Chapter §19.3 Records Management Statutes and Principles Applicable to State Agencies and Local Governmental Enti

• Jurisdiction: Washington

§19.3 RECORDS MANAGEMENT STATUTES AND PRINCIPLES APPLICABLE TO STATE AGENCIES AND LOCAL GOVERNMENTAL ENTITIES

Washington statutes and records management principles applicable to state and local agencies are set out below.

(1) General duty to retain records

"Public records" are denned broadly to include

any paper, correspondence, completed form, bound record book, photograph, film, sound recording, map drawing, machine-readable material, compact disc meeting current industry ISO specifications, or other document, regardless of physical form or characteristics, and including such copies thereof, that have been made by or received by any agency of the state of Washington in connection with the transaction of public business, and legislative records as described in RCW 40.14.100.

RCW 40.14.010. That definition, in turn, classifies all public records as either "official public records" or as "office files and memoranda." Id. Although the definition is not precisely the same definition as the one contained in the Public Records Act, see RCW 42.56.010(3), it is similarly broad in its scope. Analysis therefore starts with the observation that virtually anything can be a public record. The questions then become whether, how, and for how long an agency or local government is required to keep it.

State agencies and local governmental entities are required to retain public records until one of two events occurs: either the record reaches the end of a minimum retention period established in a records retention schedule approved by the state or local records committee, RCW 40.14.060, .070, or the state archivist determines the record to be historically valuable and permanently accessions it into the archives, RCW 40.14.030, .070. Records that have reached the end of their retention period without being designated as archival can be destroyed. RCW 40.14.060, .070. Records in classifications that are designated as archival, however, must instead be transferred to the state archives so that the state archivist can determine which records should be permanently accessioned into the archives as historical records. RCW 40.14.030; WAC 434-615-030.

The default minimum retention period for a record is six years. RCW 40.14.060(1)(a), .070(2)(a)(i). It is the duty of the state and local records committees to approve, modify, or disapprove minimum retention requirements for the disposition of all public records. RCW 40.14.050. Therefore, if the characteristic/purpose/category of a record does not fit within a general records retention schedule or an entity's specific schedule, the record must be retained by the agency until disposition authority is granted by the appropriate committee. See AGO 1997 No. 2 at 7-8 (Mar. 13,1997) (discussing authority of State Records Committee to establish records retention periods).

The state and local records committees have approved a series of schedules specifying how long particular records must be retained. There are, broadly speaking, two types of schedules. General schedules, developed and approved by the committees, generally address categories of records common throughout state or local government. Additionally, many state agencies and local governmental entities have received approval from the committees for schedules they have developed that specifically address their agency's/entity's records. Although the legislature has provided some statutory guidance as to how long records are to be retained, the committees have broad discretion to approve retention periods that are as long or as short as necessary to ensure that the records are available as long as they are needed. RCW 40.14.060, .070. The state and local records retention schedules are discussed in §19.4, below.

This does not mean that every record—every scrap of paper, e-mail message, or electronic file—must be retained for years and years. Schedules vary dramatically in the length of time different classes of records must be retained. Many require that records be retained for years, a few for decades. On the other hand, many records can be destroyed in very short periods of time, such as 30 days, or even immediately.

The short answer to the question, "How long does a record have to be kept?" is therefore that a record must be retained as long as the applicable schedule requires. RCW 40.14.060, .070. In practice, the question is more complex because it requires determining whether the general schedules apply or a specific schedule governs the records of a particular entity. The schedules themselves organize records by classification, and so the next question is what class a particular record falls into. Once these matters are determined, the schedule explains how long the record must be retained.

BLDG. INDUS. ASS'N OF WASH. V. MCCARTHY (BIAW), 152 Wn.App. 720, 218 P.2d 196 (2009). The court rejected an argument that a county official illegally deleted e-mail messages, concluding that "the two e[-]mails actually deleted here were done so lawfully pursuant to state guidelines and applicable retention schedules." Id. at 737. The court also held that when e-mail messages are transmitted to multiple recipients, '"[e]ach recipient need not retain the document beyond his or her immediate need for the information it contains' because 'responsibility for retaining and disposing of these documents logically rests with the office from which it was issued' and '[p]rompt deletion of duplicate copies of email messages ... makes the system much easier to manage and reduces disk space consumed by redundant information.'" Id. (quoting secretary of state's "Records Management Guidelines"). The court also observed that the parties to this case had agreed that there is no private right of action under Chapter 40.14 RCW, but left unresolved the question of whether destruction of records in noncompliance with records retention schedules might be a violation of the Public Records Act. Id. at 741-42. In a prior case, the court held that a private party could not obtain a declaratory judgment finding that an agency violated Chapter 40.14 RCW. Daines v. Spokane County, 111 Wn.App. 342, 350, 44 P.3d 909 (2002), overruling on other grounds recognized by Neighborhood Alliance of Spokane Cnty v. County of Spokane, 172 Wn.2d 702, 726-727, 261 P.3d 119 (2011). But see Kitsap County v. Smith, 143 Wn.App. 893, 916-17, 180 P.3d 834 (2008) (permitting a county's action to recover its own records from a former county employee to go forward, without considering whether a private right of action lies to enforce Chapter 40.14 RCW). See also Wash. State Dep't of Corr. v. Barstad, 191 Wn.App. 1003, No. 47669-0-II, 2015 WL 6688864, at *2-3 (Nov. 3,2015) (unpublished) (rejecting the argument that a violation of Chapter 40.14 RCW constitutes a per se violation of the Public Records Act).

When a record reaches the end of its retention period, the schedule will stipulate whether the record can be destroyed or whether it must be transferred to the Washington State Archives.

Finally, there is no duty to destroy records. Chapter 40.14 RCW requires the retention of records until the minimum retention period specified in the relevant schedule has been met. RCW 40.14.060, .070. It does not, however, require that any record be destroyed after this minimum period. There may, nevertheless, be sound management reasons why records should regularly be culled of obsolete materials whose minimum retention...