When emails aren’t ‘writing,’ and other adventures in pursuit of pardon records

EDITOR’S NOTE: This commentary about public records is part of a special report on executive clemency. Additional stories explore pardons and commutations.

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As a journalist with more than two decades of experience, I thought I’d experienced every way a bureaucrat could make a public records request difficult.

That was until I asked for pardon records from the South Dakota Secretary of State’s Office.

It all began in December, after Gov. Kristi Noem announced seven sentence reductions – formally known as “commutations” – for South Dakota prison inmates.

It struck me that I’d never previously seen an announcement like that from Noem, even though she’d already been governor for four years. I wondered how many more commutations or pardons she might have issued that nobody knew about, simply because she hadn’t publicly announced them.

So, while writing a story on those seven announced commutations, I asked the Governor’s Office for records of all the commutations and pardons Noem has issued since she became governor in 2019.

Emails not ‘writing’

The Governor’s Office sent me the commutations (Noem has issued 12 of those), but not the pardons. An attorney for the governor informed me of a state law that says pardon records are kept by the Secretary of State’s Office. 

I sent an email on Dec. 28 to that office’s designated address for media requests. Having received no response by Jan. 9, I sent another email directly to Secretary of State Monae Johnson and Deputy Secretary of State Thomas Deadrick.

That’s when things got interesting.

“We are requiring that all requests for public records be in writing,” Deadrick replied on Jan. 10. “Emails will not be accepted. This is for tracking purposes on our end in order that we can best comply with the relevant statutes.”

With my frustration rising – these are your and my documents, after all, created by people paid with our tax dollars – I called Deadrick and unsuccessfully tried to harangue him into agreeing that an email is, in fact, writing. 

When it became clear that wasn’t going to work, I shifted strategies and asked how, precisely, I was supposed to comply with the “in writing” policy. Was I supposed to print out my email and mail it in? And if so, why wouldn’t the office just print the email I’d already sent? Or would I be required to hand-write a note and mail that in?

Deadrick told me a typed letter on official letterhead, sent through the mail, would suffice. I complied.

$430 fee quoted

Eighteen more days passed with no reply. South Dakota law says the keepers of public records must respond to requests within 10 days, or the request is considered denied, and the denial is appealable to the state Office of Hearing Examiners.

Not wanting to go through the time and trouble of an appeal, I emailed Deadrick again and asked him to please reply.

He finally did, on Jan. 30, and added another wrinkle.

He said the office had records of approximately 215 pardons and commutations issued by Noem, and he said the charge to copy and mail them to me would be $2 per page – $430 total.

“You also have the option of coming to the Secretary of State’s Office and reviewing the pardons and commutations, for which there would be no fee for reviewing,” Deadrick wrote.

I replied with a doomed email asking for reconsideration of the exorbitant fee, and when no immediate response came, I sent another email the next day informing Deadrick that I’d make the drive to Pierre from my home in Rapid City.

He responded with an email saying that since I was willing to make the drive, and since the office was busy with the legislative session and therefore wouldn’t have adequate staff to “monitor” me, he was “willing to make a one-time exception” to the fee. He attached digital copies of the pardon records to the email.

Suddenly, after more than a month of back-and-forth emails, phone calls and letters, I had the records in hand. I wondered why Deadrick hadn’t simply saved us both the trouble and sent me the digital records after my first email, but so be it. I thanked him and moved on with our senior reporter, John Hult, to dive into the records and report on their contents.

And I ruled out writing a sour-grapes commentary like this, until something else happened.

Emails not ‘writing,’ again

By the time we’d gone through all 200 of the pardons and 12 commutations, conducted additional research and interviews, and written stories, it was late March. We decided to check with the Secretary of State’s Office to see if any more pardons had been issued in the meantime.

John sent an email. The response came from the Secretary of State’s Office: “Please be advised to request records must be in writing, not by email. The cost is $2 per page for these six records, which would be $12.”

We protested yet again, to no avail. Needing the records to finish our stories and growing tired of fighting, we mailed a “written” request and paid the $12. Paper copies of the pardons – not the requested electronic copies – arrived on April 6.

And I decided to explain all of this to the public in order to illustrate a point: It’s great to have open records laws, but they’re only as good as the people entrusted to interpret and administer them.