Here’s a curious technical bill on government openness: House Bill 1087 seeks to amend just one of the many exemptions to South Dakota’s already weak open records laws.
SDCL 1-27-1.5 offers 29 sprawling exceptions to the state’s general requirement that government documents be available to the public. HB 1087, sponsored by Representative Tim Reed (R-7/Brookings), would amend Exception #8 on that list. It adds “cyber security plans” to the list of public safety, security, and emergency response plans that state government keeps secret. That amendment thus increases the number of government documents that we the people cannot look at.
But HB 1087 may also narrow the scope of Exception #8. Right now, Exception #8 prefaces its list of types of documents to be kept confidential with, “Information pertaining to the protection of public or private property and any person on or within public or private property including:”. HB 1087 would strike out “including” and insert “specific to”.
The way I read it, “including” does not limit the items covered by a statute. An “including” clause may provide examples of what the law is talking about, but if I say my grocery list included milk and broccoli, that doesn’t mean I’m not also bringing home pizza rolls and Shasta. “Specific to” clearly limits the scope of Exception 8 to the documents listed. It’s still an extensive list—Governor Noem can still use this statute to justify not telling us how much she spends flying South Dakota Highway Patrol troopers around the country with her as her personal campaign bodyguards (Exception 8a refers to “Any vulnerability assessment or response plan intended to prevent or mitigate criminal acts;” 8E refers to “Guard schedules”). But changing “including” to “specific to” does prevent public officials from claiming that any documents not specifically listed in Exception 8 may also be kept secret under the umbrella of “information pertaining to the protection of public or private property and any person.”
Rep. Reed will have the opportunity to explain his intent toward open records when House Local Government takes up HB 1087. No hearing date has been set.