(Author: Rebecca Hanna, Coauthor: Erica Siegrist)

In April 2020, the National Archives and Records Administration (NARA) released answers to Frequently Asked Questions (FAQs) About Records Management During the COVID-19 Pandemic. This article will answer the same questions to provide Texas-specific guidance for state agencies and local governments.

Records Management Related to Teleworking

How should Texas government offices capture and maintain records created while staff are teleworking during the COVID-19 pandemic?

While teleworking, employees are expected to properly maintain government records according to their office’s policies and procedures, just as they do in office.

Electronic records should remain within the government’s authorized storage systems. A record created on a personal device or outside of a government server is still considered a government record. Best practice would be to immediately transfer the record into an official government storage system to ensure proper management of the record throughout the record’s lifecycle. Any records that reside with “temporary custodians” are still subject to all the administrative rules concerning government records, as well as the Public Information Act. See “Creating Records at Home, Part III: Various Devices,” for more in-depth guidance on transferring records from personal devices.

If a Texas government office is using Microsoft Teams, Skype for Business, Zoom, or another video conferencing platform to communicate with one another, do these tools need to be scheduled?

As NARA advised, government records created in virtual meeting platforms should be retained based on the same retention periods as in-person meeting records. Our articles, “Creating Records at Home: Part I: Microsoft Teams” and “Creating Records at Home, Part II: Zoom,” dive deeper into this question.

If employees print at home, are those printouts government records?

Maybe. First, determine if the printed version is the original record copy or a convenience copy. If an employee were to print a convenience copy and use it solely for reference purposes, that copy is not a record and can be destroyed at any time. If an employee jots down personal notes on the printed copy that are ephemeral and non-substantive, they are most likely transitory information. However, if a reference copy is printed and then edited or updated with unique, substantive information, this version of the record would now be an original record copy. Record copies will need to be retained for their full retention periods. For this reason, it is best to have robust policies in place that dictate how, when, or even if employees may print government records at home.

Records Retention

Due to most of the answers to the questions below resulting in similar answers, here is a general rule of thumb for classifying COVID records:

Paraphrasing Susan Cisco, the Queen of Big Buckets, records often like to think of themselves as unicorns. However, generally, there is already an existing series that the record fits in.

Records series and retention periods are based on government functions, and most functions that your government performs are already covered on one of our published retention schedules. A thorough evaluation of the record’s function will help determine if the record is truly unique or if it can be classified under an existing record series. To help with evaluation, Susan, her partner John Isaza, and their team created a playbook for responding to their office’s pandemic related records. The playbook is a great resource for learning how to evaluate your office’s records.

If after analysis it is determined that the record requires its own series, then your next step will be working with your analyst to create a new record series.

Are employee medical records related to COVID-19 covered by a retention schedule?

Yes. Our article, “COVID-19 Health Screening Records,” goes into detail over this question.

Are records related to a Texas government office’s response to COVID-19 covered by a retention schedule?

Our article, “COVID-19 Records and How Long to Keep Them,” goes into detail over this question. Ultimately, it will depend on the function and purpose that the record serves to determine what series, if any, the records fall under. It is likely there is an existing record series that already provides a retention period for the record. Reach out to your GIA if you have a record type that is not discussed in the article or if you need further guidance.

Will TSLAC be issuing a retention series to cover COVID-19 records?

Not at this time. TSLAC is monitoring new and evolving recordkeeping requirements related to the COVID-19 pandemic. This evaluation is ongoing.

Can offices apply their disposition authorities for disaster response, incident response, or pandemics to records related to responding to COVID-19? Does it require a modification to the schedule?

Yes, there are already existing records series for disaster planning and response records that do not require any schedule modifications. If your government’s disaster response plan or continuity of operations plan (COOP) has been updated in response to the pandemic, this is already covered on the Local Government Retention Schedule GR (GR5750-07) and the State Agency Records Retention Schedule (RRS) (5.4.013).

Disaster response records have their own series on the state RRS (5.4.017—Emergency Response and Recovery Records). Any executive orders issued in response to COVID-19 are covered by Local Government Retention Schedule GR (GR1000-38—Policy and Procedure Documentation), Local Government Retention Schedule PS (PS4025-03—General and Emergency Orders and Related Documentation), and the state RRS (1.1.011—Executive Orders).

Are records related to COVID-19 permanent?

It depends on the retention period of the record, which is determined by the record’s content and function. If the record falls into an existing record series that merits permanent retention, then the record will need to be retained permanently. Existing records series for executive orders and emergency responses already require local governments and state agencies to evaluate these types of records for permanent historical value (see retention note for GR1000-38 and archival code for RSINs 1.1.011 and 5.4.017). If your office is considering retaining all COVID-19 records permanently, perform a risk assessment to weigh the pros and cons; consider the ongoing business need and/or legal value of the records. There can be negative consequences to over-retaining records, such as higher storage costs, increased retrieval times, and more manpower required to fulfill public information requests (PIR). Another option is to place a temporary disposition hold on all COVID-19 records until the records can be evaluated and appraised for historical value. Our article, “COVID-19 Records and How Long to Keep Them,” has a section that expands on this point.

With the scale of COVID-19, will government offices need to keep employee health records and office response and planning records longer than they are currently scheduled?

See answer for “Are records related to COVID-19 permanent?” to help better assess this question for your office. Generally, these records will follow the applicable retention periods prescribed to them in your agency’s records retention schedule.

Should records related to COVID-19 be kept in case of possible litigation?

Your office should consult with your legal department to determine if any COVID-19 records should be retained in case of litigation. Your legal department will be able to determine if there are any litigation holds that may affect your office in the future.

The increase in retrieval time when fulfilling PIRs, mentioned earlier, might be a factor that your legal department should consider. In their answer to this question regarding federal records, NARA also cautions that over-retaining records reduces the clarity on who has authority to dispose of records.

Who should Texas local governments and agencies contact for additional information?

Please contact your Government Information Analyst at TSLAC. Alternatively, you may call our main line at (512) 463-7610 or email the records management assistance unit at slrminfo @ tsl.texas.gov for further assistance.