FAQ: Who is the custodian of this record?

Have you ever been unsure if you were the custodian of a record or if the custodian was another department or agency?

Do you think there could ever be a time when you and another individual within your government or agency would be the custodians of the same record?

What about the possibility of two (or more) local governments or agencies being responsible for the retention and disposition of the same record?

Take a moment to think about the business activities of your state or local government. What examples come to mind for times when there might be more than one custodian for the same record? In that event, what policies and procedures does your government have in place to find the answers to questions on the ownership of a record?

Example 1: A Municipal Authority has records related to Flow Testing, but this government believes it should not keep the records since they were created by a City or County Official, and the Municipal Authority claims to only serve as a witness to the testing carried out by the City or County Official. After looking at the stages below, what information belongs to which government, or is there a shared responsibility?

👁 While the City or County Official is the originator, the Municipal Authority is also responsible for these records because it is involved in managing, adding, altering, and collecting money as a business agreement for assisting with the completion of the document throughout its lengthy process. In other words, this document links the two governments in the transaction of public business, and they are responsible for making sure it is kept for its full retention period.

Example 2: A River Authority is unsure about the ownership of the studies it conducts on local ecosystems for a Municipal Authority, a District Water Authority, and with the State Parks Department, the Environmental Quality Agency, and the Development Board (Agency). If an entity pays the River Authority for information, does that mean the River Authority relinquishes its responsibility in making sure a record is not transferred or disposed of prior to the expiration of its retention period? After looking at the figure below, what information belongs to which government, or is there a shared responsibility?

👁 While the River Authority gathers information and gives it to other institutions, each one of the institutions involved in these public business interactions must retain their own record copies. In other words, the River Authority must keep the report it gave to its business contacts, and those same contacts must keep the report they received from the River Authority. The difference here is that each of the entities involved will use the record for different functions, and they will retain it according to its appropriate retention period based on how they use the record.

☆ Note: Please see this related topic: FAQ: Do I have to keep copies of records I produced to fulfill a public information request?

Example 3: A school district has a copy of an application it submitted for approval to the Texas Education Agency (TEA) in order to be able to enter into a contract with a pupil transportation company.

Who is responsible for retaining this type of document?
A. The school district and the Texas Education Agency
B. The Texas Education Agency
C. The school district
D. The transportation company

The correct answer is option A. 👁 Even though the school district (the creator) submitted that application to TEA (the recipient), both the district and the agency will have a record copy. Also, take into account how that same application has a different function for the entities involved (i.e., the same application is used for different reasons), and each record copy will be retained based on its appropriate retention schedule.  

Example 4: Suppose you receive an email from your supervisor telling you to hold a counseling session with Employee X about their conduct or performance that needs improvement.

Who would be responsible for retaining that email?
A. You
B. Your supervisor
C. You and your supervisor
D. No one is responsible since the order from the supervisor was not written on paper.

The correct answer is option C. For emails, there can be more than two record custodians, and meeting the following criteria will assign more than one person as the custodian of the record:

  • The message qualifies as a record. ☑
  • The receiver needs to act based on the information in the email. ☑
  • The information received is needed for the documentation of an action (government business transactions). ☑

👁 In the case above, the counseling session email can be applied to the retention period for Counseling Program Records (GR1050-06a). The supervisor is the sender of the record and is responsible for retaining it for its full retention period. The recipient of the email is also responsible for retaining the message because they must act based on the information given in it. Additionally, if Employee X decides to file a discrimination complaint, Human Resources may need to retain the email sent by your supervisor to keep in Employee X’s file while conducting a workplace investigation.  Without a doubt, emails allow for more than one custodian in-house as well as with external contacts, and the creator or sender of a record is primarily the custodian that must keep it based on its appropriate retention period. When the recipient has a responsibility to do something with the received information or if they need the received information to explain why they must take certain actions, it is equally important for them to retain the record.  By and large, the following general rule can be used when considering the custodianship of a record in email format.

As the previous examples have shown, multiple governments or agencies may each keep a record copy of the same document for different reasons, and multiple individuals or divisions within the same government or agency may do the same. In the latter case, multiple record copies may be created and kept by different departments after a purchasing request is approved to order an item or to request funding for a class for staff members. First, the department that initiated the request will retain the record that proves the funding for the class was approved for its staff members. Second, Human Resources will retain the same record to include it in employee training files, and third, the Purchasing Department will retain the same record to justify the use of government or agency funds. Lastly, note that the given record examples are not restricted to a single form of communication, meaning these business interactions could have been done by paper or email. Considering everything, review the major questions of this topic below.

What did you think of this post? Share your experiences and comments below.

See also:

FAQ Redux: How long do I keep email? | The Texas Record

FAQ: Are text messages records? (redux) | The Texas Record

FAQ: Are we authorized to store records electronically and can we shred the paper originals? | The Texas Record