November 12, 1985
Ms. Pamela K. Putnam
Fall River County State's Attorney
1037 North River Street
Hot Springs, South Dakota 57747
OFFICIAL OPINION NO. 85-49
Availability of information from computerized records of county officers
Dear Ms. Putnam:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
Fall River County is installing a computer system and will soon be able to provide computer printouts of the following county records:
(1) mailing lists,
(2) voter registration lists,
(3) real estate owners,
(4) delinquent tax lists,
(5) special assessment lists,
(6) centrally assessed property owner lists,
(7) vehicle owners lists,
(8) real estate sales lists,
(9) mobile home owners lists, and
(10) severed mineral interests lists.
The county anticipates that private business enterprises may wish to purchase one or more of the above-referenced lists for use for solicitation by mail.
Based upon the above facts you have asked the following questions:
QUESTIONS:
1. Which of the above-referenced lists could be sold by the county?
2. If the lists are available for sale, who may purchase them?
IN RE QUESTION NO. 1
Initially, I will address use of the terminology 'sale' of computer assimilated-lists. The general rule is that departments of government have the express authority granted to them and such implied powers as are necessary to carry out their expressly granted powers. I find that the counties have no specific authority to engage in the 'sale' of these lists in the context of a business function or revenue-raising device. I further find it difficult to imagine that there is any implied power to engage in this sort of activity since it is not necessary to carry out the express functions of county governments. Therefore, it is my opinion that the counties may not 'sell' any computer-generated lists if that terminology is used in the sense of the activity serving as a revenue-generating device for profit.
However, I feel your question does fairly raise a valid issue as to whether county officials maintaining computerized records may be required to furnish computer-assimilated lists under the laws concerning maintenance and access to public records. Given the recent wave of technological advancement, this issue goes largely unanswered within the common law rules concerning public records and recordkeeping. Therefore, it is necessary to refer to our own statutes and their common law interpretations to answer your questions.
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.
The general rule is that the right to inspect public records commonly carries with it the right to make copies. 66 Am.Jur.2d Records and Recording Laws § 13. Thus, a statute, such as ours above, providing that certain records shall be open to 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. This right of inspection is subject to reasonable rules and regulations promulgated to guard against destruction of records, and to avoid unreasonable disruption of the functioning of the office in which they are maintained. 66 Am.Jur.2d Records and Recording Laws § 13.
The question obviously raised is whether computerized records are public records subject to the same rights of inspection and reproduction as printed records. Courts that have ruled on this issue have held that they are. Long v. U.S. Internal Revenue Service, 596 F.2d 362 (9th Cir. 1979); Seigle v. Barry, 422 So.2d 63 (Fla.Dist.Ct.App. 1982); Minnesota Medical Ass'n v. State, 274 N.W.2d 84 (Minn. 1978); Mange v. City of Manchester, 113 N.H. 533, 311 A.2d 116 (N.H. 1973). Such a conclusion is consistent with our own statutes which define a public record as, 'any official book, paper, or record created, received, or used by or in any office or agency of the state or of any of its political subdivisions.' SDCL 22-1-2(38) (emphasis added). It is, therefore, my opinion that a computerized record maintained by a county official and not required to be kept secret under SDCL 1-27-3, the cross- references cited thereunder, or any other statute, is a public record subject to inspection and reproduction just as any previously printed county record.
However, in dealing with computerized records one question remains. That is, whether there is a right to obtain information from computerized records in a particular format. In addressing this question the Florida District Court of Appeals, in the case Seigle v. Barry, 422 So.2d 63 (Fla.Dist.Ct. App. 1982), stated that:
[A]n absolute rule permitting access to computerized records by a specially developed program could well result in a tremendous expenditure of time and effort for the mere sake of translating information readily and inexpensively available in one format into another format more suitable to the applicant's particular purposes. Simply requiring that the applicant ay the direct cost involved in the process does not recoup the wasted time or complete the other tasks that could have been accomplished but for the special project. It is not the intent of the law to put public officials in the business of compiling charts and preparing documentary evidence. The intent is rather to make available to the public information which is a matter of public record, in some meaningful form, not necessarily that which the applicant prefers.
The Florida court went on to adopt the rule that access to computerized records should be given through programs currently in use by the public official responsible for maintaining the public records. Seigle, 422 So.2d 63, at 65. My views are in accord with those of the Florida court and I find the above-referenced rule of access to be the only reasonable means of balancing the public's right of inspection of public records with the governmental interest in smooth, economic and efficient operation of government offices.
Therefore, it is my conclusion that the answer to your first question is two-fold. First, the county may not 'sell' the computer-generated lists you have referred to as a revenue-raising device for a profit. Second, the public does have a right of access to computerized records and copies thereof to the extent that they are available through programs currently employed by the public official maintaining the records. The county may charge a reasonable fee for its costs in producing the computer printouts analogous to the charges currently levied for copies of printed records. The only limitations on such access are those placed on access to any county records. These are that the record itself must not be one required to be kept secret under SDCL 1-27-3, the cross-references cited thereunder, or any other statute and the activity must not disrupt the normal business functions of the office involved.
IN RE QUESTION NO. 2
Given my above opinion on the 'sale' of computer-generated lists, I believe your second question is more properly rephrased as. 'Who has a right of access to computer records and printouts thereof?' Once again I refer to the first clause of SDCL 1-27-1:
If the keeping of a record, or the preservation of a document or other instrument is required of any officer or public servant 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. (Emphasis added.)
My own interpretation of this statute is that it grants the right of inspection to all persons, regardless of their personal interest. It is my further opinion that it makes no difference that the individual seeking inspection of the records is motivated in his request by a commercial purpose. The right to inspect and copy a public record is, in general, extended to those who are engaged in the business of searching public records and furnishing to customers the information which is to be gained therefrom. 66 Am.Jur.2d Records and Recording Laws § 17. Our own statute, cited above, places no limitations on the right of inspection. It is certainly within the province of the legislature to do so. Many jurisdictions do require the applicant to have some personal interest in the records he seeks to inspect. However, absent any legislative action it is my opinion that the current laws allows a right to inspect and copy public records, including computer printouts, to 'any person' and that the answer to Question No. 2 is that any person who requests access to computer records must be granted that right within the limitations on noninterference in the normal course of business and with statutory rights of secrecy that have been described above.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
