Mercer v. S.D. Attorney Gen. Office

Citation864 N.W.2d 299
Decision Date13 May 2015
Docket NumberNo. 27215.,27215.
PartiesRobert M. MERCER, Plaintiff and Appellant, v. SOUTH DAKOTA ATTORNEY GENERAL OFFICE, Defendant and Appellee.
CourtSouth Dakota Supreme Court

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.

Opinion

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,” 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 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.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.

[¶ 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 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...

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