Another Open Meeting Violation?

The Minutes state:

Discussed that research was completed through the Secretary of State office and the Custer County Treasure’s office. This research showed that the Road District is not authorized to have fund raising methods outside of the Road District Levey’s placed upon landowners. Any fund raiding events cannot be endorsed by the Saddleback Road District. If an organization decides to raise funds for the Saddleback Road District, the Saddleback Road District cannot endorse such activities. Additionally, any tax implications must be researched, and any obligations must be adhered to by Federal, State, and Local government laws

An email was sent directly to Secretary Matt (Matthew) Christensen, concerning his statement that he researched the legality of the road district being involved with fundraising.

It stated:

I request:

Any emails, correspondence, notes, memoranda, or records relating to
communications between Saddleback Road District and the South Dakota
Secretary of State concerning fundraising authority, donations, levies,
fundraising restrictions, or road district powers.

His response (screenshot below) was:

I did not speak with an agent at the South Dakota Secratary of State office nor have any communications documentation. The research I conducted was online through there website.

A follow up email was sent to Mr. Christensen:

Perhaps you could briefly describe your process. Or provide a link to information you found there.

To which he responded:

I’ve answered both of your questions in my first email, the website i researched and the scope of the research.

As per SDCL.1-27-1.9 please address any public information request as per this law to the appropriate authority which is Mr. Dale Ruzicka.

SDCL 1-27-1.9 is not the “send requests to the custodian” statute. It is the “don’t have to provide that info” statute.

1-27-1.9. Documents or communications used for decisional process arising from person’s official duties not subject to compulsory disclosure.

No elected or appointed official or employee of the state or any political subdivision may be compelled to provide documents, records, or communications used for the purpose of the decisional or deliberative process relating to any decision arising from that person’s official duties. Any document that is otherwise already public is not made confidential by reason of having been used in deliberations.

The one he apparently meant to reference is actually SDCL 1-27-42.

1-27-42. Public record officer for the state, county, municipality, township, school district, special district, or other entity.

The public record officer for the state is the secretary, constitutional officer, elected official, or commissioner of the department, office, or other division to which a request is directed. The public record officer for a county is the county auditor or the custodian of the record for law enforcement records. The public record officer for a first or second class municipality is the finance officer or the clerk or the custodian of the record for law enforcement records. The public record officer for a third class municipality is the president of the board of trustees or the custodian of the record for law enforcement records. The public record officer for an organized township is the township clerk. The public record officer for a school district is the district superintendent or CEO. The public record officer for a special district is the chairperson of the board of directors. The public record officer for any other entity not otherwise designated is the person who acts in the capacity of the chief financial officer or individual as designated by the entity.

SDCL 1-27-1.9 is the exemption for certain deliberative / decisional process materials.

That statute is usually discussed when somebody is withholding things like:

• drafts,
• internal deliberations,
• advisory communications,
• predecisional materials.

But that is not what happened here.

We requested:

communications with the Secretary of State.

He responded:

I did not speak with an agent… nor have any communications documentation… research was online through their website.

That is effectively a no records exist response.

Then we asked:

describe your process / provide the link.

That is no longer really a public records request. We were asking for explanation / clarification.

And then he pivoted to:

address requests to Dale under SDCL 1-27-1.9

We do not see how 1-27-1.9 answers that.

What may have happened is he was trying to redirect us to the district “custodian” (Dale), but cited the wrong statute again – which we previously mentioned has happened before.

If they intended:

requests go to the custodian

that is a different concept entirely.

Also, his response creates an interesting issue:

Annual meeting minutes said:

“research was completed through the Secretary of State office…”

Most people would read that as:
interaction with the office

But now he says:

no contact, only website research.

Those are different.

“Through the Secretary of State office” sounds like consultation.

“Read the website” means public internet research.

Those are not identical.

We looked, and we do not see anything on either site that obviously supports the conclusion the minutes attribute to them.

The South Dakota Secretary of State website is largely:

• elections,
• filings,
• oaths,
• business services,
• campaign matters.

We do not see road district governance guidance, fundraising authority analysis, or SDCL 31-12A powers analysis there.

Likewise, the Custer County Treasurer page is mainly tax collection information. It does mention:

“Special assessments, such as Road District fees…”

but it does not appear to contain legal analysis on district fundraising authority or powers.

So if Matt says:

“the website I researched and the scope of the research”

and the annual minutes say:

“research was completed through the Secretary of State office and the Custer County Treasurer’s office”

then I think the unresolved question is simply:

What page?

Because right now:

Minutes → imply agency research supporting a conclusion.
Response → says website only.
Website search → no obvious authority found.

That does not prove it does not exist. But it does support asking.

Email sent to Matt Christensen-