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Mercer v. South Dakota Attorney General Office

Supreme Court of South Dakota

May 13, 2015

ROBERT M. MERCER, Plaintiff and Appellant,
v.
SOUTH DAKOTA ATTORNEY GENERAL OFFICE, Defendant and Appellee

Argued March 24, 2015.

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.

KERN, Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and WILBUR, Justices, concur.

OPINION

Page 300

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

Page 301

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 ...


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