FOR IMMEDIATE RELEASE :   Tuesday, September 2, 2014
CONTACT:  Sara Rabern (605) 773-3215   

 
Court Affirms Hearing Examiner’s Decision on Benda

 
 
PIERRE, S.D – Attorney General Marty J. Jackley announced that the Circuit Court has affirmed the Office of Hearing Examiner’s decision that South Dakota’s statutes and law specifically preclude the public disclosure of the death investigation record of Richard Benda.  

“The law of disclosure is set by our Legislature, and the laws clarity has been reaffirmed by the Hearing Examiner and now this Court decision.   Despite the law and good intentions, it remains a tragedy that a family is continuing to publicly endure the loss of a loved one,” said Attorney General Jackley. 

The Court determined that “The Attorney General was justified and warranted in balancing the release of the death investigation record with the privacy concerns.  The Attorney General could have outright denied disclosure, but in keeping with his implied discretion to balance interests, he properly considered the immediate family members and minor child affected by release of more information.”   The Court concluded that, “Recognizing that Benda’s family may have personal and privacy reasons to keep the details of his suicide confidential is not unjustified or unreasonable.”  

The Court went on to recognize:

The circumstances under which records and reports of law enforcement investigations into the death of an individual should be disclosed to the public remains an issue for the Legislature, not the courts.  If the legislature wants to expand our public record laws to allow the release to the public of all law enforcement death investigations that concluded the death was the result of a suicide or accident, that is their job to do in the next legislative session.  This Court concludes from a review of the undisputed facts and provisions of law that the records in the DCI death investigation file involving Richard Benda are clearly exempt from disclosure under the provisions of SDCL 1-27-1.5(5) and SDCL 23-5-11.  Hearing Examiner Brady did not err in finding that South Dakota statutes preclude the public disclosure of a death investigation record. 

The Court further noted that “[Appellant] failed to rebut the presumption of legitimacy by failing to show any evidence that may reasonably contradict the independent forensic pathologist report, or the federal and local law enforcement’s crime scene death investigation reconstruction or forensic testing.   A mere suspicion is not enough to outweigh the privacy interests, the presumption of innocence, protection of the criminal process, and protection of the decedent’s minor child.”   

To view the decision click on the link here.

-30-