Managing Municipal Records

C. Christine Fillmore, NHMA Staff Attorney

Municipalities have a lot of documents and records to keep track of. Every department, employee, board and official generates and receives hundreds (or thousands) of records per year. Although many of them do not need to be retained, those which do must be managed somehow. In this Legal Q&A, we’ll look at some of the more common questions regarding the efficient management of municipal records.

Q: Where should municipal records be kept? Are there any laws or rules?

A: There are several acceptable places for municipal records to be kept. “At home” is not one of them. There are several reasons for this.

First, the law prohibits it. “No town officer having the custody of its public records or documents shall loan the same or permit them to be taken from the place where they are usually kept except when necessary for the discharge of official duty….” RSA 41:61. RSA 41:59 requires the governing body provide suitable storage for municipal records and RSA 41:58 requires municipal records to be deposited with the clerk unless they are needed elsewhere. If the clerk’s office is not equipped for storage or it doesn’t make sense to keep certain records there, the Municipal Records Committee (which includes the governing body, clerk, treasurer, assessor and tax collector) shall agree on another place to store them. RSA 33-A:3; RSA 41:58.

The second reason is efficiency. If records are kept in a variety of places out of control of those who may need them, it is difficult to conduct the municipality’s business efficiently.

Finally, the third reason is accessibility. Records must be kept in a place “accessible to the public” for inspection and copying under RSA 91-A:4, III and RSA 41:61. If records are kept at someone’s home, it is impossible to meet these requirements (and it is unreasonably risky).

Q: Okay, records must be kept in municipal buildings. Must they all be kept in one place?

A: Not necessarily. The clerk does not have to have every single record in one room in the town or city hall. This would be unwieldy and make it less efficient for employees and officials to conduct business. In addition, under RSA 91-A:4, III, each public body (board, committee, commission, etc.) must keep all of its governmental records in its “regular office or place of business” in an accessible place. If there is no such office, the records must be kept in a town office. Records should be maintained in a place where those who need them can find them, where they are safe, and where there is room. Some records, like welfare records, are confidential and should be kept in a secure place where only the officials and employees who need to use them may have access. RSA 165:2-c.

The right combination will be different depending upon the size of the municipality, the number of different municipal offices and buildings that are used, and which officials and employees need access to the records. For example, a small town may have only one major municipal building, and it probably makes sense to keep all of the records in various offices there. In contrast, if there are separate police, fire, public works, library and recreation buildings, it may make more sense to keep certain records in those other buildings. When land use boards have their own office space, their records should be maintained there. When a police department has a separate office space, law enforcement records should be maintained there. If there are questions about where records should be kept, the Municipal Records Committee should come up with a solution. The Committee should also keep a list of where everything is kept, and share the list with all of the municipal officers and employees. In particular, the clerk’s office and the main municipal office must know where records are kept because they are likely to receive most of the records requests under RSA 91-A.

Q: Is there a good way to organize and maintain ordinances and regulations?

A: Yes! Towns and cities enact, amend and repeal ordinances and regulations very often. Without some centralized system, it can be very difficult for local officials and employees (and the public) to find them or to know whether a certain provision has been changed or repealed.

Some municipalities have found it helpful is to keep a central index of all ordinances and regulations. An index might be separated into subject matter sections such as road regulations, land use and building code ordinances and regulations, general government ordinances adopted by both the legislative and governing bodies, and public safety ordinances and regulations. The index itself might not contain the text of all the ordinances, but it would at least include the subject matter, the date it was adopted, dates of any amendments or repeal, the enabling legislation under which it was adopted, and the location of the full text of the ordinance. It operates as a “card catalog” of sorts for municipal government.

Other municipalities have found that organizing all ordinances and regulations into one master municipal code works better. This system would include the full text of each item in one large set. It might be compiled by (or at the direction of) the town or city administrator or manager, and might also be placed online using templates and services offered by various companies such as MuniCode. Physically, they are often stored in a series of three-ring binders so new material can be added easily.

A combination of these methods could be used depending on the office involved. For example, the Selectmen’s office may need only an index, and not a full-text version, of the town’s zoning ordinances and land use regulations. On the other hand, it may make sense for the full text of all ordinances and regulations passed by the Board of Selectmen, and all votes of town meeting granting the Board of Selectmen certain authority, to be available in one place in that office. These include items such as a vote of town meeting under RSA 41:9-a to authorize the Selectmen to set fees for permits or revenue-producing facilities, and a record of all such fees adopted. Other common examples include:

* town meeting authorization for the Board of Selectmen to buy and sell real estate (RSA 41:14-a);

* town meeting authorization for Selectmen to apply for, accept and spend unanticipated revenue (RSA 31:95-b);

* road regulations adopted by the Selectmen (RSA 41:11); and

* leases and regulation of municipal property by the Selectmen and authorization from the voters for the Board of Selectmen to lease town property for up to 5 years (RSA 41:11-a).

There are a few other items of importance to consider when compiling and maintaining central indexes or administrative codes. Superseded, amended and repealed versions of all ordinances and regulations should be kept, and the effective dates of any new versions should be clearly stated. Keeping old versions can be very important when there is a question of when something was adopted or amended, authority for enforcement under a prior version, questions about proper enactment of the initial version or any amendments or repeals, and questions about enabling legislation.

This brings us to the second major issue of importance: every municipal ordinance and regulation should include a notation of the statute under which it was adopted. New Hampshire is not a “home rule” state, which means municipalities get all of their authority to act from the legislature through statutes. “Towns only have such powers as are expressly granted to them by the legislature and such as are necessarily implied or incidental thereto.” Girard v. Allenstown, 121 N.H. 268 (1981). In other words, towns and cities must find a statute that allows them to enact an ordinance or regulation, instead of relying on the fact that no statute prohibits it. As a result, the exercise of noting the “enabling legislation” that authorizes each ordinance or regulation serves two purposes: (a) ensuring that the town or city actually has the authority to do it and is following any required procedures; and (b) keeping a record so that in the future the statutory basis can be determined when enforcement or amendment is required.

Q: Does the treatment of electronic records differ from that of paper records? How long must we keep them?

A: In this context, the answer is simple. Although electronic records do need to maintained properly and kept accessible under both RSA 91-A (the Right to Know Law) and RSA 33-A (the Municipal Records Act), ordinances and regulations do not present the same problem. They must be maintained forever (RSA 33-A:3-a, XCII), and thus the official copy must be kept in paper or microfilm form. RSA 33-a:5-a. As a result, while electronic copies certainly may be maintained, they are not the official record and can be handled in any way the municipality chooses.

Of course, if ordinances and regulations are made available electronically, they should be updated as soon as changes are made.

Q: I have heard that some towns and cities have files about their roads. Is this
really necessary?

A: Although no law requires it, road files are very important. The best road files include information on the legal status, location and width of all roads in the city or town. Some municipalities have already done this, others have a bit of information here and there, and others have not begun. It is a project worth doing. Many decisions and issues that the road agent, governing body, and land use boards will face ultimately hinge on how and when a road came into existence, whether a road is public or private, whether it is Class V or Class VI, and how wide the traveled portions and the ditches, drainage, and snow plowing rights of way are. The proper classification of municipal roads can help to ensure the town or city (a) receives all of the state road funds it should, (b) does not unintentionally turn a Class V road to Class VI or vice-versa because of failure to maintain or performing maintenance that isn’t necessary, (c) complies with all financial reporting requirements, and (d) can properly maintain and regulate roads.

Some of the places to find information include minutes and records of the governing body, town meeting votes, planning records, annual town reports, photographs, official maps, and tax records. Public utilities, who must obtain licenses from the municipality to run wires and pipes along roads, also have records which are worth asking for. In addition, deeds and other documents filed with the Registry of Deeds contain a lot of information. And finally, don’t forget to ask people what they know as well – you can get a lot of information from the memories of long-time residents and employees.

Copies of all relevant records should be kept in the road files. The project itself may be done by the road agent, governing body, special committee, or a combination of officials, employees and volunteers. Depending upon the municipality, road files could be kept in the town hall with the land use records or with the road agent in whichever location he or she keeps official records.