December 27, 2019

Record Retention-Should They Stay or Should They Go?

Want to see your city clerk’s head spin? Ask him or her how many public records the city has on file. The answer inevitably would be too many to count, and maintaining and organizing those documents is often an overwhelming task. However, cities are required by law to establish and maintain a public records management system in accordance with KRS 171.410- 171.740 (the State Archives and Records Act). Cities must use the procedures for retention and disposal located in state administrative regulations (725 KAR 1:030). This includes all records, regardless of format, defined in KRS 171.410 as “…all books, papers, maps, photographs, cards, tapes, disks, diskettes, recordings, and other documentary materials, regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.” In addition to the obvious, retention can include electronic messages as well as social media sites.

Luckily, the Kentucky Department of Libraries and Archives (KDLA) maintains what is known as a records retention schedule. This is a searchable list on their website of what should be retained, how long it should be retained, and what can be disposed of by cities. The schedule can be found here.

Proper maintenance involves ongoing inventory, so the next question in records management is, how often should a city inventory their records? If the city has never done this, it should do so immediately. In addition, there are other statutory requirements that the city should be aware of, such as the requirements in KRS 83A.060. This statute requires that at least once every five years the ordinances in the composite index or code of ordinances must be examined and revised to eliminate redundant, obsolete, inconsistent and invalid provisions. While this is the minimum statutory requirement, it is advisable for a city to undertake this review each year. There are no minimum requirements for other documents such as the personnel policies, unless they are in ordinance form. However, we highly recommend that they be reviewed no less than at the beginning of each new administration to check for changes in the law, incorporate preferences of the new city administration, and compare with budget constraints.

When it is time for the review, who should be involved in the process? The persons involved in the inventory should include the records custodian (city clerk), any other city personnel that are familiar with the records, and the city attorney. If additional help is needed or if the city needs assistance getting a management system in place, they may apply for grants from the Department of Libraries and Archives to assist in the management and preservation of their public records. The process for applying for the grant as well as the required criteria can be found in state regulations, specifically 725 KAR 1:050, and by calling the Department of Libraries and Archives at 502-564-8300.

As the process begins to unfold, the decision to retain or destroy is of the utmost importance. Before destroying any documents the records custodian must affirmatively answer the following questions:

Have the records been authorized for destruction in accordance with the latest version of the records retention schedule?

Is there any active or pending litigation, audit, open records request, or appeal of an open records decision that involves the records in question? Are the records no longer required under any other legislation, and have all statutory and regulatory requirements been fulfilled? Are the records of no further administrative or business use to the agency? Has a KDLA Records Destruction Certificate (PRD Form 50, which can be found at the link listed below) been completed and signed by the appropriate authority? Will the records be destroyed in an appropriate and confidential manner?

Keeping your city records organized and updated will not only ensure your city is in compliance with the law, but make City Hall run more smoothly. Additional information on records retention as well as the sample forms and procedures can be found here or by calling the KLC Municipal Law and Training Department- Personnel Services.