Today, state Attorney General Marty Jackley ruled against my amended request that he declare as public records the reports and other materials he received in the investigation of the cause of death for Richard Benda Oct. 20.
The attorney general’s office distributed Jackley’s latest response but didn’t distribute my amended request, which I filed last week Friday (Dec. 6, 2013), and my supplement to that amended request, which I filed last Saturday (Dec. 7, 2013).
I filed my amended request and supplement after Cathy Benda, the ex-wife of Richard Benda, refused to sign a release that the attorney general wanted from a member of the immediate family, and after she subsequently informed the attorney general and me by e-mail that she wanted notice in case I obtained a signed release from another family member. She told us in that e-mail she would seek injunctive relief. I subsequently spoke to the attorney general by telephone last week Thursday (Dec. 5, 2013). He told me he wouldn’t contest an injunction sought against him by Cathy Benda. That meant he would consent to allowing her to block the release of the records. Cathy Benda’s stated interest in the records matter is that she wants to protect her 16-year-old daughter from news reports about the records.
Seeing the waiver now blocked, I filed an amended request, asking that the waiver requirement be dropped and that state law be followed. State law provides that items can be redacted (removed or blacked-out) from a public record in certain circumstances. Redaction was the centerpiece of my original request to the attorney general. He had offered instead a pool arrangement, where two reporters would be allowed limited access to view certain parts of the investigation reports, but they wouldn’t be allowed to take copies. He conditioned the pool arrangement on three requirements, one of which was the waiver.
Such investigation reports are generally classified as confidential by state law, but there is a specific provision in state law allowing for their release, with redaction as the method to keep certain types of information confidential. My plan was to make my pool report available to all news organizations who are members of the South Dakota Newspaper Association and the South Dakota Broadcasters Association, and also to post the pool report on an Internet site for any member of the public to read. As the second reporter, I had selected one from KELO television, Ben Dunsmoor, because I wanted a video aspect to the pool report and because KELO has the widest coverage north, south, east and west in South Dakota.
I will be filing an appeal, following the steps outlined in state law, to the state office of hearing examiners. This process was established by the previous attorney general, Larry Long, who is now a state circuit judge. Should either side choose to appeal the hearing examiner’s decision, the next step would be circuit court. Should either side choose to appeal the circuit judge’s decision, the final step would be the South Dakota Supreme Court.
For your fuller understanding, I have posted links below to the five documents:
1) My initial letter of request. Attorney General Letter Requesting Public Record 11-26-13 (Signature Copy)
2) The attorney general’s initial letter of response. Jackley Letter Allowing Benda Records Inspection
3) My letter making an amended request. Attorney General Letter Amending Request for Public Records 12-6-13
4) My supplement to the amended request. Attorney General Letter Supplementing Amended Request 12-7-13
5) The attorney general’s second letter of response, denying the amended request and supplement. BendaPublic-Record_RequestAGresponse1211