On November 26, intrepid reporter Bob Mercer sent Attorney General Marty Jackley a public records request, which makes a strong case for opening the Richard Benda death investigation to public scrutiny. In response, AG Jackley agreed to open those records to review by a media pool consisting of two reporters, pending written permission from a member of Benda's immediate family. That review has yet to take place.
In a fit of defensive pique, AG Jackley used his response to Mercer to declare that Internet blogs (except for Bob's) are misquoting the AG and spreading misinformation.
I'd hate to misquote the Attorney General or anyone else, so for the record, here are Mercer's open records request, which makes a strong case for opening the Richard Benda death investigation to public scrutiny, and AG Jackley's response:
- PUBLIC RECORDS REQUEST UNDER SDCL 1-27-37
- To: Office of South Dakota Attorney General, Custodian of Public Records
- From: Bob Mercer, Newspaper Reporter, Pierre, South Dakota
This is a formal written request under South Dakota’s public-records laws for the reports received by and compiled for Attorney General Marty Jackley regarding the Oct. 20 death of Richard Benda.
I acknowledge that 1-27-1.5 (5) provides an exemption that precludes public release of such documents, and Attorney General Marty Jackley has previously declined to provide the reports citing privacy of the family, but I raise four points of rebuttal.
- Benda as a former Cabinet member was a public figure during his service to state government from 2006 through 2010 and he remained a public figure at the time of his death, as shown by the official statement issued by Gov. Dennis Daugaard on Oct. 22 and by the statements issued that day by former Gov. Mike Rounds.
- The attorney general conducted an official investigation into the death of Richard Benda. That investigation required four weeks to complete and resulted in the official findings that Benda died of a self-inflicted gunshot wound and it was suicide. News accounts and Internet blogs have raised questions about the death. Release of the reports would allow citizens to judge for themselves the depth and scope of the processes that lead to the conclusion that Benda killed himself.
- It is standard practice in South Dakota for the attorney general office to release the findings from investigations of officer-involved shootings. While that isn’t a direct comparison to the Benda investigation, there is a high level of public interest in both matters and a corresponding state interest in maintaining confidence in law enforcement.
- State public records law contains exemptions to the exemptions. Specifically, 1-27-1.10 provides that in response to any request “the 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.”
Circumstances changed in the 24 hours after Attorney General Jackley declined to release the death-investigation records. The “unreasonable invasion” of personal-privacy standard didn’t prove to be a barrier to the release by the governor of the Attorney General’s criminal-activity investigation regarding Richard Benda on Nov. 22, 2013. That was one day after the Attorney General delivered to the public his summary of the cause of death of Richard Benda on Nov. 21, 2013.
If in your judgment the full reports from the death investigation can’t be released because of the “unreasonable invasion” standard, redacted versions of the reports could be released as public records. They involve a public figure and a public investigation that is directly connected to a criminal investigation that is now public.
Further, the criminal investigation that was performed by the Attorney General at the request of the governor’s lawyer currently involves the misdirection of $550,000 of South Dakota public funds as well as alleged double-payments of more than $5,000 by state government to Richard Benda for double billings of airline tickets while he was a state official.
It is for these reasons that I pray the Richard Benda death-investigation reports be declared as public records and they be provided, whether in whole or in redacted versions.
[Bob Mercer, public records request, 2013.11.26]
Jackley's full response is in PDF format. He explicitly grants Mercer's first point of rebuttal, that Benda was a public figure, meaning his death is subject to more public scrutiny. Jackley grants Mercer's third point, that high public interest and maintaining public confidence in law enforcement justify opening investigation records. He acknowledges Mercer's fourth point and simply notes the exceptions to open records law that keep criminal investigation information confidential. Jackley says, "I am not at liberty to discuss whether or no there is grand jury activity in a case," but then points pointedly to South Dakota Codified Law 23A-5-16, which forbids disclosure of matters occurring before a grand jury.
Jackley's pique spills out in his response to Mercer's second point of rebuttal. Mercer mentions "Internet blogs" (Bob, that's redundant) alongside news reports as evidence of keen public interest in a suspicious death and extraordinarily long state silence, and Jackley shouts back:
It is true that the Attorney General conducted an official investigation into the death of Richard Benda to namely determine whether there was evidence of foul play. That investigation was assisted by both federal authorities and local law enforcement. That investigation required just under 30 days to complete both an independent autopsy by a forensic pathologist as well as an independent crime scene investigation with considerable forensic testing. Considering the involvement of of federal, state and local law enforcement authorities, there has been absolutely no credible facts or evidence calling into question either: (1) the forensic pathologist report, or (2) the Attorney General’s released information that the death investigation reconstruction and forensic testimony demonstrated no foul play and were consistent with the suicide ruling. Internet blogs, specifically excluding yours, that speculate and provide misinformation about cause of death ranging from heart attacks to gunshot wounds to the head, and otherwise misquote that Attorney General’s written releases, fail to provide justification for any release of documents. Furthermore, press releases issued by political parties that fail to state any factual or legal basis, further ignoring the participation of federal, state and local law enforcement, do not support a public record request. However, I do believe that release of reports fashioned in such a way to protect the presumption of innocence, other criminal process safeguards and individual privacy interests would assist the public in appreciating the process and circumstances.
[Attorney General Marty Jackley, response to public records request, 2013.11.26]
Boy, and that was before Sam Kephart opened up with his Chinese mafia hypothesis.
If Jackley is allowed to get steamed, so am I. As publisher of the best political blog in South Dakota, I invite Attorney General Marty Jackley and everyone else to show me examples of where I have published misinformation (deliberate misrepresentation of the facts available, also known as lies) about Benda, Jackley, GOED, SDRC, NBP, or anything else. Show me an example of where I have published false information and not corrected it. Show me one instance where I have misquoted the Attorney General.
I'll survive Marty's gratuitous swipe at blogs and the Democratic Party (wait: he didn't actually say "Democrats," but what other party has had the guts to respond to the GOED/EB-5/Benda affair with public statements?). But don't miss the main point: even as Jackley moans about blogs and others calling spades spades, he acknowledges that releasing records surrounding Benda's death, with reasonable protections for privacy and presumption of innocence, is a good idea.
So we agree, right, Marty? Or am I finally misquoting you?