Two different bodies of law usually come into play when a record is requested from a public entity, such as a borough, township, or authority:
- The Right to Know Law
- The Municipal Records Act.
Often, the second law is overlooked, but it shouldn’t be. The Municipal Records Act requires that municipalities adopt and maintain a record retention policy. Under the law, no records are able to be disposed of unless it is done in accordance with the retention and disposal schedule promulgated by the Pennsylvania History and Museum Commission (PHMC). More than that, though, the municipality needs to officially adopt the PHMC policy or equivalent thereof by resolution, and approve each disposal at a public meeting.
Recently, we have encountered Right to Know Requests that reference the municipality’s retention policy. The requests indicate that if the municipality does not have the records requested, then the requester would like a copy of the municipality’s record retention policy. We assume this is so the requester can review the policy to ensure that the municipality is not 1) lying to the requester about having the requested records or 2) failing to maintain records in accordance with its record retention policy.
The value of having a record retention policy is not limited to Right to Know requests, however. It is also valuable when the municipality is a party to litigation. Discovery requests are often more broad than Right to Know requests, and importantly, the exemptions that exist under Right to Know do not necessarily exist for discovery requests. If a municipality closely follows its record retention policy, it could significantly cut down on the amount of paperwork that will be reviewed by attorneys, saving the municipality attorney’s fees.
Another practical reason to adopt and follow a record retention policy is to cut down on clutter. Storage of old documents that could be disposed of in accordance with the municipality’s record retention policy takes up valuable space that could be used for other things.
It should be noted however, that record retention policies are trumped by both Right to Know requests and discovery requests during litigation. Even if the retention policy allows for disposal of documents at a certain time, if a Right to Know request or discovery request arrives before the document is able to be disposed of, that document must be given to the requester unless an exemption applies. For example, assume Borough X received a Right to Know request for “all zoning citations issued in the year 2014” three days before a scheduled and approved disposal of 2014’s citations. These records now must be kept to fulfill the Right to Know request. This general rule also applies when a “litigation hold” letter arrives. A litigation hold letter puts the receiver on notice that someone is going to bring a claim against them. As such, any records related to the subject matter of the litigation hold letter cannot be disposed of, even if it would be in compliance with a record retention policy.
Stock and Leader’s Municipal Attorneys are able to assist municipalities in adopting and maintaining an approved record retention policy. Remember, every document, including photographs, emails, and video tapes, in the possession of the municipality is a public record. Municipalities are cautioned when disposing of public records without first complying with their record retention policy, or contacting our Municipal Lawyers to discuss the disposal of records.