STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
May 12, 1969
Edward Hoagland, Supervisor
Records Management Division
Department of Finance
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 69-45
Authority of State Records Destruction Board, Chapter 253, Session Laws 1967
Dear Mr. Hoagland:
You have requested my official opinion as to the authority of the State Records Destruction Board to authorize destruction of certain records pursuant to Chapter 253 and 254, Laws of 1967, being, SDCL 1967 1-27-9 to 1-27-19 inclusive. Specifically with regard to these statutes, you have inquired:
"1. Does the State Records Destruction Board have the authority to approve the destruction of state records which are not covered by existing statutes and can the Board change destruction schedules of state records provided by prior statutes?
"2. Does the State Records Destruction Board have the authority to approve the destruction of political subdivision records which are not covered by prior statutes and can the Board change the destruction schedules of political subdivisions established by prior statutes?"
No public record may be destroyed, mutilated, defaced, altered and so forth by any person and the records must be retained until, by law, their disposition is provided for. SDC 13.1248 being, SDCL 1967 22-39-32, makes it a felony for any person to wilfully destroy, mutilate and so forth any public record.
In 1939 by Chapter 239, Laws of 1939, the Legislature vested in a Destruction Board power to authorize the destruction of certain records more than 20 years old which belonged to the several departments of the state government. By Chapter 306, Laws of 1945, this was amended to provide for limited destruction of any document which had ceased to have current or further usefulness. In 1967, Chapter 253, SDCL 1967 1-27-9, the Legislature provided for a Records Management Program under the supervision of the Secretary of Finance who is charged with the promulgation of an efficient and economical system of management for the maintenance, retention, preservation and disposal of state records. In addition, this Act created a Board consisting of the Governor, State Auditor, Attorney General and Auditor General and Secretary of the State Historical Society, ". . . to supervise and authorize the destruction of records."
SDCL 1967 1-27-18 provides that:
". . . 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 principals 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 . . ." (Underscoring supplied.)
Other statutes involved concerning local records at the county level of government are as follows: SDC 1960 Supp. 12.0912; SDCL 7-10-7 and 7-11-8, relating to poll books, assessors books, jury lists, claims against the county and duplicate tax receipts; SDCL 1967 10-41-21 relating to destruction of inheritance tax reports and inventory; 7-22-5 relating to cancellation of warrants and SDC 1960 Supp. 39.0412 as amended by Chapter 150, Laws of 1966 relating to chattel mortgages and conditional sales contracts destruction. Each of these statutes fixes a particular minimum time for the retention of these records.
Some other laws involved in specifying the time for destruction of records may be found at SDCL 1967 13-8-46 relating to school districts and 9-18-4 relating to the destruction of certain municipal records.
Notwithstanding the provisions of Chapter 253, Laws of 1967, the Legislature saw fit by the enactment of Chapter 327 of that year to authorize the Commissioner of Revenue to destroy inheritance tax reports and records of decedents who have been deceased for over 12 years. This is merely stated as an example of the current legislative intent as it pertains to certain public 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 SDC 13.1248 which provides a penalty for the destruction of records, maps, books, papers and documents which, except for other statutes that expressly provide authority for the destruction of certain specific papers, requires all items described therein to be kept as permanent and perpetual records of such office."
In an earlier opinion, the Attorney General at 1935-36 AGR 405, likewise held that it is unlawful for a county official to destroy records unless there was specific authority for such destruction.
In answer to your question then, it is my opinion that the State Records Destruction Board may, through the proper promulgation of regulations, authorize and approve the destruction of state records which are not otherwise specifically required to be retained for a particular period by any other section of law, but may not where a statute provides for a minimum time for the retention of records reduce the same. As with statutes fixing minimum times for local retention of records, I feel the Board must stay within those limits; it would otherwise be exceeding the limits of power granted to it. Norwood v. Parentheau, 75 SD 303, 63 NW 2d 807; Livestock v. State Banking Commission, 127 NW 2d 139.
As also stated in 1 Am. Jur. 2d Administrative Law, Section 108, ". . . A statute or ordinance which in effect reposes an absolute unregulated and undefined discretion in an administrative agency bestows arbitrary powers and is an unlawful delegation of legislative powers. The presumption that an officer will not act arbitrarily but will exercise sound judgment and good faith cannot sustain a delegation of unregulated powers." See also 73 CJS Public Administrative Bodies and Procedures, Section 32.
I likewise hold that the State Records Destruction Board, acting with the Secretary of Finance, may layout a program for the orderly disposition of municipal and county records which may be followed by such political subdivisions at their discretion, subject, however, to the same provision that the action of the Legislature, in declaring the minimum retention periods of records, is superior to any regulation promulgated by the Destruction Board for those same records.
I am not unaware of Chapter 254, Laws of 1967, being SDCL 1967 1-27-19, which provides that the State Records Destruction Board shall meet at least once a year and consider requests of all political subdivisions for the destruction of record and to authorize their destruction as in the case of state records. However, in my opinion, this section must be qualified by any specific enactment of the Legislature with regard to any given record and cannot be held to supersede or repeal by implication any of the specific statutes. Security State Bank v. Breen, 65 SD 640, 277 NW 497.
Respectfully submitted,
Gordon Mydland
Attorney General
