WEST virginia legislature
2020 regular session
Committee Substitute
for
Senate Bill 576
Senator Maynard, original sponsor
[Originating in the Committee on Government Organization; reported on February 5, 2020]
A BILL to repeal §5A-8-6 and §5A-8-12 of the Code of West Virginia, 1931, as amended; and to amend and reenact §5A-8-3, §5A-8-4, §5A-8-5, §5A-8-7, §5A-8-9, §5A-8-10, §5A-8-11, §5A-8-13, §5A-8-14, §5A-8-15, and §5A-8-17 of said code, all relating to records management of public records; defining terms; dissolving the formal advisory committee; updating the authority of the administrator; allowing for records of historical value; updating the authority of agency heads related to records management; providing for electronic storage and electronic formats for records; repealing the requirement that administrator must store agencies’ essential records; removing the requirement that administrator notify agencies of essential records destruction; providing that administrator may approve request by agencies to destroy their essential records; and making technical changes.
Be it enacted by the Legislature of West Virginia:
ARTICLE 8. PUBLIC RECORDS MANAGEMENT AND PRESERVATION ACT.
§5A-8-3. Definitions.
As used in this article:
“Agency” means any department, office, commission, board, or other unit, however designated, of the executive branch of state government.
“Agency Records Manager” means an employee appointed by the agency’s chief executive officer or agency head to manage the agency’s records inventory and to act as liaison with the administrator.
(a) “Disaster” means any occurrence of fire, flood,
storm, earthquake, explosion, epidemic, riot, sabotage, or other condition of
extreme peril resulting in substantial damage or injury to persons or property
within this state, whether such occurrence is caused by an act of God, nature,
or man, including an enemy of the United States.
“Local record” means a record of a county, city, town, authority, or any public corporation or political entity whether organized and existing under charter or under general law unless the record is designated or treated as a state record under state law.
“Preservation duplicate” means a copy of an essential state record which is used for the purpose of preserving such state record pursuant to this article.
(b) “Record” means document, electronic file,
book, paper, photograph, sound recording, or other material, regardless of
physical form or characteristics, made or received pursuant to law or ordinance
or in connection with the transaction of official state government
business. Library and museum material made or acquired and preserved solely for
reference or exhibition purposes, extra copies of documents preserved only for
convenience of reference, and stocks of publications and of processed documents
are not included within the definition of records as used in this article.
(c) “State record” means:
(1) (A) A record of a department, office,
commission, board, spending unit, or other agency, however designated,
of the state government.
(2) (B) A record of the State Legislature.
(3) (C) A record of any court of record, whether
of statewide or local jurisdiction.
(4) (D) Any record designated or treated as a
state record under state law.
(d) “Local record” means
a record of a county, city, town, authority or any public corporation or
political entity whether organized and existing under charter or under general
law unless the record is designated or treated as a state record under state
law.
(e) “Agency” means any
department, office, commission, board or other unit, however designated, of the
executive branch of state government.
(f) “Preservation
duplicate” means a copy of an essential state record which is used for the
purpose of preserving such state record pursuant to this article
§5A-8-4. Categories of records to be preserved.
State or local records which are within the following categories are essential records which shall be preserved pursuant to this article:
Category A. Records containing information necessary to the operation of government in the emergency created by a disaster.
Category B. Records not within category A but containing information necessary to protect the rights and interest of persons or to establish and affirm the powers and duties of governments in the resumption of operations after a disaster.
Category C. Records with historical value justifying permanent retention.
§5A-8-5. State records administrator.
The Secretary of the Department of Administration is hereby designated the state records administrator, hereinafter called the administrator. The secretary may designate someone within the department to carry out the duties of the administrator. The administrator shall establish and administer in the Department of Administration of the executive branch of state government a records management program, which will apply efficient and economical management methods to the creation, utilization, maintenance, and retention, preservation, and disposal of state records; and shall establish and maintain a program for the selection and preservation of essential state records and shall advise and assist in the establishment of programs for the selection and preservation of essential local records.
§5A-8-6. Records management and preservation advisory committee.
[Repealed.]
§5A-8-7. Duties of administrator.
The administrator shall, with due regard for the functions of the agencies concerned:
(a) Establish standards, procedures, and techniques for effective management of records;
(b) Make continuing surveys
of paperwork document operations and recommend improvements in
current records management practices including the use of space, technology,
equipment, and supplies employed in creating, maintaining, storing, and
servicing records;
(c) Establish standards for
the preparation of schedules providing for the retention of state records of
continuing value and for the prompt and orderly disposal of state records no
longer possessing sufficient administrative, legal, or fiscal value to warrant their
further keeping storage;
(d) Select the state
records which are essential and determine their category pursuant to this
article. Solicit input from agencies on essential records and data
classification of information contained in the records. In accordance with
the rules and regulations promulgated by the administrator, each person who
agency that has custody or control of state records shall: (1) Inventory
the state records in his or her custody or control; (2) submit to the
administrator a report thereon containing such information as the administrator
directs and containing recommendations as to which state records are essential;
and (3) periodically review his or her inventory and his or her
report and, if necessary, revise the report so that it is current, accurate,
and complete; and
(e) Obtain reports from agencies as are required for the administration of the program.
§5A-8-9. Duties of agency heads.
The head of each agency shall:
(a) Establish and maintain an active, continuing program for the economical and efficient management of the records of the agency;
(b) Designate and notify the administrator of an agency records manager to act as a point of contact between the administrator and the agency on issues related to management of the state records within the agency’s control or custody;
(b) (c) Make and maintain records containing
adequate and proper documentation of the organization, functions, policies,
decisions, procedures, and essential transactions of the agency designed to
furnish information to protect the legal and financial rights of the state and
of persons directly affected by the agency’s activities;
(c) (d) Submit to the administrator, in accordance
with the standards established by him or her, schedules proposing the
length of time each state record series warrants retention for administrative,
legal, or fiscal purposes after it has been received by the agency. The head
of each agency Each agency records manager also shall submit lists
of state records in custody of the agency that are not needed in the
transaction of current business and that do not have sufficient administrative,
legal, or fiscal value to warrant their further keeping storage
for disposal in conformity with the requirements of §5A-8-10 of this code;
(e) Designate those records of the agency that are essential state records, at least annually, and report the designated essential state records to the administrator;
(f) Provide for the preservation and safekeeping of essential state records in an appropriate manner;
(d) (g) Cooperate with the administrator in the
conduct of surveys made pursuant to the provisions of this article.
(e) (h) Comply with the rules, regulations,
standards, and procedures issued by the administrator; and
(f) (i) First obtain the administrator’s written
approval before purchasing or acquiring any equipment, technology, or
supplies used or to be used to store or preserve records of the agency. If
such approval is obtained the agency will submit a requisition to the Finance
Division together with a copy of the administrator's said approval
§5A-8-10. Essential state records – Preservation duplicates.
(a) The administrator
agency head may make or cause to be made preservation duplicates or may
designate as preservation duplicates existing copies of essential state
records. A preservation duplicate shall be durable, accurate, complete, and
clear, and a preservation duplicate made by means of photography,
microphotography, photocopying, film, microfilm, electronic file, or
digital image stored on unalterable media shall be made in conformity with the
standards prescribed therefor by the administrator.
(b) A preservation duplicate made by a photographic, photostatic, microfilm, microcard, miniature photographic, electronic file, digital image, or other process which accurately reproduces or forms a durable and unalterable medium for so reproducing the original, shall have the same force and effect for all purposes as the original record whether the original record is in existence or not. A transcript, exemplification, or certified copy of such preservation duplicate shall be deemed for all purposes to be a transcript, exemplification, or certified copy of the original record.
§5A-8-11. Essential state records – Safekeeping.
(a) The administrator shall
prescribe the place and a manner of safekeeping of essential
state records and preservation duplicates and may establish, with the approval
of the Legislature, storage facilities therefor. The administrator may provide
for physical storage outside the state or electronic storage.
(b) When in the opinion of
the administrator the legally designated or customary location of an essential
state record is such that the essential state record may be destroyed or
unavailable in the event of a disaster: caused by an enemy of the United
States
(1) The administrator
agency with custody of the essential state record shall store a
preservation duplicate at another location and permit such state record to
remain at its legally designated or customary location; or
(2) The administrator
agency shall store such state record at a location other than its
legally designated or customary location and deposit at the legally designated
or customary location a preservation duplicate for use in lieu of the state
record; or
(3) The administrator
agency may store such state record at a location other than its legally
designated or customary location, without providing for a preservation
duplicate, upon a determination that it is impracticable to provide for a
preservation duplicate and that the state record is not frequently used. Such
determination shall be made by the administrator and the regularly designated
custodian of such state record, but if they disagree the determination shall be
made by the administrator.
(c) The requirements of
subsection (b) of this section shall not prohibit the administrator from
removing an essential state record or preservation duplicate from the legally
designated or customary location of the state record if a disaster caused by
an enemy of the United States has occurred or is imminent.
§5A-8-12. Essential state records – Maintenance, inspection, and use.
[Repealed.]
§5A-8-13. Essential state records – Confidential records.
Any agency subject to
this article shall control and at all times be the owner of its records. When a state record is required by law to be treated
in a confidential manner and is an essential state record, the administrator
agency, in effectuating the purpose of this article with respect to such
state record, shall protect its confidential nature.
§5A-8-14. Essential state records – Review of program.
The administrator shall
review periodically but at least once a year the program at least
annually for the selection and preservation of essential state records designated
by the agencies, including the classification of records and the provisions
for preservation duplicates, and for safekeeping of essential state records or
preservation duplicates to ensure that the purposes of this article are
accomplished.
§5A-8-15. Records management and preservation of county records; alternate storage of county records; Records Management and Preservation Board; qualifications and appointment of members; reimbursement of expenses; staffing; rule-making authority; study of records management needs of state agencies; grants to counties.
The Legislature finds that the use of electronic technology and other procedures to manage and preserve public records by counties should be uniform throughout the state where possible.
(a) The governing body and the chief elected official of a county, hereinafter referred to as a county government entity, whether organized and existing under a charter or under general law, shall promote the principles of efficient records management and preservation of local records. A county governing entity may, as far as practical, follow the program established for the uniform management and preservation of county records as set out in rules proposed for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code as proposed by the Records Management and Preservation Board.
(b) In the event a county government entity decides to
destroy or otherwise dispose of a county record, the county government entity
may, prior to destruction or disposal thereof, offer the record to the Director
of the Section of Archives and History of within the Division
of Department of Arts, Culture, and History for preservation of the
record as a document of historical value. Unless authorized by the Supreme
Court of Appeals, the records of courts of record and magistrate courts are not
affected by the provisions of this section.
(c)(1) A preservation duplicate of a county government
entity record may be stored in any format approved by the board in which the
image of the original record is preserved in a form, including CD-ROM and
optical image storage media electronic file, in which the image is
incapable of erasure or alteration and from which a reproduction of the stored
record may be retrieved that truly and accurately depicts the image of the
original county government record.
(2) Except for those formats, processes, and systems used for the storage of records on the effective date of this section, no alternate format for the storage of county government entity records described in this section is authorized for the storage of county government entity records unless the particular format has been approved pursuant to a legislative rule promulgated by the board in accordance with the provisions of chapter 29A of this code. The board may prohibit the use of any format, process, or system used for the storage of records upon its determination that the same is not reasonably adequate to preserve the records from destruction, alteration, or decay.
(3) Upon creation of a preservation duplicate that stores an original county government entity record in an approved format that is incapable of erasure or alteration and that may be retrieved in a format that truly and accurately depicts the image of the original record, the county government entity may destroy or otherwise dispose of the original in accordance with the provisions of §57-1-7c of this code.
(d) A Records Management and Preservation Board for county government entities is continued, to be composed of 11 members.
(1) Three members shall serve ex officio. One member shall
be the Commissioner Curator of the Division of Department
of Arts, Culture, and History or designee who shall be the chair of the
board. One member shall be the Administrator of the Supreme Court of Appeals or
designee. One member shall be the Chief Technology Officer or designee.
(2) The Governor shall appoint eight members of the board, with the advice and consent of the Senate. Not more than five appointments to the board may be from the same political party and not more than three members may be appointed from the same congressional district. Of the eight members appointed by the Governor:
(i) Five appointments shall be county elected officials, one of whom shall be a clerk of a county commission, one of whom shall be a circuit court clerk, one of whom shall be a county commissioner, one of whom shall be a county sheriff, and one of whom shall be a county assessor, to be selected from a list of 15 names. The names of three clerks of county commissions and three circuit court clerks shall be submitted to the Governor by the West Virginia Association of Counties. The names of three county commissioners shall be submitted to the Governor jointly by the West Virginia Association of Counties and the West Virginia county commissioners Association. The names of three county sheriffs shall be submitted to the Governor by the West Virginia Sheriff's Association. The names of three county assessors shall be submitted to the Governor by the Association of West Virginia assessors;
(ii) One appointment shall be a county prosecuting attorney to be selected from a list of three names submitted by the West Virginia Prosecuting Attorneys Institute;
(iii) One appointment shall be an attorney licensed in West Virginia and in good standing as a member of the West Virginia State Bar with experience in real estate and mineral title examination, to be selected from a list of three names submitted by the State Bar; and
(iv) One appointment shall be a representative of a local historical or genealogical society.
(e) The members of the board shall serve without compensation but shall be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their duties as members of the board in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration. In the event the expenses are paid, or are to be paid, by a third party, the member shall not be reimbursed by the state.
(f) The staff of the board shall consist of the Director of
the Archives and History Section of within the Division
of Department of Arts, Culture, and History and any additional staff
as needed.
(g) The board shall propose rules for legislative approval
in accordance with the provisions of §29A-3-1 et seq. of this code to
establish a system of records management and preservation for county
governments: Provided, That, for the retention and disposition of
records of courts of record and magistrate courts, the implementation of the
rule is subject to action by the Supreme Court of Appeals of West Virginia. The
proposed rules shall include provisions for establishing a program of grants to
county governments for making records management and preservation uniform
throughout the state. The board is not authorized to propose or promulgate
emergency rules under the provisions of this section.
(h) In addition to the fees charged by the clerk of the county commission under the provisions of §59-1-10 of this code, the clerk shall charge and collect an additional $1 fee for every document containing less than 10 pages filed for recording and an additional $1 fee for each additional 10 pages of document filed for recording. At the end of each month, the clerk of the county commission shall deposit into the Public Records and Preservation Revenue Account as established in the State Treasury all fees collected: Provided, That the clerk may retain not more than 10 percent of the fees for costs associated with the collection of the fees. Clerks shall be responsible for accounting for the collection and deposit in the State Treasury of all fees collected by the clerk under the provisions of this section.
(i) There is hereby created in the State Treasury a special account entitled the Public Records and Preservation Revenue Account. The account shall consist of all fees collected under the provisions of this section, legislative appropriations, interest earned from fees, investments, gifts, grants, or contributions received by the board. Expenditures from the account shall be for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of §12-3-1 et seq. of this code and upon the fulfillment of the provisions set forth in §11B-2-1 et seq. of this code.
(j) Subject to the above provision, the board may expend the funds in the account to implement the provisions of this article. In expending funds from the account, the board shall allocate not more than 50 percent of the funds for grants to counties for records management, access, and preservation purposes. The board shall provide for applications, set guidelines, and establish procedures for distributing grants to counties, including a process for appealing an adverse decision on a grant application. Expenditures from the account shall be for the purposes set forth in this section, including the cost of additional staff of the Division of Archives and History.
§5A-8-17. Disposal of records.
(a) Except as provided in §57-1-7a of this code, 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
Archives and History of within the Division of Department
of Arts, Culture, and History that the record has no further
administrative, legal, fiscal, research, or historical value. In the event the
administrator is of the opinion that the record has no further administrative,
legal, fiscal, research, or historical value, the administrator shall prior
thereto, give written notice of the administrator's intention to direct the
destruction or other disposal of the record to the director. Upon the written
request of the director, given to the administrator within ten days of receipt
of said notice, the administrator shall direct the retention of the record for
a period of thirty days. In the event the director fails to retrieve the
original document from the administrator or the administrator's designee within
the thirty day period, the administrator may direct the destruction or other
disposal of the original without further notice to the director approve,
if appropriate, a request for disposal of the records and notify both the
Director of Archives and History and the agency that is the custodian of the
records that they may be destroyed.
(b) The provisions of this section are not applicable to the judicial branch, the West Virginia House of Delegates, the West Virginia Senate, or the Joint Committee on Government and Finance.
NOTE: The purpose of this bill is to update and streamline the Records Management and Preservation Act to reflect current and modern practices of storing and destroying public records. The bill repeals the formal advisory committee and the requirement that the administrator store agencies’ essential records. The bill provides agencies more authority to make decisions for storage of, formats and destruction of the agencies’ records rather than the administrator. The bill requires agencies to appoint someone within the agency to serve as an agency records manager.
Strike-throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.