Regents deny Bollen conflict-of-interest forms request

The South Dakota Board of Regents won't release documents about former EB-5 chief Joop Bollen's financial conflicts.

Employees of the state's university system have to fill out annual "Conflicts of Interest Disclosure" forms, listing any outside entities they have a substantial interest in that relate to their official duties.

On a case by case basis, employees also have to get supervisor signatures on formal requests to work for outside entities -- and then file a report summarizing the outside work done.

The Argus Leader filed an open records request with the Board of Regents for each of those forms from Bollen's time leading the South Dakota International Business Institute as a Regents employee.

In January 2008, Bollen signed a contract with an outside company to help him manage the state's EB-5 investment program -- but apparently didn't disclose that he himself had founded that company, SRDC Inc., five days earlier. Regents executive director Jack Warner has said Bollen neither sought nor received permission to enter into that contract, and that his supervisors weren't aware of Bollen's interest in SDRC Inc.

Bollen's "Conflicts of Interest Disclosure" and requests for consultation or outside employment could reveal what, if anything, Bollen did disclose about these possible conflicts.

But the Board of Regents rejected the Argus Leader's open records request, saying an exemption in South Dakota's open records law protects them from disclosing those documents.

Bollen's forms, Regents general counsel Jim Shekleton wrote in a letter, are "personnel information" and thus not subject to required public disclosure.

South Dakota law makes all government documents public records but includes a long list of exceptions. Among those documents not required to be disclosed are "personnel information other than salaries and routine directory information."

"The documents that you request are not public records," Shekleton wrote.

Shekleton didn't return a call Wednesday for more comment on the Regents' refusal.

Transparency advocates acknowledged that conflict-of-interest forms for mid-level employees such as Bollen can be a grey area. But they argued that the public interest is better served by disclosure.

"Often the farther away from decision-making power you go, the less rigorous the (public disclosure) requirements on you," said Emily Shaw, national policy manager for the nonprofit Sunlight Foundation. "If nobody is looking at these forms, you don't really have meaningful conflict-of-interest policies in place here -- and yet money is still going to these people."

David Bordewyk, general manager of the South Dakota Newspaper Association, agreed.

"The public's interest in this issue and what could be served in terms of trying to clear up some information here outweighs any need to keep that certain information confidential," Bordewyk said.

Public records have helped shed light on South Dakota's controversial EB-5 program since it entered the news last year, but many key documents have been kept private.

Bollen's contract with his own company only became public because of a private citizen's open records request. Details about a lawsuit against the Board of Regents' handling of the EB-5 program came to light because the Regents disclosed billing invoices from its private attorney. And outside of state government, the federal United States Citizenship and Immigration Services has provided other useful information about South Dakota's EB-5 program under the federal Freedom of Information Act -- a more generous open government law than South Dakota's.

But other documents remain private. Attorney General Marty Jackley refused to release his report on the death of former cabinet secretary Richard Benda without permission from Benda's family, which was denied. Jackley defended this in court when a newspaper reporter sued. Also exempt from disclosure are all emails, letters and other correspondence of government officials -- though many relevant emails, including Benda's were deleted years ago in accordance with a state policy.

Gov. Dennis Daugaard's office has refused to release the subpoena it received from federal investigators, despite the lack of a gag order, citing "deference" to the federal policy to "not talk about the details of their investigation." The Regents have refused multiple other records requests from private citizens and Democratic lawmakers. Even the federal government has denied or heavily redacted some records requests from the media.