STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
October 9, 1972
Eldon Stoehr
Auditor General
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 72-53
Destruction of obsolete municipal bonding records
Dear Mr. Stoehr:
You have asked for an opinion as to whether a Certificate of Cremation can be retained by a municipality in lieu of actual bonding records following discharge of the indebtedness. Such certification, to be prepared by a bank handling the bond issue, would include detailed information concerning the documents cremated. This practice would eliminate cumbersome retention of obsolete records.
In 1959-60 AGR 319, the Attorney General held there is limited legal authority on the part of local government for the destruction of public records. In holding that no authority existed except as specifically set forth in statute, he stated:
... Please be advised that the only legal authority that I have found for the destruction of records is provided in SDC Supp. 12.0912, SDC Supp. 39.0412 and SDC 12.1905 and it is my opinion that such statutes must be strictly construed. See 1951-52 AGR 331, 1949-50 AGR 216, and 1935-36 AGR 405.
Attention is also directed to SDCL 22-39-321 which provides a penalty against any public officer, deputy or subordinate, for the destruction of records, maps, books, papers and documents which are not expressly covered by statute. Likewise, SDCL 22-39-33 provides for a penalty against any person other than an officer, deputy or subordinate, who tampers with public records.
The only other laws involving municipal records are those covered by SDCL 1-27-18 and 1-27-19. These laws relate to a Records Management Program originating with SDC 55.2012 which created records destruction board on state matters. Ch. 253, 1967, enlarged this law to include local records. It defined a "local record" as meaning "a record of a county, city, town, township, district, authority or any public corporation or political entity whether organized and existing under charter or under general law, unless the record is designated or treated as a state record under state law. Its Section four, now SDCL 1-27-18 entitled "Local records management programs," reads as follows:
The governing body of each county, city, town, township, district, authority or any public corporation or political entity, whether organized and existing under charter or under general law, shall promote the principles of efficient: records management for local records. Such governing body may, as far as practical, follow the program established for the management of state records. The secretary of finance may, upon the request of a governing body, provide advice and assistance in the establishment of a local records management program.
Section six of Chapter 253 (now SDCL 1-27-10) expressly provided that "all records made or received by, or under the authority of, or coming into 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." By analogy, neither can records of a municipality be disposed of except as specifically provided by law.
Chapter 254, 1967, now SDCL 1-27-19, expressly empowered the state record destruction board to meet at least once yearly to consider requests of all political subdivisions for the destruction of records and to authorize their destruction as in the case of state records. This section must be qualified by any specific enactment of the Legislature with regard to any given record and con not be held to supersede or repeal by implication any of the specific statutes. 1969-70 AGR 161.
The answer to your question is, a Certificate of Cremation from a bond-issuing bank cannot be substituted by a municipality in lieu of retaining obsolete bond records unless authorized by the records destruction board, pursuant to SDCL Ch. 1-27.
Respectfully submitted,
Gordon Mydland
Attorney General
