SIOUX FALLS, S.D. (KELO.com) -- City Councilors and citizens didn't get to see a key study done on the warped panels at the Premier Center yesterday that prompted a once secret settlement agreement.
However, citizens and Councilors did get to see the bill for the work at Tuesday's City Council Informational Meeting.
In controversy is a study commissioned by the City of Sioux Falls with Judd Allen Group that examined the bent siding on The Denny. The City paid nearly $5,000 for the study. (See copy of bill in photos at left.)
Numerous times during the Huether administration's presentation to the Council about the ins and outs of the now disclosed but controversial settlement agreement, City Attorney David Pfeifle, Assistant City Attorney Karen Leonard, and even Mayor Mike Huether said state law did not require the report's disclosure.
They did not cite the particular provision or provisions of state law that allows non-disclosure, but they said the report was performed in anticipation of litigation.
In an analysis by KELO.com News, there appear to be several state statutes that might support the City's contention that they do not have to release the study.
According the South Dakota Codified Laws 1-27.1.1, "public records" are defined broadly.
The section notes, "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."
However, what the legislature gives, it can also take away.
SDCL 1-27-1.7 states: "Certain drafts, notes, and memoranda exempt from disclosure. Drafts, notes, recommendations, and memoranda in which opinions are expressed or policies formulated or recommended are exempt from disclosure pursuant to §§ 1-27-1 to 1-27-1.15, inclusive"
The Huether administration says the Judd Allen report is a "draft," only a preliminary report made in anticipation of litigation over the warped panels or the settlement of the issue.
Another possible statute which allows non-disclosure is SDCL 1-27.1.8.
It states: "Certain records relevant to court actions exempt from disclosure. Any record that is relevant to a controversy to which a public body is a party but which record would not be available to another party under the rules of pretrial discovery for causes pending in circuit court are exempt from disclosure pursuant to §§ 1-27-1 to 1-27-1.15, inclusive."
Both Leonard and Pfeilfle hinted at this statute in their presentations. However, as the matter is now settled, its questionable whether this section of the law would still be applicable. There is no pending litigation according to the Huether administration at yesterday's presentation.
Finally, another statute the City may be invoking is 1-27-1.9.
It states: "Documents or communications used for decisional process arising from person's official duties not subject to compulsory disclosure. No elected or appointed official or employee of the state or any political subdivision may be compelled to provide documents, records, or communications used for the purpose of the decisional or deliberative process relating to any decision arising from that person's official duties. Any document that is otherwise already public is not made confidential by reason of having been used in deliberations."
Arguably, the Judd Allen report may have been a document Huether and his key staff used in deciding whether to settle the Premier Center siding controversy or to proceed to litigation.
What is not clear is whether the City could release the documents voluntarily even if they wanted to. Clearly, if these provisions are applicable, the City legally does not have to release the Judd Allen report to Councilors or the public.
Whether it should because of politics or transparency are entirely different questions.
In the meantime, there's no problem releasing the bill for the work that the report details.
Note: KELO.com News news director Todd Epp is an attorney admitted to the practice of law in South Dakota and Kansas.