WEST virginia legislature
2020 regular session
Senate Bill 576
Senator Maynard, original sponsor
[Passed February 29, 2020; in effect 90 days from passage]
AN ACT 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.
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.
“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.
“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.
“State record” means:
(A) A record of a department, office, commission, board, spending unit, or other agency, however designated, of the state government.
(B) A record of the State Legislature.
(C) A record of any court of record, whether of statewide or local jurisdiction.
(D) Any record designated or treated as a state record under state law.
§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 of 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 storage;
(d) 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 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;
(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;
(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. 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 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;
(g) Cooperate with the administrator in the conduct of surveys made pursuant to the provisions of this article;
(h) Comply with the rules, regulations, standards, and procedures issued by the administrator; and
(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.
§5A-8-10. Essential state records – Preservation duplicates.
(a) The 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 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:
(1) The 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 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 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 has occurred or is imminent.
§5A-8-12. Essential state records – Maintenance, inspection, and use.
§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 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 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 Archives and History within the 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 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 Curator of the 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 Archives and History within the 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.
(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 Archives and History within the 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 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.