A couple of questions about privacy and secrecy in government

By Gordon Garnos

AT ISSUE: The campaign to put into law Senate Bill 189 has been brilliantly led by state Senator Nancy Turbak Berry, D-Watertown. However, after passing the Senate the presumption of openness in government bill went before the House State Affairs Committee Feb. 20 where it was voted 7 to 6 to be moved to the 36th day. This means that for all intents and purposes the chance to get a good South Dakota open records law passed this session is at best remote. Its critics were headed by Governor Mike Rounds and some legislators who want a much more conservative type of an open record law.

A COUPLE OF Sundays ago state Senator Nancy Turbak Berry and her husband sat beside us during worship services. All of a sudden it was sermon time. The bulletin said the preaching would be set on two questions, "What If?" and "What Then?" Knowing the senator's passion for open government and her bill about presumption of open government and my strong feelings about the importance of having open government on all levels, I admit my mind strayed from the pulpit. My apologies to Pastor Westgard.

However, in my mind I found myself asking the same questions about open government, open records, both on the local and state levels. "What if" her bill falls by the legislative wayside? "What then" happens to government records? Do we live by today's rules until one can prove a particular record can be seen? That's about what is happening today in city halls, courthouses and, yes, at the South Dakota's capital.

The battle line was drawn when Senator Turbak Berry's bill passed the Senate. Governor Rounds spoke against it almost from the time it came off the press. He said the bill puts privacy at risk. Such a law on the books would open the door too wide to records--some of them likely confidential.

PRIVACY AT RISK? Then, is it not fair to ask where does this put secrecy?
Another question, when did the American ideal, open government, become secret. When did we lose that grip on government that all of a sudden, there are privacy laws keeping us from knowing what is going on in government?

Let's put this another way. During Turbak Berry's testimony before the House State Affairs Committee, she said, "Even here in friendly, decent South Dakota, we find that people who have power don't want to share it, sometimes even with other elected people, and that is a sad day in South Dakota.

Democracy isn't always convenient, but it's always right." Gosh, darn! I wish I would have said it, "Democracy isn't always convenient, but it's always right."

Turbak Berry's bill would have put into state law that all records are presumed open unless their openness could cause "irreparable harm." It would open all state records unless they're specifically protected by state law.

Prior to the bill's defeat, David Bordewyk, head of the South Dakota Newspaper Association, said, "What that bill would give us is a modern, comprehensive open records law that reflects the scope and dynamics of government in South Dakota.

"THE BILL BALANCES our fundamental right to inspect and access government information with our expectations that certain government records must be maintained confidentially...."

However, all the words that have been written and said in support of Turbak Berry's bill obviously has done nothing to convince the governor that such legislation is needed. When he said he doesn't like something a lot of legislators fall in line whether or not they fully agree with him, a legislator of his own party told me recently.

Consequently, with the death of Senate Bill 189 those two questions that were originally asked in church a couple of weeks ago, keep popping up. What if South Dakota doesn't get its records open for scrutiny by the public and, yes, the media? What then? Will things in Pierre just go on as usual? And, we must ask, what then must we do to open the window to see what our government is doing?

THE ARTICLE WRITTEN by my friend, Terry Woster, in that newspaper in that town near Harrisburg the day after the bill's defeat was an excellent one.
It quotes one of the bill's opponents, Rep. Shantel Krebs, R-Sioux Falls, wife of Mitch, who works for the governor. She thought the bill should go back to the open records task force to come up with a better one.

Turbak Berry, a member of that task force, says she plans to keep working on it and "hammering at it," and "it isn't finished by any means."

Perhaps it isn't. But in the meantime, when they talk of privacy, one cannot help but think of secrecy as well and that shouldn't be necessary "...here in friendly, decent South Dakota."....

Gordon Garnos was long-time editor of the Watertown Public Opinion and recently retired after 39 years with that newspaper. Garnos, a lifelong resident of South Dakota except for his military service in the U.S. Air Force, was born and raised in Presho.