SP0549, LD 1567, item 1, An Act To Amend the Archives and Records Management Law

An Act To Amend the Archives and Records Management Law

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 5 MRSA §92, as amended by PL 1997, c. 636, §1, is further amended by adding at the end a new paragraph to read:

It is also the policy of the State to ensure that operational, nonpermanent records of agencies are preserved for the time required by approved records retention schedules established pursuant to section 95-C, subsection 2, paragraph A, subparagraph (3) to meet administrative use, legal, fiscal and audit requirements and to ensure compliance with requests for public records under the Freedom of Access Act.

Sec. 2. 5 MRSA §92-A, sub-§2, as amended by PL 1997, c. 636, §2, is further amended to read:

2. Archives. "Archives" means government records that have been determined by the State Archivist , with advice from the Archives Advisory Board, to have sufficient value to warrant their continued preservation and that are in the physical and legal custody of the Maine State Archives.

Sec. 3. 5 MRSA §92-A, sub-§4, as amended by PL 1995, c. 148, §4 and PL 2003, c. 20, Pt. OO, §2 and affected by §4, is further amended to read:

4. State agency or agency. "State agency" or "agency" means any unit of State Government or local government, including any state board or commission, except including the Legislature and its committees and subcommittees, the Judicial Department judicial branch, the University of Maine System, the Maine Community College System and the Maine Maritime Academy.

Sec. 4. 5 MRSA §92-A, sub-§6, as enacted by PL 1997, c. 636, §4, is amended to read:

6. Electronic record. "Electronic record" means a record whose content is not readable unless retrieved by means of an electronic device such as a computer or an audio or video player. An electronic record can be in a structured database or an individual file.

Sec. 5. 5 MRSA §92-A, sub-§7 is enacted to read:

7. Records retention schedule. "Records retention schedule" means a policy document that defines the minimum time a record must be retained and contains disposition instructions on how the record must be handled when no longer needed for agency business.

Sec. 6. 5 MRSA §94, as amended by PL 1989, c. 716, is further amended to read:

§ 94. Maine State Archives

The office of the State Archivist is a bureau within the Department of the Secretary of State and consists of at least 2 organizational units as the State Archivist and the Secretary of State determine best suited to the accomplishment of the functions and purposes of this chapter. One organizational unit consists of the State Archivist and immediate support staff archives services and one organizational unit consists of records management. The office is known as the Maine State Archives. The State Archivist is the official custodian of the archival resources of the State and has, upon consent of the Secretary of State, the duties and powers established under section 95-C governing the creation, use, maintenance, retention, preservation and disposal of agency records.

Sec. 7. 5 MRSA §95, as amended by PL 2009, c. 509, §§2 to 4, is repealed.

Sec. 8. 5 MRSA §95-B, sub-§2, as amended by PL 2001, c. 704, §1, is further amended to read:

2. Safe or vault for preservation. Each local government shall provide a fireproof safe or vault for the preservation of all records that must be retained permanently but are not required for business purposes. The official having responsibility for those records shall deposit them in the safe or vault where those records must be kept except when required for use. Beginning in 2002, each local government shall respond to a survey distributed biennially by the State Archivist requesting:

A. A description of the fireproof safe or vault required by this section;

B. A statement of the adequacy of the safe or vault for the preservation of records that must be retained permanently; and

C. A plan, if any, for the establishment or enhancement of a safe or vault to comply with the requirements of this section.

The State Archivist shall report the results of the survey, with recommendations, to the joint standing committees of the Legislature having jurisdiction over education and cultural affairs and over state and local government matters.

Sec. 9. 5 MRSA §95-B, sub-§2-A, as enacted by PL 2001, c. 704, §2, is repealed.

Sec. 10. 5 MRSA §95-B, sub-§§7 and 8, as enacted by PL 1995, c. 148, §10, are amended to read:

7. Disposition of records. Records may not be destroyed or otherwise disposed of by any local government official, except as provided by the Archives Advisory Board records retention schedule approved by the State Archivist pursuant to section 95-C, subsection 2, paragraph A, subparagraph (3). Records that have been determined by the board to possess sufficient archival value must be preserved by the municipality or deposited with the State Archivist.

8. Regulations of State Archivist and Archives Advisory Board. Each local government official shall comply with the standards, procedures and regulations issued rules adopted by the Archives Advisory Board State Archivist.

Sec. 11. 5 MRSA §95-C is enacted to read:

§ 95-C. Powers and duties

1. Archives services. The State Archivist has, upon consent of the Secretary of State, the following duties and powers regarding archives services:

A. To administer the office of the State Archivist. In exercising the administration of the office, the State Archivist shall formulate policies, establish organizational and operational procedures and exercise general supervision. The State Archivist shall employ, with the approval of the Secretary of State, and subject to the Civil Service Law, such assistants as are necessary to carry out this chapter. The State Archivist shall adopt a seal for use in the official business of the office. The State Archivist has custody and control of the facilities provided for the administration of this chapter;

B. To have the right of reasonable access to and examination of all state and local government records in the State;

C. To adopt such rules as are necessary to effectuate the purposes of this chapter. No restrictions or limitations may be imposed on the use of records that are defined by law as state and local government records or as records open to public inspection, unless necessary to protect and preserve them from deterioration, mutilation, loss or destruction. Restrictions or limitations imposed by law on the examination and use of records transferred to the archives under subsection 2, paragraph A, subparagraph (3) remain in effect until the records have been in existence for 50 years unless removed or relaxed by the State Archivist with the concurrence in writing of the head of the agency from which the records were transferred or the successor in function, if any. The State Archivist shall adopt rules governing the transfer of records from the custody of one agency to that of another subject to any applicable provision of law. Rules adopted pursuant to this paragraph are routine technical rules as described in chapter 375, subchapter 2-A;

D. To accept gifts, bequests and endowments for purposes consistent with the objectives of this chapter. The Treasurer of State shall invest such funds if given as an endowment in securities according to the laws governing the investment of trust funds. All gifts, bequests and proceeds of invested endowment funds must be used solely to carry out the purposes for which they were made;

E. To publish archival material, reports, bulletins and other publications that promote the objectives of this chapter. The State Archivist shall establish the price at which publications, photocopies and photoduplication services may be sold and delivered. The income received under this paragraph and paragraph M must be credited to a special revenue account. Amounts in the account must be carried forward and expended by the agency for these purposes;

F. To report biennially to the Governor and Legislature facts and recommendations related to the work and needs of the office of the State Archivist;

G. To authorize and receive confirmation of the destruction of the state records of a state agency that, in the opinion of the head of the agency, are no longer of value to the state agency and that, in the opinion of the State Archivist, with advice from the Archives Advisory Board, have no archival value to the State;

H. To receive all agency records transferred to the Maine State Archives under subsection 2 and to negotiate for the transfer of official records that in the opinion of the State Archivist, with advice from the Archives Advisory Board, have archival value from the custody of any public official. The State Archivist shall charge a fee sufficient to cover the cost of receiving and processing all transfers from the custody of any public official not governed by subsection 2. The fees collected must be deposited in the General Fund. Any public official in the State is authorized to turn over to the State Archivist those official records legally in that public official's custody that are not needed for the transaction of the business of that office whenever the State Archivist is willing and able to receive them. Whenever such a transfer is made, the State Archivist shall transmit to the office from which the records are transferred a memorandum in which the records are described in terms sufficient to identify them. The memorandum must be preserved in the transferring office. Unless otherwise directed by law, the state records of any public office, commission or committee in the State must, upon the termination of its existence or functions, be transferred to the custody of the State Archivist;

I. To preserve the records of the Secretary of State to the extent the Secretary of State determines desirable under the Constitution of Maine and the rules of the State Archivist adopted pursuant to paragraph C;

J. To establish such standards concerning the establishment, maintenance and operation of state or local government administered electronic records as are necessary to ensure the preservation of adequate and permanent records of the organization, functions, policies, procedures, decisions and essential transactions of agencies;

K. To receive legislative records. The Secretary of the Senate and the Clerk of the House of Representatives shall obtain the noncurrent records of the Legislature and of each legislative committee at the close of each Legislature and transfer them to the Maine State Archives for preservation, subject to the orders of the Senate or the House of Representatives, respectively, and subject to schedules established in consultation with the Executive Director of the Legislative Council;

L. To make archival material under the State Archivist's supervision available for public use at reasonable times. The State Archivist shall carefully protect and preserve the materials from deterioration, mutilation, loss or destruction. State records maintained by the State Archivist that contain information related to the identity of a patron of the Maine State Archives relative to the patron's use of materials at the Maine State Archives are confidential; those state records and the information contained in them may be released only with the express written consent of the patron involved or as a result of a court order;

M. To furnish copies of archival material upon the request of any person on payment in advance of such fees as may be required. Copies of agency records transferred pursuant to law from the office of their origin to the custody of the State Archivist, if certified by the State Archivist, under the seal of that office, have the same legal force and effect as if certified by their original custodian. A facsimile of the signature of the State Archivist imprinted by or at the direction of the State Archivist upon any certificate issued by the State Archivist has the same validity as the written signature of the State Archivist;

N. To provide centralized photoduplication and records preservation services for agencies to the extent the State Archivist determines advisable in the administration of the programs under subsection 2 and facilities under paragraph A. The services must be furnished to agencies at cost.

Fees collected under this paragraph must be deposited in the General Fund; and

O. To prepare a detailed explanation of what constitutes a record pursuant to section 92-A, subsection 5 and records belonging to the State or to a local government or any agency of the State pursuant to section 95-A, subsection 1. The State Archivist shall include in the explanation practical examples of such records in plain language. Upon request, the State Archivist shall provide the explanation to an interested party at no cost to the interested party and shall post the explanation on a publicly accessible website.

2. Records management. The following provisions govern records management.

A. The State Archivist shall, upon consent of the Secretary of State, establish and administer for all state agencies an active, continuing program for the economical and efficient management of agency records and for the proper disposition of government records. The State Archivist shall, with due regard for the functions of the agencies concerned:

(1) Provide policies, procedures, standards and techniques for effective management of state and local government records in the conduct of business;

(2) Recommend improvements in records management practices for electronic records, including the use of electronic records management systems, and for physical records, including the use of space, equipment and supplies employed in creating, maintaining, storing and servicing state and local government records;

(3) Establish records retention schedules, in consultation with the heads of agencies and their records officers appointed pursuant to paragraph B. The records retention schedules must define the period of time for which each agency must retain records based on the following 4 criteria:

(a) Administrative use;

(b) Legal requirements;

(d) Historical and research value.

A state agency shall retain records of value, and transfer custody to the Maine State Archives, or dispose, as provided by the records retention schedule, of records no longer possessing sufficient administrative, legal or fiscal value to warrant their further keeping for business purposes; and

(4) Obtain such reports from state agencies as are required for the administration of the program, including a biennial assessment of agency records management programs and currency of agency record schedules, in compliance with policies, procedures and standards set by the Maine State Archives.

B. The head of each state agency shall establish and maintain an active, continuing program for the economical and efficient management of records in compliance with the standards, procedures and regulations issued by the State Archivist. The head of each state agency shall appoint a records officer and the head of each large state agency shall appoint a records officer assistant. The head of each state agency, through that agency's records officer, shall enable and ensure the transfer to the Maine State Archives of those records that, in the opinion of the State Archivist, with advice from the Archives Advisory Board, have archival value.

Sec. 12. 5 MRSA §96, as amended by PL 1989, c. 503, Pt. B, §9, is repealed and the following enacted in its place:

§ 96. Archives Advisory Board

1. Established. The Archives Advisory Board, established by section 12004-I, subsection 8, shall serve to advise the State Archivist in administration of this chapter and to perform such other duties as may be prescribed by law.

2. Members. The board consists of 9 voting members with expertise in the administrative, fiscal, legal and historical value of records. Voting members of the Archives Advisory Board must represent the spectrum of records in the State and are appointed by the Secretary of State as follows:

A. Two public members representing the interests of public access to government records, recommended by a public interest group;

B. Two members from municipal or county government with expertise in local government records, recommended by local or county government entities;

C. One member representing a state or local historical society, recommended by a state or local historical society;

D. One member with expertise in the legal requirements of records retention and public records law, recommended by the Attorney General;

E. One member with expertise in the State's fiscal requirements of records retention, recommended by the Governor;

F. One member from the executive branch with expertise in executive branch records, recommended by the Governor; and

G. One member from the Department of Administrative and Financial Services, Office of Information Technology with expertise in electronic records, electronic records management systems and emerging technology related to electronic records, recommended by the Governor.

The State Archivist serves as a nonvoting member.

3. Terms; chair; compensation. The voting members under subsection 2 serve a 3-year term and continue serving until either reappointed or replaced. In case of the termination of a member's service during that member's term, the Secretary of State shall appoint a successor for the unexpired term. The voting members shall elect a chair. Voting members must be compensated as provided in chapter 379.

Sec. 13. 5 MRSA §97, as repealed and replaced by PL 1977, c. 696, §33, is amended to read:

§ 97. Violation

Violation of any provision of this chapter or any rules and regulations issued adopted under section 95 95-C, subsection 3 1, paragraph C, except those violations for which specific penalties are provided, is a Class E crime.

Sec. 14. 5 MRSA §98, sub-§1, ¶¶D and E, as enacted by PL 2001, c. 704, §3, are amended to read:

D. Work cooperatively with other state historical records advisory boards, especially those in New England; and

E. Report biennially to the joint standing committees committee of the Legislature having jurisdiction over education and cultural affairs and over state and local government matters on the board's activities and on the condition of historical records in the State ; and .

Sec. 15. 5 MRSA §98, sub-§1, ¶F, as enacted by PL 2001, c. 704, §3, is repealed.

Sec. 16. 5 MRSA §98, sub-§2, as enacted by PL 2001, c. 704, §3, is amended to read:

2. Authority. In order to carry out its mission, the board may make expenditures in accordance with the following:

A. Beginning with the 2004-2005 biennium, the Governor shall include in the budget submitted to the Legislature each biennium a line item to allow the expenditure by the board of any non-General Fund revenues received by the board, including federal funds, grants or gifts ; and .

B. Beginning with the 2004-2005 biennium, the Governor shall include in the budget submitted to the Legislature each biennium a line item to allow the expenditure by the board of any non-General Fund revenues received by the board to fund a full-time position.

summary

This bill makes the following changes to the archives and records management laws:

1. Adds language to specify that it is the policy of the State to ensure that nonpermanent records are preserved for the time required by an approved records retention schedule;

2. Adds language to include the advice from the Archives Advisory Board in the State Archivist's consideration of what constitutes an archival record, to change the definition of state agency or agency to include all government agencies that transmit records to the Maine State Archives and to change the definition of electronic records;

3. Adds language to specify the 2nd organizational unit within the Maine State Archives is records management and adds language to the Maine Revised Statutes, Title 5, section 94 that was stricken from Title 5, section 95 regarding powers and duties of the State Archivist;

4. Changes the laws governing the State Archivist to reflect the 2 organizational units of the Maine State Archives: archives services and records management. It adds language to strengthen the records management practices for all state and local government agencies by using 4 criteria in the development of a guiding records retention schedule: administrative use, legal requirements, fiscal and audit requirements and historical and research value;

5. Specifies when local government records may be destroyed;

6. Repeals and replaces the laws governing the Archives Advisory Board to change the expertise required of members, to provide that members are appointed by the Secretary of State and to provide 3-year terms for members; and

7. Removes the requirement that the Maine Historical Records Advisory Board report to the joint standing committee of the Legislature having jurisdiction over education and cultural affairs but retains the requirement that the board report to the joint standing committee of the Legislature having jurisdiction over state and local government matters, which is the committee of oversight for the Maine State Archives. It also removes a reference to funding a full-time position that was eliminated in Public Law 2015, chapter 480.

SP0549 LD 1567	Session - 128th Maine Legislature		LR 676 Item 1
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