I was not sanguine about the prospects of the South Dakota Supreme Court reversing the Office of Hearing Examiners and the circuit court and granting reporter Bob Mercer’s request to review the records of the investigation of Richard Benda’s suspicious October 2013 death. But I was hoping our Supreme Court would at least say something interesting in rejection of Mercer’s lawsuit.
Alas, the thirteen-page ruling issued Wednesday tells us nothing new about public-records law or the former state economic development chief’s supposed suicide. The Supreme Court agrees with Attorney General Jackley and the decisions Mercer appeals that Department of Criminal Investigations was investigating Benda’s gunshot death “to determine whether the death was the result of criminal activity or foul play.” The Court noted that Mercer himself conceded that records of criminal investigations are exempt from public disclosure (see SDCL 1-27-1.5(5)).
The Supreme Court says that the Favish case (the effort to obtain and publish photos from the site of Vince Foster’s death) cited by Mercer is irrelevant to a South Dakota public-records dispute, since Favish applied to the federal Freedom of Information Act, the relevant language of which has no analogue in South Dakota’s public records statues (SDCL 1-27).
The Court concludes by saying that if Mercer and the rest of us journalists want access to documents like the Benda death investigation file, we’ll have to “seek a statutory change from the Legislature.” Either that, or Mercer will just have to get his Tom Cruise spider belt and grab the file himself.
On the heels of this victory for secrecy, Attorney General Marty Jackley released two letters he wrote to U.S. Attorney General Eric Holder (in October 2014 and February 2015) asking for an investigation of the Department of Justice over its handling of the EB-5 scandal, which broke publicly with Benda’s death. AG Jackley says he hopes new U.S. AG Loretta Lynch will “look into these matters and address any concerns that exist”… which sounds like code for “help the South Dakota establishment complete its whitewash of the ways Richard Benda, Joop Bollen, and Mike Rounds abused the EB-5 program for the benefit of political pals at the expense of foreign investors and South Dakota taxpayers.”