2021 -- S 0310

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LC001034

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2021

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A N   A C T

RELATING TO PUBLIC RECORDS – PUBLIC RECORDS ADMINISTRATION

     Introduced By: Senators Archambault, Ruggerio, Lombardi, McCaffrey, Burke, and
Coyne

     Date Introduced: February 18, 2021

     Referred To: Senate 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.

     (3) "Electronic" means relating to technology having electrical, digital, magnetic, wireless,

optical, electromagnetic, or similar capabilities.

     (4) “Electronic record” means a record created, generated, sent, communicated, received,

or stored by electronic means.

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

secretary of state.

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

maps, books, tapes, photographs, films, sound recordings, electronic records, 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.

     (7) “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.

     (8) “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.

     (5)(9) "Records center" shall mean means an establishment a facility, under the direction

of the administrator, maintained by the program for the 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)(10) "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/or historical values for

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

     (11) “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.

     (12) “Retention” means the duration of time that a record, record series, or other

information shall be maintained in its original form.

     (13) “Secretary” means the Rhode Island secretary of state.

     (14) “State archives” means the official state repository or any other repository approved

by the state archivist for long-term or permanent records.

     (15) “State archivist” means the individual who coordinates, directs, and administers the

activities and responsibilities of the state archives.

     38-3-3. Public records administration program.

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

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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

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) 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

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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

shall constitute a misdemeanor.

     (h) 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 Duties of the public records 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. 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, for public bodies,

which shall be primarily responsible for assisting state agencies and cities and towns with the care

and management of their public records, 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 for 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) Collect fines for violations of any rules and regulations adopted to carry out the

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purposes of this chapter.

     (9) Establish safeguards against unauthorized or unlawful removal or loss of records.

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

authorization.

     (11) 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 established terms and conditions.

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

records in the state archives may be studied.

     (13) 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.

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

historical or enduring value to the state archives.

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

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

established retention.

     (16) Submit a yearly report on the progress of the local government records program to the

general officers and to the general assembly. The administrator shall be permitted to request

funding as part of the operating budget of the office of the secretary to operate the program.

     (17) Render all services required by the program that can be advantageously and effectively

centralized.

     (18) 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 or, 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, electronic or other process which accurately reproduces or forms a

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durable medium for reproducing the original,;

     (i) the 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

records and accessibility are fulfilled.; and

     (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. Proposed

schedules not returned to the administrator within sixty (60) days will be deemed acceptable by the

offices of the attorney general and auditor general and shall be made final.

     (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 enduring

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

approved records control schedules shall be transferred to the state archives after the twentieth year

public records repository when no longer needed by an agency in transaction of current business.

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     (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 if transfer of custody is in the best

interest of the record.

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

the record in the center.

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

provisions of § 38-2-2.

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

records in the public records repository state archives 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) 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

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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 procedures for the 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. The certificate of

records destruction shall be the permanent replacement for duly approved destroyed public records.

     (4) Not later than January 1, 2022, designate a records officer who has responsibility for

compliance with this chapter and has been provided orientation and training by the public records

administration regarding this chapter. The records officer:

     (i) Shall establish and operate a records management program for the agency in cooperation

with the division of state archives;

     (ii) May delegate responsibilities to an individual within the agency at his/her discretion;

     (iii) Not later than March 1 of each year, shall certify the accuracy of the records control

schedule and approve destruction of records that have met retention periods at the state records

center;

     (iv) May also serve as the agency forms management representative as required by § 42-

84-5.

     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.

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     (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.

     (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 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; 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

of each year, successors shall be appointed to replace terms of commission members to the

members of the commission whose terms expired. A vacancy of the commission shall be filled by

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

     (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 commencing January 1, 2022, 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 published electronically on the secretary of state's website.

     38-3-10. Violations.

     The administrator is hereby empowered to bring an action in superior court for restraining

orders and injunctive relief to restrain and enjoin violations or threatened violations of any

provision of this chapter.

     38-3-11. 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. This act would also establish a seventeen (17) member public

records advisory commission. This act would further allow the public records administrator to seek

injunctive relief to restrain and enjoin violations of the public records administrator chapter.

     This act would take effect upon passage.

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