February 21, 1979
Mr. Robert Slocum
State's Attorney
Walworth County
Mobridge, South Dakota 57601
Official Opinion No. 79-6
Availability of Tax Assessment Data to Realtors
Dear Mr. Slocum:
You have requested an opinion from this office based on the following factual situation:
FACTS:
A local realtor has requested that the County Director of Equalization provide him with copies of assessment data prepared and kept by the assessor in connection with the valuation of real property, particularly of houses and structures; such data is understood to include pictures, measurements, floor plans, information concerning age, cost of construction and/or replacement. The realtor is willing to pay costs of copying. The Director of Equalization resists the request for several reasons; he feels that he is not obliged to furnish such copies by law; also, that in complying with such request he would be establishing a precedent which could well result in interference with his performance of his regular duties of assessment; also he questions whether the data sought is in the public realm, as it consists chiefly of his work product or research effort from which the assessment lists are developed.
Based on the above factual situation, you have asked the following questions:
QUESTIONS:
1. Is the County Director of Equalization required by law to make copies of his assessment preparatory data available to anyone upon request, if the cost thereof be tendered or promised?
2. If the answer to question one is affirmative, is there a set fee, or what method of cost determination should be employed?
3. Does the right of public inspection of records extend to the right to inspect the work notes of an assessor or is it limited to the inspection of the tax lists only?
IN RE QUESTION NO. 1:
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 instruments 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.
In analyzing your first question, a critical consideration is whether the materials there referred to are a record, document, or instrument which is required to be kept or preserved by State statute. It is my view in this regard that, generally speaking, working papers and preparatory date sheets are not included within the scope of records required to be kept.
Insofar as the fact situation here is concerned, however, SDCL 10-6-43 and 10-6-44 are significant statutes. Those statutes provide:
SDCL 10-6-43. The use of looseleaf books and records, lists, card systems, auxiliary and miscellaneous records, in lieu of assessor's or assessment books, as tax records, in the office of the county auditor and treasurer, is hereby authorized and the use of such looseleaf books and records, lists, card systems, auxiliary and miscellaneous records, prior to July 1, 1951, is hereby legalized and validated. The form of the tax assessment records herein authorized shall be approved by the commissioner of revenue. The use of such records herein authorized prior to July 1, 1951, shall not be deemed or considered an irregularity or defect in any court in any proceeding to recover real or personal property sold for taxes, or to invalidate or cancel any tax sale certificate, tax deed, or other tax sale proceeding.
SDCL 10-6-44. In districts having local boards of equalization each assessor shall, on or before the fourth Monday in May, annually make out and deliver to the clerk of such board, or in case there is no local board of equalization, then to the county auditor, the assessment books, lists, rolls, looseleaf books and records, lists, card system, auxiliary and miscellaneous records, and returns herein provided for. Such books, lists, rolls, and returns shall remain open to public inspection of all persons interested directly or indirectly in any way, until the following Saturday, and as much longer as the local board of equalization may be in session for consideration of the same.
It is my opinion that the above-cited statutes do refer to documents which are “public” and therefore open to the public as described therein. In this regard, it should be noted that the Legislature has here placed some specific time restrictions on the availability of this information, and these provisions are controlling.
It is very difficult to determine in generalities whether a particular document fits into the purview of the above cited statutes and administrative rules such as ARSD 64:04:09, 64:04:01:10, and 64:03:03:02, and thus would be open to the public, or whether they are papers which are preparatory or preliminary work documents, which do not appear to me to be included within the above provisions for public access. These decisions may essentially in many instances be factual determinations to be reviewed on a case by case basis.
Assuming, then, that the information is public information and is available to the public, the question then arises whether the director of equalization is required by law to make copies available the cost thereof is tendered or promised. This issue, though seemingly simple, is in my view a very serious and complex one. Clearly, the county director of equalization is not required by law to spend large amounts of his time making copies for people upon request, nor is he required to have his office functions unduly interfered with by some other copying process. There is, in my view, a clear element of reasonableness or demand of time and effort which is an important consideration for analyzing any public official's duty to make copies “available upon request” even if the cost is paid for the actual copy prepared.
Assuming that the request is a reasonable one, and is made during the office hours and does not unduly interfere with the operations of that director's functions, I believe the county director of equalization is authorized by law to make available copies of these public records, if the cost thereof is paid. I do not believe, however, that the director is required to make copies of all this data upon request if in his view such request is unreasonable or unduly infringes upon the operations of the office. This does not mean, however, that if the information is public record, the director can excluded a citizen from reviewing the public documents in the director's office, in a reasonable manner, during business hours. (Exceptions limited by 10-6-44.)
IN RE QUESTION NO. 2:
It is my opinion that if the director of equalization does make copies of public documents or public records available upon request to a citizen, the director is entitled to charge a fee covering his costs of reproducing the document. There is to my knowledge no set fee in this area which has been established by the Legislature, but I believe that it is clear that the office of director of equalization, as most public offices, is not budgeted for operating a free copy business. Here again, the element of reasonableness in terms of demand and extent of copying, together with the amount of time necessary to find the documents for the individual, are reasonable considerations in the determination of what fee for the copies would be charged.
IN RE QUESTION NO. 3:
I believe the answer to your third question is largely handled by the response to question number one above. I would note, however, that the tax lists would be available to the public at any time in the county auditor's office, whereas, by contrast, the provisions of SDCL 10-6-43 and 10-6-44 also concern public records which are subject to a more limited time of availability. Thus, it is my position that the right of public inspection does not extend only to inspection of tax lists, and further, that the right of public inspection does not extend to inspection of work notes unless those “work notes” are somehow included within the purview of SDCL 10-6-43, 10-6-44 or the above cited sections of the Administrative Rules of South Dakota.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
MVM:DOC:mam
