to § 1-27-1.21, any record of an officer designated in § 1-27-1.19, exempted from the provisions of § 1-27-1, shall be opened to the public upon either the death of the former officer or ten years from the date the officer left office, whichever transpires last.

Source: SL 2012, ch 12, § 2.

1-27-1.21. Right of former Governor and lieutenant governor to approve or deny release of exempt records.

Whenever an officer designated in § 1-27-1.19 leaves office and transfers his or her records to the state archivist, the former officer shall retain the right to approve or deny the release of any record exempted from the provisions of § 1-27-1. The former officer may exercise that right either personally or may designate in writing a person to do so to the archivist.

Source: SL 2012, ch 12, § 3.

1-27-1.22. Agreement for transfer of records to suitable repository.

The state archivist may enter into agreements with any officer designated in § 1-27-1.19 for the transfer of the former officer's records to a museum, institution of higher learning, or other suitable repository within South Dakota upon determining that such repository will allow for the preservation, study, and public access of such records consistent with §§ 1-27-1.19 to 1-27-1.21, inclusive. Such agreements shall be entered into only after a public hearing.

Source: SL 2012, ch 12, § 4.

1-27-1.23. Settlement agreements to be public records--Redaction of victim information--Temporary confidentiality for ongoing litigation.

An agency of the state or a political subdivision may not enter into a settlement agreement with a party to any civil action or proceeding involving a claim for monetary damages or equitable relief in which the settlement agreement requires nondisclosure or confidentiality of the terms of the settlement. A settlement agreement under this section is a public record as defined under § 1-27-1.1. For good cause shown, the court may order the redaction of the name of any victim of crime within the settlement agreement under this section. Notwithstanding any other provision of law, an agency of the state or a political subdivision may temporarily maintain the confidentiality of the settlement agreement related to ongoing litigation. The settlement agreement shall become a public record as defined under § 1-27-1.1 upon the final disposition and the exhaustion of any appeal from the related litigation.

Source: SL 2019, ch 5, § 1.