Judge rules against Mercer's request for Benda records

Reporter Bob Mercer's lawsuit to access the death investigation file of Richard Benda suffered another defeat today.

Judge Kathleen Trandahl ruled Attorney General Marty Jackley had the authority under South Dakota's open records law to refuse access to the Benda death file. Her ruling rejected both Mercer's argument that the death file should be public and also that Jackley exceeded his authority when he set conditions for the release of the information.

Jackley told Mercer he would allow reporters to review the death investigation file if Benda's family consented. Mercer appealed this ruling after failing to secure that permission.

"There is no evidence that the attorney general abused his discretion by making consent from a member of Benda's immediate family a precondition to disclosure," Trandahl wrote. "Recognizing that Benda's family may have personal and privacy reasons to keep the details of his suicide confidential is not unjustified or unreasonable."

She cited a similar national case, in which a judge refused media requests for death scene photos from the suicide of Vincent Foster, an aide to then-President Bill Clinton. In that case, the court found family members have an interest in being "shielded by the (law enforcement record) exemption to secure their own refuge from a sensation-seeking culture for their own peace of mind and tranquility."

Trandahl said South Dakota's open records statutes are "unambiguous" in exempting criminal justice information such as death investigations from mandatory public release.

But even though Jackley wasn't forced to release the documents, Trandahl wrote that the attorney general had the power to voluntarily release the file if he wanted to.

"The court find that the attorney general does have discretion to disclose information to the public from DCI's investigation file," Trandahl wrote.

Mercer represented himself in his lawsuit for the Benda file. Trandahl wrote that Mercer made a number of legal mistakes in his filing but wasn't entitled to "leniency from the court" just because he wasn't represented by an attorney.

"The court must and does ignore all statements and factual references by Mercer that are not supported by the administrative record," Trandahl wrote.

In an email last month, Mercer wrote that he chose not to hire an attorney "in large part because I want to eventually make a point about the cost for a citizen seeking a public document."

Mercer has the right to appeal Trandahl's decision.

He previously lost an appeal to a state administrative judge.