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Mercer Argues Public Interest in Benda Case Outweighs Open Records Law

I’ve reviewed the briefs filed in Mercer v. Jackley, the case before the Supreme Court in which reporter Bob Mercer is seeking access to the documents in Attorney General Marty Jackley’s investigation of Richard Benda’s suspicious death.

Bob Mercer, plaintiff, fighting for open records
Bob Mercer, plaintiff, fighting for open records

Mercer makes this central argument: the exceptions to South Dakota’s open records laws, which even Mercer acknowledges restrict release of criminal investigation records, can be trumped on a case-by-case basis by judicial review. Mercer does not argue for a complete overturn of open-record exceptions; instead, he argues that, if the court finds that public interest in a specific case outweighs the privacy interest protected by the open records exemption, the court can rule that the exemption does not apply and the state must release the requested documents.

Mercer bases this argument on—brace yourself—the Vince Foster case… or actually the National Archives v. Favish case, in which conspiracy theorist Allan Favish tried to use the Freedom of Information Act to obtain photos from the scene of Foster’s death. The Supreme Court unanimously rejected Favish’s claims but explained the standards that Favish failed to meet and that Mercer tries to satisfy:

Justice Kennedy held for a unanimous Court that a FOIA requester must establish much more than Favish did as part of the FOIA’s privacy balancing process in such a case — he “must produce evidence that would warrant a belief by a reasonable person that the alleged [g]overnment impropriety might have occurred.” Id. And this higher standard must be met, he repeatedly stressed, even “to put the balance into play.” Id. at 1582; see also id. (“Only when the FOIA requester has produced evidence sufficient to satisfy this standard will there exist a counterweight on the FOIA scale for the court to balance . . . .”). This is due in no small part, he explained, to the fact that “[a]llegations of government misconduct are ‘easy to allege and hard to disprove.'” Id. Here, Justice Kennedy concluded, Favish had not produced “any evidence” warranting disclosure under the proper FOIA standard, id. at 1581, so the Ninth Circuit’s disclosure ruling merited only reversal [Department of Justice, press release, 2004.05.13].

Mercer argues that the public interest in obtaining the Richard Benda death investigation documents is to ensure “ability of the public to assess the performance of the attorney general and law enforcement” [Mercer brief, 2014.11.04, p. 14]. In his December rebuttal to the Attorney General’s response, Mercer notes that the AG’s office failed question either Richard Benda or his partner in the EB-5 scandal, Joop Bollen, during its investigation. Mercer does not make this explicit accusation—and this is where Mercer the objective journalist gets in the way of Mercer the effective courtroom advocate—but he appears to be saying that the attorney general’s office has been negligent in its investigations of Benda and all things EB-5.

Assistant AG Jeff Hallem (who learned about illegal activities in the EB-5 program in early 2009, when Larry Long was still AG) responds that Mercer’s application of Favish is misguided. Favish hinges on the Freedom of Information Act, which, as I’ve had to explain to some blog friends, is a federal law. There is no FOIA in South Dakota. As I understand it, Congress wrote that public interest exception into FOIA for the courts to apply. State law includes no such “public interest exception.” Hallem contends that the court cannot write such an exception into law; such an exception would have to come from the Legislature.

The state’s desire to separate themselves from and burn Richard Benda properly arouses suspicion that South Dakota state government is more interested in selling a narrative than sharing the truth. Bob Mercer’s judicious review of the Benda death investigation files could actually bring Benda’s family and friends closure, as one way or another, Mercer’s review would largely end the sensationalist speculation that surrounds their loved one’s death. Attorney General Jackley could bring them even more peace of mind by laying bare the full extent of corruption in EB-5 and prosecuting all of those responsible, rather than laying all blame on one dead man who can tell no tales.

But those are moral arguments, not statutory arguments. Our conservative state Supreme Court seems unlikely to look past the letter of the law and help us learn what really happened to Richard Benda.


  1. larry kurtz 2015-03-26 07:02

    Larry Long and Kevin Schieffer will never allow the SD Supreme Court to reveal the nature of Bendagate: why Mercer is bothering with the state judiciary remains a mystery.

  2. rwb 2015-03-26 09:10

    Larry, I agree with you, but admire Mercer for giving it a go. We are witnessing first-hand the old addage about power corrupting, aren’t we?

  3. Nick Nemec 2015-03-26 09:18

    Is Mr. Mercer represented by council?

  4. larry kurtz 2015-03-26 09:27

    No, Nick: he is representing himself. Will look for article where i read that.

  5. Bill Dithmer 2015-03-26 10:32

    I was one of those people that voted not to refer either law in the pole here simply because they wouldnt change the dinamics of the state, either monitarilly or politically. Sure under age people would get paid more if that one passes, but it wouldnt change the way those decisions were made in the first place.

    if you really want to make a difference in South Dakota, refer the law you are talking about here. This would be the first step in the process towards open and transparent government. If you cant hide it, and you cant dance around the edges and claim exceptions things will change.

    The Blindman

  6. Bob Newland 2015-03-26 11:35

    Blindman, not to criticize your suggestion, but there are some semantics that might be in confusion. The laws that were passed by this session of the legislature can be “referred,” if the referral petition gets 13871 valid signatures within 90 days of March 31. The laws go into effect on July 1 unless the signatures are submitted before then. If the signature drive(s) is/are successful, those laws will not be implemented until the referral loses at the 2016 general election, or will not be implemented at all if the referral is successful at the election.

    To act on your suggestion, an initiative must be implemented. The signature requirement is the same, but the drop-dead date is Nov. 8, 2015. Enough signatures gathered, the inititiative faces a vote on Nov. 8, 2016.

    The wording of an initiative forcing government transparency is an interesting topic to consider.

  7. Bob Newland 2015-03-26 11:39

    There’s another interesting dimension to this thread. Mercer spent a couple of years as Janklow’s press secretary. I am sure that Janklow hired him because he was about the only journalist in South Dakota who was asking “interesting” questions of politicians, and paying him twice what he was making as a reporter was a good way to silence the embarrassing questions.

  8. mike from iowa 2015-03-26 11:40

    Seems patently obvious that Jackley et al dropped the ball big time in this investigation and the officials hired to referee(the lege) has done its best to run interference so there will be no damage to their party. Without access to records,any accusation is tough to prove. Having said that,I don’t believe for a minute that video evidence of someone tagging Benda and videotaped confessions would be enough evidence to convince Jackley a crime has been committed. That is my humble opinion.

    Blindman makes a good point about a state FOIA.

  9. Jana 2015-03-26 11:49

    Irony? Hypocrisy? Hubris? Pandering? Funny?

    Hot off the presses is this release from EB-5 central character and newly elected Senator Mike Rounds.

    *Rounds Offers Amendment to Protect Taxpayers from Waste, Fraud and Abuse*

    “We owe it to South Dakota taxpayers to make certain their hard-earned dollars are spent wisely…” “I’ve already been working with IGs in my committee work and know firsthand how valuable their reports can be in finding waste, fraud and abuse among agencies.”

    It’s up over at Pat’s GOP press release central if you can bear the painfully slow loading site.

    Not sure whether to laugh or cry.

  10. caheidelberger Post author | 2015-03-26 13:02

    (My gosh, Jana—Rounds actually said that? And Pat offers no commentary, right? Is the irony not too much?)

  11. caheidelberger Post author | 2015-03-26 13:06

    Yes, Mercer has been arguing pro se throughout, and he has caught heck in the brief’s for it. The AG has been claiming that Mercer has sought special treatment for not having an attorney. Contrary to good lawyer practice, Mercer may have introduced some new facts and arguments into the record in his briefs to circuit court and the Supreme Court, which one cannot do, at least not without some really good lawyer tricks. To carry this appeal all the way to Pierre without a lawyer requires a huge effort from Mercer. We should respect him for making this effort on our behalf.

    Or maybe he’s just angling for that Pulitzer. ;-)

  12. mike from iowa 2015-03-26 13:47

    That Pulitzer? I’ll take the 1985 Playboy edition Roxanne Pulitzer for $200,Alex.

  13. Roger Elgersma 2015-03-26 17:08

    Typically the innocent till proven guilty rule means that if someone is being investigated on things they may or may not have done, that their opportunities would be limited by slander and libel from what if they did it. In the case of a dead man, he has no opportunities that would be damaged if the whole investigation gets out. So no harm done to the primary suspect. Let the records come out. Way to much covered up in this state already.

  14. MOSES 2015-03-26 19:50

    Pat no way Powers will bring this up, he would have no credibility.

  15. Donald Pay 2015-03-26 22:31

    I think SD’s new open records law was based on Nebraska’s open records law. And I think Nebraska’s law was based, at least partly, on the federal Freedom of Information Act. Thus, it may not be so far fetched to cite a federal case regarding release of information.

    I filed many open records requests, some formal, others informal under the old law in my time in SD. Mostly I got what I wanted, but I never went for the type of information Mercer is after. I found other ways to get much of the information that was formally denied.

    There was little precedent under these laws because the SD press didn’t push too hard, and because, generally, you could get most of the information one way or another. With the new law, there is no court precedent, I believe, so Mercer has to go outside the state to argue the case. Going to the fed case law appears to be reasonable.

  16. caheidelberger Post author | 2015-03-27 01:10

    Speaking of not pushing hard, why isn’t the rest of South Dakota media helping Mercer push this case? The other newspapers have money. They could bring a lawyer in to help. It’s a lot of lifting for one reporter… but alas, Mercer is used to that at the Capitol.

  17. Paladn 2015-03-27 14:28

    Hats off to Mr. Mercer. It appears that the “press” in SD will not do so — that is if we have any investigative print media remaining.

  18. Roger Cornelius 2015-03-27 18:20

    When the South Dakota Supremes rule against Mercer, I’m not holding my breath they will do the right thing for South Dakota, will Mercer have any basis to get his case into federal court?

  19. Donald Pay 2015-03-27 22:27

    Roger brings up an interesting point. I used the federal EPA to hammer SD DENR, and we got a number of DENR practices and a state law restricting release of certain information set aside for state environmental programs. Another thing we did was get information shared with other states or the federal government released through their processes, or just from helpful bureaucrats. That’s how we got a lot of information on Janklow’s plans for a nuclear waste dump, grudz. Right off hand, I’d bet Mercer has already hit up the feds on EB-5 to see whether they have any of the state’s stuff.

  20. leslie 2015-04-03 15:39

    mercer needs a more directed approach, chasing after a suicide record isn’t gonna get the people the info the SDGOP obfuscated during the election. not using a lawyer is foolish, thou affordable.

  21. leslie 2015-04-03 15:41

    the only people in the know might be Kathy taylor, or atty duffy, if he and his client would talk to mercer, let him buy them dinner, duffy might hint where mercer et al should be looking.

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