STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

January 11, 1974

Gene Paul Kean
State’s Attorney, Minnehaha County
Sioux Falls, South Dakota 57102 
OFFICIAL OPINION NO. 74-02

The clerk of courts of a county may microfilm all public records in his charge and may destroy the original with the permission of the State Records Destruction Board.

Dear Mr. Kean:

In your request for an opinion, you have set forth the following factual situation:

The clerk of courts in Minnehaha County plans to commence microfilming of records in January, 1974. In conformance with SDCL 1-27-4, all records so microfilmed will be destroyed. A prior section of the South Dakota Code, SDCL 1-27-5 required (a) that no records could be destroyed unless microfilmed and more than ten (10) years old, and (b) only upon order of the Circuit Court. SDCL 1-27-5 was repealed in 1970 leaving no provision directing how long records must be kept or whether an order to the Circuit Court is needed.

In connection with this factual situation, you have posed the following questions:

1. May the clerk of iourts destroy court records once they have been microfilmed according to SDCL 1-27-4?

2. Does the clerk of courts need an order of the Circuit Court of appropriate jurisdiction before he may destroy any records which have been properly microfilmed according to SDCL 1-27-4?

3. How long must the clerk of courts retain the original records before these records may be destroyed?

SDCL 1-27-4 reads as follows:

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, microphotographic, 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 permanet records by the National Bureau of Standards or the American National Standards Association.

This statute permits the microfilming of all public records a clerk of courts is required to keep. SDCL 1-27-10 reads as follows:

All records made or received by, or under the authority of, or coming into the custody, control, or possession of public officials of this state in the course of their public duties, are the property of the state and shall not be mutilated, destroyed, transferred, removed, or otherwise damaged or disposed of, in whole or in part, except as provided by law.

This indicates for all purposes that the clerk of courts may not destroy public records except as provided by law.

SDOL 1-27-11 created the State Record Destruction Board, which board possesses the exclusive authority to permit the destruction of public records and the exclusive authority to promulgate rules, regulations, standards and procedures relating to the disposal of records. SDCL 1-27-19 reads as follows:

The state record destruction board shall meet at least once each year and consider requests of all political subdivisions for the destruction of records and to authorize their destruction as in the case of state records.

It is obvious from a reading of this statute and those cited above that the Legislature has authorized the destruction of public records when the proper proecdure is followed.

Therefore, the answer to your first question is, YES, the clerk of courts may destroy court records once they have been microfilmed pursuant to SDCL 1-27-4, however, he must receive permission from the State Record Destruction Board.

The foregoing provides the sole statutory procedure for the destruction of public records. An order of the Circuit Court permitting the destruction of public records is no longer necessary since SDCL 1-27-5 which made such an order a requirement has been repealed by the 1970 State Legislature. Therefore, the answer to your second question is, NO. Concerning your third question on the length of time the Clerk of Courts must retain the original records after they have been microfilmed, I would inform you that the South Dakota Compiled Laws are silent. Further, there have been no rules promulgated by the State Record Destruction Board which would require the clerk of courts to retain the originals for any length of time after microfilming is completed. Therefore, in answer to your third question, the clerk of courts may destroy original records which have been microfilmed pursuant to SDCL 1-27-4 as soon as the State Record Destruction Board authorizes the destruction of the records, pursuant to SDCL 1-27-19.

Respectfully submitted,

Kermit A. Sande
Attorney General