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Open Public Records Act: Retention and Destruction Basics
By George M. Morris on April 12, 2018

Municipal and Government attorney, George Morris explains how to retain and destroy public records properly and avoid liability. 

It is imperative that government agencies properly dispose of public records to avoid significant legal and financial exposure under the Open Public Records Act (“OPRA”) and common law right of access.  Once properly destroyed, documents are no longer subject to release under OPRA, and the custodian is insulated from potential mistakes which can cost tens of thousands of tax dollars, civil liability and embarrassment.

The Bureau of Records Management in the Department of Treasury places all public records on “Records Retention Schedules” which list the minimum time periods documents must be retained by governmental agencies. The Bureau publishes Records Retention Disposition Tables to assist public entities in determining whether a record series is ready for disposal.  Strict adherence to records retention schedules is a “best practice” for minimizing searches for old documents to fulfill OPRA and common law access requests.  After all, most public records are not required to be maintained forever, but if they are maintained, they remain subject to disclosure upon request.   For example, Deeds and Easements related to municipal property acquisitions must be maintained in perpetuity, while most correspondence may be lawfully destroyed after 3 years, if the requisite permission is obtained. 

When a public entity receives an OPRA request for a document legally destroyed under the established Retention Schedule, the records custodian can simply turn over a copy of the “approval” receipt from the Bureau for the destruction of these records rather than hunting through old boxes and electronic databases in an effort to comply with OPRA response deadlines.  If a municipality has a storage space in its municipal building that has boxes full of dog license applications from the 1980s and 1990s, the municipal clerk is required by law to search those files for a requested record.  If, on the other hand, the Township obtained permission from the Bureau to, and lawfully did destroy those records, the custodian would have no obligation to conduct the extensive search.

Every public entity should consider reviewing the State’s records retention guidelines.  It is sometimes complicated to navigate the process by which a public entity seeks and obtains approval to destroy older public records.  Further, once a public entity obtains that approval, the entity should actually destroy the documents.  If a public entity obtains approval to destroy specified documents and the documents are not destroyed, those records are still subject to OPRA and the common law right of access and must be disclosed upon request. 

Take immediate advantage of the easiest means of avoiding public records liability:  legally dispose of records which are no longer required to be maintained by the agency.  Please contact George Morris and the OPRA team at Parker McCay for assistance with the lawful destruction of old government records. 

The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.

Tags: OPRA
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