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I haven't known Attorney General Marty Jackley, who I first covered at the Watertown Public Opinion before leaving the state for a few years, to get worked up about media reports.  

(See Jackley's statement in the accompanying link.)

Jackley seems frustrated that media aren't doing more to point out the limits that the state attorney general has to both investigate the EB-5 immigrant investor program and release information. He has a legitimate point.

But South Dakotans also want to know why and how between $2 million and $3 million in taxpayer money was lost on the Northern Beef plant. They want to know why a man decided to apparently kill himself over it. And, looking back, they want to know whether pursuing the Aberdeen slaughterhouse, now shut down, was a wise decision.

Things don't just magically happen. Each of those decisions/events were driven by state government officials in a position of authority. And if South Dakotans never get answers to those questions, well, that's a problem, too. It's hard to evaluate elected officials if a voter can't decide who should be held responsible for important decisions/events.

So Friday afternoon, I emailed the attorney general's office and asked if Mr. Jackley would like stronger public disclosure laws or investigative powers in a situation like this.

The short answer is: Mr. Jackley writes that overall, he'd rather the Legislature or courts make such decisions on whether to disclose information.

When it comes to releasing autopsy reports like Richard Benda's — we blogged about states that make them public record and how that can help — Mr. Jackley wrote that his priority is protecting the families of those who have died.

I've posted Mr. Jackley's full response below, with my original question beneath that: 

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Joe,

First, please refer to me as Marty. As Attorney General I have made government transparency a priority when it does not go too far into sensitive private matters. I joined with the Governor forming our joint Gov/AG task force last year on open government, supporting the task force’s various recommended legislation during session. The Atty Gen dedicated an open meeting posting location on its web site. I have generally not objected to cameras and media in the court room including the higher profile trials I have done on John Graham, Robert Berget, and Eric Robert. If you read closely both responses to Mr. Mercer’s open record request, they were not outright denials-they were granted in part with conditions placed to protect an innocent family that is having to deal with when happened. The last response even emphasized that the exceptions to government transparency are very limited, but they do have to give way to individual privacy at some level.

The answer about more latitude to disclose information would really depend upon what the information is and is more for the legislature and the courts to decide. If it is part of the grand jury criminal process, Rule 6(e) is a federal rule universally followed by most states, based upon the presumption of innocence and the desire to protect a person that is investigated but then exonerated or no charges filed. There are SD Supreme Court decisions that address situations when prosecutors inappropriately use the GJ including the disclosure of Grand Jury material.

As for medical and autopsy, we currently have a limited disclosure of the cause and manner of death, with limited detail disclosed in a death certificate-which is what has occurred in the Benda case. Obviously autopsy photos and medical findings can be highly personal and sensitive. I also believe the family members should have some input which is why we made that a condition on the records request. We fashioned the disclosure utilizing the media pool arrangement, that has worked well in capital cases, and I remain open to exploring that type of arrangements to the extent neither the criminal process or privacy interests are sacrificed.

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[To the Attorney General's Office],

I was just reading the attorney general’s statement regarding his role in the EB-5 investigation and Bob Mercer’s story, and I had a question.

As the elected Attorney General of South Dakota, would Mr. Jackley like state law to grant him more latitude to disclose information, or more power to investigate matters like this?

We’ll be posting a records blog shortly about states that allow citizens access to autopsy records, and I’d like to know Mr. Jackley’s thoughts on the above question for another blog.

~ Joe

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Contact Joe O'Sullivan at 394-8414 or joe.osullivan@rapidcityjournal.com

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