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repealed; and that chapter twenty-nine of said code be amended by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.
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
(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.
(c) "Board" means the records management and preservation
board as created herein.
(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
(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
(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
(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
(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
(s) "Software programs" mean the written specifications used
to operate an electronic records system as well as the
documentation describing implementation strategies available for
(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
(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
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
(e) Establishing procedures for records management containing
recommendations for retention, disposal or other disposition of
(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
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
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
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
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.