December 22, 1981

Mr. Larry F. Hosmer 
Yankton County State's Attorney 
Post Office Box 203 
Yankton, South Dakota 57078

Official Opinion No. 81-51

Mental Illness Commitment Hearings

Dear Mr. Hosmer:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

The Board of Mental Illness for Yankton County has previously ruled that mental illness hearings are not open to the public, and that interested persons other than board members, the individual subject to possible commitment and his attorney, the State's Attorney, a court reporter and the registrar, may not attend the commitment hearing except by consent of the individual.

Based on the above facts, you have asked the following question:

QUESTION: 

Are mental illness hearings open to the public?

To answer this question, it is first necessary to review the open meeting laws of the State of South Dakota.  SDCL 1-25-1 provides: 

Except as otherwise provided by law, the official meetings of the state and political subdivisions thereof, including all related boards, commissions and other agencies, and the official meetings of boards, commissions and agencies created by statute or which are nontaxpaying and derive a source of revenue directly from public funds, shall be open to the public, except as provided in this chapter.  A violation of this section is a Class 2 misdemeanor.

However, SDCL 1-25-2 also provides in pertinent part: 

Nothing in § 1-25-1 or this section shall be construed to prevent an executive or closed meeting, when the federal or state Constitution or the federal or state statutes require or permit it . . .

Since the Yankton County Board of Mental Illness is created by SDCL 27A-7-1, it is clear that the meetings of such Board fall within the scope of SDCL 1-25-1.  Therefore, pursuant to this statute and SDCL 1-25-2, the Yankton County Board of Mental Illness commitment hearings must be opened to the public unless other provisions of law require or permit closed sessions.  This interpretation is buttressed by SDCL 27A-7-6, which provides that a court reporter shall attend all hearings and commitment proceedings of the county board of mental illness and keep a stenographic record thereof; 27A-7-7, which requires the Board to file all papers connected with any inquest of the Board with the clerk of courts; and 27A-9-30 which requires that all documents, testimony, and other record of hearings under 27A-9 shall be filed with the clerk of courts.  You may also wish to review 27A-9-5 and 27A-9-31, regarding the filing of the petition for commitment, and findings of the Board.

Thus, it is clear from a reading of applicable statutes that the original commitment proceedings against an individual are a matter of public record, and are subject to the open meeting law.  However, it should be remembered that once the commitment proceedings are completed, and final action is taken by the  Board pursuant to statute, significant rights of privacy attach to any individual committed by the Board.  SDCL 27A-12-1 and 27A-12-6 protect the records of any patient of a mental health facility from disclosure. Thus, once the individual is committed, public record and open meeting laws no longer control.  In accordance with the opinion of my predecessor at Official Opinion 75-172, I would interpret the 90-day and 1-year reviews of a patient's mental health status, as post-commitment hearings for the purpose of evaluating the patient's progress, as subject to the mandates of 27A-12-26.  This interpretation is based upon the fact that at such review hearings, the primary evidence which would be admitted would be information acquired in the course of providing mental health services to the patient.

Respectfully submitted,

Mark V. Meierhenry
Attorney General