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.
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.