January 27, 1976

Mr. Lyle Wendell
Secretary of Revenue
Capitol Lake Plaza
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 76-11

Release of information under SDCL 10-43-48 to committee of the Legislature

Dear Secretary Wendell:

You have requested an official opinion as to the necessity for a subpoena on the part of a legislative committee or subcommittee prior to the release of information relative to banks and financial institutions made confidential under SDCL 10-43-48.

That section provides as follows:

10-43-48. Returns and investigations confidential-Disclosure of information unlawful-Penalty.-All information received by the commissioner of revenue from returns filed under this chapter, or from any investigations conducted under the provisions of this chapter, shall be confidential, except for official purposes. It shall be unlawful for any officer or employee of the state to divulge any such information in any manner, except in accordance with a proper judicial order, or as otherwise provided by law. Any officer or employee of the department of revenue who divulges any such information in any manner, except in accordance with a proper judicial order or as otherwise provided by law, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars, or be imprisoned in the county jail for not less than one nor more than six months, or by both such fine and imprisonment, in the discre­tion of the court.

It is general law that a legislative body or a committee, when acting within the scope of its authority to conduct an investigation, may summon and ex­amine witnesses, require the production of and examine books, records and papers. Ex parte Bunkers, 1 Cal. App. 61, 81 P. 748 (1905); Ex parte Dalton, 44 Ohio St. 142, 5 N.E. 136 (1886).

In this connection also, the Legislature has the power to investigate any sub­ject regarding which it may desire information in connection with the proper discharge of its functions to enact, amend or repeal statutes or to perform any other act delegated to it by the Constitution. Attorney General v. Brissenden, 217 Mass. 172, 171 N.E. 82 (1930). Also, the power of a state legislative body to compel witnesses to testify in aid of investigations is an attribute of the power to legislate and follows as an essential implication. Attorney General v. Brissenden (supra). It has also been held that the right to compel a witness to produce books and papers before a committee is determined by whether their production is necessary to the inquiry which it is conducting. In re Barnes, 204 N.Y. 108, 9 N.E. 508 (1912).

While there is no doubt a legislative body may resort to its inherent sub­poena powers to compel the production of records, it is my opinion that SDCL 10-43-48, making the reports of financial institutions confidential ex­cept for official purposes, contains no requirement for this formality. It is sufficient that the matter under investigation is a subject within the province of the Legislature and specifically of the subcommittee making the inquiry.

Your action in releasing the requested information would not, in my opin­ion, be a violation of that statute.

This does not mean, however, that any member of the Legislature can divulge or use this information for general public dissemination outside the scope of his duties as a legislator in committee or on the floor.

Respectfully submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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