Attorney General Marty Jackley announced yesterday that he had obtained a court order allowing him to release documents from his investigation of Richard Benda to state Auditor General Marty Guindon.
Let's be clear: this release is not a step toward open records. The order from the Sixth Circuit Court makes clear that Jackley won't share anything new with the public if he can avoid it:
The Court noted “This Order neither increases nor decreases any statutory requirements of confidentiality; all such provisions remain in effect. The Order simply allows these two agencies to share information in the exercise of their respective duties.” The Court further made clear that “except to the extent any information is necessary for inclusion in the Department of Legislative Audit’s public audit document, all documents and information obtained under this Order shall be held confidential and only accessed by the Auditor General and those members of his staff that are part of the GOED audit” [Attorney General's office, press release, 2014.01.10].
The press release and the court order appear to be for show. Consider this text from the Attorney General:
The release of the documents and information is for the purpose of assisting the Auditor General in completing the Department of Legislative Audit’s financial and compliance audit of the Governor’s Office of Economic Development (GOED) for the period of FY2010 through FY2013. Under South Dakota law, the Department of Legislative Audit has authority to obtain access to financial records that are in the custody of state agencies in order to perform its auditing activities. The Auditors for the Department of Legislative Audit have determined that the Attorney General may have financial records and information pertinent to the GOED audit... [AG, 2014.01.10].
The Governor has authorized the Auditor General to investigate GOED. State law (I think we're talking SDCL 4-2-9) authorizes the Auditor General to access "any and all of the books, blanks, records, vouchers, cash, and property of each and every department, agency, institution, office, fund, or political subdivision which it may be authorized to investigate." The Attorney General is a state office, and he has records the Auditor General is authorized to investigate.
Maybe I'm missing something, but the law seems clear. Neither Marty needs a court order to move these documents from the AttG's office to the AudG's office. Jackley's purported privacy concerns are irrelevant, because we aren't talking about releasing records to the media and public. We're talking about one state official bound by the confidentiality exceptions to our public records laws (SDCL 1-27-1.5(5) seems relevant) quietly handing documents over to another state official bound by those same confidentiality exceptions.
The Attorney General isn't releasing public records, so why publicize it? If anything, announcing that he's transferring confidential documents to another state office increases the risk that those documents could be found or leaked, since snoopy people now know one more location where they might find those documents (and you know how the press likes to go Mission Impossible on locked desks).
Once again, Jackley is posturing. He's still hiding information from the public. And he's still acting as if the law itself as written is not enough to guide his official actions.