Sanford lawyer: Allow billionaire to review records in child porn investigation before release

BROOKINGS — Billionaire philanthropist T. Denny Sanford wants the South Dakota Supreme Court to let him review court documents expected to outline the reasons the state launched a child pornography investigation involving him, which ultimately drew no criminal charges.

At the heart of the dispute is public access to the court records generated as part of the state’s investigation.

The appearance by lawyer Stacy Hegge of Rapid City before the high court Thursday marks the second time Sanford’s legal team has argued before the justices for a measure of secrecy in the investigation. Sanford was not in attendance Thursday.

The justices ruled in October of 2021 that search warrant information ought to be open, siding with the nonprofit news outlet ProPublica and the Argus Leader newspaper. Circuit Court Judge James Power, who had sealed the records initially, had ruled in 2020 that the warrants themselves and inventory of collected information should be released.

The high court agreed, and that information was released.

Power’s 2020 ruling also noted that the five affidavits used to justify the search warrants ought to be released once the investigation is complete. Affidavits are sworn statements submitted to a judge by law enforcement, in this case written by an agent for the state Division of Criminal Investigation. The affidavits would offer an explanation as to why the investigation was launched.

After the South Dakota Attorney General’s Office announced the completion of the state-level investigation in May of last year, Power ruled that the affidavits would soon be opened to the public. Power relied on the high court’s reasoning in its earlier ruling against Sanford to make that 2022 decision.

Sanford appealed last summer, paving the way for Thursday’s oral arguments. The Supreme Court will issue a written ruling later.

Sanford’s arguments

This time around, Hegge has not argued to keep the affidavits closed. Instead, she argued that Sanford and his legal team, not a judge alone, ought to be able to review and redact personally identifying information. All people who are not charged and later face the release of affidavits deserve the right to do that, Hegge said.

“Under the circuit court’s ruling here, you have to sit back and watch others redact information that they think is necessary to protect your own interests,” Hegge told the justices during Thursday’s hearing at South Dakota State University, where justices are conducting their spring term of oral arguments.

This situation is different, Hegge contends, because Sanford’s attorneys were allowed to review the documents that have already been released, which revealed that the state had searched cell phone and email records from Sanford. With regard to the affidavit, presumably a more revelatory document, Hegge cited a South Dakota law that allows an “interested party” to review records for redaction. 

Under questioning from justices, Hegge conceded that the law does not explicitly create a right of review, but she said it is “implicit in the framework the Legislature has given us.”

Media’s arguments

Lawyers for ProPublica and the Argus Leader oppose Sanford’s request. Sioux Falls attorney Jon Arneson said the media organizations’ second set of oral arguments is an unnecessary extension of a legal battle the billionaire lost the first time around.

Sanford was not charged with a crime in South Dakota. The investigation by the South Dakota Attorney General’s Office, which intervened to argue alongside the media during Thursday’s hearing, is complete.

The notion that Sanford now deserves the right to request the scrubbing of additional information runs counter to the plain language of the law, Arneson said.

“It wasn’t close then. It’s less close now. These documents are public. Everything else is superfluous,” Arneson said. “We shouldn’t be here.”

Justice David Gilbertson, a retired chief justice sitting in for recused Justice Mark Salter, asked Arneson if that precluded the redaction of information.

“I would agree to the point of personally identifying information,” Arneson said, but he said the courts are capable of scrubbing non-public information and commonly do so. If the list of information protected from public view were to be expanded, he said, that would need to come from the South Dakota Legislature.

Assistant Attorney General Paul Swedlund, meanwhile, used his portion of oral arguments to point out that allowing Sanford to review the affidavit would result in an unnecessary delay in the release of public records.

The state believes, Swedlund said, that the Supreme Court’s ruling in the case ought to err on the side of public disclosure.