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Argus Leader Media v. Hogstad

Supreme Court of South Dakota

September 20, 2017

ARGUS LEADER MEDIA, Plaintiff and Appellant,
v.
LORIE HOGSTAD, in her official capacity as Sioux Falls City Clerk, TRACY TURBAK, in his official capacity as Sioux Falls Finance Officer, and CITY OF SIOUX FALLS, Defendants and Appellees.

          ARGUED JANUARY 11, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE JOHN PEKAS Judge

          JON E. ARNESON Sioux Falls, South Dakota Attorney for plaintiff and appellant.

          JAMES E. MOORE JORDAN J. FEIST of Woods, Fuller, Shultz & Smith PC Sioux Falls, South Dakota Attorneys for defendants and appellees.

          OPINION

          SEVERSON, Justice.

         [¶1.] The City of Sioux Falls entered into a confidential settlement agreement with several contractors that built the Denny Sanford Premier Center in Sioux Falls, S.D. The settlement agreement's confidentiality clause provided that, with the exception of the settlement amount, the details of the contract would remain confidential. A reporter for the Argus Leader sought a copy of the agreement; the City denied the request. The Argus Leader asked the City to reconsider its position, but the City refused to provide a copy of the agreement. After the denial, the Argus Leader commenced this action, alleging that the agreement is a public record and seeking an order compelling the City to provide a copy. The circuit court determined that the settlement agreement was not open to public inspection under SDCL chapter 1-27. Argus Leader appeals. We reverse.

         Background

         [¶2.] In 2014, the City of Sioux Falls raised questions regarding the aesthetic appearance of the exterior siding of the newly constructed Denny Sanford Premier Center. The City reached a settlement agreement with the general contractor and four subcontractors of the project. The agreement addressed both the final amounts due and the City's dissatisfaction with the work. One of the subcontractors later disputed the terms of the agreement. The City retained outside counsel, who drafted a complaint to enforce the settlement agreement. However, after further negotiation, the parties to the original agreement reached another settlement agreement. The City's outside counsel sent the drafted complaint with an admission of service to one of the subcontractors, but it did not commence a lawsuit prior to settlement.

         [¶3.] In September 2015, the City announced through its website that it had reached a global settlement of the dispute with the contractors of the Premier Center. In October, a reporter for the Argus Leader contacted the city attorney and requested a copy of the settlement between the City and the contractors involved in construction of the Premier Center. The city attorney denied the request, citing SDCL 1-27-1.5(20) and the agreement's confidentiality provision as grounds for the denial. The reporter sent another letter asking for the City to reconsider the denial. Again, the City denied the request. On December 1, 2015, pursuant to SDCL 1-27-38, the Argus Leader commenced a civil action contending that the agreement is a public record and asking that the court order the City to produce a copy of the agreement.

         [¶4.] Both the Argus Leader and the City moved for summary judgment. The circuit court denied the Argus Leader's motion and granted summary judgment in favor of the City. The court found that pursuant to SDCL 1-27-1.5(20), the contract is not open to public inspection. On appeal, the Argus Leader contends the court erred when it determined that the contract is not an open record. Furthermore, the Argus Leader contends that even if the circuit court correctly interpreted SDCL 1-27-1.5(20), more specific provisions provide that the settlement agreement is an open public record.

         Standard of Review

         [¶5.] We review the circuit court's grant of summary judgment de novo to determine whether genuine issues of material fact exist and whether the court correctly applied the law. Heitmann v. Am. Family Mut. Ins. Co., 2016 S.D. 51, ¶ 8, 883 N.W.2d 506, 508-09. When there are no material facts in dispute, our review is limited to determining whether the court correctly applied the law. Id. at 509.

         Analysis

         [¶6.] In 2009, the Legislature enacted the South Dakota Public Records Act, which broadened the presumption of openness in regard to public records. Mercer v. S.D. Att'y Gen. Off., 2015 S.D. 31, ¶ 17, 864 N.W.2d 299, 303; see also SDCL chapter 1-27. SDCL 1-27-1 provides:

Except as otherwise expressly provided by statute, all citizens of this state, and all other persons interested in the examination of the public records, as defined in § 1-27-1.1, are hereby fully empowered and authorized to examine such public record, and make memoranda and abstracts therefrom during the hours the respective offices are open for the ordinary transaction of business and, unless federal copyright law otherwise provides, obtain copies of public records in accordance with this chapter.
Each government entity or elected or appointed government official shall, during normal business hours, make available to the public for inspection and copying in the manner set forth in this chapter all public records held by that entity or official.

SDCL 1-27-1.1 states, in relevant part:

Unless any other statute, ordinance, or rule expressly provides that particular information or records may not be made public, public records include all records and documents, regardless of physical form, of or belonging to this state, any county, municipality, political subdivision, or tax-supported district in this state, or any agency, branch, department, board, bureau, commission, council, subunit, or committee of any of the foregoing.

         Other than SDCL 1-27-1.5(20), the City does not contend that "any other statute, ordinance, or rule expressly provides" that the contract "may not be made public." ...


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