3. Records retention requirements

Alaska’s Records Management Act, AS 40.21.010-150, governs the management and preservation of public records.  The Alaska Supreme Court has construed that statute to permit the destruction of “non-record” email, which is primarily generated for informal communications. See McLeod v. Parnell, 286 P.3d 509, 511 & n.3 (Alaska 2012) (explaining that public records include records “appropriate for preservation” under the Record Management Act). In a case focusing on whether city officials had made sufficient efforts to locate emails requested pursuant to the Public Records Act and a municipal public records ordinance, the Supreme Court found they had, but noted that the requester could have alleged in the trial court, but didn’t, a claim for the destruction of missing emails under the Alaska Records Management Act.  Griswold v. Homer City Council, 310 P.3d 938, 942 (Alaska 2013).  The Supreme Court noted that this statute requires state agencies to preserve public records and create reasonable retention schedules, and to follow the program established for the management of state records “as far as practical.” AS 40.21.070.  However, because the issue was not litigated or ruled on in the superior court, the appellate court concluded the records retention claim was beyond the scope of the administrative appeal before it.

Pursuant to A.R.S. § 41-151.12(3), only the Arizona State Library, Archives and Public Records has the authority to set retention periods.  The general records retention schedule can be found here and custom state agency retention schedules can be found here.

The FOIA does not require a specific retention period for public records. Daugherty v. Jacksonville Police Dept., 2012 Ark. 264, 411 S.W.3d 196 (2012) (holding that police department did not violate the FOIA when it destroyed dash-cam recording after 45 days, pursuant to its normal record-retention policy).

The CPRA is silent on the obligation to retain public records. However, several other statutes govern the management, retention and destruction of state and local agency records.

At the state level, the State Records Management Act (Government Code sections 12270-12279) directs the California Secretary of State to establish and administer a records management program that includes, among other things, management methods regarding disposal of state records. Cal. Gov’t Code §§ 12270-12279. Section 12275 of the Act provides that “[a] record shall not be destroyed or otherwise disposed of by an agency of the state, unless it is determined by the Secretary of State that the record has no further administrative, legal, or fiscal value and the Secretary of State has determined that the record is appropriate for preservation in the State Archives.” Cal. Gov’t Code § 12275. Under the Act, each agency must establish and maintain a records retention schedule that details the public records the agency will keep, how the records will be managed, and how the agency will legally dispose of non-permanent records. Id. § 12274.

The California State Records and Information Management Program (“CalRIM”), a state records program with the State Archives, assists agencies with, among other things, establishing record retention schedules. See Records and Information Management Program (CalRIM).

At the local level, cities are required to retain any record that is less than two years old. Cal. Gov’t Code § 34090. Notwithstanding this requirement, records of “routine video monitoring” may be destroyed after one year and recordings of telephone and radio communications may be destroyed after 100 days, provided the destruction is approved by the legislative body and the written consent of the agency attorney is obtained. Id. § 34090.6. Duplicates of city records less than two years old may be destroyed if they are no longer required. Id. § 34090.7. Further, “video recording media, including recordings of ‘routine video monitoring’ . . . shall be considered duplicate records if the city keeps another record, such as written minutes or an audio recording, of the event that is recorded in the video medium. However, a video recording medium shall not be destroyed or erased pursuant to this section for a period of at least 90 days after occurrence of the event recorded thereon.” Id.

The Connecticut State Library maintains detailed records retention schedules for state agencies and municipalities, with varying retention requirements based on the type of record at issue. Records are not to be destroyed until the time specified in these schedules.

Not addressed.

The D.C. Act does not impose any laws or regulations requiring retention for certain periods.

Section 119.021 describes the custodial, maintenance, preservation, and retention obligations for public records.  “[P]ublic records should be kept in the buildings in which they are ordinarily used” and “a custodian of public records of vital, permanent, or archival records shall keep them in fireproof and waterproof safes, vaults, or rooms fitted with noncombustible materials and in such arrangement as to be easily accessible for convenient use.”  Fla. Stat. §§ 119.021(1)(a), (b) (2020).  The Division of Library and Information Services of the Department of State is tasked with establishing retention schedules and disposal procedures for public records with which each agency must comply.  Fla. Stat. §§ 119.021(2)(a)-(b) (2020).  “Each public official shall systematically dispose of records no longer needed, subject to the consent of the records and information management program of the division in accordance with s. 257.36.”  Fla. Stat. § 119.021(2)(c) (2020).

The Act requires that agencies maintain records to the extent and in the manner required by the state’s records retention statute. O.C.G.A. § 50-18-71(a). See § 50-18-90, et seq.

As the Supreme Court of Hawaii has recently reaffirmed, “the UIPA ‘nowhere imposes an affirmative obligation’ upon a government agency ‘to maintain records.’” Nuuanu Valley Ass'n v. City & Cnty. of Honolulu, 119 Haw. 90, 97, 194 P.3d 531, 538 (2008), as corrected (Nov. 25, 2008) (quoting State of Hawai'i Org. of Police Officers (SHOPO) v. Soc'y of Prof'l Journalists-Univ. of Hawai'i Chapter, 83 Haw. 378, 393, 927 P.2d 386, 401 (1996)). Rather, “the UIPA requires agencies to provide access to those records that are actually maintained.” Id. (citation omitted).

In implementing the UIPA, however, each agency is required to provide a public report that includes, among other things, its “policies and practices . . . regarding storage, retrievability, access controls, retentions, and disposal of the information maintained in [its] records.” Haw. Rev. Stat. § 92f-18(b)(9).

The records retention schedule for Idaho government agencies can be viewed at https://history.idaho.gov/records-center/idaho-records-center-retention-schedules/.  In addition, the Act requires retention of all disputed records – i.e. records involved in a request for disclosure that was denied – until the end of the appeal period, until a decision has been rendered on the appeal, or as otherwise statutorily provided, whichever is longer. Idaho Code § 74-115(1)-(2).

In Illinois, FOIA is a record-production statute.  Record retention requirements are found in the State Records Act and the Local Records Act.  Those acts impose record retention requirements and establish commissions to oversee record retention policies. 5 ILCS 160/1. Destruction of a record after a FOIA request has been made is a violation of FOIA. Public Act 19-013, https://perma.cc/7LP9-NSCU.

Indiana Code Section 5-14-3-4(h) states that public records subject to Indiana Code Article 5-15 (“State and Local Administration: Preservation of Public Records”) may be destroyed only according to the applicable record retention schedules under that article. Public records not subject to Indiana Code Section 5-15 may be destroyed in the ordinary course of business. Id.

Indiana Code Section 5-15-5.1-10(b)(1) requires each agency to submit a retention schedule. See also Ind. Code § 5-15-5.1-1(s) (defining “retention schedule” as “a set of instructions prescribing how long, where, and in what form a records series must be kept”). Additionally, the State Commission on Public Records and the Local Public Records Commissions must make general retention schedules for records not falling under a specific schedule. Ind. Code §§ 5-15-5.1-5(11); 5-15-6-2.5. Links to various retention schedules can be found here: https://www.in.gov/iara/3266.htm.

The Access to Public Records Act provides specific retention rules for law enforcement recordings. Ind. Code § 5-14-3-5.3.

Additionally, a public record classified as confidential shall be made available for inspection and copying seventy-five years after it is created, unless the records concerns an adoption or patient medical records. Ind. Code § 5-14-3-4(d).

There is no specific statutory provision covering record retention requirements, and there are no reported cases.

“Nothing in this act shall be construed to require the retention of a public record nor to authorize the discard of a public record." K.S.A. 45-216(b). State agencies and counties are subject to the Preservation Act and are prohibited from destroying public records except as permitted by minimum records retention schedules as set forth by the State Records Board. K.S.A. 45-403; 45-404(b). Unless some specific law applies to a specific record, all other public agencies may dispose of their records as they deem advisable.

Records retention schedules for state and local agencies are established by the Kentucky State Archives and Records Commission and published by the Department of Libraries and Archives. The schedules can be found at http://kdla.ky.gov/records/recretentionschedules/Pages/stateschedules.aspx.

Minimum of three years, or for state agencies, as set out in “records retention schedules developed and approved by the state archivist.”  La. Rev. Stat. Ann. § 44:36.

The Maine State Archives has issued records retention schedules and policies governing the retention of agency records, available here.  See 5 M.R.S.A. § 95.   State Archives policy and rules establish uniform records management practices throughout Maine government. Records retention schedules dictate how long any record must be retained.  Records retention schedules apply to both paper and electronic records.

Section 10-610 of the State Government Article and COMAR 14.18.02 requires every State, county and local government agency to develop a program for efficient records management. Each agency must establish and regularly revise its records retention and disposition schedules. Id. Records retention schedules for each level of government are available on the Maryland State Archives website: http://msa.maryland.gov/msa/intromsa/html/record_mgmt/toc.html.

The willful, unauthorized destruction or alienation of any public record is a misdemeanor subject to criminal penalties.  Md. Code Ann., Crim. Law Art. § 8-606(b)(2). The State Archivist must authorize the disposition of any public record, with such authorization obtained by first filing a records retention and disposition schedule. See Md. Code Ann., State Gov’t Art. § 10-616(c).

Records should be maintained according to the Statewide Records Retention Schedule and Municipal Records Retention Manual, available here: https://www.sec.state.ma.us/arc/arcrmu/rmuidx.htm. The Records Conservation Board created the Electronic Records Management Guidelines to assist custodians with maintenance, available at: http://www.sec.state.ma.us/arc/arcpdf/Electronic_Records_Guidelines.pdf.It is the responsibility of the government employee who create, receive, and maintain public records to ensure that they are kept safely and available to the public.

FOIA also does not contain any provisions explicitly requiring a public body to maintain a public document for any length of time. The Michigan Court of Appeals has held, however, that once a public body receives a FOIA request for a record, “FOIA inherently includes the duty to preserve and maintain such records until access has been provided or a court executes an order finding the record to be exempt from disclosure.” Walloon Lake Water Sys., Inc. v. Melrose Twp., 163 Mich. App. 726, 732, 415 N.W.2d 292, 295 (1987). In addition, FOIA gives a person the “right to subscribe to future instances of public records that are created, issued, or disseminated on a regular basis.” M.C.L. § 15.233(1). A subscription is valid for up to 6 months. Id. If a public document is subject to a valid subscription, it must also be preserved until it is disclosed or found to be exempt. See Farrell v. City of Detroit, 209 Mich. App. 7, 16, 530 N.W.2d 105, 110 (1995) (holding that where plaintiff requested a subscription for future copies of a report, the defendant had to maintain regularly created printer backup tapes containing the report until it complied with the requests).

In general, records retention guidelines are set by the individual government agency responsible for such records and are not specifically addressed within the Act. Minn. Stat. § 138.17, subd. 7. However, the Act does set retention requirements for data obtained through portable audio and video recording systems worn by peace officers in the course of duty. Minn. Stat. § 13.825, subd. 1.

 

The Act requires that portable recording system data not related to an active or inactive criminal investigation be maintained for at least 90 days. Minn. Stat. § 13.825, subd. 3(a). If a formal complaint is made against a peace officer in relation to an incident, or if the recording system data documents either (1) the discharge of a firearm by a peace officer; or (2) the use of force by a peace officer that results in substantial bodily harm, the data must be maintained for at least one year. Minn. Stat. § 13.825, subd. 3(b).

 

A subject of the data collected may submit a written request to the law enforcement agency to retain the recording for possible evidentiary or exculpatory use. Minn. Stat. § 13.825, subd. 3(c). In such case, the law enforcement agency must retain the recording for the time period requested, but no longer than 180 days. Id. At the end of the applicable retention period, the agency must notify the requester that the recording will be destroyed unless a new request for retention is made. Id. The government, at its own discretion, may also retain the data for possible evidentiary or exculpatory use for as long as reasonably necessary. Minn. Stat. § 13.825, subd. 3(d).

Record retention can vary for city, county and state agencies.  A list of record retention guidelines in Mississippi may be found at the Mississippi Department of Archives web site: http://www.mdah.ms.gov/new/government-2/records-management/local-government-records/.

The Sunshine Law does not contain retention requirements, but the Public Records Law, discussed in a separate section, does.

All records must be maintained, managed and preserved according to the type of document and the subject to records management plans specific to the agency. Mont. Code Ann. § 2-6-1012-1014.

The Nebraska Records Management Act, Neb. Rev. Stat. §84-1201 et seq. (Reissue 2014) designates the Secretary of State as the State Records Administrator and requires him to review and approve record retention schedules for State agencies.

The Committee to Approve Schedules for the Retention and Disposition of Official State Records (State Records Committee or Committee) was created in NRS 239.073 to review and approve the minimum retention periods of official records. The official records created and preserved by an agency must be retained for the length of time established by the Committee. Agency records retention schedules are made readily available to agencies and to the public on the Nevada State Library, Archives and Public Records’ website. https://nsla.libguides.com/home.

RSA 91-A:4,VI requires that records pertaining to lawsuits or threatened lawsuits be retained for at least 10 years. RSA 91-A:9 prohibits the destruction of “any information with the purpose to prevent such information from being inspected or disclosed in response to a request under this chapter.”

Entities subject to the Statute may have their own separate retention periods.

See http://www.nj.gov/treasury/revenue/rms/retention.shtml.

NMSA 1978 §§ 14-3-15.1 et seq. do not provide for specific retention requirements; however, individual agencies maybe be required to retain records for a certain amount of time.  See Implementation Guide from Commission of Public Records, New Mexico State Records Center and Archives.

Pursuant to N.Y. Pub. Off. Law § 87(3), each agency is required to maintain (1) a record of the final vote of each member in every agency proceeding in which the member votes; (2) a record setting forth the name, public office address, title and salary of every officer or employee of the agency; and (3) a reasonably detailed current list by subject matter of all records in the possession of the agency, whether or not available under FOIL.

G.S. §§ 132-7 – 132-8.2 sets forth the statutory requirements for safekeeping, preservation and preservation advice and records management directives from the North Carolina General Assembly to public agencies and the North Carolina Department of Natural and Cultural Resources. The agency records retention guidelines and schedules can be found online at https://archives.ncdcr.gov/government/retention-schedules/state-agency-schedules.

The open records statute does not address the amount of time records must be retained by public entities.

The Public Records Act requires that public offices make a copy of its current records retention schedule “at a location readily available to the public.” Ohio Rev. Code. § 149.43(B)(2). Further, the Department of Administrative Services is required to establish a state records program, including the establishment of “general schedules” for disposal of records. Ohio Rev. Code § 149.331.

The State Auditor is required to retain the “work papers, documents, and materials prepared by a public account in the course of his audit of a public office” for a period of three years from the release date of the audit report. Ohio Rev. Code § 117.21.

If a public office deletes emails that are public records and retrievable by a technician, the office must produce those records upon request if the public office's records-retention schedule did not validly authorize their destruction. State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. Of Commrs., 120 Ohio St.3d 372, 899 N.E.2d 961, 2008-Ohio-6253.

The Oklahoma Archives and Records Commission oversees the maintenance and disposition of records in the state government. 67 O.S. § 305. Without a unanimous vote of the Commission, no record shall be destroyed that is less than five years old. 67 O.S. § 306. But, except as provided by law, no state record shall be destroyed unless it is deemed by the Commission that the record has no further administrative, legal, fiscal, research or historical value. 67 O.S. § 210.

The Records Management Act is located at title 67, sections 201 to 217 of the Oklahoma Statutes and outlines “programs for the efficient and economical management of state and local records.” The Records Management Act applies only to the state and not to political subdivisions of the state. 67 O.S. § 305. But the does require that the political subdivisions establish their own record retention system. 67 O.S. § 207. Political subdivisions are exempt from record management and are mandated to maintain a records management program which is similar to the state records management system. 2001 OK AG 46.

The Records Management Act applies equally to public officials’ publicly owned electronic devices and privately owned electronic devices. 2009 OK AG 12.

Records retention requirements are found outside of the Public Records Law, at ORS 192.001 to 192.170, and the rules promulgated thereunder.

The OOR does not have jurisdiction over record retention.  The Pennsylvania Historical & Museum Commission (“PHMC”) provides guidelines for record retention. Retention is based on media type and agency.  The PHMC’s retention schedule can be found here: https://www.phmc.pa.gov/Archives/Records-Management/Documents/20190520_GeneralRRDS.pdf

The Public Records Administration (PRA) collaborates with agencies to develop records retention schedules for records that are unique to each agency.  They are contained in the General Records Schedule, which is a document that lists and describes the records that an agency creates or receives in the course of conducting its business. Each schedule also stipulates the minimum amount of time the agency must keep each record series. The amount of time (the retention period) is set by law or determined by business needs when no law directly applies. The historical or informational value of the record is also a consideration.

 

Under the APRA, each public body shall make, keep, and maintain written or recorded minutes of all meetings.  R.I. Gen. Laws §  38-2-3(c).

The chief administrative officer of a public body is legal custodian of its records and is responsible for the organization and preservation of those records pursuant to the South Carolina Records Retention Act generally and S.C. Code Ann. § 30-1-20 specifically. The chief administrative officer must deliver to his successor, or if there is none, to the South Carolina Department of Archives and History, all public records in his custody. S.C. Code Ann. § 30-1-40. There is not statutory or regulatory “sunset” on the life of a public record.

Public records are property of the state and are subject to administrative rules that apply to the state records management program.  Destruction of records must be approved by the state records destruction board.  SDCL §1-27-12 and S.D. Admin.R. 10:03 and 10:04.

Records retention is addressed generally at T.C.A. §§ 10-7-509, -511.

The Act authorizes a governmental body to “determine a time for which information that is not currently in use will be preserved, subject to any applicable rule or law governing the destruction and other disposition of state and local government records or public information.”  § 552.004.

The Division of Archives and Records Service within the Department of Administrative Services shall “establish standards for the preparation of schedules providing for the retention of records of continuing value and for the prompt and orderly disposal of state records no longer possessing sufficient administrative, historical, legal, or fiscal value to warrant further retention.” Id. § 63A-12-101(1)-(2).

Each government entity shall file with the State Records Committee a proposed schedule for the retention and disposition of each type of record. Id. § 63G-2-604(1)(a). After a retention schedule is reviewed and approved by the State Records Committee, the governmental entity shall maintain and destroy records in accordance with the retention schedule. Id. § 63G-2-604(1)(b). If a governmental entity has not received an approved retention schedule for a specific type of material, the model retention schedule maintained by the state archivist shall govern the retention and destruction of that type of material. Id. § 63G-2-604(1)(c). A retention schedule is a public record. Id. § 63G-2-604(2).

The written minutes or recording of an open meeting that are required to be retained permanently shall be maintained in or converted to a format that meets long-term records storage requirements. Id. § 52-4-203(4)(e).

The Public Records Act requires that public records and archival records “should be systematically managed to provide ready access to vital information, to promote the efficient and economical operation of government, and to preserve their legal, administrative, and informational value.”  1 V.S.A. §  317a(a).  Moreover, “[a] custodian of public records shall not destroy, give away, sell, discard, or damage any record or records in his or her charge, unless specifically authorized by law or under a record schedule, as defined in 3 V.S.A. § 117(a)(6), that has been approved by the State Archivist.”  Id. at (b).

Record retention requirements are governed comprehensively by the Virginia Public Records Act, Va. Code Ann. § 42.1-76, et seq.  The Library of Virginia generally oversees the permanent archiving of public records. Va. Code Ann. § 42.1-79.

Public agencies must retain public records in accordance with RCW 40.14.060 and retention schedules approved by the Secretary of State’s Office. Intentional destruction of public records in violation of the retention requirements is a felony. RCW 40.16.010.

There are few West Virginia laws or regulations requiring document retention for specific periods of time. An exception is the requirement that the Secretary of State must retain for ten years all notices of open meetings filed electronically by governing bodies of the executive branch. W. Va. Code § 6-9A-3.

The secretary of the West Virginia department of administration is designated as the “state records administrator,” W. Va. Code § 5A-8-5. The administrator is required to “establish and administer in the department of administration a records management program, which includes the creation, utilization, maintenance and retention, preservation and disposal of state records. The administrator is further mandated to “establish and maintain a program for the selection and preservation of essential state records” and also must “advise and assist in the establishment of programs for the selection and preservation of essential local records.” Id. The Secretary of State is required to retain copies of all meeting notices for ten years. W. Va. Code § 6-9A-3(f).

Except as provided in W. Va. Code § 57-1-7a, “no record shall be destroyed or otherwise disposed of by any agency of the state, unless it is determined by the administrator and the director of the section of archives and history of the division of culture and history that the record has no further administrative, legal, fiscal, research or historical value.” If the administrator decides that a record “has no further administrative, legal, fiscal, research or historical value” the administrator must “give written notice of her intention to direct the destruction or disposal of the record to the director.” If the director does not retrieve the original document from the administrator within thirty days, the administrator may direct the destruction or other disposal of the original.

“No authority may destroy any record at any time after the receipt of a request for inspection or copying of the record . . . until after the request is granted or until at least 60 days after the date that the request is denied . . . .” Wis. Stat. § 19.35(5). The legislature, state agencies, and the Wisconsin Public Records Board establish retention periods for specific records.

Wyoming records retention schedules are available on the State Archives website.