H. B. 4688
(By Delegates Kuhn, Claypole, Stalnaker, Thompson, Capito,
Everson and H. White)
[Passed March 14, 1998; in effect ninety days from passage.]
AN ACT to amend article two, chapter five of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, by
adding thereto a new section, designated section three; and to
amend and reenact section ten, article eight, chapter five-a
of said code, all relating to the retention and destruction of
the records of the secretary of state and to the authorization
of digital imaging as a means of creating a preservation
duplicate of a state record.
Be it enacted by the Legislature of West Virginia:
That article two, chapter five of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new section, designated section three; and that
section ten, article eight, chapter five-a of said code be amended
and reenacted, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS;
MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.
ARTICLE 2. SECRETARY OF STATE.
§5-2-3. Retention and preservation of records of the secretary of state; destruction of records.
(a) The secretary of state shall provide for the storage and
retention of those essential records, as defined in section four,
article eight, chapter five-a of this code, filed in the office of
the secretary of state for the period specified by law or
legislative rule. The secretary of state shall propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code identifying the essential
records and providing for the minimum retention period.
(b) Where a preservation duplicate, as defined in section
three, article eight, chapter five-a of this code, is made of a
record filed with the secretary of state by photography,
microphotography, digital imaging or other electronic means which
accurately reproduces and preserves the record on microfilm,
microfiche, optical disks or other unalterable electronic storage
medium which complies with national standards or nationally
accepted practice for permanent archival storage, the secretary of
state may provide for the destruction of the original paper copy
when the following conditions are met:
(1) The preservation duplicate has been created, reviewed for
quality, indexed in a reasonable manner as provided by the secretary of state and determined to be accessible by means of the
(2) An additional archive copy of the preservation duplicate
has been created and stored in a fireproof, secure storage
(3) The original paper copy has been preserved for at least
three months following the creation of the preservation duplicate.
(c) The original copies of the papers of the governor,
including executive orders, proclamations, appointments, pardons
and other documents signed by the governor, shall be retained
permanently, regardless of whether a preservation duplicate has
(d) The secretary of state shall have authority to determine
the retention period for nonessential records.
(e) The secretary of state may, upon mutual agreement with the
director of the division of archives and history, transfer to the
division of archives and history those records of the secretary of
state as may be identified as having primarily historic value in
order to make those records more available for purposes of
(f) Following the expiration of the required retention period,
the destruction of confidential original records shall be conducted
in a manner designed to protect the secrecy of those records.
(g) Nothing in this section shall be deemed to require the
secretary of state to destroy original records immediately upon the
expiration of the retention period.
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 8. PUBLIC RECORDS MANAGEMENT AND PRESERVATION ACT.
§5A-8-10. Essential state records -- Preservation duplicates.
(a) The administrator may make or cause to be made
preservation duplicates or may designate as preservation duplicates
existing copies of essential state records. A preservation
duplicate shall be durable, accurate, complete and clear, and a
preservation duplicate made by means of photography,
microphotography, photocopying, film, microfilm or digital image
stored on unalterable media shall be made in conformity with the
standards prescribed therefor by the administrator.
(b) A preservation duplicate made by a photographic,
photostatic, microfilm, microcard, miniature photographic, digital
image or other process which accurately reproduces or forms a
durable and unalterable medium for so reproducing the original,
shall have the same force and effect for all purposes as the
original record whether the original record is in existence or not.
A transcript, exemplification or certified copy of such
preservation duplicate shall be deemed for all purposes to be a
transcript, exemplification or certified copy of the original