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Records Management re Physical Record Stored Off-Site or Electronic Records

Collective Bargaining Transparency Model Legislation

Declaration of Findings, Purposes, and Policy

The public’s right to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials is paramount to [state].

The [state] [freedom of information act] provides a process by which the public may request records for the purpose of obtaining the above information. The advent of modern technology, however, has resulted in a number of problematic conflicts between a [public body’s] obligations under [freedom of information act] and the stated purposes of that act.

Although [freedom of information act] provides for public access to the records of a [public body], many of those records are now created, stored, and disseminated electronically. It is vitally important that the people of [state] have access to these records in a convenient, prompt, and cost-effective manner.

Similarly, many physical records are now stored in off-site locations, which are not easily accessible by the [public body] to which they belong. This, in turn, can lead to significant and unacceptable delays in responding to [freedom of information act] requests. It is therefore necessary for the legislature to establish appropriate procedures to ensure that the people of [state] receive timely responses to their requests.

Sec. 1. As used in this act:

  • “Off-Site Record” – means any record of a [public body] that is stored, housed, or located in a facility other than where initially created, where the [public body’s] access to the record requires travelling a distance of five (5) miles or more; or, where the [public body] is only able to access the record by requesting that record be delivered, copied, or otherwise provided to the [public body] by a third party.
  • “Electronic Record” – means any record of a [public body] that is created, disseminated, or stored in electronic or digital format by or at the direction of the [public body], but not including records, information, or data maintained outside the [public body] that is merely viewed by employees of the [public body], except for Off-Site Records or records over which the [public body] maintains control. Electronic records do not include computer programs, routines, or symbolic languages that control the functioning and direct operation of computer hardware, but does include, without limitation, e-mail, voicemail, instant messaging, and similar forms of communications.

Sec. 2 Creation, Retention, and Production of Electronic Records.

  • Except as specifically provided in this Section, electronic records are subject to the same requirements applicable to other public records under this [Act].
  • Unless specified by other statute or administrative rule, electronic records shall be retained for a period of a minimum of one (1) year from the date of creation.
  • A [public body] shall produce an electronic record in its original format, unless the person requesting the record specifies an alternate format for production and the [public body] is capable of producing the record in that format without significant additional expense or delay.
  • Unless the cost would be excessively burdensome, a [public body] may not charge for the costs of transmitting electronic records via electronic means, but may charge for any other costs permitted by [the freedom of information act] such as searching for or redacting records.

Sec 3. Maintenance and Retrieval of Off-Site Records.

  • A contract between a [public body] and a third party for purposes of storing off-site records must satisfy the following minimum standards:
    • All off-site records of the [public body] provided to the third party must be maintained, at minimum, for the same period of time that would apply if the [public body] maintained those records on-site.
    • The third party must be able to provide a [public body] with any or all of its off-site records no later than five (5) business days from the date the [public body] requests those records.
    • All off-site records of the [public body] in the possession of a third party tasked with storing those records remain solely owned by, and in the control of, the [public body].
  • A [public body] is not permitted to consider the cost of storing, retrieving, or transporting off-site records when determining the costs, if any, of responding to a [Freedom of Information] request.
  • A [public body] may not rely on the fact that records are retained off-site to justify additional delay, expense, or difficulty in reviewing, redacting, and providing those records to a requestor for purposes of this Act.
  • A violation of this Section shall be grounds for a fine of $1,000, or $2,500 for those instances where the violation is either knowing or arbitrary and capricious. These fines shall be in addition to any other fines applicable under this Act.

Sec. 4 Severability

If any provision, section, subsection, sentence, phrase, or word, of this Act or its application is held unconstitutional, in violation of federal law, [include state law if in a locality] or invalid in any way the remainder of this Act or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected and shall remain in effect to the maximum extent provided by law.