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Attorney General Mark Vargo

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SD SC Rules the Attorney General Has Followed SD’s Disclosure Law on the Benda Death Investigation


FOR IMMEDIATE RELEASE:   Thursday, May 14, 2015
CONTACT:  Sara Rabern  (605) 773-3215 

South Dakota Supreme Court Unanimously Rules the Attorney General Has
Followed South Dakota’s Disclosure Law on the Benda Death Investigation

PIERRE, S.D.  – Attorney General Marty Jackley announces that the South Dakota Supreme Court unanimously ruled that the Attorney General has followed South Dakota’s disclosure law relating to the Richard Benda death investigation conducted by local, state, and federal authorities. 

“The South Dakota Supreme Court, the Trial Judge, and the Chief Hearing Examiner, have all ruled the Attorney General has followed South Dakota’s disclosure law relating to the death investigation of Richard Benda.  I am pleased that the Court has applied the rule of law, and recognized the balancing of open transparency with the privacy interests of the family members faced with a tragic situation.  Although the Attorney General is allowed to receive court costs as the prevailing party, I have determined to not seek costs from the plaintiff in the interest of avoiding any potential effect it may have on open government transparency under these unique circumstances,” said Jackley. 

The Supreme Court recognized that “When the Legislature enacted the South Dakota Public Records Act in 2009, it broadened the presumption of openness in regard to public records”. The Court went on to opine that confidential criminal justice information is specifically made confidential by state law, and concluded that “the evidence establishes that the Attorney General took into account the public’s interest in Benda’s death and weighed that against the personal privacy interests of the Benda family.”

“After today’s decision, the final remaining action is for me to publically address my disappointment in how the federal government has handled this matter.   I have expressed my concerns to the Department of Justice regarding its conduct and the appearance of political motivation associated with the handling, timing and publicity regarding the investigation from Washington.  The actions of the Department of Justice’s Public Integrity Section were unfair to local federal investigators who worked in cooperation with state and local authorities to properly investigate this matter.  I will certainly work with the new administration at the Department of Justice to assist them in properly addressing these concerns,” said Jackley. 

On October 3, 2014, Attorney General Jackley advised US Attorney General Holder regarding his concerns associated with the Department of Justice’s handling of the investigation into the EB-5 Visa Program in South Dakota.  The Attorney General specifically requested a review into the investigation that was conducted by the Public Integrity Section of the Department of Justice and a determination of whether politics had inappropriately driven decisions associated with this matter.   The Attorney General clearly stated that his “concerns neither pertained to nor are they directed toward any actions of the local federal authorities.”  Attorney General Jackley provided General Holder with specific information pertaining to his concerns, including:   the Department of Justice’s aggressive tactics including but not limited to openly serving subpoenas on cooperative witnesses at their place of employment;  failing to attend previously arranged joint meetings with the South Dakota US Attorney’s Office, DCI Agents and the Governor’s Office of Economic Development private attorneys; and potential direct violations of the Rules of Professional Conduct governing attorneys practicing in South Dakota.  

On February 3, 2015, having received no response, Attorney General Jackley renewed his request that these significant matters be reviewed and addressed in a timely fashion.   To date, no response has been forthcoming.   To view the correspondence from Attorney General Jackley to US Attorney General Holder please click on the link.