#27215-a-JMK

2015 S.D. 31
                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****

ROBERT M. MERCER,                         Plaintiff and Appellant,

      v.

SOUTH DAKOTA ATTORNEY
GENERAL OFFICE,                           Defendant and Appellee.


                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                      THE SIXTH JUDICIAL CIRCUIT
                    HUGHES COUNTY, SOUTH DAKOTA

                                 ****

                THE HONORABLE KATHLEEN F. TRANDAHL
                               Judge

                                 ****

ROBERT M. MERCER
Pierre, South Dakota                      Pro se.



MARTY J. JACKLEY
Attorney General

JEFFREY P. HALLEM
Assistant Attorney General
Pierre, South Dakota                      Attorneys for defendant
                                          and appellee.

                                 ****

                                          ARGUED ON MARCH 24, 2015

                                          OPINION FILED 05/13/15
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KERN, Justice

[¶1.]        Pro se appellant Robert M. Mercer appeals from the circuit court’s

order affirming the administrative agency’s decision denying him access to Richard

Benda’s death investigation records under SDCL 1-27-1.5(5). Mercer asserts that

the public’s significant and legitimate interest warrants access despite SDCL 1-27-

1.5(5). Because the language of this statute prohibits disclosure, we affirm.

                                  BACKGROUND

[¶2.]        On November 26, 2013, Robert M. Mercer submitted a request to the

South Dakota Attorney General’s Office under SDCL 1-27-37 for the release of the

Division of Criminal Investigation’s (DCI) records related to the investigation of

Richard Benda’s death. Richard Benda was the Secretary of Tourism from 2006

through 2011, during the administration of Governor M. Michael Rounds. On

October 22, 2013, Benda’s body was found on a farm in rural Charles Mix County,

South Dakota. On November 21, 2013, the Attorney General’s Office issued a press

release stating that Benda died from a self-inflicted-shotgun wound and that there

was no evidence of foul play. On November 27, 2013, the coroner issued a death

certificate, which included the following information:

             CAUSE OF DEATH PART I: PENETRATING SHOTGUN
             WOUND OF ABDOMEN WITH SHOT GUN . . . .

             PART II:
             ....
             HOW THE INJURY OCCURRED: DECEDENT SECURED
             SHOTGUN AGAINST TREE. USED A STICK TO PRESS
             TRIGGER TO SHOOT HIMSELF IN ABDOMEN.

[¶3.]        In making his request for “reports received by and compiled for

Attorney General Marty Jackley regarding the Oct. 20 death of Richard Benda,”
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Mercer conceded that “SDCL 1-27-1.5(5) precludes public release of such

documents.” Mercer, nevertheless, requested the release of the death investigation

records because Benda was a public figure, news accounts and reports “have raised

questions about the death[,]” and release of the records “would allow citizens to

judge for themselves the depth and scope of the processes that lead to the conclusion

that Benda killed himself.”

[¶4.]        In a letter dated November 26, 2013, the Attorney General’s Office

noted that SDCL 1-27-1.5(5) protects the death investigation records from public

disclosure. Yet, in light of the “uniqueness of this case and circumstance,” the

Attorney General’s Office indicated that “there exists a public interest to fashion a

remedy that protects the criminal process and individual privacy interests[.]” Thus,

the Attorney General’s Office stated, in its November 26, 2013 letter to Mercer, that

it would make the death investigation records available to the Benda family and “to

the public through media representation” if certain conditions were met. The

condition relevant to this appeal is: “2. A member of Richard Benda’s immediate

family as defined under South Dakota law execute a written release granting

permission for disclosure as set forth herein[.]”

[¶5.]        Mercer was unable to fulfill the second condition and, accordingly, filed

an amended request with the Attorney General’s Office on December 6, 2013,

asking that the second condition be eliminated. He described the efforts he made to

obtain a waiver from the Benda family and asserted that the condition was not

warranted under the law. The Attorney General’s Office denied Mercer’s

supplemental request, noting that the records were specifically exempt from


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disclosure under SDCL 1-27-1.5(5). Furthermore, the Attorney General’s Office

informed Mercer that South Dakota law permitted the Attorney General to impose

conditions on access.

[¶6.]        In December 2013, Mercer, acting pro se, appealed the denial to the

Office of Hearing Examiners (OHE) under SDCL 1-27-38. The OHE considered

Mercer’s appeal on a written record and, on May 9, 2014, issued findings of fact,

conclusions of law, and an order. It upheld the Attorney General’s Office’s denial of

Mercer’s request for disclosure because the requested records were not of the type

required to be disclosed under SDCL chapter 1-27. The OHE further held that the

Attorney General’s Office acted within its discretion when it denied Mercer’s

request.

[¶7.]        Mercer appealed the OHE’s ruling to the circuit court under SDCL 1-

27-41. Mercer acknowledged that the documents he requested “were normally

considered exempt” from release, but asserted that the lack of any standard

governing the Attorney General’s discretion “left the attorney general in an

untenable position.” He further claimed that the Attorney General’s Office acted

beyond the scope of its legislative authority when it imposed special criteria for the

release of the records. He also submitted that the records from the investigation of

a suicide should be treated differently than other investigation records because,

“[u]nlike other acts of violence, the deceased cannot contest the finding.” Finally,

Mercer claimed that the hearing examiner failed to consider Richmond Newspapers,

Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980), and Press-

Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S. Ct. 819, 78 L.


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Ed. 2d 629 (1984), which he claimed emphasized the importance of providing an

alternative to denying release of the records.

[¶8.]        On September 2, 2014, the circuit court issued an incorporated

memorandum decision affirming the OHE’s decision. The court detailed certain

facts necessary to provide context for Mercer’s request and to explain the public’s

interest in the records. In 2013, Governor Dennis Daugaard had requested that the

Attorney General’s Office conduct a criminal investigation into potential financial

misconduct in the Governor’s Office of Economic Development related to voucher

reimbursements. The investigation revealed evidence of double billing and double

recovery, but the Attorney General’s Office informed the Governor that no action

would be taken because Benda was deceased.

[¶9.]        The Attorney General’s Office further informed the Governor’s Office

that during its investigation it discovered financial issues related to the $1 million

Future Fund Grant used to assist the now-bankrupt Northern Beef LP in Aberdeen,

South Dakota. Benda, in his capacity as the Secretary of Tourism and State

Development, had worked to develop and finance Northern Beef LP. The financial

concerns uncovered by the Attorney General’s Office related to the EB-5 program, a

federal immigration program facilitated by the State of South Dakota in conjunction

with the South Dakota Regional Center, Inc. The office of the Attorney General

informed the Governor’s Office that it provided its criminal investigation file to

federal authorities, as the EB-5 program was a federal program run and controlled

by the federal government.




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[¶10.]       In light of this background, the circuit court recognized the public

interest surrounding the circumstances of Benda’s death. However, it ruled that

SDCL 1-27-1.5(5) and SDCL 23-5-11 clearly and unambiguously prohibited the

disclosure of Benda’s death investigation records. The court further ruled that the

Attorney General’s Office did not abuse its discretion when it crafted conditions on

the disclosure of the death investigation records and rejected Mercer’s argument

that the Attorney General’s Office had no authority to create conditions. Finally,

the court ruled that if the Attorney General, in his discretion, wished to release the

records, he was “justified and warranted in balancing the release of the death

investigation record with the privacy concerns.” The court noted that Mercer’s

“mere suspicion is not enough to outweigh the privacy interests, the presumption of

innocence, protection of the criminal process, and protection of the decedent’s minor

child.”

[¶11.]       On September 5, 2014, the circuit court issued an order affirming the

OHE’s findings of fact and conclusions of law and order. Mercer appeals.

                             STANDARD OF REVIEW

[¶12.]       In this administrative appeal, our review is established by SDCL 1-26-

37. Knapp v. Hamm & Phillips Serv. Co., 2012 S.D. 82, ¶ 11, 824 N.W.2d 785, 788.

The hearing examiner’s decision was made solely on the administrative file and did

not involve questions of fact. See, e.g., Foltz v. Warner Transp., 516 N.W.2d 338,

340-41 (S.D. 1994). We, therefore, review the decision of the OHE de novo. Tebben

v. Gil Haugan Constr., Inc., 2007 S.D. 18, ¶ 15, 729 N.W.2d 166, 171. Statutory




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interpretation is also reviewed under the de novo standard. Snelling v. S.D. Dep’t of

Soc. Servs., 2010 S.D. 24, ¶ 13, 780 N.W.2d 472, 478.

                                     ANALYSIS

[¶13.]       Mercer argues that the public interest in Benda’s death investigation

is significant and legitimate because Benda’s death is just one of many pieces in the

puzzle surrounding the investigation of the EB-5 immigration program developed

during the administration of Governor Rounds. Mercer suggests that the public

interest is heightened by the fact that the Attorney General’s Office issued a report

on the EB-5 program to the U.S. Attorney shortly after Benda’s death and that

neither state nor federal prosecutors brought any charges in connection with the

investigation.

[¶14.]       In specific reference to the South Dakota Public Records Act under

chapter 1-27, Mercer argues that the Act fails to provide standards by which to

measure the record custodian’s discretion to deny release. He further contends that

the Act does not give the Attorney General’s Office the authority to impose

conditions on a request for a public record. Lastly, Mercer claims the circuit court

misapplied National Archives & Records Administration v. Favish, 541 U.S. 157,

124 S. Ct. 1570, 158 L. Ed. 2d 319 (2004), and abused its discretion when it did not

consider redaction as an alternative remedy and did not review the records to

determine whether a privacy interest actually exists.

[¶15.]       In response, the Attorney General’s Office submits that many of

Mercer’s claims on appeal “are based upon the faulty premise that he is entitled to

the requested records and that the Office of Hearing Examiners and/or the circuit


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court were required to fashion him relief[.]” The Attorney General’s Office

emphasizes that our review of its decision to deny Mercer’s request to disclose a

public record is controlled by SDCL 1-26-36 and is confined to the administrative

record before the OHE. It further contends that the OHE correctly applied the

South Dakota Public Records Act when it denied disclosure of Benda’s death

investigation records to Mercer. It claims that neither the OHE nor the circuit

court were required to grant Mercer’s request that the records be redacted because

“[o]n its face” SDCL 1-27-1.10 does not apply here. Lastly, the Attorney General’s

Office argues that there is no legal or factual basis to support Mercer’s claims that

the Attorney General did not have authority to place conditions on the disclosure of

the records or that in doing so the Attorney General abused his discretion.

[¶16.]       Although several of Mercer’s claims relate to the circuit court’s

decision, this case is an administrative appeal. It is well settled that we are not

bound by the circuit court’s decision and, in fact, we review the agency’s decision

without any presumption that the circuit court’s decision was correct. Zoss v.

United Bldg. Ctrs., Inc., 1997 S.D. 93, ¶ 6, 566 N.W.2d 840, 843 (overruled on other

grounds). Moreover, because the OHE’s decision was based entirely on review of

the same record we have before us, we review the agency’s decision de novo. See

City of Frederick v. Schlosser, 2003 S.D. 145, ¶ 7, 673 N.W.2d 283, 285.

[¶17.]       When the Legislature enacted the South Dakota Public Records Act in

2009, it broadened the presumption of openness in regard to public records.

(Compare current SDCL 1-27-1 with pre-2009 SDCL 1-27-1.) SDCL 1-27-1

currently provides, in relevant part:


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             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.

Under SDCL 1-27-1.1, the presumption of openness can only be rebutted by another

statute that specifically exempts the record from disclosure. The statute requires

that all public records shall be made public “[u]nless any other statute, ordinance,

or rule expressly provides that particular information or records may not be made

public[.]” Id.

[¶18.]       Here, Mercer seeks authorization to examine the records related to

Benda’s death investigation and claims that the circuit court did not properly apply

Favish, 541 U.S. 157, 124 S. Ct. 1570. The circuit court’s citation to and discussion

of Favish has no bearing on our review of the OHE’s decision. See Zoss, 1997 S.D.

93, ¶ 6, 566 N.W.2d at 843. This is because “[t]he Supreme Court makes the same

review of the administrative agency’s decision as did the circuit court, unaided by

any presumption that the circuit court’s decision was correct.” Id. (quoting Tieszen

v. John Morrell & Co., 528 N.W.2d 401, 403 (S.D. 1995)). Furthermore, Favish is

inapplicable to this case. In Favish, the Supreme Court was asked to interpret a

provision in the Freedom of Information Act, which would exempt from disclosure

“‘records or information compiled for law enforcement purposes’ if their production

‘could reasonably be expected to constitute an unwarranted invasion of personal

privacy.’” 541 U.S. at 160, 124 S. Ct. at 1574 (quoting 5 U.S.C. § 552(b)(7)(C)).

Here, we have no similar statutory language related to an “unwarranted invasion of

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personal privacy.” See 5 U.S.C. § 552(b)(7)(C). Furthermore, nothing in the Favish

decision requires the Attorney General’s Office to consider redaction of records if

redaction could protect the privacy interests at issue. On the contrary, redaction

presumes a record is subject to disclosure. We, therefore, examine the OHE’s

decision based on the language in the South Dakota Public Records Act to

determine if Benda’s death investigation records are subject to disclosure. We note

that we do not have before us (and neither did the OHE nor the circuit court) the

death investigation records sought by Mercer.

[¶19.]       To determine whether the record is reviewable under the South

Dakota Public Records Act, we must examine if any statute, ordinance, or rule

expressly provides that the record not be made public. See SDCL 1-27-1.1. Under

SDCL 1-27-1.5, certain “records are not subject to §§ 1-27-1, 1-27-1.1, and 1-27-

1.3[.]” Subsection (5) is implicated in this case and provides that “[r]ecords

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 complaints or inquiries, informant identification, or strategic or

tactical information used in law enforcement training” are not subject to public

examination. SDCL 1-27-1.5(5). In addition, SDCL 23-5-11 provides that

“[c]onfidential criminal justice information . . . [is] specifically exempt from

disclosure pursuant to §§ 1-27-1 to 1-27-1.15, inclusive, and may be withheld by the

lawful custodian of the records.” “Confidential criminal justice information” is

defined as “criminal identification information compiled pursuant to chapter 23-5,


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criminal intelligence information, criminal investigative information, criminal

statistics information made confidential pursuant to § 23-6-14, and criminal justice

information otherwise made confidential by law[.]” SDCL 23-5-10(1).

[¶20.]       It is undisputed that the records requested by Mercer were prepared

and received by the Attorney General’s Office in response to Charles Mix County’s

request that the DCI investigate the death of Benda to determine whether the

death was the result of criminal activity or foul play. The records developed or

received by the agencies charged with the duty to investigate Benda’s death

constitute confidential criminal justice information as defined by statute. Mercer

conceded that the records he requested are exempt from disclosure under SDCL 1-

27-1.5(5). The OHE did not err when it interpreted and applied SDCL 1-27-1.1 and

held that two statutes—SDCL 1-27-1.5(5) and SDCL 23-5-11—“expressly provide[]

that particular information” (Benda’s death investigation records) “not be made

public[.]” See SDCL 1-27-1.1 (defining “public records”).

[¶21.]       Mercer submits that the Attorney General’s Office exceeded its

statutory authority when it imposed certain conditions on his request for the public

records. He also contends that there are no standards by which to measure a

custodian’s decision to deny access. Mercer cites no relevant or binding authority to

support his claims, which ordinarily would waive the issues for our review. See

Kostel v. Schwartz, 2008 S.D. 85, ¶ 34, 756 N.W.2d 363, 377; SDCL 15-26A-60(6).

Even if the issues were not waived, the Attorney General’s Office had authority

under SDCL 1-27-37, as the custodian of the record, to exercise its discretion and

grant or deny a request in whole or in part. The statue provides, in relevant part:


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             (1) A written request may be made to the public record officer of
             the public entity involved. The public record officer shall
             promptly respond to the written request but in no event later
             than ten business days from receipt of the request. The public
             record officer shall respond to the request by:
                    (a) Providing the record in whole or in part to the
                    requestor upon payment of any applicable fees pursuant
                    to §§ 1-27-35 and 1-27-36;
                    (b) Denying the request for the record; or
                    (c) Acknowledging that the public record officer has
                    received the request and providing an estimate of the
                    time reasonably required to further respond thereto;
             ....
             (4) If the public record officer denies a written request in whole
             or in part, the denial shall be accompanied by a written
             statement of the reasons for the denial[.]

Id. Furthermore, Mercer does not contend that, in exercising his discretion, the

Attorney General failed to follow the mandates of chapter 1-27.

[¶22.]       We review de novo the Attorney General’s actions because the OHE’s

decision was based entirely upon a written record. See Tebben, 2007 S.D. 18, ¶ 15,

729 N.W.2d at 171; SDCL 1-26-36. From our review of the written administrative

record, there is no evidence that the OHE erred in its interpretation of the statutes.

Further, the OHE did not err when it ruled that the Attorney General had the

authority to release the records in whole or in part and to exercise his discretion to

release them under certain conditions. The evidence establishes that the Attorney

General took into account the public’s interest in Benda’s death and weighed that

against the personal privacy interests of the Benda family.

[¶23.]       Lastly, Mercer contends that the OHE and the circuit court should

have reviewed the death investigation records and considered alternative criteria in

support of disclosure, such as redaction of the sensitive and private information.

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Mercer directs this Court to Favish, 541 U.S. 157, 124 S. Ct. 1570. Yet, as we

previously explained, Favish involves a federal law not similar to our law.

Moreover, SDCL 1-27-1.10 does not give Mercer a right to redaction.* Mercer’s

access is still contingent on the public record being of the type subject to disclosure

under SDCL 1-27-1 and not expressly exempt under “any other statute, ordinance,

or rule[,]” SDCL 1-27-1.1. Because Benda’s death investigation records are exempt

from disclosure under SDCL 1-27-1.5(5), and under SDCL 23-5-11 as confidential

criminal justice information, neither the OHE nor the circuit court were required to

examine the record and fashion an alternative manner of release. Accordingly, we

affirm the decision of the OHE.

[¶24.]         It is evident that when enacting the South Dakota Public Records Act

in 2009, the Legislature had the opportunity to include investigative records within

the category of documents presumed to be public and elected not to do so. If Mercer

seeks a modification of the provisions of SDCL 1-27-1.5(5) exempting investigative

reports of law enforcement agencies from disclosure or a modification of SDCL 23-5-

11 exempting confidential criminal justice information, he must seek a statutory

change from the Legislature.




*        SDCL 1-27-1.10 provides:
              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.

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[¶25.]      GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and

WILBUR, Justices, concur.




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