Judges: WINSTON BRYANT, Attorney General
Filed Date: 4/21/1992
Status: Precedential
Modified Date: 7/5/2016
The Honorable Ron Fields Prosecuting Attorney Sebastian County Courthouse Fort Smith, AR 72901
Dear Mr. Fields:
This is in response to your request for an opinion concerning the disposition of municipal court records pertaining to violations of the Omnibus DWI Act, codified at A.C.A. §§
1. May DWI files be destroyed after the passage of five years, or does some statutory or regulatory requirement dictate the permanent maintenance of these files?
2. If the court maintains a permanent record in its computer which states a defendant's name, birth date, violation, date of violation, disposition of violation and the name of the defendant's attorney or an indication of his waiver, does this qualify as a permanent record allowing hard copies of the file to be destroyed after the five year period?
3. Would it be appropriate to both delete the computer entries and destroy the hard copies of the DWI files which back up the computer system after the passage of five years?
As you have noted, prior DWI convictions may be used by a sentencing court for enhancement purposes. See generally
A.C.A. §
It is my opinion that the answer to your first question is "yes." DWI files may be destroyed pursuant to the procedure set out at A.C.A. §
With regard to the issue of record keeping, A.C.A. §
(a) Every magistrate or judge of a court shall keep or cause to be kept a record of every violation of this act presented to that court and shall keep a record of every official action by that court in reference thereto including, but not limited to, a record of every finding of guilt, plea of guilty or nolo contendere, judgment of acquittal, and the amount of fine and jail sentence.
(b) Within thirty (30) days after sentencing a person who has been found guilty, or pleaded guilty or nolo contendere on a charge of violating any provision of this act, every magistrate of the court or clerk of the court shall prepare and immediately forward to the Office of Driver Services an abstract of the record of the court covering the case in which the person was found guilty, or pleaded guilty or nolo contendere. . . .
(c) The abstract shall . . . include:
(1) The name and address of the party charged;
(2) The number, if any, of the operator's or chauffeur's license of the party charged;
(3) The registration number of the vehicle involved;
(4) The date of the hearing;
(5) The plea;
(6) The judgment; and
(7) The amount of the fine and jail sentence, as the case may be.
With regard to the destruction of records, A.C.A. §
Whenever photostatic copies, photographs, microfilms, or reproductions on films of public records shall be placed in conveniently accessible files and provision made for preserving, examining, and using them, the head of a . . . city office or department may certify those facts to the . . . mayor of a municipality, . . . who shall have the power to authorize the disposal, archival storage, or destruction of the records.
The Arkansas Supreme Court has stated that the emergency clause of a statute may be looked to in construing a statute. Heath v.Westark Poultry processing Corp.,
. . . [B]ecause facilities for storage of public records are now taxed to capacity; and because space must be provided for such public records and because it is necessary for the immediate preservation of the public peace, health and safety of the inhabitants of the state; an emergency exists. . . .
The emergency clause, therefore, indicates that the purpose of Act 218 was in part to deal with existing problems of inadequate storage by allowing agencies to reduce their records to a smaller storage capacity and then dispose of the originals.
Our research has yielded no other statutory or regulatory requirement for the permanent maintenance of municipal court DWI files. Accordingly, it is my opinion that a municipal court may destroy its DWI files where "photostatic copies, photographs, microfilms, or reproductions on films of [the] records [are] placed in conveniently accessible files and provision [is] made for preserving, examining, and using them," (§
It is my opinion, with regard to your second question, that as a general matter, a computer record would, in all likelihood, qualify as a permanent record such that the hard copies may be destroyed. With regard to this issue, A.C.A §
(a)(2) The . . . clerks of courts of record, and any public officer whose duty it is to make public records are authorized to use and employ an approved system of photographic recording when provided with equipment necessary for such method of recording.
(b)(1) If any . . . department or agency of government, in the regular course of business or activity has kept or recorded any memorandum,
writing, entry, print, representation, or combination thereof, of any act, transaction, occurrence, or event, and in the regular course of business has caused any or all of the same to be recorded, copied, or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is required by law. [Emphasis added.]
See also A.C.A. §
This statute gives the municipal court, as an "agency of government", the authority to re-record documents and destroy the originals in the ordinary course of business "unless [their] preservation is required by law." Our research has yielded no requirement for the preservation of municipal court DWI files, beyond that contained in A.C.A. §
With regard to the specific information that must be maintained in the computer record, A.C.A. §
Consultation with the Arkansas History Commission and the State Historian, who are charged with the duty to administer a State Public Records Management Program, may be also be indicated.See A.C.A. §
Accordingly, reference should be made to these standards before the municipal court adopts any policies with regard to the destruction of documents.1
It is my opinion that the answer to your third question is probably "no." While A.C.A. §
The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
SD/WB:cyh