April 21, 1980

Dr. Frederick W. Zuercher, Secretary 
Department of Public Safety 
118 West Capitol Avenue 
Pierre, South Dakota 57501

Official Opinion No. 80-27

Sale of Driver's License Records to Commercial Mailers

Dear Dr. Zuercher:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

Mr. Herbert Dunhill, President of Senior Citizens Unlimited, a firm located in Tuckahoe, New York, wishes to purchase a portion of the list of South Dakota drivers, specifically the name, address, date of birth and sex of all South Dakota drivers 50 years old and older, but not any part of anyone's actual driving record. 

Mr. Dunhill is a commercial mailing list compiler. His firm compiles lists of names and addresses of persons with certain characteristics and rents those lists to organizations and firms who wish to reach people through mail.  It specializes in compiling names of persons in the retirement or pre- retirement age categories.  Because the date of birth appears on records maintained by the states as part of their driving records, SCU has for many years used such records.

Based on the above facts, you have asked the following question:

QUESTION: 

Is the sale of such data in accord with South Dakota law?

SDCL 1-27-1 provides: 

In every case where 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, such record, document or other instrument shall be kept available and open to inspection by any person during the business hours of the office or place where the same is kept.

SDCL 1-27-3 provides that the above requirement of records being opened to public inspection does not apply to certain records which are required to be held confidential.  The cross-reference notes in the Code under SDCl 1-27-3 indicate several sections of existing law where such exemptions are noted. I find no reference here to the records which you refer to in your opinion request.

It is my opinion that the Department of Public Safety cannot sell or give out lists of driver names and data for any purpose, except for such educational or military purposes as would be justified for those purposes.  State government in South Dakota should not become a resource for the distribution of lists of the citizens of this state for this type of commercial purpose.  In my view a sale of these driver lists for these commercial purposes would raise a question of invasion of the rights of privacy of the citizens of this state and would further in my view raise a question of authority of the Department of Public Safety to engage in this conduct.  The general rule is that departments of government have the express authority granted to them and such implied powers  as are necessary to the carrying out of their expressly granted powers.  I find that the Department of Public Safety has no specific authority to engage in the sale of these lists and I further find it very difficult to imagine that there is any implied power to engage in this sort of activity since it is in my opinion not necessary to the carrying out of the express functions of the department to sell such lists.

The question of the citizen's right to privacy of information held by the State in regard to that individual is a question of considerable importance which might be dealt with in the future by our legislature.  I believe that public access to many records is also an important principle, but I firmly believe that there is a point at which information which government has in regards to the citizens of this state is not the type of information which should be available to anyone who asks for it or that the State should be involved in selling lists of computerized information of this nature to commercial enterprises without the express authorization of the Legislature, or persons involved, to do so.

Respectfully submitted,

Mark V. Meierhenry
Attorney General