April 5, 2006

Paul S. Kinsman
Commissioner
Bureau of Administration
320 N. Nicollet Avenue
Pierre, SD  57501

OFFICIAL OPINION 06-03

Re:  Status of records regarding contributions to the Life Protection Sub Fund

Dear Commissioner Kinsman:

You have requested an official opinion from this Office regarding the following factual situation:

Facts:

The South Dakota Legislature in SB 154 created, within the Extraordinary Litigation Fund, the Life Protection Subfund.  The Subfund may be used to cover litigation costs associated with defending South Dakota statutes that regulate or proscribe abortion or contraception.  In addition to the monies that the Legislature may appropriate to the Subfund, the Commissioner of the Bureau of Administration may accept private contributions for deposit.  To date, private contributions have been received and deposited in the Subfund.  At least one donor has asked to remain anonymous.  Several media entities have inquired as to the names of those contributors and the amounts contributed.  

Based upon the above facts you have asked the following question.

Question:

Whether the names of the contributors and the amounts contributed for the New Life Protection Subfund are public record?  

In Re Question:

During this last legislative session the South Dakota Legislature passed SB 154.  SB 154 amended the Extraordinary Litigation Fund established in SDCL 1‑14‑3.1 to create a new subfund and provides in pertinent part:

     . . . .

     The life protection subfund is established within the extraordinary litigation fund.  The subfund shall be used to cover the litigation costs, including expert witness fees and attorney's fees awarded under 42 U.S.C. § 1988 or other applicable statutes, associated with defending South Dakota statutes that regulate or proscribe abortion or contraception.  In addition to moneys that the Legislature may appropriate to the subfund, the commissioner of the Bureau of Administration may accept private contributions for the subfund's purposes and deposit those moneys in the subfund.  The life protection litigation subfund shall retain the interest income derived from the moneys credited to the subfund in accordance with §§ 4-5-30 and 4-5-30.1. 

SB 154 contained an emergency clause and became effective on March 6, 2006, when signed by the Governor.  

SB 154 clearly authorizes the State to receive private contributions for deposit in the subfund.  Whether information regarding the names of contributors and amount contributed are available for public inspection depends upon whether such information is contained in records that are required to be disclosed under the state's public record laws, SDCL ch. 1-27.  SDCL 1-27-1 provides in pertinent part:

     If the keeping of a record, or the preservation of a document or other instrument is required of an officer or public servant under any statute of this state, the officer or public servant shall keep the record, document, or other instrument available and open to public inspection by any person during normal business hours. . . .  

If a record meets the above criteria, the record is available for public inspection unless, as set forth in SDCL 1‑27‑3, the Legislature provides that such records are to be held confidential or secret.  In this case, there are no confidentiality provisions regarding records of contributions to the Life Protection Subfund.  Further, SDCL 4‑3‑3 requires the creating and keeping of records of receipts of funds for deposit in the state treasury.

     If an office or employee of the state receives any money for the state by virtue of his office or employment, he shall enter the amount and the person from whom the money was received on a prenumbered receipt in duplicate.  The receipts shall be pre-numbered by the printer consecutively and shall be used in numerical order.  The original of each receipt shall be delivered to the payer if so requested or if payment was received in cash.  The office or employee shall retain the duplicate receipt at his office and department.  

     The auditor-general may prescribe additional requirements he considers necessary to create accountability and adequate accounting records for all state revenues compatible with the state uniform accounting system.

SDCL 4‑3‑3 requires that you as Commissioner of Bureau of Administration create receipts consistent with the above statute for contributions received under SB 154 for deposit in the Life Protection Subfund.  Since receipts are required to be maintained, these records are open to public inspection under 

SDCL 1‑27‑1.  The fact a contributor wishes to remain anonymous has no effect on the public nature of the receipt.    

Very truly yours,

Lawrence E. Long
Attorney General

JPH/kak