2020 -- S 2841 | |
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LC005049 | |
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STATE OF RHODE ISLAND | |
IN GENERAL ASSEMBLY | |
JANUARY SESSION, A.D. 2020 | |
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A N A C T | |
RELATING TO PUBLIC RECORDS – PUBLIC RECORDS ADMINISTRATION | |
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Introduced By: Senator Stephen R. Archambault | |
Date Introduced: March 12, 2020 | |
Referred To: Senate Judiciary | |
(Secretary of State) | |
It is enacted by the General Assembly as follows: | |
1 | 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 |
2 | Laws in Chapter 38-3 entitled "Public Records Administration" are hereby amended to read as |
3 | follows: |
4 | 38-3-2. Definitions. |
5 | For the purpose of As used in this chapter: |
6 | (1) “Administrator” means the public records administrator who coordinates and manages |
7 | the activities and responsibilities of the public records administration program. The administrator |
8 | shall be appointed by and serve at the pleasure of the secretary of state. |
9 | (1)(2) "Agency" or "public body" shall mean means any executive, legislative, judicial, |
10 | regulatory, administrative body of the state, or any political subdivision thereof; including, but not |
11 | limited to, any department, division, agency, commission, board, office, bureau, authority, any |
12 | school, fire, or water district, or other agency or quasi-public agency of state or local government |
13 | which exercises governmental functions, or any other public or private agency, person, partnership, |
14 | corporation, or business entity acting on behalf of any public agency. |
15 | (3) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, |
16 | optical, electromagnetic, or similar capabilities. |
17 | (4) “Electronic record” means a record created, generated, sent, communicated, received, |
18 | or stored by electronic means. |
19 | (2)(5) "Program" shall mean means the public records administration program of the |
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1 | secretary of state. |
2 | (3)(6) "Public record" or "public records" shall mean means all documents, papers, letters, |
3 | maps, books, tapes, photographs, films, sound recordings, electronic records, or other material |
4 | regardless of physical form or characteristics made or received pursuant to law or ordinance or in |
5 | connection with the transaction of official business by any agency. |
6 | (4) "Public records repository" shall mean the establishment maintained by the program |
7 | for preservation of those public records determined by the program to have permanent value |
8 | warranting their continued preservation and which has been accepted by the program for transfer |
9 | to its custody. |
10 | (7) “Record copy” means the record that an agency designates as the official record for |
11 | legal and business purposes, and to which the agency applies records management policy measures |
12 | for the protection, security, maintenance and/or preservation thereof. |
13 | (8) “Record series” means a collection of records maintained as a group and derived from |
14 | or related to a particular subject, activity or function of an agency. |
15 | (5)(9) "Records center" shall mean means an establishment a facility, under the direction |
16 | of the administrator, maintained by the program for the that provides storage, processing, servicing, |
17 | and security of public records that must be retained for varying periods of time but need not be |
18 | retained in an agency's office equipment or space. |
19 | (6)(10) "Records control schedule" shall mean means the document or documents |
20 | establishing the official retention, maintenance, and disposal requirements for a record or record |
21 | series, or type of record based on upon any administrative, legal, fiscal, and/or historical values for |
22 | the scheduled records value related to that record or record series. |
23 | (11) “Records officer” means the representative designated by an agency as responsible for |
24 | the operation of the records management program for the agency and related communications with |
25 | the public records administration. |
26 | (12) “Retention” means the duration of time that a record, record series, or other |
27 | information shall be maintained in its original form. |
28 | (13) “Secretary” means the Rhode Island secretary of state. |
29 | (14) “State archives” means the official state repository or any other repository approved |
30 | by the state archivist for long-term or permanent records. |
31 | (15) “State archivist” means the individual who coordinates, directs, and administers the |
32 | activities and responsibilities of the state archives. |
33 | 38-3-3. Public records administration program. |
34 | (a) The public records administration program shall be organized as deemed necessary by |
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1 | the secretary of state for the proper discharge of its duties and responsibilities under this chapter. |
2 | All personnel, furnishings, equipment, finances, property, and contractual arrangements of the |
3 | public records administration shall be the responsibility of the secretary of state. |
4 | (b) There shall be a public records advisory commission consisting of seventeen (17) |
5 | members, one of whom shall be a member of the senate chosen by the president of the senate, one |
6 | of whom shall be a member of the house of representatives chosen by the speaker of the house, six |
7 | (6) of whom shall be chosen by the governor, and seven (7) of whom shall be chosen by the |
8 | secretary of state. The secretary of state or designee shall serve as a permanent member of the |
9 | commission. The state archivist shall serve as a permanent member of the commission. The |
10 | appointments shall consist of persons who are qualified by training and experience with proven |
11 | interest in historical records and public records management. In the first instance, five (5) members |
12 | shall be appointed for a one year term, two (2) by the governor and three (3) by the secretary of |
13 | state; five (5) members shall be appointed for a two (2) year term, one by the speaker of the house, |
14 | one by the president of the senate, two (2) by the governor, and one by the secretary of state; five |
15 | (5) members shall be appointed for a three (3) year term, two (2) by the governor, and three (3) by |
16 | the secretary of state. The members shall hold office until July 1, in the years in which their |
17 | respective terms end. Thereafter, prior to July 1, successors shall be appointed to the commission |
18 | to the members of the commission whose terms expired. Vacancy of a member shall be filled by |
19 | appointment by the corresponding authority for the remainder of the unexpired terms. |
20 | (c) The secretary of state or designee shall serve as the chairperson of the commission. The |
21 | state archivist or designee shall serve as the secretary of the commission with voting rights. |
22 | (d) It shall be the duty of the public records advisory commission to provide professional |
23 | and technical assistance to the public records administration program, the state archives, and the |
24 | local governments of the state in all matters relating to the administration of public records. |
25 | Members of the commission shall serve without pay. |
26 | (e) The secretary of state may appoint an administrator of the program and shall establish |
27 | his or her qualifications other than the professional competence required. The administrator shall |
28 | coordinate, direct, and administer the activities and responsibilities of the program. The |
29 | administrator shall serve at the pleasure of the secretary of state. |
30 | (f) The program may make and enter into contracts and agreements with other agencies, |
31 | organizations, associations, corporations, and individuals, or federal agencies as it may determine |
32 | are necessary, expedient, or incidental to the performance of its duties or the execution of its powers |
33 | under this chapter. |
34 | (g) The program shall adopt rules and regulations deemed necessary to carry out its duties |
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1 | and responsibilities under this chapter which rules shall be binding on all agencies and persons |
2 | affected thereby. The willful violation of any of the rules and regulations adopted by the program |
3 | shall constitute a misdemeanor. |
4 | (h) The program may accept gifts, grants, bequests, loans, and endowments for purposes |
5 | not inconsistent with its responsibilities under this chapter. |
6 | 38-3-4. Duties of administrator. |
7 | (a) It shall be the duty and responsibility of the public records administrator to: render all |
8 | services required by the program herein set forth that can advantageously and effectively be |
9 | centralized. The office shall perform such other functions and duties as the secretary of state may |
10 | direct. |
11 | (b) The administrator shall supervise, direct, and coordinate the activities of the program. |
12 | (c) The administrator shall be designated "the public records administrator". |
13 | (1) Establish and administer a public records management program, for public bodies, |
14 | which shall be primarily responsible for assisting state agencies and cities and towns with the care |
15 | and management of their public records, including the operation of a record center or centers, and |
16 | apply efficient and economical management methods relating to the creation, utilization, retention, |
17 | preservation, and disposal of records. |
18 | (2) Analyze, develop, establish, and coordinate standards, procedures, and techniques of |
19 | record making and record keeping to ensure the access, security, and preservation of public records. |
20 | (3) Institute and maintain a training and information program, including, but not limited to, |
21 | the publication of educational materials on all phases of records management, to bring to the |
22 | attention of all agencies approved, and current practices, methods, procedures, and devices for the |
23 | efficient, and economical management of records. |
24 | (4) Make continuous surveys of record keeping operations, to examine the condition of |
25 | public records, and recommend improvements to public officials in current records management |
26 | practices, space, equipment, supplies, and personnel in creating, maintaining, and making available |
27 | the public records in their custody. |
28 | (5) Establish and maintain a program, in cooperation with each agency, for the selection |
29 | and protection of public records considered essential to the operation of government, and for the |
30 | protection of the rights and privileges of citizens. |
31 | (6) Create forms for the development of the required records control schedules submitted |
32 | by an agency to the program. |
33 | (7) Create, analyze, and uphold records control schedules of public records in the custody |
34 | of state and local agencies. |
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1 | (8) Collect fines for violations of any rules and regulations adopted to carry out the |
2 | purposes of this chapter. |
3 | (9) Establish safeguards against unauthorized or unlawful removal or loss of records. |
4 | (10) Initiate appropriate action to recover records removed unlawfully or without |
5 | authorization. |
6 | (11) Preserve and administer such public records as shall be transferred to the state archives |
7 | according to approved conservation and security practices, and to permit them to be inspected, |
8 | examined, and copied at reasonable times, and under supervision of the program; provided, that |
9 | any record placed in keeping of the program under special terms or conditions restricting their use |
10 | shall be made available only in accordance with established terms and conditions. |
11 | (12) Provide a public research room where, upon policies established by the program, the |
12 | records in the state archives may be studied. |
13 | (13) Make certified copies under seal of any records transferred to it upon the application |
14 | of any person, and sign the certificates, which shall have the same force and effect as if made by |
15 | the agency from which the records were received. The program may charge a reasonable fee for |
16 | this service. |
17 | (14) Assist agencies in identifying, securing, and transferring records of permanent legal, |
18 | historical or enduring value to the state archives. |
19 | (15) Approve emergency destruction of public records which were damaged due to |
20 | catastrophic, environmental, or otherwise unforeseen circumstance but have not met their |
21 | established retention. |
22 | (16) Submit a yearly report on the progress of the local government records program to the |
23 | general officers and to the general assembly. The administrator shall be permitted to request |
24 | funding as part of the operating budget of the office of secretary of state to operate the program. |
25 | (17) Render all services required by the program that can be advantageously and effectively |
26 | centralized. |
27 | (18) To perform such other functions and duties as the secretary may direct. |
28 | 38-3-5.1. Reproduction of public records -- Destruction of original records. |
29 | Reproduction of public records. |
30 | (a) If any department or agency of government, in the regular course of business or activity, |
31 | has kept or recorded any memorandum, writing, state tax returns, report, application, payment, |
32 | entry, print, representation, or combination thereof, or any act, transaction, occurrence, or event, |
33 | public record and or, in the regular course of business, has caused any or all of the public records |
34 | to be recorded, copied, or reproduced by a photographic, photostatic, microfilm, micro-card, optical |
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1 | disk, miniature photographic, electronic or other process which accurately reproduces or forms a |
2 | durable medium for reproducing the original,; |
3 | (i) the The original may be destroyed, and the reproduction established as the record copy, |
4 | in the regular course of business, provided the process meets standards established by the public |
5 | records administration, and provided all the provisions of § 38-3-6 concerning disposal of public |
6 | records and accessibility are fulfilled.; and |
7 | (ii) The reproduction, when satisfactorily identified, shall be admissible in evidence as the |
8 | original in any judicial or administrative proceeding whether or not the original exists or is available |
9 | and an enlargement or facsimile of the reproduction shall be likewise admissible in evidence if the |
10 | original is in existence and available for inspection under the direction of the court. |
11 | (b) The introduction of a reproduced record, enlargement, or facsimile into evidence shall |
12 | not preclude the admission into evidence of the original, if available. |
13 | (c) The duplicate of any record made pursuant to this chapter, and designated as a record |
14 | copy, shall have the same force and effect for all purposes as the original record. |
15 | (d) When provided in response to a request from the public, a certified copy shall have the |
16 | same force and effect for all purposes as the original record. |
17 | (e) This section shall not be construed to exclude from introduction into evidence any |
18 | document or copy thereof which is otherwise admissible under the Rhode Island general laws, as |
19 | amended. |
20 | 38-3-6. Public records custody and disposal. |
21 | (a) Each agency shall prepare and submit to the program, in accordance with the rules and |
22 | regulations of the program, record control schedules for all public records in the custody of the |
23 | agency. |
24 | (b)(a) The offices of the attorney general and the auditor general will advise the program |
25 | on the legal and fiscal values of records covered by proposed records control schedules. Proposed |
26 | schedules not returned to the administrator within sixty (60) days will be deemed acceptable by the |
27 | offices of the attorney general and auditor general and shall be made final. |
28 | (c)(b) Those records which are determined by an agency not to be needed in the transaction |
29 | of current business but which, for legal or fiscal requirements, must be retained for specific time |
30 | periods beyond administrative needs, shall be sent to the records center. The records will be kept |
31 | in the center until time for disposition as provided in record control schedules. |
32 | (d)(c) Public records, with a minimum retention of twenty (20) years, possessing enduring |
33 | permanent value, as determined by the administrator in consultation with the state archivist, may |
34 | approved records control schedules shall be transferred to the state archives after the twentieth year |
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1 | public records repository when no longer needed by an agency in transaction of current business. |
2 | (d) Public records determined to be of permanent value according to the records retention |
3 | schedule and by the administrator in consultation with the state archivist, shall be transferred to the |
4 | state archives following assessment after the twentieth year if transfer of custody is in the best |
5 | interest of the record. |
6 | (e) Title to any record placed in the records center shall remain in with the agency placing |
7 | the record in the center. |
8 | (f) Title to any record transferred to the state archives public records repository, as |
9 | authorized in this chapter, shall be vested in the program. |
10 | (g) The program shall preserve and administer such public records as shall be transferred |
11 | to its custody according to approved conservation and security practices, and to permit them to be |
12 | inspected, examined, and copied at reasonable times and under supervision of the program; |
13 | provided that any Any record placed in keeping of the program under special terms or conditions |
14 | restricting their use shall be made available only in accordance with the terms and conditions |
15 | provisions of § 38-2-2. |
16 | (h) Provide a public research room where, upon policies established by the program, the |
17 | records in the public records repository state archives may be studied. |
18 | (i) The program may make certified copies under seal of any records transferred to it upon |
19 | the application of any person, and the certificates, signed by the administrator or his or her designee, |
20 | shall have the same force and effect as if made by the agency from which the records were received. |
21 | The program may charge a reasonable fee for this service. |
22 | (j) No public record shall be destroyed or otherwise disposed of by any agency without |
23 | prior notice to, and approval by, the program. |
24 | (k) The program shall adopt reasonable rules and regulations not inconsistent with this |
25 | chapter relating to the destruction and disposal of records. The rules and regulations shall provide |
26 | but not be limited to: |
27 | (1) Procedures for preparing and submitting record control schedules to the program. |
28 | (2) Procedures for the physical destruction or other disposal of records. |
29 | (3) Standards for the reproduction of records for security or with a view to the disposal of |
30 | the original record. |
31 | (l) The program shall: |
32 | (1) Establish safeguards against unauthorized or unlawful removal or loss of records; and |
33 | (2) Initiate appropriate action to recover records removed unlawfully or without |
34 | authorization. |
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1 | (m) The program may prepare and publish handbooks, guides, indexes, and other literature |
2 | directed toward encouraging the management, preservation, and uses of the state's public records |
3 | resource. |
4 | 38-3-7. Agency responsibilities. Duties and responsibilities of agencies. |
5 | It shall be the duty of each agency to: |
6 | (1) Cooperate with the program in complying with the provisions of this chapter. |
7 | (2) Establish and maintain an active and continuous program procedures for the economical |
8 | and efficient management of public records, including, but not limited to, working with the |
9 | administrator to create and update records control schedules. |
10 | (3) Submit a certificate of records destruction for approval by the program for each public |
11 | record the agency seeks to destroy once it has met its approved retention period. The certificate of |
12 | records destruction shall be the permanent replacement for duly approved destroyed public records. |
13 | (4) Not later than January 1, 2021, designate a records officer who has responsibility for |
14 | compliance with this chapter and has been provided orientation and training by the public records |
15 | administration regarding this chapter. The records officer: |
16 | (i) Shall establish and operate a records management program for the agency in cooperation |
17 | with the division of state archives; |
18 | (ii) May delegate responsibilities to an individual within the agency at his/her discretion; |
19 | (iii) Not later than March 1 of each year, shall certify the accuracy of the records control |
20 | schedule and approve destruction of records that have met retention periods at the state records |
21 | center; |
22 | (iv) May also serve as the agency forms management representative as required by § 42- |
23 | 84-5. |
24 | SECTION 2. Section 38-3-5 of the General Laws in Chapter 38-3 entitled "Public Records |
25 | Administration" is hereby repealed. |
26 | 38-3-5. Duties of program. |
27 | It shall be the duty and responsibility of the public records administration program to: |
28 | (1) Establish and administer a public records management program, including the operation |
29 | of a record center or centers, and appoint a director who will apply efficient and economical |
30 | management methods relating to the creation, utilization, maintenance, retention, preservation, and |
31 | disposal of records. |
32 | (2) Analyze, develop, establish, and coordinate standards, procedures, and techniques of |
33 | record making and record keeping. |
34 | (3) Insure the maintenance and security of records which are deemed appropriate for |
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1 | preservation. |
2 | (4) Institute and maintain a training and information program in all phases of records |
3 | management to bring to the attention of all agencies approved and current practices, methods, |
4 | procedures, and devices for the efficient and economical management of records. |
5 | (5) Make available a centralized program of microfilming for the benefit of all agencies. |
6 | (6) Make continuous surveys of record keeping operations. |
7 | (7) Recommend improvements in current records management practices, including the use |
8 | of space, equipment, supplies, and personnel in creating, maintaining, and servicing records. |
9 | (8)(i) Establish and maintain a program, in cooperation with each agency, for the selection |
10 | and protection of public records considered essential to the operation of government and to the |
11 | protection of the rights and privileges of citizens. |
12 | (ii) Make or to have made duplicates of essential records, or to designate existing record |
13 | copies as essential records to be protected in the place and manner of safekeeping as prescribed by |
14 | the program. |
15 | (iii) The duplicate of any record made pursuant to this chapter shall have the same force |
16 | and effect for all purposes as the original record. A transcript, exemplification, or certified copy of |
17 | the duplicate shall be deemed, for all purposes, to be the original record. |
18 | SECTION 3. Chapter 38-3 of the General Laws entitled "Public Records Administration" |
19 | is hereby amended by adding thereto the following sections: |
20 | 38-3-8. Public records advisory commission. |
21 | (a) There shall be a public records advisory commission consisting of seventeen (17) |
22 | members, one of whom shall be a member of the senate chosen by the president of the senate, one |
23 | of whom shall be a member of the house of representatives chosen by the speaker of the house, six |
24 | (6) of whom shall be chosen by the governor, and seven (7) of whom shall be chosen by the |
25 | secretary. The secretary or designee shall serve as a permanent member of the commission. The |
26 | state archivist shall serve as a permanent member of the commission. The appointments shall |
27 | consist of persons who are qualified by training and experience with proven interest in historical |
28 | records and public records management. In the first instance, five (5) members shall be appointed |
29 | for a one year term, two (2) by the governor and three (3) by the secretary; five (5) members shall |
30 | be appointed for a two (2) year term, one by the speaker of the house, one by the president of the |
31 | senate, two (2) by the governor, and one by the secretary; five (5) members shall be appointed for |
32 | a three (3) year term, two (2) by the governor, and three (3) by the secretary. The members shall |
33 | hold office until July 1, in the years in which their respective terms end. Thereafter, prior to July 1 |
34 | of each year, successors shall be appointed to replace terms of commission members to the |
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1 | members of the commission whose terms expired. A vacancy of the commission shall be filled by |
2 | appointment by the corresponding authority for the remainder of the unexpired terms. |
3 | (b) The secretary or designee shall serve as the chairperson of the commission. The state |
4 | archivist or designee shall serve as the secretary of the commission with voting rights. |
5 | (c) It shall be the duty of the public records advisory commission to provide professional |
6 | and technical assistance to the public records administration program, the state archives, and the |
7 | local governments of the state in all matters relating to the administration of public records. |
8 | Members of the commission shall serve without pay. |
9 | 38-3-9. Public reporting of compliance. |
10 | Every year commencing January 1, 2021, the secretary shall prepare a report summarizing |
11 | the compliance with the provisions of this chapter, which shall be submitted to the general |
12 | assembly, and which shall be published electronically on the secretary of state's website. |
13 | 38-3-10. Violations. |
14 | The administrator is hereby empowered to bring an action in superior court for restraining |
15 | orders and injunctive relief to restrain and enjoin violations or threatened violations of any |
16 | provision of this chapter. |
17 | 38-3-11. Severability. |
18 | If any provision of this chapter or the application of this chapter to any person or |
19 | circumstances is held invalid, the invalidity shall not affect other provisions or applications of this |
20 | chapter which can be given effect without the invalid provision or application, and to this end the |
21 | provisions of this chapter are declared to be severable. |
22 | 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 | |
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1 | This act would establish a public records administration program managed by an |
2 | administrator in conjunction with a state archivist relating to the custody and disposal of public |
3 | records of the state and its agencies. This act would also establish a seventeen (17) member public |
4 | records advisory commission. This act would further allow the public records administrator to seek |
5 | injunctive relief to restrain and enjoin violations of the public records administrator chapter. |
6 | This act would take effect upon passage. |
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