Local Open Government Blog : Open Government Law : Foster Pepper Law Firm : Northwest, Seattle, Spokane, Portland Lawyer & Attorney

On Wednesday April 23 the State Archivist circulated a reminder that digital photocopiers contain hard drives with images of scanned records. These must be treated as public records, and all applicable federal, state and local rules must be followed, including those rules mandating the protection of confidential information. The archivist suggested that the hard drives on photocopiers should be erased before the copiers are traded in. A link to a CBS news story regarding records on digital copiers owned by public entities that was circulated by the archivist can be found here.

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The preservation and destruction of public records is governed by Chapter 40.14 RCW.  Local Governments are responsible for adopting appropriate records retention policies and procedures.  The local records committee establishes retention schedules for different types of local governments that specify retention periods applicable to different categorizes of public records.  These schedules are available on the Washington State Archives website.  Local governments should also consider other applicable retention schedules.  For example, public hospital districts should consider the Medicare conditions of participation and the Joint Commission requirements, among others.  Failure to adopt and implement appropriate records retention and destruction policies and procedures may result in financial penalties and even in possible criminal sanctions because the destruction or mutilation of a public record is a felony under certain circumstances.  See Chapter 40.16 RCW.  Individual officers and employees should make sure that they adhere to the retention schedule with respect to documents that they maintain, such as any email that constitutes a public record (whether or not the email is on a government, personal or business computer).

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The Washington State Archives recently published a records management advice sheet entitled “Electronic Records Management: Blogs, Wikis, Facebook, Twitter & Managing Public Records” that provides guidance to state and local government agencies regarding the retention of public records of posts to social networking websites such as blogs, wikis, Facebook, and Twitter. 

The advice sheet provides five (5) factors for agencies to consider when managing the retention of public records created or received through social networking sites. These factors include determining whether the posts are public records (yes, if the posts are made or received in connection with the transaction of the agency’s public business). Determining whether the posts are simply copies of records that the agency is already retaining or whether the posts are primary records. Determining how long the posts will be retained and how the agency will retain the posts (especially if the posts are maintained by a third-party vendor). Finally, determining which business activities are appropriate for social networking, particularly if the agency is unable to manage the creation, receipt, and retention of the posts as public records.

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Yesterday, the Supreme Court of Arizona held, in a unanimous decision, that under the state’s public records laws any entity that maintains electronic records must disclose those records along with embedded metadata. Lake v. City of Phoenix et al, No. CV-09-0036. 

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Australia has some of the most sophisticated and advanced laws on document retention and access. Therefore, it was not surprising to find this guidance on records retentions issues for government web 2.0 sites coming from the Australian government:  Records Management and Web 2.0

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