May 23, 1994
Raymond R. Doering, Finance Officer
City of Parkston
P.O. Box 490
Parkston, SD 57366
OFFICIAL OPINION NO. 94-09
Water and sewer subscribers/public records
Dear Mr. Doering:
You have requested an opinion of the Office of the Attorney General regarding the following factual situation:
FACTS:
Various entities have approached the City of Parkston for the names and addresses of water and sewer users served by the city. For example, the local independent cable t.v. company, the Welcome Wagon organization, and local churches request this information. In some instances, the request is for new subscriber information to be provided on a monthly basis. In each circumstance, the entity requesting the information is seeking information via either a manual or computer-generated list. City ordinances do not address the issue of furnishing lists.
In light of the foregoing factual situation, you have asked the following questions:
QUESTIONS:
1. Is it legal for the city to furnish lists of its water and sewer users to anyone requesting them?
2. If the answer to question No. 1 is "yes," does the city have authority to charge a fee for such lists?
IN RE QUESTION NO. 1:
The pertinent South Dakota statutes governing public records are SDCL 1-27-1 and SDCL 9-18-2. SDCL 9-18-2 generally requires public municipal records to be open for public inspection:
Every municipal officer shall keep a record of the official acts and proceedings of his office, and such record shall be open to public inspection during business hours under reasonable restrictions.
It should be noted that SDCL 9-18-2 allows the municipality to make "reasonable restrictions" for the inspection of public records. Your letter indicates that the municipality of Parkston has not enacted any such restrictions.
The second statute involved, SDCL 1-27-1, reads:
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. Any subscription or license holder list maintained by the department of game, fish and parks may be made available to the public for a reasonable fee as set by the game, fish and parks commission. State agencies are exempt from payment of this fee for approved state use. Any automobile liability insurer licensed in the state, or its certified authorized agent, may have access to the name and address of any person licensed or permitted to drive a motor vehicle solely for the purpose of verifying insurance applicant and policyholder information. An insurer requesting any such name and address shall pay a reasonable fee to cover the costs of producing such name and address. The department of commerce and regulation shall set such fee by rules promulgated pursuant to chapter 1-26. Any list released or distributed under this section may not be resold or redistributed. Violation of this section by the resale or redistribution of any such list is a Class 2 misdemeanor.
Clearly, under SDCL 1-27-1, records required to be kept by state statute are required to be open for public inspection. Conversely, if a record is not required to be kept by statute, providing such information to the public is permissive.
South Dakota statutes pertaining to water and sewer rates do not dictate the format, retention period or billing frequency of sewer and water bills. See SDCL <185><185> 9-48-26 through 9-48-28 and SDCL 9-47-1. Therefore, strictly speaking, it may be argued that names and addresses of subscribers are not "required to be kept by law." Yet, it is a matter of logic that in order to operate a municipal sewer and water system, a municipality would need to keep some record or list of current subscribers; a municipality would not be able to fulfill its statutory grant of authority to maintain sewer and water facilities without maintaining such a list, so it can be inferred that such a list is at least indirectly required to be kept by statute. As such, it is my opinion that the sewer and water records fit within the definition contained in SDCL 1-27-1.
Thus presuming that at least some sewer and water records meet the definition of SDCL 1-27-1, another inquiry then must be made whether the public's interest in obtaining the information outweighs the privacy interests of individual water and utility subscribers. This office has, in the past, opined that such a privacy interest be considered. See AGR 80-27.
Although South Dakota's courts have not addressed the issue, the matter has been studied in other jurisdictions. See In re Request of Rosier, 717 P.2d 1353, 1357 (Wash. 1986); Annot., What Constitutes Personal Matters Exempt From Disclosure By Invasion of Privacy Exemption Under State Freedom of Information Act, 26 A.L.R.4th 666 (1983). The state and federal courts that have examined this issue have considered the particular facts involved and have balanced the seriousness of the invasion of the privacy interests against the public's interest in disclosure. Redding v. Brady, 606 P.2d 1193, 1196-97 (Utah 1980); Attorney General v. Assistant Commissioner of Real Property, 404 N.E.2d 1254 (Mass. 1980). In undertaking this balancing test, courts have generally held that disclosure of names and addresses alone does not involve a privacy interest. In re Request of Rosier, 717 P.2d at 1357. See also Annot., Publication of Address As Well As Name of Person as Invasion of Privacy, 84 A.L.R.3d 1159 (1978). In some instances, however, the fact that a person's name appears on a particular list does identify that person with a particular class of individuals. Identification of a member of a group unique from most of society then may "constitute an unreasonable invasion of privacy." In re Request of Rosier, 717 P.2d at 1357. Therefore, providing even names and addresses would not be appropriate in some cases, depending on the subject matter of the list. Such probably would not be the case here, however.
I note that providing the names and addresses of an entire group of electric subscribers of a public utility district has not been found to be unduly invasive. In re Request of Rosier, 717 P.2d at 1357. Also, lists of names and addresses of telephone subscribers obviously are routinely offered to the public by telephone companies when directories are distributed. Thus, the names and addresses of subscribers to sewer and water services for a municipality then should be open, like electric or telephone subscribers, for public inspection. I caution, however, that this opinion pertains only to the provision of names and addresses; it does not include provision of information regarding water and sewer service connection, disconnection, or payment history or other such information, which I conclude would be deemed private.
The criteria for public inspection of the names is generally set forth in SDCL ch. 1-27. The records must be available and open to inspection by any person during normal business hours. SDCL 1-27-1. Provision of copies or computer disks is not required unless the original records or documents are disposed of or destroyed and the public officer chooses to prepare copies of the record or document, rather than displaying the record or document "by projection" (presumably referring to microfilm or microfiche access). SDCL 1-27-7. Municipalities are, of course, free to furnish copies of public records to citizens upon request if the municipality so chooses.
Finally, you indicated that two of the entities requesting the lists have requested the names of new water and sewer users on an ongoing, monthly basis. The passive nature of the language found throughout the "inspection statutes" implies, however, that municipalities are not required to develop data, perform calculations, or otherwise specially create information in response to requests for information. If, however, the city routinely does keep a list of new subscribers on a monthly basis, that list should be available for public inspection under the rationale and terms discussed above.
In sum, the answer to your first question is "yes."
IN RE QUESTION NO. 2:
You also have inquired whether a city is entitled to charge a fee for such provision of sewer and water subscriber lists. As indicated above, this opinion should be read in conjunction with the opinion of my predecessor written in 1980. See AGR 80-27. There, this Office explained that departments of government have only such authority as is expressly granted them or necessarily implied therefrom. The rule is also true for municipalities. See Schryver v. Schirmer, 84 S.D. 352, 171 N.W.2d 634 (S.D. 1969). I am unaware of any specific statutory authority to engage in the sale of lists of utility subscribers and I do not believe it is necessarily implied that sale of such lists is required to carry out governmental functions. Thus, the express authorization from the Legislature required to sell such lists of information is missing.
The foregoing does not prohibit a municipality from charging a reasonable rate for reimbursement of copying expenses. See AGR 83-19. Such rates, of course, should correlate to the verifiable expenses of reproducing such lists. Expenses may include the reasonable salary cost associated with copying the document, particularly when voluminous copying is required. Also, consideration should be given to developing a city ordinance setting forth such standard expense rates.
MWB:DB:do
