Here at TSLAC we spend a lot of time teaching Texas governments about the benefits of timely disposition. It’s equally important for governments to understand when records should not be destroyed. These situations are called: destruction holds.

Normally, records may be destroyed when they have met their full retention period as described on each government’s retention schedule. TSLAC sets minimum retention periods for local governments and state agencies. A destruction hold is a scenario where records should not be destroyed until the situation has been resolved, even if the records have met their full retention period.

The stakes may seem high, but don’t fold just yet! Once you’ve learned about the types of destruction holds your government might encounter, you’ll be holding all the aces.

Note: Here at TSLAC we can provide general information about destruction holds, but we cannot advise on specific situations. If you think that your records might be subject to a destruction hold, contact your government’s legal counsel for an opinion.

Public Information Act Requests

The type of destruction hold we get the most questions about is Public Information Act requests. According to the Office of the Attorney General, “A governmental body may not destroy records even pursuant to statutory authority while they are subject to an open records request.” (1)

For more information about how Public Information Act requests might affect your records, see the Office of the Attorney General’s page of open government resources and their Open Government Hotline.

Litigation

Governments should not destroy records that are responsive to litigation. This is true for both “active” cases and for “impending” cases that will occur or are likely to occur in the future. This requirement is set out in statute for both local (2) and state governments (3). In many cases, your government will receive a notice of litigation hold from the opposing party if a lawsuit has been filed or is anticipated to be filed. More generally, governments may have a “duty to preserve” relevant records “if it is reasonably foreseeable that a lawsuit will be filed.” (4)

If you think your records might be subject to litigation or if you have received a litigation hold notice, consult your government’s legal counsel.

Audits

All government entities are subject to audits in some form or another. The audits may be performed internally or by an external entity. They may be broad-reaching, or they may be focused on a specific department or procedure at your government. Be sure to retain records that are needed for the audit while it is ongoing. Disposing of records that are needed for an audit may affect the integrity of the auditing process.

Before and during the audit, have discussions with the auditors about which records you will need to retain.

Claims, Negotiations, Administrative Reviews, and Other Actions

Records should not be destroyed is if there is a claim, negotiation, administrative review, or other action related to the records. These situations are similar to legal holds, but they generally involve dispute resolution outside of court.

An example of administrative review would be an employment discrimination investigation by the Texas Workforce Commission. Examples of negotiations, claims, or other actions would be contract negotiations between the government and a third party or disputes with a customer about a bill.

As with litigation holds, it is best to discuss the situation with your government’s legal counsel to determine which of your records may be subject to these types of destruction holds.

Tips for Managing Destruction Holds

Destruction holds are relatively common, so it’s important to have procedures in place for how to handle them.

Education – Make sure your employees are aware of what destructions holds are and when they can occur. Everyone should keep an eye out for situations that might trigger a hold.

Communication – Maintain open channels of communication with legal staff and others who can alert you to potential destruction holds.

Destruction Sign-Offs – State agencies are required to use disposition logs and local governments are strongly encouraged to use them as well. Incorporating destruction approvals and sign-offs by legal counsel and management as part of the disposition process can help you catch any records that are subject to a destruction hold before they are accidentally destroyed.

Deal Us In!

Now that you have destruction holds down pat, you know how to keep everything above board and not lose anything in the shuffle. The buck stops with you, but with your knowledge of destruction holds, your government will be ready to lay all their cards on the table.

References

1. Office of the Attorney General of Texas, Public Information Act Handbook, (Austin: 2022), 62. https://www.texasattorneygeneral.gov/sites/default/files/files/divisions/open-government/publicinfo_hb.pdf
2. Texas Local Government Code § 202.002.
3. Texas Government Code § 441.187.
4. Margaret M. Koesel and Tracey L. Turnbull, Spoliation of evidence : sanctions and remedies for destruction of evidence in civil litigation (Chicago: American Bar Association, 2013), 8-9. https://www.americanbar.org/content/dam/aba-cms-dotorg/products/inv/book/214612/Chapter%201.pdf