April 19, 1976
Mr. Robert Duxbury, Secretary
Department of Agriculture
Anderson Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 76-42
Microfilming of records under SDCL 1-27-4
Dear Mr. Duxbury:
You have requested an official opinion from this office based upon the following facts:
Records of public hearings held by the Dairy Marketing Commission, a Division of the South Dakota Department of Agriculture, for the period of 1967 through 1973, are at this time stored by Records Management. Records Management has requested permission to microfilm these records and destroy the originals. As the hearings have been held for the purpose of amending rules, and as Section II of the check list for passing rules indicated that the original copy of all documents be retained by the agency, it appears that there is some question about whether the requirements of SDCL 1-26 would be met if the original copies were microfilmed pursuant to SDCL 1-27.
Based on the above facts, you ask:
In the case of the public hearings under SDCL 1-26, do the microfilmed copies of the original records have the same legal standing as the original, and if so, may the original records be destroyed?
SDCL 1-26-7 provides:
Each agency shall keep the original records, documents and instruments required by this chapter. Agencies shall make copies of all records, documents and exhibits available to members of the Legislature upon request. The secretary of state shall keep a copy of the agency's current rules and the certificates pertaining thereto, which shall be open to public inspection.
SDCL 1-27-4 provides:
Whenever any officer of the State of South Dakota, any political subdivision, municipal corporation, or public corporation is required or authorized by law to record, copy, file, recopy, or replace any document, plat, paper, voucher, receipt, or book on file or of record in his office, he may do so by photostatic, micrographic, microfilm, or other mechanical process which produces a clear, accurate, and permanent copy or reproduction of the original in accordance with the standards not less than those approved for permanent records by the National Bureau of Standards or the American National Standards Association.
In my opinion, the requirement in SDCL 1-26-7 relating to the agency keeping the original records, documents, and instruments required by the chapter, would be satisfied if the agency followed the procedures of SDCL 1-27 relating to the mechanical reproducing and recording of public documents. Presuming that accurate copies are made pursuant to SDCL 1-27, and that the Records Destruction Board would approve of the physical destruction of the original records you refer to, I believe such destruction would be lawful and the department would be in compliance with the requirements of SDCL 1-26.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:DOC:dk
