August 25, 1976

Mrs. Eileen Howe
Clerk of Courts
Pennington County Courthouse
Rapid City, South Dakota 57701

OFFICIAL OPINION NO. 76-82

Criminal records

Dear Mrs. Howe:

You have requested an opinion from this office in regard to the following facts:

FACTS:

A question has arisen in connection with criminal records in this circuit. I am referring to Section 1-27-2 of the South Dakota Code. There have been requests to this date to examine the criminal files by parties who would normally be prohibited from examining these files under the above section of the statutes. The position that such records are closed has caused some violent opposition from con­cerned parties.

Based on the above facts you ask:

QUESTION NO.1: Does SDCL 1-27-2 apply to the regular court files in that the files would not be open to the public unless there was a judgment in the file or the case was completed, and then opened to inspection upon the discretion of the clerk?

QUESTION NO.2: Does SDCL 1-27-2 also apply to records in misdemeanor cases kept by the Clerk's Office?

QUESTION NO.3: Does SDCL 1-27-2 apply to an appeal to a Supreme Court in a criminal matter in that the case is not com­pleted while under appeal?

SDCL 1-27-1 provides:

In every case where the keeping of a record, or the preservation of a document or other instrument is required of an officer or public servant under the laws of this state, such record, document, or other instrument shall be kept available and open to inspection by any person during the business hours of the office or place where the same is kept.

SDCL 1-27-2 provides:

Section 1-27-1 shall not apply to any office where such records and files relate to criminal actions or matters, except where such actions or matters are completed, and then only at the discretion of the of­ficer having such records and files in his office or under his control.

In regard to your first question, it is my opinion that SDCL 1-27-2 clearly does apply to court files involving criminal case matters. Indeed, in my judgment, the above cited statute would be severely subverted if the infor­mation found in court criminal case files was not deemed to be protected from untimely public scrutiny.

As to your second question, misdemeanor cases are obviously criminal cases and the records relating to such cases would also come under the purview of SDCL 1-27-2. No distinction is made in Chapter 1-27 which could lead to any other reasonable reading of this statute.

In response to your third question, I believe the interpretation of the term "completed" is of central significance. A case is not "completed" in my opinion when there are still appeals being taken from the lower court's deci­sions in that case. I can only conclude from the language of this statute that it does apply to cases on appeal to a Supreme Court. To argue to the con­trary here, in my judgment, is to ignore the obvious and reasonable mean­ing language of the statute. Further, I do not believe the legislative purpose expressed would be served by rendering a different interpretation of this statute.

I also would refer you to the last portion of the above cited statute which gives discretion to the officer having charge and control of the records in releasing files to the public after the actions are completed. This discretion is fixed in such offices and is properly exercised by them.

The answer to your questions therefore is YES.

Respectfully submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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