Did South Carolina's post expungement record retention rule cover solicitor run diversion programs?

Plain-English summary

In 2015, the South Carolina Attorney General concluded that the post expungement retention rule in Section 17-1-40 covered alternative to prosecution programs run under a circuit solicitor's supervision. The office read “prosecution agency” to include the solicitor's office and the programs it directed, even when the solicitor contracted for program services.

Under the statute as quoted in the opinion, the program or solicitor's office had to retain specified arrest and booking records, bench warrants, mug shots, and fingerprints under seal for three years and 120 days after the covered expungement. A footnote noted a separate statutory permission for indefinite sealed retention for investigation, prosecution, or defense of agency litigation. The records were not public and disclosure required a court order.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did a solicitor supervised diversion program count as a prosecution agency?
A: The opinion said yes. It reasoned that circuit solicitors retained direct supervision and control of the listed alternative programs, including when services were contracted out.

Q: Who had to keep the records?
A: The office said either the program or the solicitor's office in charge had to retain the information listed in the statute.

Q: Did the 2015 opinion make the retained records public?
A: No. It said the statute required them to remain sealed and exempt from disclosure except by court order.

Background and legal framework

A sheriff asked whether a 2014 amendment to South Carolina's expungement law applied to alternative to prosecution programs administered by solicitors. The office read the ordinary meaning of “prosecution agency” together with statutes placing pretrial intervention, traffic education, and alcohol education programs under a solicitor's supervision. It concluded that the amended retention period applied to those programs.

Citations and references

The opinion discussed Section 17-1-40(B)(1)(a) of the South Carolina Code and S.C. Code Ann. § 17-22-30(C), S.C. Code Ann. § 17-22-310(C), and S.C. Code Ann. § 17-22-510(C).

Official title

Regarding the interpretation of certain aspects of House Bill 4560 (“Act 276”), specifically Acts 276’s amendments to Section 17-1-40 of the South Carolina Code dealing with the retention, by law enforcement and prosecution agencies, of certain information following an expungement of an individual's record.

Requester

Sheriff Steve Loftis, Greenville County Sheriff s Office.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-19-2015-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2015/02/Loftis-S.-OS-9824-FINAL-Opinion-02-19-2015-00561810xD2C78.pdf

Original opinion text

Q

0^SOUTU
Alan Wilson
Attorney General

February 19, 2015
Sheriff Steve Loftis
Greenville County Sheriff s Office
4 McGee St.

Greenville, SC 29601
Dear Sheriff Loftis:

We are in receipt of your opinion request regarding the interpretation of certain aspects of

House Bill 4560 ("Act 276") which, as mentioned in your letter, was signed into law on June 9lh of 2014.

Specifically, your opinion request focuses on Act 276,s amendments to Section 17-1

40 of the South Carolina Code dealing with the retention, by law enforcement and prosecution

agencies, of certain information following an expungement of an individual's record pursuant to Article Nine, Title 1 7, Chapter 22 of the Code. Our response follows.

1.

Law/Analvsis

As mentioned in the legislative title to Act 276, the portion of Section 17-1-40 "relating

to destruction or expungement of certain arrest and booking records" was amended to, among other things, "provide . . . for the retention by law enforcement and prosecution agencies of arrest and booking records, associated bench warrants, incident reports, and other information." Legis.

Title, Act No. 276, 2014 S.C. Acts 120,h Gen. Ass. Reg. Sess. (S.C. 2014). In keeping with this, Section 1 7-l-40(B)(l)(a) explains, "[l]aw enforcement and prosecution agencies shall retain the arrest and booking record, associated bench warrants, mug shots, and fingerprints of the person under seal for three years and one hundred twenty days." S.C. Code Ann. § 17-1 -40(B)(1)(a) (Supp. 2014) (emphasis added). As we understand it, it is this language which is the subject of your opinion request. Specifically, whether Section 17-l-40(B)(l)(a)"s "three year/120 day time

period" language regarding post-expungement retention of information applies to "alternative to prosecution programs administered by the Solicitor's Office." We believe that it does. A. Interpreting Section 17-l-40(B)(l)(a) of the South Carolina Code As touched on above, the three year, one-hundred twenty day time period mentioned in Section 17-1 -40(B)(1)(a) of the Code requires "law enforcement" and "prosecution agencies" to keep "arrest and booking record[s]. associated bench warrants, mug shots, and fingerprints" of an

individual whose "record is expunged pursuant to Article Nine, Title 1 7, Chapter 22 . . . Tinder

Rewbert C.Dennis Building

. Post Office Box i 1 549

. Columbia, SC2921 1-1549

. Telephone 803-734-3970

. Facsimile 803-253-6283

Sheriff Steve Loftis
Page 2

February 19, 2015

seal'" for a period of three years and one-hundred twenty days.1

S.C. Code Ann. § 17-1-

40(B)(1)(a). Understanding this, the answer to your question depends on whether "alternative to

prosecution programs administered by the

Solicitor's Office" qualify as either a "law

enforcement" or "prosecution agency" for purposes of Section 17-l-40(B)(l)(a). In order to determine

whether Section

17-l-40(B)(l)(a)'s "law enforcement"

or

"prosecution agency" language applies to "alternative to prosecution programs administered by

the Solicitor's Office," we must first look to the intent of the legislature. Hodees v. Rainev. 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) ("The cardinal rule of statutory construction is to

ascertain and effectuate the legislative intent whenever possible."). "What a legislature says in the text of a statute is considered the best evidence of the legislative intent or will" and "courts are

bound to

give effect to the expressed

intent of the legislature."

Media General

Communications. Inc. v. South Carolina Dent, of Revenue. 388 S.C. 138, 148, 694 S.E.2d 525, 530 (2010); Wade v. State. 348 S.C. 255, 259, 559 S.E.2d 843, 844 (2002). When determining

the effect of words utilized in a statute, a court looks to the "plain meaning" of the words. City of Rock Hill v. Harris. 391 S.C. 149, 154, 705 S.E.2d 53, 55 (2011). However, courts will reject the plain and ordinary meaning of the words used in a statute when doing so would defeat the

intent of the legislature. Greenville Baseball v. Bearden. 200 S.C. 363, 368, 20 S.E.2d 813, 815 (1942). Utilizing these principles, we believe the Legislature intended Section 17-l-40(B)(l)(a)'s three year, one-hundred twenty day retention language to apply to "alternative to prosecution

programs administered by the Solicitor's Office." Specifically, the plain and ordinary meaning of the

phrase "prosecution agency" in

Section

17-1 -40(B)(1)(a) clearly evidences

the

Legislature's intent to apply the statute's three year, one-hundred twenty day retention requirement to the Solicitor's Office and therefore, by extension, programs directed by a circuit

solicitor. Indeed, even when a Solicitor elects to "contract for services" related to an alternative to prosecution program, such programs continue to be under a Solicitor's "direct supervision" and therefore remain a part of a prosecution agency pursuant to state law. See S.C. Code Ann. § 17-22-30(C) (2014) ("A pretrial intervention program shall be under the direct supervision and

control of the circuit solicitor; however, he may contract for services with any agency desired."); S.C. Code Ann. § 17-22-310(C) (2014) ("A traffic education program must be under the direct supervision and control of the circuit solicitor; however, the solicitor may contract for services with a county or municipality in the circuit."); S.C. Code Ann. § 17-22-510(C) (2014) ("An alcohol education program must be under the direct supervision and control of the circuit solicitor; however, the solicitor may contract for education and supervision services.").

1 Notably, Section 17-1 -40(B)(1)(a) further permits law enforcement and prosecution agencies to retain such information "indefinitely for purposes of ongoing or future investigations and prosecution of the offense, and to defend the agency and the agency's employees during litigation proceedings." Id. The statute also explains the information "must remain under seal" and is not a public document, but is instead "exempt from disclosure, except by court order." Id.

Sheriff Steve Loftis
Page 3

February 19, 2015

Moreover, had the Legislature wished to exempt the circuit solicitors' alternative to

prosecution programs from the phrase "prosecution agency" contained in Section

17-1-

40(B)(l)(a)'s three year, one-hundred twenty day retention language, it could have done so by either providing a specific definition of the phrase in the statute, or by excluding alternative to prosecution programs from the phrase "prosecution agency." However, it did not, and with this in mind, we believe the cannon of construction known "expressio unius est exclusio alterius or

inclusio unius est exclusio alterius" meaning "to express or include one thing implies the exclusion of another or the alternative," applies in the present situation. E.g. Rainev. 341 S.C. at 86-87, 533 S.E.2d at 582 (relying on the cannon of expressio unius est exclusio alterius or

inclusio unius est exclusio alterius to conclude the General Assembly did not intend to limit the Governor's discretionary power of removal over the Board of Santee Cooper because it failed to include the Board of Santee Cooper in a statute with other specifically designated governmental bodies limiting the Governor's exercise of such power). As a result, we believe the Legislature's use of the phrase "prosecution agency" clearly extends to alternative to prosecution programs directed by a Solicitor's Office. use

of the

phrase

Understanding this, it follows that Section 17-l-40(B)(l)(a)'s

"prosecution agencies"

includes alternative to

prosecution programs

administered and directed by a Solicitor's Office, and accordingly, either the programs themselves or the Solicitor's Office, as the agency in charge of each of the programs, must retain the information contained in Section 17-1 -40(B)(1)(a) for a period of three years, one-hundred twenty days.

II.

Conclusion

In conclusion, it is the opinion of this Office that Act 276's amendment of Section 17-1

40 of the Code relating to post-expungement retention of information by law enforcement and prosecution agencies applies to alternative to prosecution programs.

This is so because the

Legislature, by using the phrase "prosecution agency" clearly intended the newly-crafted postexpungement retention provisions of Section 17-l-40(B)(l)(a) to apply to a Solicitor's Office and by extension, those programs supervised by the circuit solicitors; this includes alternative to

prosecution programs. Indeed, had the Legislature intended otherwise, it could have defined the phrase "prosecution agency" to limit such an extension, especially in light of the circuit

solicitors' already-existent supervisory role over alternative to prosecution programs. However, it did not. hundred

Accordingly, we believe Section 17-l-40(B)(l)(a)'s mandatory three year, one-

twenty

day

retention

language

includes

alternative

to

prosecution

programs

administered and directed by a Solicitor's Office, and as a result, either the programs themselves or the Solicitor's Office, as the agency in charge of each of the programs, must retain the information mentioned in Section 17-1 -40(B)(1)(a) for the duration of the mandatory three year, one-hundred twenty day period.

Sheriff Steve Loftis
Page 4

February 19,2015

Sincerely,

Brendan McDonald
Assistant Attorney General
REVIEWED AND APPROVED BY:

ARobert D. Cook
Solicitor General