Texas law authorizes state agencies and local governments in compliance† to disposition a record under two conditions: (1) the record belongs to a record series on an approved records retention schedule and (2) its retention period has expired (Government Code §441.187; Local Government Records Act §202.001). As part of disposition, all Texas governments must use appropriate destruction methods and set aside records marked for review and archiving. State agencies are additionally required to keep a disposition log (13 Texas Administrative Code §6.83(b)(3)).
Although not required, TSLAC recommends local governments also take the further step of using a disposition log to document the destruction and transfer of all their records once their retention periods have expired. Why? Because use of a disposition log is part of “reasonable, defensible and good [records] management practices.” This post explores some of the benefits of using a disposition log for RMOs, record custodians, and the government unit generally.
A disposition log records basic information about the records to be destroyed or transferred to archives. It includes such fields as records series titles, date ranges of records, date of disposition, volume of records, disposal method, signatures or authorizations, and date the final step is taken (see our template). The log is a reference and also part of the records management workflow for handling inactive records entering the disposition stage of their life cycle.
As both a reference and part of the workflow, the disposition log provides four distinct advantages to governments. The log helps (1) improve efficiency, (2) track and manage expenses, (3) fulfill statutory and regulatory requirements, and (4) facilitate litigation, audits, public information requests, and other administrative reviews.
Using a disposition log empowers staff to stop spending work hours looking for what’s not there. The log documents which records, described by their record series and dates, have been destroyed or transferred to archives. Consulting the log confirms that records listed on it are no longer in the government’s custody. If the government schedules regular disposition days and holds staff accountable for disposition of all eligible records on those days, staff can be reasonably sure that records whose retention periods have expired and are listed on the log are not available without spending time actually hunting in file cabinets for them.
Efficiency is also improved by removing records the government no longer needs to retain from the records it does. With fewer files to weed through, staff will be able to locate requested records in less time.
Track & Manage Expenses
Routine disposition of records helps manage expenses by eliminating the costs associated with storing and maintaining records the government doesn’t need to retain. The RMO can verify the regular and timely disposition of records with expired retention periods by referencing the log. A disposition log can be a handy tool to increase compliance with the records retention schedule, resulting in an active disposition program.
For example, many financial and accounting records have a retention period of FE + X number of years (FE = fiscal year end). If no financial and accounting records appear on the disposition log shortly after the start of a new fiscal year, this shows the RMO that staff are not routinely disposing eligible records. Increasing compliance might be as simple as scheduling a disposition day or sending out a reminder; systemic non-compliance may require staff retraining.
Complying with the records retention schedule means the government stores in premium office space only those records it is required to have. One study estimates the cost of storing one cubic foot of records at $46.67 per year in a Class A building, the highest quality office space, compared to just $2 to $5 per cubic foot for storage in a commercial record center. †† Instead of spending money on floor space and filing cabinets for records the government isn’t required to hold onto any longer, following the retention schedule authorizes it to get rid of them. This blog article from 2011 documents the savings accrued by the Texas Water Development Board from maintaining an active disposition program. Use of a disposition log can play an important role in managing an active disposition program.
Finally, recording the volume of records disposed on the log can help governments predict future storage capacity needs. By plotting the difference between the estimated volume of records produced per year and the average volume of records disposed, the RMO can see trends in the growth of records and make a plan to manage the concomitant growth in costs.
Statutory & Regulatory Requirements
Statutes and regulations not only define how long to retain records; they also require certain kinds of records be disposed in certain ways. A government employee can be held personally liable for destroying a record before its retention period expires or for not destroying it in the prescribed way. A disposition log can help RMOs ensure compliance with applicable statutory and regulatory requirements by identifying mistakes before they become irreversible.
Willful destruction of a government record before its retention period expires (Local Government Records Act §202.007) and failure to destroy a confidential record by “burning, pulping, or shredding” (LGRA §202.003(b)) both constitute a Class A misdemeanor (Government Code §552.351; LGRA §202.008). Persons found guilty of either willful or improper destruction are subject to a fine up to $4000 and a period of confinement in jail not to exceed one year (Penal Code §12.21). Additionally, not using a prescribed method of destruction may constitute distribution or misuse of confidential information, a misdemeanor, if the records end up in an unauthorized person’s hands (G.C. §552.352). Such conduct is punishable by a fine up to $1000 and a period of confinement in county jail for up to 6 months; it also constitutes official misconduct (G.C. §552.352(b-c)).
A disposition log serves as a checklist to ensure compliance with applicable statutory and regulatory requirements. RMOs, supervisors, department heads and others with sign-off authority have an opportunity to review the record series, date range of records, and the planned method of disposition on the log before the final step is taken. They can and should intervene to prevent early or improper destruction. Besides preventing a violation, a disposition log helps reveal problems in existing records management training and workflow.
Litigation, Audits, PIR, and other Administrative Reviews
Government employees are not the only people accessing government records. Unfortunately, sometimes a government gets sued, audited, or otherwise comes under official scrutiny and must make available to a third party all records related to the investigation in its custody. The Public Information Act also entitles the public to access government records (Chapter 552 of Government Code). Texas law requires governments to place a destruction hold on records whose retention periods have expired or will expire during any litigation, claim, negotiation, audit, public information request, administrative review, or other action involving the record (G.C. §441.187; Local Government Records Act §202.002). Using a disposition log not only aids in enforcing a destruction hold but may also offer some protection in cases of destroyed records that are requested during discovery.
The disposition log aids RMOs, supervisors, legal counsel, auditors, and others with sign-off authority to enforce a destruction hold by giving them the opportunity to review and intercede to stop destruction of records potentially related to an anticipated or ongoing action before the final step is taken. If the staff continues to add records to the log covered by the destruction hold after the notice has circulated, it should alert decision-makers to a potential defect in the notice or gaps in records management training or workflow.
Regular use of a disposition log can potentially offer some protection against a court finding of spoliation for destroying a record that shouldn’t be destroyed. Destruction of evidence, which includes records, after the duty to preserve relevant evidence arises is referred to by the courts as spoliation. Sanctions for spoliation can be fatal, including default judgment, dismissal of the action, or an adverse inference jury instruction (“spoliation inference”); the court may also impose monetary sanctions. A disposition log can support a finding that the record was destroyed before the duty to preserve arose or that evidence wasn’t destroyed intentionally, negligently, or in bad faith and thus merits the harshest spoliation sanctions.
TSLAC recommends local governments incorporate a disposition log into their records management workflow for several reasons. Some of those reasons include because it helps save time and money working with their records, serves as a check to prevent potentially expensive mistakes from happening, and helps verify the overall “health” of the records management program.
If you have any questions concerning this topic or for any other records management topic, please contact your analyst.
† See this blog post for more information about what in compliance means for a local government.
†† William Saffady, Records and Information Management: Fundamentals of Professional Practice (2nd ed.) pp. 100-02.