By C. Christine Fillmore
In this era of increasing reliance on digital documents and a growing focus on municipal records (and their availability to the public) municipal officials and employees are often confronted with an endless stream of paper and electronic documents which have to be dealt with…somehow. All municipalities face the questions of how long to keep these records, in what form, and how to get rid of them.
“Governmental records,” under RSA Chapter 91-A (NH’s Right to Know Law), include any information created, accepted or obtained by a public body (or a quorum of the public body), or by a public agency, in furtherance of its official function. RSA 91-A:1-a, III. This includes information in paper, electronic or any other form, whether received in or out of a meeting. In short, almost every record held by a municipality that has an official function is likely a governmental record. (For more information regarding governmental records and their availability to the public, please see the Right to Know Law page of NHMA’s website: http://www.nhmunicipal.org.) RSA Chapter 33-A also defines “municipal records” as “all municipal records, reports, minutes, tax records, ledgers, journals, checks, bills, receipts, warrants, payrolls, deeds and any other written or computerized material that may be designated by the state Municipal Records Board.” RSA 33-A:1, IV. Currently, the state board has no effective administrative rules, so RSA 33-A is the place to look for updates.
The length of time a record must be retained varies depending on the type of record. Just because something is a governmental record does not mean that it has to be kept forever. Not all governmental records must be kept permanently, and different rules apply depending on the length of the required retention period.
The legal retention period is merely a minimum. There is no requirement to destroy or delete records when the retention period has ended. After that point, records may be kept as long as the municipality wishes to. However, it is important to note that, so long as they exist, governmental records are subject to disclosure upon request under the Right to Know Law.
The retention period for most municipal records can be found in RSA Chapter 33-A, “Disposition of Municipal Records.” RSA 33-A:3-a includes a list of 156 categories of municipal records and the length of time each category must be retained. The retention periods run the gamut from almost no time at all (transitory correspondence: retain as needed for reference) to forever, and everything in between. Some must be kept for five years, including abatement records and property inventories. Other records must be retained permanently, such as minutes of town meetings, as well as minutes of all meetings of public bodies. Some of the categories are a bit more surprising. Did you know that employee time cards must be retained for at least 4 years, welfare vouchers for 4 years, and personnel files from retirement or termination plus 50 years? If you have not done so, now is the time to take a few moments and read through that section of the statute. You may be interested by what you find.
You may also be surprised by what is missing from that list. For example, the statute says nothing about local welfare files, other than vouchers for payment on behalf of an assisted person (four years) and welfare work program records (current plus six years). What about the rest of the file, including the application, notices of decision, fair hearing records, and supporting documentation? These gaps in the law can leave municipal officials in a difficult situation. The former rules of the state Municipal Records Board provided that any record not addressed in the list should be retained until the state Board determined the retention period and amended the rules accordingly. Mur 303.02 (expired). However, those rules were superseded in 2005 by RSA Chapter 33-A without any instruction regarding missing categories, so at this point it is not clear what the law requires.
If a category of record is not included in the list, the best thing to do is either simply keep it, or check with a municipal attorney to work out a retention period that makes sense. This is also something the municipal records committee should consider. Returning to the example of welfare files, it is possible that a reasonable solution is to retain the files as long as the client is still receiving assistance, or six years after assistance has stopped (the statute of limitations for most legal actions regarding recovery of welfare assistance), or until a welfare lien on the assisted person’s property has been redeemed or released, whichever is the longest period of time. This is only an example; for specific advice, contact your municipal attorney or NHMA’s attorneys.
Municipal Records Committees
The municipal officers (board of selectmen, town council, city manager, or mayor, as appropriate), or their designee, along with the clerk, treasurer, an assessor and the tax collector of every city and town comprise the municipality’s municipal records committee. Their duty is to “govern the disposition of municipal records” pursuant to RSA Chapter 33-A. Unless otherwise provided by a municipal ordinance, the committee also designates the office responsible for the retention of each category of record created for the municipality. RSA 33-A:3. Generally, public bodies and public agencies are required to “keep and maintain all governmental records in its custody at its regular office or place of business in an accessible place.” RSA 91-A:4, III. If there is some category of record that does not have a “home,” the records committee can and should designate one.
If the municipal records committee in your municipality has never met, or if it has been many years since the last meeting, now is the time to take action. A good place to begin is to read RSA 33-A, and then learn about the requirements for governmental records under the Right to Know Law. With this basic knowledge, the committee can start to take an inventory of the kinds of records the municipality has, review policies that are in place, and see where action or improvement is needed. It is important to note that, when a statute specifies that a particular official has custody of certain records, the committee may not alter what the statute requires.
Municipal records come in all formats: paper, audio and video tapes or files, blueprints, mylar plans, and electronic records. A single record may be kept in multiple formats at the same time, depending upon the practices of the municipality.
In any case, so long as a record exists, the Right to Know Law requires records to be maintained “in a manner that makes them accessible to the public.” Hawkins v. N.H. Dep’t of Health and Human Services, 147 N.H. 376 (2001). This means that if a record is kept solely electronically, it may be necessary to upgrade the format from time to time as technology changes. For instance, if an electronic record is currently available only on a 3 ½ inch computer disk, there may be no computers remaining in the town or city hall that can read them. It may be time to back them all up on a flash drive (until that format is replaced when the next innovation in storage arrives, of course). So long as a governmental record continues to be kept, whether the retention period has ended or not, it must be upgraded to a format that the public can actually access.
If a record is electronic, it must be kept for the same retention period as its paper counterpart. RSA 91-A:4, III-a. So, for example, if a municipality keeps all of its federal tax forms 1099 and W-2 electronically, they must be retained for the same period (seven years) as if they were retained in paper form. RSA 33:2-3-a, XLIII.
However, if the required retention period is more than ten years, the municipality must transfer them to paper or microfilm, or both. RSA 33-A:5-a. The reason, presumably, is that electronic record storage and retrieval methods and technologies continue to evolve rapidly. To be sure the records that must be retained permanently (such as records of legal actions against the municipality, RSA 33-A:3-a, LXV) will be available in the future, the legislature has deemed paper and microfilm durable, accessible storage methods that will assure public access in years to come. (As a side note, it appears the microfilm readers are becoming more and more difficult to obtain and repair, so paper may be the more sensible choice.)
Records that need to be retained for fewer than ten years may be kept solely in electronic form, so long as they remain accessible to the public. This may require periodic format upgrades.
Oddly, the law refers to records that must be retained for more than ten years and fewer than ten years, but not records that must be retained for exactly ten years. Quite a few records fall into this category (fire call/incident reports, police accident files involving fatalities, and street sign maintenance records). The best practice is to maintain a paper copy in addition to any electronic versions that may exist; this way, all bases are covered.
Of course, a municipality may choose to retain records in both electronic and paper form. That is always an option, so long as there continues to be an “official” paper version for records required to be kept longer than ten years.
Discarding, Destroying and Deleting Records
A record in electronic form is no longer subject to disclosure under the Right to Know Law once it has been “initially and legally deleted.” RSA 91-A:4, III-b. Of course, as discussed above, a record cannot be “legally” deleted until the expiration of the retention period. An electronic record is deemed to have been “initially” deleted only if it is no longer readily accessible to the public body or agency with custody over the record. A bit confusingly, it is not enough merely to delete the record or transfer it to a “deleted items” or “recycle bin” on a computer. To delete it sufficiently under RSA 91-A, the municipality has to go one step farther and empty the “deleted items” or “recycle bin” folders. In other words, if an information technology specialist is needed to retrieve the information, it has been deleted sufficiently under the Right to Know Law. It is critical to note, however, that during a lawsuit or criminal investigation, such records may be retrieved and used under a court order.
Email presents an especially difficult problem. Ordinary drafts and other records are often under the control of a single person. If I write a letter, print it out, sign and mail it, I can later delete the letter fairly simply by deleting it and emptying my deleted items folder (assuming there is no legal reason to keep it). If I send an email to one other person, now two of us have it. If I am a member of a seven-person board and I send it to the other six members, now seven of us have the email. If they forward it to anyone else, an unknown number of people have the email. Even if I originally send an email to only one person, I have no control over how far or wide it may spread. Unusual questions begin to arise. Where is the email? Who has the official copy? If everyone except one person deletes it, is it still in the town or city’s custody or control? Does it make a difference if the email resides on a home computer or on a municipal server?
There are no answers yet to most of these questions. If an email or text is sent or received on a municipally-issued computer, smart phone or other device, it is likely that the record is in the custody of the municipality. Ontario, California v. Quon, ___ U.S. ___, 130 S.Ct. 2619 (2010). If communication takes place entirely through privately-owned devices, it is unclear whether those records would be considered “available” under the Right to Know Law.
Given the difficulty of controlling the fate of email, the near impossibility of ensuring that every copy of an email is deleted, and the inability to prevent any email from falling into the hands of an unintended person, the best advice is this:
IF YOU DO NOT WANT TO SEE IT ON THE FRONT PAGE OF THE NEWSPAPER, DO NOT PUT IT IN AN EMAIL. EVER.
If you must use email, the best approach to the challenge of electronic records in general, and email in particular, is to develop a policy regarding regular purges of emails and other files. There are people who have never deleted an email they have received. If that person works in local government, this is a practice that should change. Boards and commissions should be encouraged to use their administrative assistant as the “hub” of electronic communication. That person retains the “official” copy, and everyone else should be encouraged to delete it once it is no longer necessary.
Some categories of records are easy to consider. If the municipality uses Outlook as its email system, each user can set it to automatically empty the deleted files every time the user logs out. If documents are created and stored in a specific folder, developing a habit of deleting the drafts once the final document is completed can reduce the amount of electronic clutter on a computer. If the person who creates minutes for a municipal board uses an audio/video recording or handwritten notes to prepare the written minutes, those materials need to be kept only until the written minutes are approved by the board. After that, the notes may be discarded and the tapes may be reused or erased. RSA 33-A:3-a, LXXX.
Other, more esoteric records are harder to approach. What is the difference between correspondence by and to the municipality regarding “administrative records” and correspondence which is “transitory”? RSA 33-A:3-a, XXV and XXVII. And going back to the welfare record example above, how long do those records need to be kept?
This is an area where the municipal records committee can really help. If the committee goes through the retention schedule in RSA Chapter 33-A and provides each department with a specific report of the retention periods for the records that department or board holds and guidelines on the more challenging categories, it may be much easier for the department or board to begin the process of regularly purging unnecessary records. Each department or board should assign one person to lead this effort and report regularly so there is some accountability in the process. Although the task may seem daunting at first (especially in cases where nothing has ever been discarded), it is something that can be done a little at a time. Keep up with the current records and chip away at the old ones. Slowly but surely, the piles will diminish!
As for methods of disposal, electronic records should be deleted, and the deleted items file should be deleted. For paper records, shredding is appropriate for anything containing confidential or other information that would not be discloseable under RSA 91-A:4. Otherwise, simply throwing them out with the regular trash (or recycling) should be fine. Audio and video tapes may be erased, taped over, or simply discarded with the trash. The municipal records committee should help set standards for when and how records will be purged, bearing in mind that confidential information should be treated carefully.
Some records are required to be created and maintained by law, such as minutes of meetings of public bodies, driveway permits and plans, budgets, and town meeting minutes. Other records are discretionary, meaning they do not have to be created at all. Once records exist, every municipality must take care to consider where and in what format they should be kept. The answer may be different in each community. Every municipality must also determine how long to keep different categories of records, and how they will be disposed of. These are questions each town, city and village district should consider on a routine basis for the best results.
C. Christine Fillmore is Staff Attorney for the New Hampshire Municipal Association. She may be contacted at 800.852.3358 ext. 3408 or at firstname.lastname@example.org.< Back to Town And City Home