STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
November 29, 1972
Rol Kebach
Chief Agent
Division of Criminal Investigation
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 72-63
Criminal files may not be processed by persons outside of the law enforcement community.
Dear Mr. Kebach:
You have asked for an official opinion from this office on the following factual situation:
The Division of Criminal Investigation and State Radio Communications are trying to develop and implement for the State of South Dakota an automated criminal justice information system. It is being advocated very strongly at the Federal level by the Federal Bureau of Investigation and the Law Enforcement Assistance Administration that any such information system be connected to a federal information system.
The state system would, by necessity, include the automated storage of criminal history files, identification data files, index files, and such other files as are necessary for the operation of the system.
The Advisory Policy Board of the National Crime Information Center (NCIC) has developed security and confidential requirements that must be met in order to have automated access into the Federal system. Excerpts from their policy that we feel are pertinent are as follows:
Criminal history records and other law enforcement operational files should not be centrally stored or controlled in "Data Bank" systems containing non-criminal justice related information. .. .
All computers ... interfaced directly with the NCIC computer for the Interstate Exchange of Criminal History Information must be under the management control of criminal justice agencies authorized as control terminal agencies. Similarly, satellite computers and manual terminals accessing NCIC through a control terminal agency computer must be under the management control of a criminal justice agency. Management control is defined as that applied by a criminal justice agency with the authority to employ and discharge personnel, as well as to set and enforce policy concerning computer operation. Management control includes, but is not limited to, the direct supervision of equipment, systems design, programming, and operating procedures necessary for the development and implementation of the computerized criminal history program. Management control must remain fully independent of non-criminal justice data systems and criminal justice data systems shall be primarily dedicated to the service of the Criminal Justice Community.
The Criminal Justice Agency computer site must have adequate security to protect against any unauthorized personnel gaining access to the computer equipment or to any of the stored data.
In connection with this factual situation, you have asked three questions:
1. Does SDCL 23-6-8 allow the conversion of criminal information files to an automated system to remain uniform with Federal and other state's systems?
2. Is it the intent of SDCL 23-5-7, 23-6-9 and 23-6-14, that if an automated system is permissible, that only the law enforcement community be permitted to work with such information?
3. Insofar as Central Data Processing sinot a law enforcement agency, to what extent can we utilize their services, suih as datt preparation (conversion of the manual records to a machine readable form), operations support (tape librarians, data control, stores clerk), equipment (either shared with other non-criminal justice users or dedicated) operators of the equipment, (housing either the shared or dedicated equipment), in support of the criminal justice information system and maintain the degree of security required by Federal policy and state statute.
The answer to your first question is, YES.
SDCL 23-6-8 provides that the Director of the Bureau of Criminal Statistics shall file and index all information received by the Bureau, and such records, as far as practicable, shall coincide in form and classification with records of the United States Department of Justice and with the records of similar bureaus in other states. The method of filing is not spelled out in the statute. It is therefore my opinion that automated record keeping is permissible by the statute, and in fact, is probably the preferable method, in order to make South Dakota's records compatible with those of the United States and other states.
23-5-7. All photographs, impressions. measurements, descriptions, or records taken Or made as provided for in ยง23-5-6 shall be filed and preserved in the department or institution where made or taken and shall not be published, transferred or circulated outside such department or institution, nor exhibited to the public or any person or persons except duly authorized peace officers unless the subject of such photograph, measurement, description or other record shall have become a fugitive from justice, or shall have escaped from a penal or reformatory institution. (Emphasis added)
SDCL 23-6-9 provides that the Director of Criminal Statistics may furnish records to certain specifically described law enforcement officers and judges, and SDCL 23-6-14 provides that no records shall be given out or made public except as provided by law.
It is therefore my opinion that only those persons specifically enumerated by statute may have access to this information.
The answer to your third question is somewhat more complicated. The laws previously cited make it clear that only certain persons shall have access to this information. However, it is clearly implied in the law that personnel must be hired to process, file, and index the records. SDCL 23-6-3 provides that the Director of the Bureau shall assign deputies, and clerical assistants from the Attorney General's office to perform this work. Such assignments would insure that all of the information would be processed by persons working within a law enforcement agency.
As the Central Data Processing Division is not a law enforcement agency, it is my opinion that under SDCL 23-6-3, the collection, compilation, conversion, storage, or processing of this information cannot be performed by it unless the persons performing the services were under the direct supervision of the Attorney General. As your question can be answered by reference to existing state law, I need not answer the question as it relates to the NCIC policy. Whether any prospective arrangement would meet NCIC's standards would be pure conjecture on our part.
There is a distinction between the actual handling of the information and the preparation of a system to handle the information. Nothing in existing state law would prevent the Data Processing Division from installing a computer and programming it, unless the programming would require access to material which is classified by the federal people. That question would have to be answered by the Federal Department of Justice, not by this office. But, once the system were ready to accept information, it would have to be operated by law enforcement personnel. This opinion is written to give answer only to the questions raised by you and is based only upon the factual situation herein described. It assumes the factual situation you have raised is correctly described, and the laws or regulations relied upon are constitutional.
Respectfully submitted,
Gordon Mydland
Attorney General
