Lawsuit claims S.D. National Guard illegally withheld public documents

South Dakota News

SIOUX FALLS, S.D. (KELO) — The South Dakota National Guard wrongly withheld requested public information from an investigative journalism organization, according to a lawsuit filed by the Center for Public Integrity.

The National Law Review said the Center for Public Integrity’s mission is to produce original investigative journalism about significant public issues to make institutional power more transparent and accountable.

The complaint said the Center for Public Integrity has a legal right to receive the withheld records. The organization does not have the legal right to the requested information, the South Dakota National Guard said in a copy of a letter included in the complaint.

The journalism organization filed the lawsuit in district court in the District of Columbia on Sept. 22.

The lawsuit stems from the Freedom of Information Act (FIOA) requested documents related to the July 2021 deployment of South Dakota National Guard troops to the Texas border with Mexico, according to the complaint.

The South Dakota National Guard has possession and control of the requested records, according to the complaint.

State officials said the cost of the deployment was to be paid for with a $1 million private donation from Willis and Reba Johnson or their foundation.

The Center for Public Integrity’s July 21 FIOA request covered documents in which the South Dakota National Guard and Governor Kristi Noem or her representatives would have discussed the decision to deploy the Guard, according to the complaint.

The request also covered documents in which the Guard, and Noem would have discussed the $1 million contribution and deployment, according to the complaint.

The request also included documents between the S.D. National guard, the U.S. Department of Defense regarding the legality of using the donation to fund the deployment, according to the complaint.

The South Dakota National Guard denied the FOIA request. In a copy of its Aug. 26 denial letter included in the complaint said the request did not meet FOIA law standards.

The letter outlined several reasons for the denied FOIA request.

The South Dakota National Guard is a dual mission agency with state and federal functions. Any involvement National Guard may have had with the entities named in the FOIA request, “would have been solely as a function of the State of South Dakota,” the letter said. Because of that, the South Dakota National Guard does not meet the definition of an agency under FOIA, the letter said.

Specifically, the release of other requested records regarding the deployment was denied because of emergency or disaster matters, and records on the legality of the gift and use for deployment were denied because of attorney-client privilege, the letter said.

The letter was written by Jason A. Campbell, a staff judge advocate for the South Dakota National Guard.

The lawsuit seeks the requested records and for the National Guard to pay the costs and lawyer fees for the Center for Public Integrity.

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