Jackley: Marsy's Law should not restrict flow of information

Law enforcement and other government agencies are free to release details about crimes and traffic crashes under an opinion issued Monday evening by Attorney General Marty Jackley.

Details such as the identification of crime victims, the addresses of crimes and crash reports can be released, even though voters approved Marsy's Law last month, Jackley ruled.

Marsy's Law is a set of crime victim rights. When it went into effect, some agencies — including the South Dakota Department of Public Safety and the Sioux Falls Police Department — stopped issuing crash reports and restricted the amount of information released about crimes. Other agencies did not change their policies.

Jackley's decision should essentially restore the processes in place before Marsy's Law was approved.

An opinion issued by the attorney general has the power of law unless overruled in court, Jackley noted in the decision. That means public officials who release information are protected from litigation.

In essence, a victim must opt-in or invoke her or his Marsy's Law rights "to prevent disclosure of information or records," Jackley's opinion states. When that happens, the government is prohibited from releasing certain information.

The opinion defends the decision to generally allow information to be released on several grounds, including that:

• An automatic prohibition harms victims by preventing release of information to necessary entities that may be assisting victims, such as insurance providers.

• Law enforcement and other first responders must be able to communicate freely, without fear of liability, to effectively protect the public.

Some officers had questioned whether Marsy's Law restricted their ability to communicate via police radio, which can be heard by the public on scanners.

During a Monday afternoon conference call among task force members and several public officials, Jackley asked for opinions on his draft released earlier in the day.

"This is your time to convince your attorney general to not make a mistake," Jackley said.

Hours later, he signed a slightly altered opinion, making it official.

He acknowledged that there's a level of ambiguity in Marsy's Law.

"When it's ambiguous, you have to look to other areas of the law," Jackley said.

Three subcommittees were formed based on the concerns of those on the call. One will look at what Marsy's Law means for jails, another will address how it affects civil practice and the other will explore whether any legislative changes are needed.

Brown County State’s Attorney-elect Chris White said he does not agree with the opinion, but that he appreciates that law enforcers have immunity.

The biggest problem that White has is that the law was written in a "sloppy fashion," he said during the call.

White said the problem is applying Marsy's Law to routine crimes. He wants there to be a time frame established in which victims have to invoke their Marsy's Law rights. That's an opinion shared by Matt Konenkamp, an advisor on Gov. Dennis Daugaard’s staff.

In some instances, there's little time between a crime being committed and a bond hearing. If officials haven't heard from victims about exercising their rights, it could cause delays and keep somebody in jail longer than necessary, White said.

"You might have two sets of rights that have to coexist," Jackley said.

"There will be times when a defendant's rights conflict with a victim's rights," he said.

That issue is not addressed in his opinion, but Jackley said it likely will be later.

"From a practical standpoint ... if we don't act this way, it will be very difficult for law enforcement to literally do our jobs and protect the public. It will be very difficult for victims to go through the insurance process," Jackley said. "We feel it is supported by the law, but recognize there are additional legal arguments and issues that may ultimately be something the court needs to hear or the Legislature. "

Ron Wager, Aberdeen city attorney, said a moratorium on some information put in place Nov. 29 was removed late last week.

Dave McNeil, chief of the Aberdeen Police Department, had not seen a version of Jackley's opinion late Monday afternoon.

"I'm glad they formulated the task force and are giving us direction on how to follow the law and give as much as we can to the public," McNeil said.

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