hb4607 intr

H. B. 4607

(By Mr. Speaker, Mr. Kiss, and Delegate Trump)

[By Request of the Executive]

[Introduced February 22, 2000; referred to the

Committee on Government Organization then Finance.]

A BILL to repeal article eight, chapter five-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend chapter twenty-nine of said code, by adding thereto a new article, designated article twenty-six, relating to establishing a comprehensive public records management and preservation program for all agencies, constitutional offices and political subdivisions of the state; expressing the intent of the Legislature to establish a single body of law applicable to public records management and preservation; providing that the provisions of this article supersede conflicting or inconsistent provisions of other statutory provisions; defining certain terms; providing public access to records and ensuring the confidentiality of certain records; establishing a records management and preservation board; providing for the appointment, qualifications, duties, responsibilities and compensation of board members; requiring the submission of a legislative rule to establish a comprehensive system of records management and preservation for the state and its subdivisions; providing that the director of the archives and history section of the division of culture and history shall serve as staff to the board; setting forth the responsibilities of the director regarding public records and preservation; transferring certain powers, duties and responsibilities of the secretary of administration to the board; providing that no agency shall be divested of its authority over the management and preservation of records required for the administration of its programs; establishing a special revenue account in the state treasury; providing for the collection and deposit of certain additional county fees; providing for a system of grants to counties and municipalities for management and preservation of public records; and providing that the board shall expend funds in the special account to implement the provisions of the article; and making it a misdemeanor offense to intentionally destroy, sell or transfer public records in violation of the article.

Be it enacted by the Legislature of West Virginia:
That article eight, chapter five-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; and that chapter twenty-nine of said code be amended by adding thereto a new article, designated article twenty-six, to read as follows:
ARTICLE 26. PUBLIC RECORDS MANAGEMENT AND PRESERVATION.
§29-26-1. Legislative intent.

The Legislature intends by this article to establish a single body of law applicable to all public officers and employees on the subject of public records management and preservation and to ensure that the procedures used to manage and preserve public records will be uniform throughout the state. Therefore, the provisions of this article shall supersede any conflicting or inconsistent provisions of chapter fifty-seven and any other provision of this code that is inconsistent or conflicting.
§29-26-2. Definitions.

As used in this article, the following words have the meanings ascribed to them.

(a) "Agency" means all boards, commissions, departments, divisions, institutions, authorities, or parts thereof, of the state or its political subdivisions and includes the offices of constitutional officers, the state supreme court of appeals and the Legislature.

(b) "Archival quality" means a quality of reproduction providing permanent, durable, and nondestructive storage or copying medium for records consistent with established standards specified by state and national agencies and organizations responsible for establishing such standards, such as the association for information and image management, the American national standards institute, and the national bureau of standards.

(d) "Custodian" means the public official in charge of an office having public records.

(e) "Data" means symbols, or representations, of facts or ideas that can be communicated, interpreted, or processed by manual or automated means.

(f) "Database" means a set of data, consisting of one file or a group of integrated files, maintained as an information system managed by a database management system.

(g) "Database management system," means a set of software programs that controls the organization, storage and retrieval of data in a database. It also controls the security and integrity of the database.

(h) "Electronic record" means any information that is recorded in machine-readable form.

(i) "Electronic records system" means any information system that produces, processes, or stores records by using a computer or other recording or reading machine and is also called an automated information system.

(j) "Information system" means the organized collection, processing, transmission, and dissemination of information in accordance with defined procedures, whether automated or manual.

(k) "Director" means the director of the archives and history section of the division of culture and history or her or his designated representative.

(l) "Public official" means all persons holding any office created by the constitution of West Virginia or by any act of the Legislature, the governor and all other officers of the executive branch of the state government, and all other officers, heads, presidents or chairmen of boards, commissions, departments, authorities and agencies of the state government or its political subdivisions.

(m) "Public record" means recorded information that documents a transaction or activity by or with any public official, agency or employee of the state government or its political subdivisions. Regardless of physical form or characteristic, the recorded information is a public record if it is produced, collected, received or retained in pursuance of law or in connection with the transaction of public business.

The medium on which such information is recorded may be, but is not limited to paper, film, magnetic, optical or solid state devices which can store electronic signals, tapes, Mylar, linen, silk or vellum. The general types of records may be, but are not limited to books, papers, letters, documents, printouts, photographs, films, tapes, microfiche, microfilm, photostats, sound recordings, maps, drawings, and any representations held in machine readable form. Nonrecord materials, meaning reference books and exhibit materials made or acquired and preserved solely for reference use or exhibition purposes, extra copies of documents preserved only for convenience or reference, and stocks of publications, shall not be included within the definition of public records as used in this chapter.

(n) "Archival records" means all noncurrent records of continuing and enduring value useful to the citizens of the state and necessary to the administrative functions of public agencies in the conduct of services and activities mandated by law. In appraisal of public records deemed archival, the terms "administrative," "legal," "fiscal," and "historical" shall be defined as:

(1) "Administrative value": Records shall be deemed of administrative value if they have continuing utility in the operation of an agency.

(2) "Legal value": Records shall be deemed of legal value when they document actions taken in the protection and proving of legal or civil rights and obligations of individuals and agencies.

(3) "Fiscal value": Records shall be deemed of fiscal value so long as they are needed to document and verify financial authorizations, obligations and transactions.

(4) "Historical value": Records shall be deemed of historical value when they contain information, regardless of age, which provides understanding of some aspect of the government and promotes the development of an informed and enlightened citizenry.

(o) "Medical records" means the documentation of health care services, whether physical or mental, rendered by direct or indirect patient-provider interaction, which is used as a mechanism for tracking the patient's health care status. Medical records may be technologically stored by computerized or other electronic process, or through microfilm or other similar photographic form or chemical process. Notwithstanding the authority provided by this definition to store medical records on microfilm or other similar photographic form or chemical process, records of dispensing prescriptions maintained in or on behalf of any pharmacy registered or permitted in West Virginia shall only be stored in compliance with appropriate state and federal law.

(p) "Official records" means public records.

(q) "Preservation" means maintaining archival records in their original physical form by stabilizing them chemically or strengthening them physically to ensure their survival as long as possible in their original form. It also means the reformatting of written, printed, electronic or visual archival originals to extend the life of the information.

(r) "Retention and disposition schedule" means an approved timetable stating the retention time period and disposition action for records.

(s) "Software programs" mean the written specifications used to operate an electronic records system as well as the documentation describing implementation strategies available for such purpose.

(t) "Records management" means the process of determining the status, value, and disposition of an organization's records throughout their lifetime and involves scheduling records for their ultimate disposition and arranging for their final or proper disposition.

(u) "Active or current records" mean records needed and used for current business by the agency or the chief elected officer of each branch or office of every political subdivision.
§29-26-3. Confidentiality of certain records.
Any records made confidential by law shall be so treated. Records, which by law are required to be closed to the public, are not open to the public under the provisions of this article. Records in the custody of records management and preservation board hereafter created which are required to be closed to the public shall be open for public access at the expiration date of its closure or 100 years after the date of creation of the record. No provision of this chapter shall be construed to authorize or require the opening of any records ordered sealed by a court of law. All records deposited in the archives that are not made confidential by law shall be open to public access.
§29-26-4. Records management and preservation board created; qualifications, appointment and compensation of members.

There is hereby created a records management and preservation board, hereinafter referred to as the board, to be composed of eleven members. One member of the board shall be the commissioner of the division of culture and history. One member of the board shall be the clerk of the Senate or his or her designee. One member of the board shall be the clerk of the House of Delegates or his or her designee. One member of the board shall be the administrator of the supreme court of appeals or his or her designee. One member of the board shall be the administrator of the governor's office of technology or his or her designee. One member of the board shall be the secretary of state or his or her designee. The governor shall appoint five members of the board with the advice and consent of the Senate. Of the five appointed members: (a) Not less than three shall be county elected officials, one of which shall be a clerk of the county commission, one of which shall be a circuit court clerk and one of which shall be a county commissioner selected from a list of nine names, including the names of three clerks of county commissions, three circuit court clerks and three county commissioners submitted to the governor jointly by the West Virginia association of counties and the West Virginia county commissioners association;(b) not less than one shall be a municipal elected official selected from a list of three names submitted by the municipal league of this state; (c) not more than three shall be from the same political party; (d) not more than two members may be appointed from the same congressional district; and (e) not less than one member shall be a representative of a local historical or genealogical society.

The commissioner of the division of culture and history shall serve as chairman of the board and shall cause the minutes of each board meeting to be taken and recorded. A quorum of members of the board shall be required in order to conduct business. For the purposes of this article, a quorum is not less than six members present and voting. Members shall serve without compensation, but may receive reasonable and necessary expenses in carrying out the purposes of this article.
§29-26-5. Submission of a legislative rule.
Not later than the first day of August, two thousand, the board, with the advice and assistance of the archives and history commission shall prepare and submit to the legislature's rulemaking review committee, for approval and submission to the Legislature, a legislative rule to establish a comprehensive system of records management and preservation for the state and its subdivisions: Provided, That as funds for this purpose are made available, the board shall conduct public hearings through out the state prior to submitting the final draft rule for promulgation by the Legislature. The rule shall provide for the vesting of all records management and records preservation activities in the board with emphasis on the development of a comprehensive system of retention and disposition schedules. The rule shall include provisions for:

(a) Public, archival, and medical records preservation, inventories, retention and disposition schedules.

(b) Employing software programs for the collection of data, developing databases and database management systems, providing for electronic records and electronic record and information systems.

(c) Establishing uniform guidelines for the management, preservation of and access to public records throughout the state.

(d) Facilitating the creation, preservation, storage, filing, reformatting, management and final disposition of public records by all agencies.

(e) Establishing procedures for records management containing recommendations for retention, disposal or other disposition of public records.

(f) Establishing procedures for the physical destruction or other disposition of public records scheduled for disposal.

(g) Adopting nationally recognized standards for, and implementing a program for the reproduction of records by photocopy, microphotography or other reformatting processes with the view to retire or dispose of the original records.

(h) Adopting nationally recognized standards for permissible qualities of paper, ink or other materials to be used by agencies for public record purposes.

(i) Providing assistance to agencies in determining what records no longer have administrative, legal, fiscal or historical value and should be destroyed or disposed of in another manner.

(j) Requesting that public officials with custody of public records assist the board in preparation of an inventory of all public records in their custody and preparing schedules for retention and disposition of such records.

(k) Prohibiting the destruction of public records without written authorization of the director, except for records destroyed pursuant to an approved records retention and disposition schedule.

(l) Formulating and executing a program to inventory, schedule and microfilm official records of counties, cities and towns which it determines have permanent value and to provide archival storage for microfilm copies of such records.

(m) Formulating a statewide forms management system.
§29-26-6. Duties of the director.

The staff of the board shall consist of the director of the archives and history section of the division of culture and history and such staff as he or she may designate to assist him or her. The director shall be responsible for preparing drafts of the proposed rule for the consideration of the board and shall provide the board with necessary technical and secretarial assistance as needed for the conduct of the business of the board.

Under the direction of the board, the director shall administer a records management and preservation program for the application of efficient and economical management methods to the creation, utilization, maintenance, retention, preservation, and disposal of public records consistent with rules or standards developed by the board, including operations of a records center or centers.

Only records, which are determined by the director to be of historical significance, shall be kept and preserved. Records, which are determined to have no historical significance, may be destroyed in accordance with the records retention schedule promulgated by the supreme court of appeals or other retention schedules as established by the board.

Within one year of the enactment of this article, as funding therefore permits, the director, under the supervision of the board, shall prepare and make available to all agencies a manual for the proper maintenance, use, storage and management of public records.
§29-26-7. Where records kept; duties of agencies; repair of record books; agency heads not divested of certain authority.

Current public records should be kept in the buildings in which they are ordinarily used. It shall be the duty of each agency to cooperate with the board in complying with rules promulgated by it.

Nothing in this article shall prohibit a county or political subdivision from establishing and maintaining an accessible records management and preservation repository. Any such repository shall meet the requirements and rules established by the board for the safe and proper storage of records.

Nothing in this article shall be construed to divest agency heads or the chief elected officer of each branch or office of every political subdivision of the authority to determine the nature and form of the records required in the administration of their departments or to compel the removal of records deemed necessary by them in the performance of their statutory duty.

Whenever legislation affecting public records management and preservation is under consideration, the board shall review the proposal and advise the Legislature on the effects of its proposed implementation.

§29-26-8. Transfer of powers, duties and responsibilities of the secretary of administration for records management and preservation to the board.

Effective the first day of July 2000, all of the powers, duties and responsibilities for records management and preservation of the secretary of administration and his or her department shall be transferred to and shall be exercised by the board as established herein. Not later than thirty days after the effective date of this section, the secretary of administration and the commissioner of culture and history shall develop a transition plan for the orderly transfer of employees, records, contracts, funds, obligations and any other matter associated with the records management and preservation program of the department of administration to the archives and history section of the division of culture and history for support of the board's activities. The transition plan shall be presented to the board for approval before it is executed.

§29-26-9. Additional fees to be charged by clerk of county commission; Special public records and preservation revenue account established in the state treasury; Use of funds; Grants to counties and municipalities.

In addition to the fees charged by the clerk of the county commission under the provisions of section ten, article one, chapter fifty-nine of this code, the clerk shall charge and collect an additional one dollar fee for every document containing less than ten pages filed for recording and an additional one dollar fee for each additional ten pages of such document filed for recording. At the end of each month, the clerk of the county commission shall deposit into the special public records and preservation account as herein established in the state treasury all fees collected: Provided, That the clerk may retain not more than ten percent of such fees for costs associated with the collection of the fees. Clerks shall be responsible for accounting for the collection and deposit in the state treasury of all fees collected by such clerk under the provisions of this section.

There is hereby created in the state treasury a special account entitled the "public records and preservation revenue account." The account shall consist of all fees collected under the provisions of this section, legislative appropriations, interest earned from fees, investments, gifts, grants or contributions received by the board. Expenditures from the account shall be for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter five-a of this code: Provided, That for the fiscal year ending the thirtieth day of June, two thousand one, expenditures are authorized from collections rather than pursuant to an appropriation by the Legislature.

Subject to the above provision, the board may expend the funds in the account to implement the provisions of this article. In expending funds from the account, the board shall allocate not more than fifty percent of such funds for grants to counties and municipalities for records management, access and preservation purposes. The board shall establish applications, guidelines and procedures for distributing grants to counties and municipalities, including a process for appealing an adverse decision.
§29-26-10. Penalty for selling, transferring or destroying public records.

Any person who intentionally destroys, transfers or sells any public documents or records in his or her possession or under his or her authority in violation of any of the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars, or imprisoned in the county or regional jail not more than one year, or fined and imprisoned or sentenced to alternative community service or a combination of such penalties.

The attorney general shall assist the board in recovering any public documents or records belonging to an agency sold or transferred improperly or illegally.

NOTE: The purpose of this bill is to establish a comprehensive public records management and preservation program for all agencies, constitutional offices and political subdivisions of the state. The records management preservation provisions of this article supersede conflicting or inconsistent provisions of other statutes. The bill establishes an eleven member records management and preservation board and requires the board to submit a legislative rule to establish a comprehensive system of records management and preservation for the state and its subdivisions. Under the bill, the director of the archives and history section of the division of culture and history serves as staff to the board. A special revenue account in the state treasury is established and additional county fees are to be assessed and deposited in the special account. The bill also provides for a system of grants to counties and municipalities for management and preservation of public records. The bill makes it a misdemeanor offense for any person to intentionally destroy, transfer or sell any public documents in his or her possession or under his or her authority in violation of the article.

This article is new; therefore, strike-throughs and underscoring have been omitted.