December 11, 1985

The Honorable Alice Kundert 
Secretary of State 
State Capitol 
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 85-53

Availability of precinct registration lists to persons other than the chairman or central committee of organized political parties

Dear Ms. Kundert:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS:

SDCL 12-4-10.1 states: 

Whenever so requested, the county auditor shall furnish to the clerk of the United States district court for the district of South Dakota, at no cost to the county, the current precinct registration lists or certified copies thereof referred to in §  12-4-10 for all election precincts in the county whenever such lists are required by said clerk of the United States district court in furtherance of a plan for random jury selection in the federal courts pursuant to 28 U.S.C. 1863 and other applicable federal statutes. Within thirty days after receipt of such precinct registration lists, the clerk of the United States district court shall return the same to the county auditor.

SDCL 12-4-24.1 states: 

Upon request the county auditor shall provide at their actual cost no more than five copies of precinct registration lists to the chairman or central committee of each organized political party, and a copy to each candidate requesting them, by the first Tuesday of the month preceding an election.

Based upon the above facts you have asked the following questions:

QUESTIONS: 

1.  Is the auditor required to furnish precinct registration lists to any other person or organization requesting such lists? 

2.  If the answer to the first question is 'yes,' is the auditor required to furnish all information available on a voter such as birthdate, phone number, etc., or is it limited to the information which is sent to precinct election boards on election day listing name, address, and party affiliation?

IN RE QUESTION NO. 1:

SDCL 1-27-1 provides: 

If the keeping of a record, or the preservation of a document or other instrument is required of an officer or public servant under any statute of this state, the officer or public servant shall keep the record, document, or other instrument available and open to inspection by any person during normal business hours.  Any employment examination or performance appraisal record maintained by the bureau of personnel is excluded from this requirement. (Emphasis added.)

The clear meaning of this statute is that 'any person' requesting to inspect a record, document or other instrument which the law requires an officer or  public servant to keep or preserve must be afforded an opportunity, during the normal business hours of the office involved, to conduct such an inspection. The only records kept by an officer or public servant under statutory mandate that would not be subject to such public inspection would be employment examination or performance appraisal records maintained by the bureau of personnel and any other records specifically enjoined by statute to be held confidential or secret.  SDCL 1-27-1, 1-27-3.  Records specifically enjoined to be kept secret are, for the most part, enumerated in the cross- references cited under SDCL 1-27-3.  This right of inspection is 'subject to reasonable rules and regulations as to when, where and how inspection may be made, in order to guard against loss or destruction of records, and to avoid unreasonable destruction of the functioning of the office in which they are maintained.'  66 Am.Jur.2d Records and Recording Laws §  14.

As a general rule, the right to inspect public records commonly carries with it the right to make copies of those records.  66 Am.Jur.2d Records and Recording Laws §  13.  Thus, a statute such as the one cited above, which provides that certain records shall be open to the inspection of any person during business hours, is construed as granting a reasonable right to copy the records as well as to examine them.  66 Am.Jur.2d Records and Recording Laws §  13.

Based upon the above rules of access to public records and because a precinct  registration list is an instrument required to be maintained by a public servant (the auditor, pursuant to SDCL 12-4-10), and because I find no statute in the South Dakota Code specifically enjoining a precinct registration list to be held confidential or secret, it is my opinion that a copy of such a list must be provided to any person who requests one.  Therefore, the answer to your first question is yes.

IN RE QUESTION NO. 2:

Based upon my foregoing observations, I must reiterate my conclusion that any record, document or other instrument required by law to be kept or preserved by an officer or public servant and not specifically enjoined to be held confidential or secret, is open to inspection and reproduction.  If the record, document or instrument includes such information as a voter's birthdate, phone number, etc., then it is my opinion that such information is necessarily included as a part of the record, document or instrument, and is also open to inspection and copying.  Therefore, it is my opinion that if such information is requested as a part of the precinct registration list it would also have to be furnished to the person making the request.

Respectfully submitted,

Mark V. Meierhenry
Attorney General