Must a South Dakota city let people inspect its water and sewer customer names and addresses, and must it provide them with a copy?

Plain-English summary

The City of Parkston was getting requests from a local cable TV provider, the Welcome Wagon, and local churches for its water and sewer subscriber names and addresses. Some requests sought new subscriber information each month. The city had no ordinance addressing the furnishing of lists.

The 1994 AG concluded that subscriber names and addresses must be open for public inspection. The city may choose to furnish copies, but is not required to do so. If it does, it may charge a reasonable rate for copying expenses; it has no statutory authority to sell the information itself.

On the first question, the AG started with SDCL 9-18-2, which requires every municipal officer's records to be open for public inspection during business hours under reasonable restrictions. Parkston had enacted no such restrictions. SDCL 1-27-1, the general public records statute, requires records "kept by statute" to be open for inspection. The water and sewer subscriber list is not literally required by a specific statute, but the AG reasoned that a city cannot operate a water and sewer system without keeping a current subscriber record, so the list is indirectly required by SDCL chapter 9-47 and chapter 9-48.

The privacy balancing test was the next step. The AG cited In re Request of Rosier and out-of-state cases holding that names and addresses alone generally do not involve a privacy interest. A list's subject matter can change that assessment if it identifies people with a group distinct from most of society. The AG concluded that the names and addresses of municipal water and sewer subscribers should be open for inspection, like those of electric or telephone subscribers.

The AG drew a line: name and address, yes; service connection, disconnection, payment history, no. Those latter categories implicate genuine privacy interests in a way that names and addresses do not.

On the second question, the AG cited Schryver v. Schirmer for the proposition that municipalities have only the powers expressly granted or necessarily implied. The AG found no authority to sell subscriber lists. If a city chooses to furnish copies, it may charge a reasonable fee tied to verifiable copying costs and consider an ordinance setting standard rates.

The AG added a final point on the monthly-list requests. The inspection statutes do not require a municipality to generate new compilations or perform data work in response to requests. The city only has to make available what it already keeps. If Parkston already produces a monthly new-subscriber list for its own purposes, that list is inspectable. If it does not, no one can require it to start.

Currency note

This opinion was issued in 1994. 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. SDCL chapter 1-27 has been amended since 1994, including changes to its exemptions and copy-fee provisions, and other privacy laws may now bear on particular kinds of utility customer data. Check the current code before relying on this opinion for any operational detail.

What the opinion meant at the time

For SD municipal clerks in the 1990s, the opinion called for making subscriber names and addresses available for inspection. It excluded service connection, disconnection and payment history from that conclusion. The city could choose to provide copies and recover reasonable copying expenses.

For people seeking subscriber names and addresses, the opinion established a right to inspect those records during normal business hours. Whether to furnish a copy remained the city's choice.

For SD city attorneys advising on records-request policies, the opinion supported drafting a local ordinance with copy-fee schedules and the inspection-vs-creation distinction, which would standardize responses across requestors.

For organizations such as the Welcome Wagon and local churches, the opinion meant they could inspect existing subscriber records. It did not require the city to prepare or furnish lists to them.

For subscribers, the opinion meant their names and addresses were open for inspection in the city's utility records. The opinion reached no such conclusion about their service or payment histories.

Common questions

Q: Are SD water and sewer subscriber lists open to the public?
A: Per this opinion, yes. Names and addresses are inspectable. Service details and payment history are not.

Q: Can the city charge for the list?
A: If the city chooses to provide copies, it may charge a reasonable rate based on verifiable copying expenses, including reasonable staff costs. The opinion found no authority to sell the information itself.

Q: Does the city have to compile new lists on request?
A: No. The inspection statutes apply to what the city already keeps. The city is not required to perform data work or generate compilations.

Q: What if the requester wants a new-subscriber list each month?
A: If the city already maintains such a list for its own purposes, yes, that list is inspectable. If not, the city is not required to start producing one.

Q: Are billing histories and disconnection records public?
A: Per this opinion, no. Those categories implicate genuine privacy interests in a way that names and addresses do not.

Q: Can the requester resell the list?
A: SDCL 1-27-1 contains an anti-resale provision: any list released under that section may not be resold or redistributed, with violation classified as a Class 2 misdemeanor.

Q: What is the standard for a "reasonable" copying fee?
A: The fee should correlate to verifiable expenses of reproduction. Salary costs of the copying staff time may be included, especially for voluminous requests.

Q: Should the city adopt an ordinance?
A: The opinion recommends it. A city ordinance setting standard expense rates standardizes responses and reduces ad-hoc decisions.

Background and statutory framework

South Dakota's public records framework rests on two statutes that work in parallel for municipal records. SDCL 9-18-2 imposes the municipal-level requirement: every municipal officer must keep records of official acts and make those records open for public inspection during business hours, subject to reasonable restrictions the municipality may adopt.

SDCL 1-27-1 imposes the general statewide rule: records required to be kept by statute must be open for inspection by any person during normal business hours. The statute then carves out specific exceptions (personnel performance records, some Game Fish and Parks list data with a fee structure, motor vehicle insurance verification access) and imposes the anti-resale provision.

The threshold question for any inspection request is whether the record falls within either statute. For directly-statutorily-required records, SDCL 1-27-1 applies straightforwardly. For records that are functionally required to operate a statutory function but not literally required by a specific statute, the AG's approach is to read SDCL 1-27-1 as covering them too, because the functional necessity is the equivalent of a statutory requirement.

Subscriber lists for a city-operated water and sewer system fall in the second category. SDCL chapter 9-47 (water) and SDCL chapter 9-48 (sewer) do not say "the city shall maintain a list of subscribers." They authorize the city to operate the systems. Operating them requires the city to know who its customers are. So the subscriber list is indirectly required.

The opinion applies a privacy balancing test drawn from out-of-state cases, including In re Request of Rosier (Wash. 1986). Names and addresses alone generally do not involve a privacy interest, though the subject of a list can make disclosure inappropriate. The AG found that municipal water and sewer subscriber names and addresses should be open for inspection.

The fee authority question runs through Schryver v. Schirmer. Municipalities have only the powers expressly granted or necessarily implied. The AG found no authority to sell subscriber lists, but said a city that furnishes copies may charge a reasonable rate to reimburse verifiable copying expenses.

Citations and references

Statutes:

• SDCL chapter 1-27 (public records)
• SDCL 1-27-1 (general inspection rule, exemptions, anti-resale)
• SDCL 1-27-7 (copy and projection)
• SDCL 9-18-2 (municipal records inspection)
• SDCL 9-47-1 (municipal water)
• SDCL 9-48-26 through 9-48-28 (municipal sewer rates)

Cases:

• Schryver v. Schirmer, 84 S.D. 352, 171 N.W.2d 634 (S.D. 1969) (limits on municipal authority)
• In re Request of Rosier, 717 P.2d 1353 (Wash. 1986) (names-and-addresses privacy test)
• Redding v. Brady, 606 P.2d 1193 (Utah 1980)
• Attorney General v. Assistant Commissioner of Real Property, 404 N.E.2d 1254 (Mass. 1980)

Prior AG opinions referenced:

• AGR 80-27 (privacy balancing in subscriber list disclosure)
• AGR 83-19 (reasonable copying fees)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=132

Original opinion text

OFFICIAL OPINION NO. 94-09

Water and sewer subscribers/public records

Dear Mr. Doering:

You have requested an opinion of the Office of the Attorney General regarding the following factual situation:

FACTS:

Various entities have approached the City of Parkston for the names and addresses of water and sewer users served by the city. For example, the local independent cable t.v. company, the Welcome Wagon organization, and local churches request this information. In some instances, the request is for new subscriber information to be provided on a monthly basis. In each circumstance, the entity requesting the information is seeking information via either a manual or computer-generated list. City ordinances do not address the issue of furnishing lists.

In light of the foregoing factual situation, you have asked the following questions:

QUESTIONS:

1. Is it legal for the city to furnish lists of its water and sewer users to anyone requesting them?

2. If the answer to question No. 1 is "yes," does the city have authority to charge a fee for such lists?

IN RE QUESTION NO. 1:

The pertinent South Dakota statutes governing public records are SDCL 1-27-1 and SDCL 9-18-2. SDCL 9-18-2 generally requires public municipal records to be open for public inspection:

Every municipal officer shall keep a record of the official acts and proceedings of his office, and such record shall be open to public inspection during business hours under reasonable restrictions.

It should be noted that SDCL 9-18-2 allows the municipality to make "reasonable restrictions" for the inspection of public records. Your letter indicates that the municipality of Parkston has not enacted any such restrictions.

The second statute involved, SDCL 1-27-1, reads:

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 inspection by any person during normal business hours. Any employment examination or performance appraisal record maintained by the bureau of personnel is excluded from this requirement. Any subscription or license holder list maintained by the department of game, fish and parks may be made available to the public for a reasonable fee as set by the game, fish and parks commission. State agencies are exempt from payment of this fee for approved state use. Any automobile liability insurer licensed in the state, or its certified authorized agent, may have access to the name and address of any person licensed or permitted to drive a motor vehicle solely for the purpose of verifying insurance applicant and policyholder information. An insurer requesting any such name and address shall pay a reasonable fee to cover the costs of producing such name and address. The department of commerce and regulation shall set such fee by rules promulgated pursuant to chapter 1-26. Any list released or distributed under this section may not be resold or redistributed. Violation of this section by the resale or redistribution of any such list is a Class 2 misdemeanor.

Clearly, under SDCL 1-27-1, records required to be kept by state statute are required to be open for public inspection. Conversely, if a record is not required to be kept by statute, providing such information to the public is permissive.

South Dakota statutes pertaining to water and sewer rates do not dictate the format, retention period or billing frequency of sewer and water bills. See SDCL §§ 9-48-26 through 9-48-28 and SDCL 9-47-1. Therefore, strictly speaking, it may be argued that names and addresses of subscribers are not "required to be kept by law." Yet, it is a matter of logic that in order to operate a municipal sewer and water system, a municipality would need to keep some record or list of current subscribers; a municipality would not be able to fulfill its statutory grant of authority to maintain sewer and water facilities without maintaining such a list, so it can be inferred that such a list is at least indirectly required to be kept by statute. As such, it is my opinion that the sewer and water records fit within the definition contained in SDCL 1-27-1.

Thus presuming that at least some sewer and water records meet the definition of SDCL 1-27-1, another inquiry then must be made whether the public's interest in obtaining the information outweighs the privacy interests of individual water and utility subscribers. This office has, in the past, opined that such a privacy interest be considered. See AGR 80-27.

Although South Dakota's courts have not addressed the issue, the matter has been studied in other jurisdictions. See In re Request of Rosier, 717 P.2d 1353, 1357 (Wash. 1986); Annot., What Constitutes Personal Matters Exempt From Disclosure By Invasion of Privacy Exemption Under State Freedom of Information Act, 26 A.L.R.4th 666 (1983). The state and federal courts that have examined this issue have considered the particular facts involved and have balanced the seriousness of the invasion of the privacy interests against the public's interest in disclosure. Redding v. Brady, 606 P.2d 1193, 1196-97 (Utah 1980); Attorney General v. Assistant Commissioner of Real Property, 404 N.E.2d 1254 (Mass. 1980). In undertaking this balancing test, courts have generally held that disclosure of names and addresses alone does not involve a privacy interest. In re Request of Rosier, 717 P.2d at 1357. See also Annot., Publication of Address As Well As Name of Person as Invasion of Privacy, 84 A.L.R.3d 1159 (1978). In some instances, however, the fact that a person's name appears on a particular list does identify that person with a particular class of individuals. Identification of a member of a group unique from most of society then may "constitute an unreasonable invasion of privacy." In re Request of Rosier, 717 P.2d at 1357. Therefore, providing even names and addresses would not be appropriate in some cases, depending on the subject matter of the list. Such probably would not be the case here, however.

I note that providing the names and addresses of an entire group of electric subscribers of a public utility district has not been found to be unduly invasive. In re Request of Rosier, 717 P.2d at 1357. Also, lists of names and addresses of telephone subscribers obviously are routinely offered to the public by telephone companies when directories are distributed. Thus, the names and addresses of subscribers to sewer and water services for a municipality then should be open, like electric or telephone subscribers, for public inspection. I caution, however, that this opinion pertains only to the provision of names and addresses; it does not include provision of information regarding water and sewer service connection, disconnection, or payment history or other such information, which I conclude would be deemed private.

The criteria for public inspection of the names is generally set forth in SDCL ch. 1-27. The records must be available and open to inspection by any person during normal business hours. SDCL 1-27-1. Provision of copies or computer disks is not required unless the original records or documents are disposed of or destroyed and the public officer chooses to prepare copies of the record or document, rather than displaying the record or document "by projection" (presumably referring to microfilm or microfiche access). SDCL 1-27-7. Municipalities are, of course, free to furnish copies of public records to citizens upon request if the municipality so chooses.

Finally, you indicated that two of the entities requesting the lists have requested the names of new water and sewer users on an ongoing, monthly basis. The passive nature of the language found throughout the "inspection statutes" implies, however, that municipalities are not required to develop data, perform calculations, or otherwise specially create information in response to requests for information. If, however, the city routinely does keep a list of new subscribers on a monthly basis, that list should be available for public inspection under the rationale and terms discussed above.

In sum, the answer to your first question is "yes."

IN RE QUESTION NO. 2:

You also have inquired whether a city is entitled to charge a fee for such provision of sewer and water subscriber lists. As indicated above, this opinion should be read in conjunction with the opinion of my predecessor written in 1980. See AGR 80-27. There, this Office explained that departments of government have only such authority as is expressly granted them or necessarily implied therefrom. The rule is also true for municipalities. See Schryver v. Schirmer, 84 S.D. 352, 171 N.W.2d 634 (S.D. 1969). I am unaware of any specific statutory authority to engage in the sale of lists of utility subscribers and I do not believe it is necessarily implied that sale of such lists is required to carry out governmental functions. Thus, the express authorization from the Legislature required to sell such lists of information is missing.

The foregoing does not prohibit a municipality from charging a reasonable rate for reimbursement of copying expenses. See AGR 83-19. Such rates, of course, should correlate to the verifiable expenses of reproducing such lists. Expenses may include the reasonable salary cost associated with copying the document, particularly when voluminous copying is required. Also, consideration should be given to developing a city ordinance setting forth such standard expense rates.

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