WEST virginia legislature
2020 regular session
House Bill 4390
By Delegates Howell, Hamrick and Linville
(By Request of the West Virginia Office of Technology)
[Introduced January 16, 2020; Referred to the Committee on Technology and Infrastructure then Government Organization]
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 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 the administrator must store agencies’ essential records; removing the requirement that the administrator notify agencies of essential records destruction; providing that the 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.
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.
§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
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
(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
further keeping storage;
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
(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.
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
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
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
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
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
an enemy of the United States has occurred or is imminent.
§5A-8-12. Essential state records – Maintenance, inspection, and use.
§5A-8-13. Essential state records – Confidential records.
When a state record is
required by law to be treated in a confidential manner and is an essential
state record, the
administrator custodian of the record 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
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
§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
of 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
(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.