2019 -- H 6053

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

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A N   A C T

RELATING TO PUBLIC RECORDS - PUBLIC RECORDS ADMINISTRATION

     Introduced By: Representatives Millea, McKiernan, Almeida, Vella-Wilkinson, and
Morin

     Date Introduced: May 02, 2019

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 38-3-2, 38-3-3, 38-3-4, 38-3-5.1, 38-3-6 and 38-3-7 of the General

Laws in Chapter 38-3 entitled "Public Records Administration" are hereby amended to read as

follows:

     38-3-2. Definitions.

     For the purpose of As used in this chapter:

     (1) "Administrator" means the public records administrator who coordinates and manages

the activities and responsibilities of the public records administration program. The administrator

shall be appointed by and serve at the pleasure of the secretary of state.

     (1)(2) "Agency" or "public body" shall mean means any executive, legislative, judicial,

regulatory, administrative body of the state, or any political subdivision thereof; including, but

not limited to, any department, division, agency, commission, board, office, bureau, authority,

any school, fire, or water district, or other agency or quasi-public agency of state or local

government which exercises governmental functions, or any other public or private agency,

person, partnership, corporation, or business entity acting on behalf of any public agency.

     (2)(3) "Program" shall mean means the public records administration program of the

secretary of state.

     (3)(4) "Public record" or "public records" shall mean means all documents, papers,

letters, maps, books, tapes, photographs, films, sound recordings, magnetic or other tapes,

electronic data processing records, computer stored data including electronic mail messages or

other material regardless of physical form or characteristics made or received pursuant to law or

ordinance or in connection with the transaction of official business by any agency.

     (4) "Public records repository" shall mean the establishment maintained by the program

for preservation of those public records determined by the program to have permanent value

warranting their continued preservation and which has been accepted by the program for transfer

to its custody.

     (5) "Records center" shall mean an establishment maintained by the program for the

means a facility, under the direction of the administrator, that provides storage, processing,

servicing, and security of public records that must be retained for varying periods of time but

need not be retained in an agency's office equipment or space.

     (6) "Records control schedule" shall mean means the document or documents

establishing the official retention, maintenance, and disposal requirements for a record or record

series, or type of record based on upon any administrative, legal, fiscal, and and/or historical

values for the scheduled records value related to that record or record series.

     (7) "Records officer" means the representative designated by an agency as responsible for

the operation of the records management program for the agency and related communications

with the public records administration.

     (8) "Record copy" means the record that an agency designates as the official record for

legal and business purposes, and to which the agency applies records management policy

measures for the protection, security, maintenance and/or preservation thereof.

     (9) "Record series" means a collection of records maintained as a group and derived from

or related to a particular subject, activity or function of an agency.

     (10) "Retention" means the duration of time that a record, record series, or other

information shall be maintained in its original form.

     (11) "Secretary" means the Rhode Island secretary of state.

     (12) "State archives" means the official state repository for long-term or permanent

records of legal, historical, or enduring value.

     (13) "State archivist" means the individual who coordinates, directs, and administers the

activities and responsibilities of the state archives. The state archivist shall be appointed by and

serve at the pleasure of the secretary of state.

     38-3-3. Public records administration program.

     (a) The public records administration program shall be organized as deemed necessary by

the secretary of state for the proper discharge of its duties and responsibilities under this chapter.

All personnel, furnishings, equipment, finances, property, and contractual arrangements of the

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public records administration shall be the responsibility of the secretary of state.

     (b) There shall be a public records advisory commission consisting of seventeen (17)

members, one of whom shall be a member of the senate chosen by the president of the senate, one

of whom shall be a member of the house of representatives chosen by the speaker of the house,

six (6) of whom shall be chosen by the governor, and seven (7) of whom shall be chosen by the

secretary of state. The secretary of state or designee shall serve as a permanent member of the

commission. The state archivist shall serve as a permanent member of the commission. The

appointments shall consist of persons who are qualified by training and experience with proven

interest in historical records and public records management. In the first instance, five (5)

members shall be appointed for a one year term, two (2) by the governor and three (3) by the

secretary of state; five (5) members shall be appointed for a two (2) year term, one by the speaker

of the house, one by the president of the senate, two (2) by the governor, and one by the secretary

of state; five (5) members shall be appointed for a three (3) year term, two (2) by the governor,

and three (3) by the secretary of state. The members shall hold office until July 1, in the years in

which their respective terms end. Thereafter, prior to July 1, successors shall be appointed to the

commission to the members of the commission whose terms expired. Vacancy of a member shall

be filled by appointment by the corresponding authority for the remainder of the unexpired terms.

     (c) The secretary of state or designee shall serve as the chairperson of the commission.

The state archivist or designee shall serve as the secretary of the commission with voting rights.

     (d) It shall be the duty of the public records advisory commission to provide professional

and technical assistance to the public records administration program, the state archives, and the

local governments of the state in all matters relating to the administration of public records.

Members of the commission shall serve without pay.

     (e) The secretary of state may appoint an administrator of the program and shall establish

his or her qualifications other than the professional competence required. The administrator shall

coordinate, direct, and administer the activities and responsibilities of the program. The

administrator shall serve at the pleasure of the secretary of state.

     (f)(b) The program may make and enter into contracts and agreements with other

agencies, organizations, associations, corporations, and individuals, or federal agencies as it may

determine are necessary, expedient, or incidental to the performance of its duties or the execution

of its powers under this chapter.

     (g) The program shall adopt rules and regulations deemed necessary to carry out its duties

and responsibilities under this chapter which rules shall be binding on all agencies and persons

affected thereby. The willful violation of any of the rules and regulations adopted by the program

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shall constitute a misdemeanor.

     (h)(c) The program may accept gifts, grants, bequests, loans, and endowments for

purposes not inconsistent with its responsibilities under this chapter.

     38-3-4. Duties of administrator.

     (a) It shall be the duty and responsibility of the administrator to render all services

required by the program herein set forth that can advantageously and effectively be centralized

and to: . The office shall perform such other functions and duties as the secretary of state may

direct.

     (b) The administrator shall supervise, direct, and coordinate the activities of the program.

     (c) The administrator shall be designated "the public records administrator".

     (1) Establish and administer a public records management program, including the

operation of a record center or centers, and apply efficient and economical management methods

relating to the creation, utilization, retention, preservation, and disposal of records;

     (2) Analyze, develop, establish, and coordinate standards, procedures, and techniques of

record making and record keeping to ensure the access, security, and preservation of public

records;

     (3) Institute and maintain a training and information program, including, but not limited

to, the publication of educational materials, on all phases of records management to bring to the

attention of all agencies approved and current practices, methods, procedures, and devices for the

efficient, and economical management of records;

     (4) Make continuous surveys of record keeping operations, to examine the condition of

public records and recommend improvements to public officials in current records management

practices, space, equipment, supplies, and personnel in creating, maintaining, and making

available the public records in their custody;

     (5) Establish and maintain a program, in cooperation with each agency, for the selection

and protection of public records considered essential to the operation of government and to the

protection of the rights and privileges of citizens;

     (6) Create forms for the development of the required records control schedules submitted

by an agency to the program;

     (7) Create, analyze, and uphold records control schedules of public records in the custody

of state and local agencies;

     (8) Adopt rules and regulations, if necessary, to carry out the purposes of this chapter,

including a schedule of administrative penalties to be assessed for violations, such as the

unauthorized destruction or improper storage of a public record;

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     (9) Collect fines for violations of any rules and regulations adopted to carry out the

purposes of this chapter;

     (10) Establish safeguards against unauthorized or unlawful removal or loss of records;

     (11) Initiate appropriate action to recover records removed unlawfully or without

authorization;

     (12) Preserve and administer such public records as shall be transferred to the state

archives according to approved conservation and security practices, and to permit them to be

inspected, examined, and copied at reasonable times and under supervision of the program;

provided that any record placed in keeping of the program under special terms or conditions

restricting their use shall be made available only in accordance with the terms and conditions;

     (13) Provide a public research room where, upon policies established by the program, the

records in the state archives may be studied;

     (14) Make certified copies under seal of any records transferred to it upon the application

of any person, and sign the certificates which shall have the same force and effect as if made by

the agency from which the records were received. The program may charge a reasonable fee for

this service;

     (15) Assist agencies in identifying, securing, and transferring records of permanent legal,

historical or enduring value to the state archives;

     (16) Approve emergency destruction of public records which were damaged due to

catastrophic, environmental, or otherwise unforeseen circumstance but have not met their

established retention; and

     (17) To perform such other functions and duties as the secretary may direct.

     38-3-5.1. Reproduction of public records -- Destruction of original records.

Reproduction of public records.

     (a) If any department or agency of government, in the regular course of business or

activity, has kept or recorded any memorandum, writing, state tax returns, report, application,

payment, entry, print, representation, or combination thereof, or any act, transaction, occurrence,

or event public record, and, in the regular course of business, has caused any or all of the public

records to be recorded, copied, or reproduced by a photographic, photostatic, microfilm, micro-

card, optical disk, miniature photographic, or other digital media process which accurately

reproduces or forms a durable medium for reproducing the original, the;

     (1) The original may be destroyed, and the reproduction established as the record copy, in

the regular course of business, provided the process meets standards established by the public

records administration, and provided all the provisions of § 38-3-6 concerning disposal of public

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records and accessibility are fulfilled.;

     (ii) The reproduction, when satisfactorily identified, shall be admissible in evidence as

the original in any judicial or administrative proceeding whether or not the original exists or is

available and an enlargement or facsimile of the reproduction shall be likewise admissible in

evidence if the original is in existence and available for inspection under the direction of the

court.

     (b) The introduction of a reproduced record, enlargement, or facsimile into evidence shall

not preclude the admission into evidence of the original, if available.

     (c) The duplicate of any record made pursuant to this chapter, and designated as a record

copy, shall have the same force and effect for all purposes as the original record.

     (d) When provided in response to a request from the public, a certified copy shall have

the same force and effect for all purposes as the original record.

     (e) This section shall not be construed to exclude from introduction into evidence any

document or copy thereof which is otherwise admissible under the Rhode Island general laws, as

amended.

     38-3-6. Public records custody and disposal.

     (a) Each agency shall prepare and submit to the program, in accordance with the rules

and regulations of the program, record control schedules for all public records in the custody of

the agency.

     (b)(a) The offices of the attorney general and the auditor general will advise the program

on the legal and fiscal values of records covered by proposed records control schedules.

     (c)(b) Those records which are determined by an agency not to be needed in the

transaction of current business but which, for legal or fiscal requirements, must be retained for

specific time periods beyond administrative needs, shall be sent to the records center. The records

will be kept in the center until time for disposition as provided in record control schedules.

     (d)(c) Public records, with a minimum retention of twenty (20) years, possessing

permanent enduring value, as determined by the administrator in consultation with the state

archivist, may approved records control schedules shall be transferred to the public records

repository when no longer needed by an agency in transaction of current business state archivist

after the twentieth year.

     (d) Public records determined to be of permanent value according to the records retention

schedule and by the administrator in consultation with the state archivist, shall be transferred to

the state archives following assessment after the twentieth year.

     (e) Title to any record placed in the records center shall remain in with the agency placing

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the record in the center.

     (f) Title to any record transferred to the public records repository state archives, as

authorized in this chapter, shall be vested in the program.

     (g) The program shall preserve and administer such public records as shall be transferred

to its custody according to approved conservation and security practices, and to permit them to be

inspected, examined, and copied at reasonable times and under supervision of the program;

provided that any record placed in keeping of the program under special terms or conditions

restricting their use shall be made available only in accordance with the terms and conditions.

     (h) Provide a public research room where, upon policies established by the program, the

records in the public records repository may be studied.

     (i) The program may make certified copies under seal of any records transferred to it

upon the application of any person, and the certificates, signed by the administrator or his or her

designee, shall have the same force and effect as if made by the agency from which the records

were received. The program may charge a reasonable fee for this service.

     (j)(g) No public record shall be destroyed or otherwise disposed of by any agency without

prior notice to, and approval by, the program.

     (k) The program shall adopt reasonable rules and regulations not inconsistent with this

chapter relating to the destruction and disposal of records. The rules and regulations shall provide

but not be limited to:

     (1) Procedures for preparing and submitting record control schedules to the program.

     (2) Procedures for the physical destruction or other disposal of records.

     (3) Standards for the reproduction of records for security or with a view to the disposal of

the original record.

     (l) The program shall:

     (1) Establish safeguards against unauthorized or unlawful removal or loss of records; and

     (2) Initiate appropriate action to recover records removed unlawfully or without

authorization.

     (m) The program may prepare and publish handbooks, guides, indexes, and other

literature directed toward encouraging the management, preservation, and uses of the state's

public records resource.

     38-3-7. Agency responsibilities. Duties and responsibilities of agencies.

     It shall be the duty of each agency to:

     (1) Cooperate with the program in complying with the provisions of this chapter.;

     (2) Establish and maintain an active and continuous program procedure(s) for the

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economical and efficient management of public records, including, but not limited to, working

with the administrator to create and update records control schedules;.

     (3) Submit a certificate of records destruction for approval by the program for each public

record the agency seeks to destroy once it has met its approved retention period;

     (4) Not later than January 1, 2020, designate a records officer who has responsibility for

compliance with this chapter and has been provided orientation and training regarding this

chapter. The records officer may delegate responsibilities to an individual within the agency at his

or her discretion; and

     (5) Submit an annual report to the program documenting records-management activities,

including an electronic records and digitization plan; requests for amendments to records control

schedules; destruction of records, and any other information deemed necessary by the secretary to

fulfill the provisions of this chapter.

     SECTION 2. Section 38-3-5 of the General Laws in Chapter 38-3 entitled "Public

Records Administration" is hereby repealed.

     38-3-5. Duties of program.

     It shall be the duty and responsibility of the public records administration program to:

     (1) Establish and administer a public records management program, including the

operation of a record center or centers, and appoint a director who will apply efficient and

economical management methods relating to the creation, utilization, maintenance, retention,

preservation, and disposal of records.

     (2) Analyze, develop, establish, and coordinate standards, procedures, and techniques of

record making and record keeping.

     (3) Insure the maintenance and security of records which are deemed appropriate for

preservation.

     (4) Institute and maintain a training and information program in all phases of records

management to bring to the attention of all agencies approved and current practices, methods,

procedures, and devices for the efficient and economical management of records.

     (5) Make available a centralized program of microfilming for the benefit of all agencies.

     (6) Make continuous surveys of record keeping operations.

     (7) Recommend improvements in current records management practices, including the

use of space, equipment, supplies, and personnel in creating, maintaining, and servicing records.

     (8)(i) Establish and maintain a program, in cooperation with each agency, for the

selection and protection of public records considered essential to the operation of government and

to the protection of the rights and privileges of citizens.

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     (ii) Make or to have made duplicates of essential records, or to designate existing record

copies as essential records to be protected in the place and manner of safekeeping as prescribed

by the program.

     (iii) The duplicate of any record made pursuant to this chapter shall have the same force

and effect for all purposes as the original record. A transcript, exemplification, or certified copy

of the duplicate shall be deemed, for all purposes, to be the original record.

     SECTION 3. Chapter 38-3 of the General Laws entitled "Public Records Administration"

is hereby amended by adding thereto the following sections:

     38-3-8. Public records advisory commission.

     (a) There shall be a public records advisory commission consisting of seventeen (17)

members, one of whom shall be a member of the senate chosen by the president of the senate, one

of whom shall be a member of the house of representatives chosen by the speaker of the house,

six (6) of whom shall be chosen by the governor, and seven (7) of whom shall be chosen by the

secretary. The secretary or designee and the state archivist shall serve as permanent members of

the commission. The appointments shall consist of persons who are qualified by training and

experience with proven interest in historical records and public records management. In the first

instance, five (5) members shall be appointed for a one year term, two (2) by the governor and

three (3) by the secretary; five (5) members shall be appointed for a two (2) year term, one by the

speaker of the house, one by the president of the senate, two (2) by the governor, and one by the

secretary; five (5) members shall be appointed for a three (3) year term, two (2) by the governor,

and three (3) by the secretary. The members shall hold office until July 1, in the years in which

their respective terms end. Thereafter, prior to July 1, successors shall be appointed to the

commission to replace members of the commission whose terms expired. Vacancy of a member

shall be filled by appointment by the corresponding authority for the remainder of the unexpired

term.

     (b) The secretary or designee shall serve as the chairperson of the commission. The state

archivist or designee shall serve as the secretary of the commission with voting rights.

     (c) It shall be the duty of the public records advisory commission to provide professional

and technical assistance to the public records administration program, the state archives, and the

local governments of the state in all matters relating to the administration of public records.

Members of the commission shall serve without pay.

     38-3-9. Public reporting of compliance.

     Every year the secretary shall prepare a report summarizing the compliance with the

provisions of this chapter, which shall be submitted to the general assembly and which shall be

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published electronically on the department of state website.

     38-3-10. Violations.

     (a) The administrator shall, whenever he or she finds that any provisions of this chapter

have been or are being violated, inform in writing the head of the agency concerned of the

violations and make recommendations regarding means of correcting them. Unless corrective

measures satisfactory to the administrator are instituted within a reasonable time, the

administrator may fine the agency in accordance with § 38-3-11.

     (b) Any penalty imposed by the administrator in accordance with this section shall be

appealable by the aggrieved party to the superior court pursuant to the provisions of chapter 35 of

title 42.

     (c) The administrator may, as a result of violations of the provisions of this chapter, refer

a violation to the attorney general for prosecution under § 38-3-11.

     38-3-11. Penalties.

     Any agency that violates the provisions of this chapter shall be punished by a fine not

exceeding one thousand dollars ($1,000).

     38-3-12. Severability.

     If any provision of this chapter or the application of this chapter to any person or

circumstances is held invalid, the invalidity shall not affect other provisions or applications of this

chapter which can be given effect without the invalid provision or application, and to this end the

provisions of this chapter are declared to be severable.

     SECTION 4. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO PUBLIC RECORDS - PUBLIC RECORDS ADMINISTRATION

***

     This act would establish a public records administration program managed by an

administrator in conjunction with a state archivist relating to the custody and disposal of public

records of the state and its agencies assisted by a seventeen (17) member public records advisory

commission with civil penalties for violations.

     This act would take effect upon passage.

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