Pursuing pheasants privately in South Dakota

The Argus Leader, South Dakota’s largest newspaper, is suing to require the state government to release the names of people who attended the governor’s 2005 pheasant hunt.

The pheasant hunt was coordinated by the Department of Tourism and State Development in order to attract businesses to South Dakota. Therefore, according to the attorney representing the forces of transparency, it is “official work product” and ought to be made public. As he says:

“A closed executive branch is the perfect opportunity to take democracy away from the people.”

I agree, but the attorney arguing in favor of keeping the guest list secret doesn’t.

He notes that in South Dakota, state law defines public documents as those that the state is required to maintain. Since the state is not required to maintain things like invitation lists, it has no obligation to make the list public.

Furthermore, if the invitation list were to be made public, South Dakota would be harmed because neighboring states might go after those businesses:

“If they are forced to make public these business prospects, Nebraska can get them, Minnesota can get them,” Fulton told the court.

Arguing that bad consequences will flow to the state if some documents are made public is not a convincing argument for secrecy.

If U.S. Attorney General Alberto Gonzales filed a brief saying “If I release departmental emails pertaining to how the decision was made to fire some U.S. attorneys last spring, it would make the government look bad, so I shouldn’t have to” we would not be persuaded.

This issue is in front of the South Dakota Supreme Court because the Argus Leader’s attempt to gain the invitation list lost when argued before a circuit judge last year.

South Dakota tied for last place in the Better Government Association’s 2002 state-by-state ranking of open records laws.


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