Mississippi Advisory Opinions April 22, 1992: 19920422 (April 22, 1992)

Advisory Opinion Text

Honorable Donna Johnson

Circuit Clerk

P.O. Box 1005

Meridian, MS 39302–1005

Re: Records/Computerization

Dear Ms. Johnson:

Attorney General Mike Moore has received your letter and has assigned it to me for reply. A copy of your letter is attached for reference. From our phone conversations we understand your request to be limited to court records.

Section 9–1–53 of the Mississippi Code of 1972 authorize the courts, in conformity with rules and regulations adopted by the Mississippi Supreme Court, to store information electronically. That section does not abolish the requirement for any records, such as a judgment roll, but simply allows the roll to be kept electronically. The same can be said for dockets of the courts. We suggest you communicate with the Administrator of the Mississippi Supreme Court about their requirements.

You ask if you may charge the same fee for filing and indexing a record on computer that you now charge pursuant to § 25–7–13 of the Mississippi Code of 1972 when you perform this task by hand. The statute does not specify how the marking, filing and indexing is to be accomplished and it is our opinion that so long as the task is accomplished in a manner allowed by law the circuit clerk may charge the fee as allowed by § 25–7–13 of the Mississippi Code of 1972 . This should not be construed, however, to allow duplicative charges.

Very truly yours,

Mike Moore, Attorney General.

ATTACHMENT

February 14, 1992

Honorable Mike Moore

Attorney General

State of Mississippi

Carroll Gartin Justice Building

Post Office Box 117

Jackson, Mississippi 39205

Attention: Opinions Processing

RE: Request for opinion relating to disposition of certain official records maintained by the Circuit Clerk

Dear Attorney General Moore:

I am serving my first term as the Circuit Clerk of Lauderdale County, having taken office this January. It is my desire and purpose to modernize and automate the office of Circuit Clerk to the fullest practical extent so as to more effectively serve the public. Lauderdale County has a fully functional local records management program operating under the provisions of the 1981 Archives and Records Management Act, Miss.Code Ann., § 25–59–1 et seq. This program includes all of the records in my custody. However, in pursuing plans and ideas to implement my goal of modernization and automation, several questions have arisen which appear not to have obvious answers. I therefore am writing respectfully to request the opinion of your office with regard to the matters addressed hereinbelow.

Judgment Rolls

My office currently maintains the traditional bound judgment rolls. My able predecessor, Mr. Raymond Davis, also instituted computerization of the judgment rolls, and this process is complete for the period of time from 1985 to the present. In addition to the bound judgment rolls, my office makes available a computer terminal for judgment roll search, and also an alphabetized hard-copy printout (by year) of the computerized judgment roll data. When a particular judgment is satisfied and canceled, a creditor (or the attorney) manually signs a written authority to cancel, which is maintained in the office. A manual notation is then made in the margin of the hard-copy printout. Of course, the cancellation information also is entered into the computer. The printout is continually updated, usually weekly, and the new pages of the printout reflect that a particular judgment has been satisfied and canceled pursuant to a written authorization. Paper printouts are continually reprinted to reflect updates and revisions, and are kept only as long as needed for day to day business.

We would like to cease maintaining the traditional bound judgment rolls, which require not only very expensive books, but also extensive personnel time in making the necessary manual entries. I would propose to have the computer records exist as the official judgment roll, with the hard-copy printout as an adjunct thereto. Although I am confident that such a move would save a great deal of time and money and would make my office more efficient and cost-worthy, I am not sure whether I have the statutory authority to do this. I do want to stress that what I propose necessarily would involve the establishment of a records management procedure pursuant to Miss.Code Ann. § 91–1–53, –57, whereby permanently valuable automated records (i.e., computer generated judgment rolls) periodically would be placed on microfiche for permanent storage just as our permanently valuable papers are now.

Miss.Code Ann. § 11–7–189 (1972) mandates that the Circuit Clerk procure and maintain “one or more books” as a judgment roll. Although Miss.Code Ann. § 19–15–3 (1972) generally permits the destruction of certain records six (6) years after being microfilmed, this provision explicitly does not apply to records of “marriage licenses, registration books, judgment rolls, books containing deed records or other instruments pertaining to real estate, or any other books or records which it is desirable or necessary to retain and preserve in their original form.”

I maintain that what I wish to do does not involve destruction of records, but, rather, a change in format from a traditional form to a modern, electronic form. Miss.Code Ann. § 9–1–51 et seq. gives courts specific authority to implement electronic filing and electronic storage of court documents. May not the computer system in my office, if operated consistently with the requirements of Miss.Code Ann. § 9–1–53, –57, fulfill the statutory requirement for maintaining the judgment roll, or would this be violative of Miss.Code Ann. § 11–7–189 ? Further, would the periodic “destruction” of a duplicate copy (when the print-out pages are rerun) violate the intent of Miss.Code Ann. § 19–15–3 ? Succinctly stated, do the provisions of Miss.Code Ann. § 9–1–51 et seq. apply to the judgment rolls?

Dockets, Minute Books and Indexes

The same sort of question arises with respect to the dockets, minute book, and certain indexes, such as those to the marriage books, maintained in my office. I would like to maintain these books officially on our computer, in accordance with Miss.Code Ann. § 9–1–51 et seq., and make a hard-copy printout (which is periodically revised) available to the public. To do so would involve a great savings in time and money, with no loss of records integrity. May I do so under Miss.Code Ann. § 91–1–51 et seq., or does Miss.Code Ann. § 19–15–3 prevent this?

Voting Registration Records

Miss.Code Ann. § 23–15–114 (Supp.1991) allows for the establishment of an automated voter registration system. Voter registration records, therefore, are to be officially maintained on computer. However, Miss.Code Ann. § 19–15–3 (1972) provides that registration “books” shall not be disposed of or destroyed but, rather, preserved in their “original” form. Does “books” in this context mean the same thing as “microfilm or computer optical imaging” as referred to in Miss.Code Ann. 23–15–114(2) ? Further, can the paper original which is microfilmed pursuant to this statute thereafter be destroyed, or is this violative of Miss.Code Ann. § 19–15–3 ?

Fees

Miss.Code Ann. § 25–7–13 provides for the fees that Circuit Clerks may charge. For example, the Clerk shall charge a fee of $2.00 for “filing and marking each order or other paper and recording and indexing same.” Much of the indexing that is now done manually would be automated in the software package that would be integral to the computerization of certain records, such as the maintenance of the minute books. In the event that the computer is programmed to make the necessary indexing for which a separate fee could (and would) be charged if done manually, may I still lawfully collect the fees provided in Miss.Code Ann. § 25–7–13 notwithstanding that I or my deputy by using a computer, and not by hand, recorded the necessary indexing, cross-referencing, and other data necessary for proper filing?

Conclusion

As stated at the outset, my sole desire is to make my office as effective and efficient as possible given all of the modern tools now available for proper records management. Nevertheless, I naturally am quite anxious not to do anything which even inadvertently could be construed as not in full accordance with the law. Your guidance as to the questions set forth above therefore would be of great benefit to me. I anxiously wait your response.

Respectfully yours, Donna Jill Johnson Circuit Clerk