Benda investigative reports authorized to be released to the Auditor General
Attorney General Jackley announces that the Attorney General and the Auditor General today filed a joint motion with the Sixth Circuit Court. This joint motion requested a court order authorizing the Attorney General to lawfully release criminal investigative and state grand jury information in the custody of the Attorney General to the Department of Legislative Audit. “The Legislature and our courts have set limitations on a prosecutor’s ability to release criminal justice information, and I do believe that privacy protections provided by our laws are important and worthy considerations,” stated Attorney General Jackley. “Disclosure of the Benda criminal investigation matters to our State’s Auditor General for a lawful purpose is and should be occurring through proper procedures, not as some suggest by dangerously giving prosecutors unlimited authority to release criminal investigations that may involve innocent witnesses or suspects.”
The release of the documents and information is for the purpose of assisting the Auditor General in completing the Department of Legislative Audit’s financial and compliance audit of the Governor’s Office of Economic Development (GOED) for the period of FY2010 through FY2013. Under South Dakota law, the Department of Legislative Audit has authority to obtain access to financial records that are in the custody of state agencies in order to perform its auditing activities. The Auditors for the Department of Legislative Audit have determined that the Attorney General may have financial records and information pertinent to the GOED audit in the following areas:
• Reimbursements to former Department of Tourism and State Development Secretary Richard Benda regarding trips to China that were paid from state funds and from the Expense Fund maintained by South Dakota Regional Center, Inc. (SDRC), which under the agreement between GOED and SDRC are state funds.
• The flow of the $1,000,000 Future Fund Grant monies from the Office of Governor to Northern Beef Packers Limited Partnership (“Northern Beef”); the flow of $550,000 of those monies subsequently transferred by Northern Beef to SDRC; and how the $550,000 was used by SDRC.
• Other grants, loans or payments made to Northern Beef by the GOED or any other state agency, directly or through the South Dakota Development Corporation (a nonprofit corporation affiliated with GOED and staffed by GOED employees).
The Auditor General anticipated that some of the financial documentation and information contained in the investigation file and obtained by agents in the course of their investigation are not available from other state agencies or third parties, and that the release of such documentation would also eliminate duplication.
The Court has issued an Order allowing the Attorney General to release the Division of Criminal Investigation Reports reasonably necessary for completion of the Department of Legislative Audit’s financial and compliance audit of GOED, consistent with the Attorney General and Auditor General’s joint motion. The Court noted “This Order neither increases nor decreases any statutory requirements of confidentiality; all such provisions remain in effect. The Order simply allows these two agencies to share information in the exercise of their respective duties.” The Court further made clear that “except to the extent any information is necessary for inclusion in the Department of Legislative Audit’s public audit document, all documents and information obtained under this Order shall be held confidential and only accessed by the Auditor General and those members of his staff that are part of the GOED audit.”
–Attorney General Jackley