Mississippi Advisory Opinions July 14, 1993: AGO 93-0339 (July 14, 1993)

Advisory Opinion Text

Honorable Patricia Bellman

City of Ocean Springs

Police Department

Post Office Box 1800

Ocean Springs, Mississippi 39564

Re: Records in Municipal Court

Dear Ms. Bellman:

Attorney General Mike Moore has received your request for an official opinion from this office and has assigned it to me for reply. A copy of your letter is attached for easy reference.

This office has addressed the matter of destruction of documents in two prior opinions, to Donald Kilgore, dated April 4, 1985, which refers to the requirement of government bodies first obtaining permission of Archives and History before destroying records.

I will repeat each of your questions and then a response.

Question 1: “May we destroy the arrest documentation on misdemeanor charges if the pertinent information is docketed in the docket books? ”

Response: Section 9–7–128 of the Mississippi Code of 1972 sets forth the manner of destruction of documents in circuit and county court. It is our opinion a municipal judge, under the authority of section 21–23–7(10) of the Mississippi Code of 1972 may adopt a municipal analog of 9–7–128.

“Also, what is considered the pertinent information needed?”

Response: Mississippi Code Section 21–23–11 addresses the issue of permanent dockets to be kept by the Municipal Courts. The information needed in docket books are all motions, decisions, hearings, i.e. all events occurring in the history of the case that involved a filing or a decision by the court.

Question 2: “For the last 3 years all citations have been placed in the computer. These citations are not in the Docket books. May we delete the information from the computer after a two year period?”

Response: The docket book would reflect the institution of the charge and the date. The docket would not have to contain the entire traffic citation. While we are not certain of what you mean by placing the citations on the computer, the erasure of records of traffic citations placed on computer after the two year storage period is allowable. This follows in accordance with Mississippi Code Section 63–9–21(6), a copy of which is attached.

“Do we have to have a permanent record on this information also, such as computer print out to be bound in book form?

Section 63–9–21(6) only requires a two year period for the keeping of traffic citations (always assuming that the case has been finally decided). The docket book must be kept.

Question 3: “How long do we have to keep the bound Docket Books? If we do not have to keep them permanently, when may we destroy them?”

Response: Mississippi Code Section 9–1–57(e) states: “The plan shall provide for permanent retention of the documents and shall provide security provisions to guard against physical loss, alterations and deteriorations;”.

The bound docket books must be kept permanently.

Question 4: “May we destroy any information dealing with a felony conviction such as the defendant's folder on file if this information is in the docket books?”

Response: The answer to this question is very similar to question 1. The previous cited Code sections should answer your question (always assuming that the case has been finally decided). However, under Mississippi Code Section 9–1–57(e), the dockets can never be destroyed.

If I may be of further assistance, please let me know.

Very Truly Yours,

MIKE MOORE ATTORNEY GENERAL.

Larry J. Stroud Special Assistant Attorney General.

Attachment § 9–7–128.

Disposal and destruction of certain case files and loose records; electronic storage of certain files, records and documents.

(1) Where there is no requirement for a permanent record to be made, the clerk, upon order of the court, may dispose of and destroy all case files of the circuit or county court which have been in existence for ten (10) years or which have been reduced to judgment and that judgment satisfied and cancelled. The clerk may also dispose of and destroy any loose records not required by law to be kept as permanent records after a period of ten (10) years. No records, however, may be destroyed without the approval of the Director of the Department of Archives and History.

(2) The files, records and other documents described herein may, upon order of the court in accordance with the provisions of this section, be electronically stored for convenience and efficiency in storage. The electronic storage of documents, for purposes of this section, shall have the same meaning as set forth in Section 9–1–51. In those counties electing to store files, records and documents by means of electronic storage, the following described case files shall be electronically stored after the time periods described below have elapsed:

(a) Cases in county criminal or civil court which have been dismissed or in which a judgment has been entered at least three

(3) years prior to the date upon which they are electronically stored; and

(b) Cases in circuit criminal or civil court which have been dismissed or in which a judgment has been entered at least five

(5) years prior to the date upon which they are electronically stored.

(3) Nothing in this section shall serve as authority to destroy any docket book, minute book, issue docket, subpoena docket, witness docket book, execution docket book, voter registration book, marriage record book, trial order, abstract of judgment, judgment roll, criminal file where an indictment was returned and the defendant convicted if the file is not at least twenty (20) years old, habeas corpus docket, preliminary hearing docket or Supreme Court appeals docket.

SOURCES: Codes 1942, § 1423; Laws, 1972, ch. 461, § 1; 1981 ch. 501, § 19; 1987, ch. 470, eff from and after November 16, 1987 (the date the United States Attorney General interposed no objection to the amendment).

§ 21–23–11 . Clerk of the court.

The clerk of the municipality shall be the clerk of the municipal court, unless the governing authorities shall otherwise elect. The clerk of the court shall attend the sittings of the court in person or by duly appointed deputies, and he shall be under the direction of the municipal judge. The governing authorities may authorize the municipal judge to appoint other municipal employees as deputy clerks of the court to assist the clerk of the court in the conduct of the court's responsibilities or the governing authorities may appoint deputy clerks of the court. The authorization to appoint and/or appointment of deputy clerks of the court shall be entered in the minutes of the municipality. A police officer of the municipality may be the clerk of the court or a deputy clerk of the court. The governing authorities shall provide for the training of court personnel.

The clerk of the court shall keep permanent dockets, upon which all cases shall be entered; said docket shall contain the style of the case and the nature of the charge against an accused, and the names of witnesses for the prosecution and defendant. The clerk of the court shall also keep a minute book in which all orders and judgments shall be entered. One (1) book may serve as both the docket book and minute book. The clerk of the court or deputy clerk of the court shall issue all process from the court, except arrest warrants or process for the seizure of persons and property, and shall administer the collection of all fines, penalties, fees and costs imposed by the court and deposit all collections with the municipal treasurer or equivalent officer. The clerk of the court shall purchase all dockets, minute books, stationery and other supplies for the municipal court, and have the account allowed by the municipal judge; the order allowing the same shall be entered upon the minutes, and the municipal authorities shall pay the same. The clerk of the court and deputy clerks of the court shall have power to take acknowledgments, administer any oaths required by law to be taken by any person, and take affidavits charging any crime against the municipality or state.

When the municipal judge is unavailable, persons charged with the commission of misdemeanor violations within the municipality may be brought before the clerk of the court for initial appearances required by the Mississippi Uniform Criminal Rules of Circuit Court Practice where the clerk of the court has satisfactorily completed a course of training and education on this subject conducted by the Mississippi Judicial College of the University of Mississippi Law Center and the municipal judge has established written guidelines and procedures for the clerk of the court to discharge this function. Such guidelines shall be entered in the minutes of the court and be deemed a public record and made available to defendant or counsel.

SOURCES: Codes, Hemingway's 1917, § 5930; 1930, § 2538 1942, § 3374–105; Laws, 1910, ch. 202; 1950, ch. 491, § 105; 1979, ch. 401, § 7; 1988, ch. 418; 1989, ch. 571, § 3, eff from and after July 1, 1989.

§ 63–9–21. Uniform Traffic Ticket Law.

(1) This section shall be known as the Uniform Traffic Ticket Law.

(2) All traffic tickets shall be printed in the original and at least two (2) copies and such other copies as may be prescribed by the State Auditor. All traffic tickets shall be uniform as prescribed by the State Auditor and the Attorney General, except as otherwise provided in subsection (3)(b) and except that such state officers may alter the form and content of traffic tickets to meet the varying requirements of the different law enforcement agencies. The State Auditor and the Attorney General shall prescribe a separate traffic ticket, consistent with the provisions of subsection (3)(b) of this section, to be used exclusively for violations of the Mississippi Implied Consent Law.

(3)(a) Except as otherwise provided in paragraph (b) of this subsection, every traffic ticket issued by any sheriff, deputy sheriff, constable, county patrol officer, municipal police officer or State Highway Patrol officer for any violation of traffic or motor vehicle laws shall be issued on the uniform traffic ticket consisting of an original and at least two (2) copies and such other copies as may be prescribed by the State Auditor.

(b) The traffic ticket, citation or affidavit which is issued to a person arrested for a violation of the Mississippi Implied Consent Law shall be uniform throughout all jurisdictions in the State of Mississippi. It shall contain a place for the trial judge hearing the case or accepting the guilty plea, as the case may be, to sign, stating that the person arrested either employed an attorney or waived his right to an attorney after having been properly advised of his right to have an attorney. If the person arrested employed an attorney, the name, address and telephone number of the attorney shall be written on the ticket, citation or affidavit.

(c) Every traffic ticket shall show, among other necessary information, the name of the issuing officer, the name of the court in which the cause is to be heard, and the date and time such person is to appear to answer the charge. The ticket shall include information which will constitute a complaint charging the offense for which the ticket was issued, and when duly sworn to and filed with a court of competent jurisdiction, prosecution may proceed thereunder.

(4) All traffic tickets shall be bound in book form, shall be consecutively numbered and each traffic ticket shall be accounted for to the officer issuing such book. Said traffic ticket books shall be issued to sheriffs, deputy sheriffs, constables and county patrol officers by the chancery clerk of their respective counties, to each municipal police officer by the clerk of the municipal court, and to each State Highway Patrol officer by the Commissioner of Public Safety.

(5) The chancery clerk, clerk of the municipal court and the Commissioner of Public Safety shall keep a record of all traffic ticket books issued and to whom issued, accounting for all books printed and issued.

(6) The original traffic ticket shall be delivered by the officer issuing the traffic ticket to the clerk of the court to which it is returnable to be retained in that court's records and the number noted on the docket. The officer issuing the traffic ticket shall also give the accused a copy of the traffic ticket. The clerk of the court shall file a copy with the State Auditor within forty-five (45) days after judgment is rendered showing the amount of the fine and cost or, in cases in which no judgment has been rendered, within one hundred twenty (120) days after issuance of the ticket. Other copies that are prescribed by the State Auditor pursuant to this section shall be filed or retained as may be designated by the State Auditor. All copies shall be retained for at least two (2) years.

(7) Failure to comply with the provisions of this section shall constitute a misdemeanor and, upon conviction, shall be punishable by a fine of not less than Ten Dollars ($10.00) nor more than One Hundred Dollars ($100.00).

SOURCES: Laws, 1991, ch. 480, § 3, eff from and after July 1, 1991.

§ 9–1–41. Reasonableness of attorneys' fees; evidence.

In any action in which a court is authorized to award reasonable attorneys' fees, the court shall not require the party seeking such fees to put on proof as to the reasonableness of the amount sought, but shall make the award based on the information already before it and the court's own opinion based on experience and observation; provided however, a party may, in its discretion, place before the court other evidence as to the reasonableness of the amount of the award, and the court may consider such evidence in making the award.

SOURCES: Laws, 1990, ch. 393, § 1, eff from and after passage (approved March 13, 1990).

§ 9–1–51. Definitions.

For purposes of Sections 9–1–51 through 9–1–57, the following terms shall have the meanings ascribed herein unless the context shall otherwise require:

(a) “Court” shall mean all courts not governed by rules promulgated by the Mississippi Supreme Court.

(b) “Clerk of court” shall mean the clerks of the court.

(c) “Judge” shall mean the senior judge of a court not governed by rules promulgated by the Mississippi Supreme Court.

(d) “Documents” shall mean and include, but not be limited to, all contents in the file or record of any case or matter docketed by the court, administrative orders, court minutes, court dockets and ledgers, and other documents, instruments or papers required by law to be filed with the court.

(e) “Electronic filing of documents” shall mean the transmission of data to a clerk of any court by the communication of information which is originally displayed in written form and thereafter converted to digital electronic signals, transformed by computer and stored by the clerk either on microfilm, magnetic tape, optical discs or any other medium.

(f) “Electronic storage of documents” shall mean the storage, retention and reproduction of documents using microfilm, microfiche, data processing, computers or other electronic process which correctly and legibly stores and reproduces or which forms a medium for storage, copying or reproducing documents.

(g) “Filing system” or “storage system” shall mean the system used by a court for the electronic filing or storage of documents.

SOURCES: Laws, 1987, ch. 490, § 1; 1991, ch. 573, § 5, eff from and after July 1, 1991.

§ 9–1–53. Authority to electronically file and store court documents.

Courts are hereby authorized to institute procedures, in conformity with rules and regulations adopted by the Mississippi Supreme Court, for the electronic filing and electronic storage of court documents to further the efficient administration and operation of the courts. The provisions of Sections 9–1–51 through 9–1–57 shall not be construed to amend or repeal any other provision of existing state law which requires or provides for the maintenance of official written documents, records, dockets, books, ledgers or proceedings by a court or clerk of court. It is hereby declared to be the intent of the Legislature, by the adoption of Sections 9–1–51 through 9–1–57, that such official written documents, records, dockets, books, ledgers or proceedings may be filed, stored, maintained, reproduced and recorded in the manner authorized by Sections 9–1–51 through 9–1–57.

SOURCES: Laws, 1987, ch. 490, § 2; 1991, ch. 573, § 6, eff from and after July 1, 1991.

§ 9–1–55. [En Laws, 1987, ch. 490, § 3] Repealed by Laws, 1991, ch. 573, § 141, eff from and after July 1, 1991.

§ 9–1–57 . Plan for electronic storage system.

A plan for the storage system shall require, but not be limited to, the following:

(a) All original documents shall be recorded and released into the system within a specified minimum time period after presentation to the clerk;

(b) Original paper records may be used during the pendency of any legal proceeding;

(c) The plan shall include setting standards for organizing, identifying, coding, and indexing so that the image produced during the duplicating process can be certified as a true and correct copy of the original and may be retrieved rapidly;

(d) All materials used in the duplicating process which correctly and legibly reproduces or which forms a medium of copying or reproducing all public records, as herein authorized, and all processes of development, fixation, and washing of said photographic duplicates shall be of a quality approved for permanent photographic records by the United States Bureau of Standards;

(e) The plan shall provide for permanent retention of the documents and shall provide security provisions to guard against physical loss, alterations and deterioration; and

(f) All transcripts, exemplifications, copies or reproductions on paper or on film of an image or images of any microfilmed or otherwise duplicated record shall be deemed to be certified copies of the original for all purposes.

SOURCES: Laws, 1987, ch. 490, § 4, eff from and after passage (approved April 20, 1987).

April 30, 1993

State of Mississippi

Office of the Attorney General

P.O. Box 220

Jackson, MS 39205–0220

RULES FOR DESTRUCTION OF COURT DOCUMENTS

Our department is currently trying to set up a standard policy and procedure to destroy certain Municipal Court documents.

Under MS Law (stat. 63–9–21) we are able to destroy all citations issued by our department which have gone through the court process and have been audited, after a (2) two year period.

Please send the information needed pertaining to the following questions:

1) May we destroy the arrest documentation on misdemeanor charges if the pertinent information is docketed in the Docket books. Also, what is considered the pertinent information needed.

2) For the last 3 years all citations have been placed in the computer. These citations are not in the Docket books. May we delete the information from the computer after a two year period? Do we have to have a permanent record on this information also, such as computer print out to be bound in book form?

3) How long do we have to keep the bound Docket Books. If we do not have to keep them permanently, when may we destroy them.

4) May we destroy any information dealing with a felony conviction such as the defendant's folder on file if this information is in the docket books?

Thank you in advance for the time and attention on this matter. Our department greatly appreciates your help.

Patricia Bellman

Asst. Court Clerk