Opinion No. ( 1997 )

Ann Hudson, Circuit Clerk Craighead County P.O. Box 120 Jonesboro, Arkansas 72401

Dear Ms. Hudson:

This official Attorney General opinion is rendered in response to a question that you have raised regarding the destruction of original documents under the provisions of Act 1061 of 1995 (which is codified at A.C.A. § 13-4-201 through -204).

You have asked:

(1) Does Act 1061 authorize the destruction of original court files and pleadings after they have been scanned and are stored on CD's?

(2) Can the Circuit Clerk replace criminal, chancery, civil, deed, mortgage and all record books with imaged records which require very little space for storage?

(3) Can the Circuit Clerk replace original UCC filings with imaged copies?

Response

Question 1 — Does Act 1061 authorize the destruction of originalcourt files and pleadings after they have been scanned and arestored on CD's?

It is my opinion that Act 1061 does authorize the destruction of original court files and pleadings after they have been scanned and are stored on CD's, provided that no other law requires that the original be retained.

Act 1061 of 1995 (A.C.A. § 13-4-201) provides for the electronic reproduction of court records, stating:

The circuit clerks, county clerks, and any public officers whose duty it is to make and maintain court records are authorized to use and employ an approved system of photographic recording, photostatic recording, microfilm, microcard, miniature photographic recording, digital compact disc, optical disc, and other processes which accurately reproduce or form a durable medium for reproducing the original.

Acts 1995, No. 1061, § 1 (A.C.A. § 13-4-201) (emphasis added).¹

The Act goes on to provide that if a record has been reproduced in accordance with the Act (i.e., in compliance with A.C.A. §13-4-201 and -202), the original of that record may be destroyed, unless another law requires that the original be retained. This provision for the destruction of originals is set forth in A.C.A. § 13-4-204, which states:

When any document is recorded by the means prescribed by § 13-4-201, the original may be destroyed unless its preservation is required by law.

Acts 1995, No. 1061, § 1 (A.C.A. § 13-4-204).

On the basis of the unambiguous language of the above-quoted provision, I must conclude that as a general matter, Act 1061 does authorize the destruction of original court files and pleadings after they have been scanned and are stored on CD's, provided that no other law requires that the original be retained. See also A.C.A. § 16-46-101(a); A.C.A. § 14-2-201, -203; and Acts 1997, No. 541, amending A.C.A. §§ 19-4-815 and -1108. The question of whether the law requires the retention of the originals of any particular record will require evaluation of the particular record under consideration.

Question 2 — Can the Circuit Clerk replace criminal, chancery,civil, deed, mortgage and all record books with imaged recordswhich require very little space for storage?

It is my opinion that the Circuit Clerk can replace criminal, chancery, civil, deed, mortgage and all record books with imaged records under the authority of Act 1061 of 1995, as discussed above. The Records Retention Committee, which is granted authority under Act 1061, to issue standards and guidelines regarding this matter, has not, to date, issued any such guidelines or standards. The matter thus continues to be governed by the available statutory law. I am familiar with no law that would require the originals of any of these records to be retained. (The reproductions of these records, must, of course, be retained as required by law. See, e.g., A.C.A. § 13-4-301 etseq.).

Question Three — Can the Circuit Clerk replace original UCCfilings with imaged copies?

It is my opinion that the Circuit Clerk can replace original UCC filings with imaged copies under the authority of Act 1061, as discussed above. This conclusion is bolstered by the provisions of A.C.A. § 4-9-403(4), which address the filing of financing statements, stating in pertinent part:

Except as provided in subsection (7) a filing officer shall mark each statement with a file number and with the date and hour of filing and shall hold the statement or a microfilm or other photographic copy thereof for public inspection.

A.C.A. § 4-9-403(4) (emphasis added).

I am familiar with no law that would require that the originals of other UCC filings be retained. It is therefore my opinion that, as with UCC financing statements, reproducions of other UCC filings may be substitued for originals.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Suzanne Antley.

Sincerely,

WINSTON BRYANT Attorney General

WB:SA/cyh

¹ A.C.A. § 13-4-202 sets forth requirements for the format and storage of records.