The Local Record


Spring 2000

A Quarterly Newsletter of the


State and Local Records Management Division

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Contents


Records Management and the


Public Information Act

As government records managers we have a special duty to preserve and protect information that directly affects peoples� lives.

In Texas, this duty is formalized in laws that require state agencies to maintain active and continuing records management programs. Likewise, Texas lawmakers have taken strong measures to ensure the public access to information created, received and maintained by governments. These laws state that �the people insist on remaining informed so that they may retain control over the instruments they have created.�1

This required openness presents special challenges for your records management program. Imagine what would happen if you could not find records requested under the Texas Public Information Act. How could you verify that the requested records were maintained by the agency at all? Or what if you had never inventoried a record that was requested in its electronic format? Could you say for sure where that record could be found? Could you determine within the allotted time whether it�or any part of it�might be confidential?

If these questions cause you to panic a little, you are not alone. A public information request can become an instant and unexpected audit of your records management program. For example, you may be asked to identify records that are maintained by your agency under a different name, or that have already met their retention periods, or that have been copied and distributed throughout the agency.

An active and continuing records management program is your best defense in handling open records requests properly. An effective program also ensures that the individual�s rights are protected and the needs of the agency are met efficiently and quickly. To be prepared for these challenges you must understand fully the scope of the Public Information Act and know how it relates to your records management program.

First, the need to �err on the side of openness� cannot be overemphasized. Information created, received and maintained by state agencies is presumed to be open. You may withhold records if you determine that the records fall under statutorily defined exemptions from disclosure. The Attorney General must then decide whether the exemption you assert is applicable and render an opinion on the matter.

To handle public information requests effectively, you must know and understand your agency�s records. You must know the proper way to discuss the scope of a request with the requester. You must be able to locate the records and examine their content. You must be able to provide access to the information in the time allotted to comply with the law and to protect the requester�s rights. Records inventories, retention schedules, and disposition logs are among the many useful tools in your records management program.

Open Records Basics

A request for records may be either verbal or written (including fax and e-mail).2 Many agencies choose to accommodate verbal requests for their own convenience. You may require requests to be written, and you can prepare forms for the purpose of making requests. However, you must honor written requests even if they are not made on the form you provide. When you receive a written request, you cannot withhold information unless you obtain an Attorney General opinion that the records are exempt from disclosure.

Once the request has been made, your agency has 10 working days to respond. This does not mean that you must fulfill the request in 10 working days. Agencies are required to �promptly produce� records, but the time period will vary depending on the volume, type and accessibility of the records.3 If for some reason the request will take more than 10 days, you must notify the requester, stating the reason that the request cannot be fulfilled and giving a reasonable date and hour for providing access to or copies of the records.

Once you have located the records being requested, you must determine whether the records are confidential. You must make the records available unless they are confidential by law or subject to an exemption from public disclosure. In any case, you must seek an Attorney General�s ruling if information is to be withheld. Either consult the Public Information Handbook, formerly called the Open Records Handbook (in addition to any other applicable laws, statutes or codes) to find an existing Attorney General�s opinion on the specific records in question, or request a ruling from the Attorney General�s office. To do this, you must respond to the requester explaining that an open records ruling has been initiated. This must occur within the first 10 days of receipt of the request and the appropriate documentation must be received by the Attorney General no later than 15 days after the original request was submitted.4

Records Management Program

Remember that the basic philosophy behind records management is coordination and control over the life cycle of your records. If properly executed, the fundamental management techniques of a continuing records management program can help you handle each phase of a public information request effectively. Here are some examples of the tools you could already have working for you.

Inventory

Every records management program must be based on a survey or inventory of your records. This inventory is important in handling a public information request. Knowing the location, medium, volume, and other descriptive information about your records can make or break your ability to handle a request.

A request for information is an additional duty that may take a lot of staff time. This time can be reduced if you have information readily available. An inventory helps to identify record copies and reduces the time needed to track records down. The inventory also identifies whether the record is in a special format�such as an oversized map or blueprint, microfiche or film, or electronic file�so that you can take steps to provide access or make provisions for copying. Such special records may take more time or cost more to make available to the public.

Remember that there are provisions in the Public Information Act for discussions about the scope of a request. The best way to handle these discussions is to provide specific information about the records you maintain and work with the requester on satisfying his/her request. An inventory provides a quick assessment of the records you have and helps you determine a scope for the request that meets the requester�s needs efficiently.

Records Control Schedules

Much like the inventory, your approved retention schedule is a valuable resource for handling a public information request. It is another good reference for discussing the scope. Often, someone requesting information knows very little about the specific records they request or they may request information that exists in several different record series. Your records retention schedule can help both staff and the requester identify which specific records will best meet the requester�s needs. The retention schedule can also show you whether the record being requested has met its retention period and no longer exists.5 Other information available on the schedule includes the record format (paper, electronic, microform), vital record status, and off-site storage information.

Disposition Log

The destruction of your records plays a vital role in the proper management of a record�s life cycle. The log that documents the disposition of records plays a vital role in fulfilling open records requests.6 After all, you cannot provide a record that does not exist anymore. Documentation of records destruction and coordination throughout the agency are essential parts of handling public information requests.

First, a record that has been disposed of according to your approved schedule must be listed on a disposition log. Further, a record may not be destroyed if a public information request has been made prior to its disposition. This means that you must allow time for the staff to review records proposed for destruction so they can determine that no open records request has been initiated.7 Since any staff member may receive a public information request, all staff members must understand where to send incoming requests so that they can be handled appropriately.8

One final consideration is that you are required to destroy records with confidential information. You must destroy confidential records in all formats in such a way that they would be impossible to recreate. This too involves an understanding of which records fall into this category and by what means you may properly dispose of such records.

Management Tools

Your records management program depends on three important tools in order to run as it is intended: communication, coordination and documentation. Not surprisingly, these tools are also important in handling requests for information. Remember that a request may be made to any person in the agency, so all staff must be trained in the initial handling and appropriate communication of these requests. Once a request has been initiated there are many questions that need to be answered:

  • To whom should the request be forwarded?




  • What records can be identified that are responsive to the request?




  • Where are these records and in what format?




  • Are any of these records confidential or subject to an exemption from disclosure?




  • If these are electronic records, is the software available to allow their viewing?




  • Are any of these records located off-site? If so, what date and hour might we be able to retrieve this record to be made available for viewing?




  • Has any record responsive to the request been destroyed under the approved retention schedule? If so, when and by what means?

Without proper communication, coordination and documentation gathered from your records program, the task of answering these questions may become more laborious and costly.

Caution: This article summarizes many requirements from Chapter 552 of the Texas Government Code, interpretations in the Public Information Handbook, and other applicable Attorney General opinions. Please contact the office of the Attorney General if you have questions related to the handling of an open records request or requesting the opinion of the Attorney General. For information call 800-252-8011.

by Sam Burns, government records consultant

Footnotes

1 Texas Government Code Section 551.001 (b)

2 Texas Government Code Section 552.301 (a). Fax and e-mail requests are acceptable forms of open records requests but the agency may require that a specific individual(s) receive the request before it will be answered.

3 Texas Government Code Section 552.221 (a)

4 There may be a period of time where the scope of a request is being discussed by the agency and the requester During this period, the deadline for requesting a ruling is put on hold. Otherwise, an agency has 10 days to respond that an open records ruling has been requested. Otherwise, an agency has 10 days to respond that an open records ruling has been requested. An additional five days (15 total) is allowed to send the appropriate documentation to the Attorney General. Refer to the Public Information Handbook for specific information on interpreting the provisions of the Public Information Act.

5 Texas Government Code Sections 552.002, .021, .227, .351. The Public Information Act refers to records already in existence. If convenience copies are kept after the record copy has been destroyed, the convenience copy may be requested from the agency for the purposes of the act.

6 Texas Administrative Code Chapter 13, Section 6.8 (3) requires that the final disposition of records be documented.

7 A state record may not be destroyed if any litigation, claim, negotiation, audit, open records request, administrative review, or other action involving the record is initiated before the expiration of a retention period for the record set by the commission or in the approved records retention schedule of the agency until the completion of the action and the resolution of all issues that arise from it, or until the expiration of the retention period, whichever is later.

8 Texas Attorney General Opinion Nos. ORD-497 (1988) and ORD-44 (1974).

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Preservation Assistance Grants Available

Through the National Endowment for the Humanities, preservation grants up to $5000 are available to libraries, archives, museums and historical organizations. These grant funds are for the preservation of collections of books, journals, manuscript and archival materials, maps, still and moving images, oral histories, recorded sound and objects of material culture.

Grant application deadline is April 3, 2000. For guidelines, visit the NEH web site at http://www.neh.gov/ or call 202-606-8570.


Steps for Improving Your Ability


to Respond to Requests

  1. Obtain a copy of the Public Information Handbook from the Office of the Attorney General. Copies are available by calling 512-478-OPEN or you can find it on the Internet at www.oag.state.tx.us/ The handbook provides information on what is required of you before, during, and after a request for information has been made and includes existing Attorney General opinions on open records.




  2. Review existing inventory information to ensure that the data are still accurate and inclusive. If you have not done a full inventory you should begin conducting one as soon as possible. If you need any assistance or have any questions you can talk to your government records consultant at the Texas State Library and Archives Commission about specific goals and techniques to ensure that you do a thorough job.




  3. Make certain that the agency retention schedule is updated and includes all records maintained by the agency. This is very important for discussions about the scope of a public information request. It can be your best first step in assessing a request and letting someone know how he/she can expect to receive the information.




  4. Remember that a public information request can only be fulfilled if the records still exist. Make sure to document properly your records disposition log and follow your approved records retention schedule. Make sure that staff members are aware that convenience copies held after the record copies have been destroyed become record copies for the purposes of the Public Information Act. Remember, the act refers to the information still in existence which includes convenience copies kept after the record copies are destroyed.




  5. Decide how requests are to be handled in your agency and make certain that the staff understands where to forward requests for information. Also, be sure to have documentation prepared in advance to respond to a public information request. You have only 10 days to respond whether you are prepared or not.




  6. Remember that communication, coordination and documentation are key to responding quickly to a request. Make sure that you get information about records quickly and determine how it affects the request. Let the people responsible for maintaining your computer systems know about the record requirements and understand how system maintenance equals records management.

Receiving an Open Records Request

Either verbal or written (including fax and e-mail) requests for records may be made to an agency.

Within first 10 working days:

  1. Comply with the request.




  2. Provide notice of delay to produce records due to active use or storage of records.




  3. Provide notice of programming or manipulation costs.




  4. Request for Attorney General ruling. An Attorney General�s ruling must be made within 10 business days of the receipt of the request for the documents. However, the 10-day deadline is put on hold during the time that the agency and the requester are actively discussing the scope of the information requested.

Requesting an Opinion from the Attorney General

If an agency seeks to claim an exemption from public disclosure for a written records request, it must seek an Attorney General�s ruling. Unless the specific information in question has been explicitly addressed in an Attorney General�s opinion or in any other applicable statutes or codes, an agency would need to request a ruling if it seeks to keep a record closed.

You must include:

  1. Rationale for withholding information. Includes written comments stating the reasons that the stated statutory or common law exception allow the information to be withheld.




  2. Copy of the open records request.




  3. Marked copy of requested information. A copy of the documents or a sample marked or labeled by your agency to indicate each part of the copy that relates to the statutory or common law exceptions that you are claiming.

 


Y2K Project Files Retention: AC+4

How long do we keep Y2K project files? The Texas State Library and Archives Commission (TSLAC) and the Texas Department of Information Resources (DIR) are recommending that these records be kept four years after project completion (AC+4, AC=sign-off date of project completion). Different projects have different timelines and end at different times. The records would be kept four years after each project�s conclusion. Each project will have its own completion date and we recommend that the local government�s project director or executive management sign off on the project�s completion. The sign off date is the completion date. Make sure that there is some place on the front page for a closure date for the project.

If there is a contract involved with the project, the record copy of the contract would be maintained with the government�s other contracts, but a convenience copy could be retained with the project files. Also remember that the project files will be comprised of many different types of records in several formats. Reports, programming files, e-mail messages, system monitoring documentation, memos, presentation materials, and photographs could all be part of a project file. These materials will all have to be maintained for the same retention period, so managing these various records over their entire life cycle will be important. The use of consistent naming conventions when naming, saving or filing records is a simple technique which facilitates management of large volumes of data in multiple formats.

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Listserve Available

A records management listserve, LREC-TX, dedicated to local government records management officers is being sponsored by the Texas State Library and Archives Commission. This list is dedicated to a discussion of records management issues involving state agencies.

  1. To subscribe e-mail a message to: listproc@link.tsl.texas.gov




  2. Put absolutely nothing in the subject line.




  3. In the body of the message, type: subscribe LREC-TX Your Name

For information, contact Mary Ann Albin at 512-452-9242 x135.

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Changes in Training Classes -


Registration Procedures

Since the fall of 1999, we have decreased the total number of training classes being offered by the State and Local Management Division (SLRM). This means that classes fill up more quickly. For people who must cancel a class at the last minute, it may be more difficult to find one to attend at a later date. If you truly cannot attend a class, call us as soon as possible so that we may award your reservation to someone else to attend the class.

Another change concerns registration procedures. Beginning January 2000, you may assume that your registration has been accepted and you have a reserved seat in that class.

If there is any problem with your registration, we will contact you. If a class is full when you register, Bill Boyd, the training and consulting assistant, will call you to help you schedule another class. You will not necessarily receive a confirmation call or letter for the classes you will be attending, so please mark your calendar with the date and time of the class.

We hope that these changes will, in the long run, improve overall service to our clients. For questions about classes or registration, please contact our training and consulting assistant at 512-452-9242 x154 or e-mail to bboyd@tsl.texas.gov

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Legislation Affects State Agency


Records Programs

The 76th session of the Texas Legislature passed legislation that impacts local government records management programs. The impact of the legislation varies from changing retention periods to the imposition of additional criminal fines benefiting county records management programs.

House Bill 826

Alternative Dispute Resolution: In the previous legislative session, records of alternative dispute resolutions and their supporting documentation were exempted from the definition of a governmental record. HB 826 amends Texas Government Code Section 201.003(8) by putting the final written agreement back in the definition of a local government record.

What does this mean? Except for the final agreement, all documentation associated with a matter conducted under alternative dispute resolution procedures is not considered a government record for the purposes of records management. In other words, it would not be listed on the government�s records control schedule. Of course, the final agreement does need to appear on the records control schedule because it is a record for the purposes of records management. All legal requirements under the Code of Civil Procedure and the Public Information Act still apply to these records.

House Bill 1583

Juvenile Records or Files: This bill pertains to the storage of juvenile records by electronic means and amends the Family Code, Section 58.007(c) to state that if the records are maintained on paper or microfilm, the juvenile records must be maintained separately from adult records. If the records �are maintained electronically in the same computer system as records or files relating to adults,� the records must be accessible under controls that are separate and distinct from those used to access the adult information.

What does this mean? In the past, adult and juvenile records could not be maintained in the same computer system. Now, they can be maintained together in electronic format, but there must be different methods of controlling access to these records. Governments must provide different levels of security for juvenile and adult records. Security profiles for the electronic juvenile records must allow access only to those employees qualified to actually have access to these records. Juvenile records are highly confidential and only certain individuals are allowed to view this information. Governments must accommodate these security concerns when setting up their databases and computer systems. If the records are maintained on paper or microfilm, adult and juvenile records must still be maintained separately.

House Bill 2986

Court Fees: This bill amends the Code of Criminal Procedure, Article 102.005(f) to provide that a defendant convicted of an offense in a county court, a county court at law, or a district court shall pay a fee of $20 for records management and preservation services, and an increase of $10.

House Bill 836

Birth and Death Indexes: This bill amends Texas Government Code, Section 552.115 to provide that a general birth index is available to the public 50 years after the birth of the individual and a general death index is available to the public 25 years after the death of the individual. Summary birth and death indexes are available to the public at any time, unless the index reveals an adoption or paternity determination or the index reveals the parents of a child who has been placed for adoption. This bill applies to the Bureau of Vital Statistics of the Texas Department of Health or any local registration official.

What does this mean? Formerly, both general and summary indexes were available to the public immediately, while the birth or death record itself, which contained more detailed information, was confidential for a period of time�50 years for birth records and 25 years for death records. Now the general indexes are confidential for the same period of time as the actual records. If summary indexes reveal paternity, that information is always confidential. An example would be if the child has no name; the child would be listed as �Child of Sue Smith.� This information would reveal one parent�s name in the case of an adoption and must be restricted. It is important to understand the difference between general and summary indexes. Summary indexes are optional indexes which list minimal information regarding an event, i.e. the person�s name, date of the event, place of the event and file number. A general index usually includes the child�s or deceased�s full name, gender, location of event, date of event, ethnicity, father�s name, mother�s maiden name, residence, person recording the event, his/her name and address and date filed. A general birth index might also include whether the child was a twin or other form of multiple birth, alive or stillborn, and legitimacy. Because the general indexes include so much information, the Legislature felt that it is in the best interest of the public to err on the side of caution and restrict access to such personal information.

Senate Bill 888

This bill grants authority to the Texas State Library and Archives Commission to adopt administrative rules that would permit county clerks to receive instruments electronically and to record the instruments by electronic means. Initial rules will be particularly directed toward the electronic recording of instruments in the real property records maintained by county clerks. The rules will provide for the means by which instruments may be electronically transmitted to a county clerk for recording, the means by which the clerk records the instruments electronically, and security standards to prevent the filing and recording of fraudulent instruments or alteration of instruments that were previously filed and recorded electronically. A nineteen member Electronic Recording Advisory Committee will assist the commission in developing the rules. Texas will become one of only a handful of states that permit electronic recordation of real property records.

What does this mean? In the future, Texas county clerks may choose to receive and record instruments filings electronically. The advisory committee will propose administrative rules which will contain acceptable practices and procedures needed to ensure the authenticity and accessibility of the information. As we move into the next millennium, more and more information will continue to be created and maintained electronically. County clerks will have the tools at their disposal to move forward as the media of local records migrates to electronic format. Senate Bill 888 is a recognition that even as important a body of records as those maintained by county clerks will one day be maintained principally on electronic media.

By Michael Heskett, SLRM director and


Mary Ann Albin, RMA unit manager

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Not for Sale: Local Government Records

There have been two instances in the past few months when Texas local government records were offered for sale at an Internet auction site. One group of records was sold; the sale of the other group was stopped by the timely intervention of the local government to whom the records belonged. Texas government records cannot be sold under any circumstances except for the purposes of recycling. This is a violation of the Local Government Records Act and the Texas Penal Code.

Local Government Code 202.004(b), regarding alienation of records, states a �local government record may not be sold or donated (except for the purposes of recycling), loaned, transferred, or otherwise passed out of the custody of a local government to any private college or university, private museum or library, private organization of any type, or an individual, except with the consent of the director and librarian and after the expiration of its retention period under the local government�s records control schedule.� The law clearly states that local government records cannot be passed out of the custody of the local government to a private entity without the permission of the director and librarian of the Texas State Library and Archives Commission (TSLAC). After checking our files, we find that the Commission has not given permission for any of the records recently offered for sale at auction to be transferred to any private individual.

Also, the Texas Penal Code Section 37.10 states that a person commits an offense if he intentionally removes a governmental record; sells or offers to sell a governmental record; or sells or offers to sell a governmental record with the knowledge that it was obtained unlawfully. If an individual is in possession of a local government record, the record was probably obtained unlawfully. Any such situation would certainly merit investigation.

Some local government officials may feel that since the records have met their retention periods or that permanent records have been microfilmed, they can be disposed of by giving them to private organizations or individuals. This is not the case. In Local Government Code Section 202.003, it states a �local government record may be destroyed by burning, shredding, pulping, or burial in a landfill or by sale or donation for recycling purposes.� Giving the records away is not a legally acceptable means of disposing of records.

Both state and local records have long been the target of people who collect famous signatures of historical manuscripts.

Does your government have records with the signature of a local political figure that has risen to national prominence? Does your government have the records of a famous criminal? Does your government have records of value to historians and collectors? What are you doing to protect them? Now that people can sell local records anonymously in a national venue, it will be almost impossible to protect these records from any unscrupulous person out to make a quick and easy profit. And it is quick �a person can earn a couple of hundred dollars in about a week�s time. All the seller has to do is sit at the computer and watch the bids come in on items paid for by the people of Texas.

It is the responsibility of all elected officials and records management officers to protect the records in their custody. Government records belong to the people of the state of Texas; this is a fundamental principle of our democratic form of government. This means that the local government official is in the position of protecting property records, arrest records, tax records, marks and brands and many other records valuable to both the current and future residents of the community.

In the Local Government Records Act, it states local �government records created or received in the transaction of official business or the creation or maintenance of which were paid for by public funds are declared to be public property. A local government officer or employee does not have, by virtue of the officer�s or employee�s position, any personal or property right to a local government record even though the officer or employee developed or compiled it.� (Local Government Code Section 201.005(a-b)). Local Government Code Section 202.008 states �An officer or employee of a local government commits an offense if the officer or employee knowingly or intentionally violates this subtitle or rules adopted under it by destroying or alienating a local government record in contravention of this subtitle or by intentionally failing to deliver records to a successor in office.� Alienation of a record is a class A misdemeanor.

What could your government do if you find that your records are being sold on the open market or on the Internet?

Legal pursuit of the matter would fall to the investigative and prosecutory branches of the local government. In one Texas county, the county clerk, district clerk and sheriff have sworn out a misdemeanor warrant against the seller, allowing the district attorney to pursue the matter. Fortunately, the seller is cooperating and returning the records to the local government.

All local government officials are responsible for knowing the duties of their offices, and protecting the records in their custody is one of those duties. If you are a local government official or records management officer, please notify all personnel that government records cannot be transferred to private individuals or entities and that they must be transferred to their successors in office. For legal protection and to facilitate prosecution, it would be advisable for all employees or officials to sign a statement to that effect when beginning local government service. If you have questions regarding the destruction or alienation of local government records, please call a government records consultant at the State and Local Records Management Division at 512-452-9242. We are glad to help.

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Page last modified: October 26, 2010