A case cloaked in secrecy is pitting open records against privacy.  

Former Attorney General Marty Jackley represents a person identified as “an implicated individual” who wants a search warrant to remain sealed. 

On the other side are lawyers representing ProPublica and the Argus Leader. They say the search warrant is a public document. 

Both sides agreed to keep the file sealed as the appeal goes forward. But oral arguments were open to the public and live-streamed online Tuesday at the Capitol in Pierre. Chief Justice Steven Jensen cautioned the lawyers to refrain from naming or otherwise identifying the “implicated individual.” 

This case appeals a decision by Second Circuit Judge James A. Power, who initially ruled that the search warrant at issue should be sealed. But then he changed his mind. 

Marty Jackley argues that the judge had it right the first time. 

“You have before you an uncharged individual that’s never been arrested; there’s never been a complaint filed, an information, or an indictment.” 

Jackley says the state authorities who applied for the search warrant referred to the individual as a defendant in a criminal case, which is not accurate. He notes that the investigation at the heart of the warrant has never been officially terminated. 

“As this court is well aware, in trial courts across the state, search warrant orders to seal are routinely granted. It happened in this case.” 

Jackley says state law gives judges the authority to manage their own records. 

Jeff Beck, arguing for ProPublica, says the court can keep certain information out of public view, such as Social Security numbers and the names of minors and rape victims, but doing so doesn’t require sealing an entire record. 

And he says in this case, the request to seal doesn’t come from a government entity but from a private individual. 

“This is a citizen, saying, ‘I want my name removed from it because it’s embarrassing.’” 

Beck says granting that request would open floodgates. 

 “Every criminal defendant gonna wanna seal all these records for anything that they think is embarrassing.” 

The attorney for the Argus Leader is Jon Arneson. He tells justices that state law is specific when it comes to open records. 

“So the point is, the statute sits there, raw, open, clear, plain, and it says ‘These are the things that are going to be open to public inspection.’” 

Arneson says the case isn’t about redaction. It’s about the people’s right to know what the government is doing, and state law clearly supports that right. 

The Supreme Court will deliberate and issue an opinion at a later date.