Chapter 8 PUBLIC RECORDS

Transcription

1 Chapter 8 PUBLIC RECORDS Essentially, a public record is any document created by or held by, or on behalf of the governmental entity and relating to public business that is not a statement of opinion. A public record may be paper or may be other media such as slide, film, electronic, computer generated, etc. Records Management is the professional practice of managing the records of an organization through their life cycle, from the time they are created to their eventual disposal. IIMC (International Institute of Municipal Clerks) is one source for information on establishing a records management program. There is no state oversight on records management for municipalities. There are specific laws, codified in New Mexico Statutes, that pertain to custodian of records, inspection of public records and mismanagement of records (Chapter 14 Records, Rules, Legal Notices, Oaths). Records retention schedules published by NM State Records are only a guide to municipalities. NM State Records and Archives has no authority over management of municipal records. However, they serve as a resource and can provide important information to municipalities. As Municipal Clerk, you are the custodian of all minutes, ordinances and resolutions ( ). The original copies of your permanent municipal records such as approved minutes and adopted ordinances and resolutions should never leave your control, no matter who asks to borrow them. These documents represent the history of your municipality, and are the legal basis for laws and policy. As the custodian of record, you are also responsible to make sure that all permanent records are stored on materials of durable quality ( ). Records retention schedules provide the minimum retention period for records created in a municipality. Following retention schedules allows a municipality to manage resources such as filing cabinets and storage areas. Municipalities have been using schedules that were developed by the NM State Records and Archives. The retention schedules for municipalities include: General Administrative Records (which include general financial and personnel for municipalities, listed as interpretive ); Local Government Records for Municipalities; and Municipal Courts. Municipalities should adopt retention schedules by resolution. This may be combined with the custodian of records resolution. A sample resolution designating the official custodian of public record is shown on page 8-4. NOTE: Recently NM State Records and Archives has re-worked all retention schedules for the state. The NM Municipal Clerks & Finance Officers Association is reviewing the changes and will be proposing future direction regarding retention schedules. 8-1

2 The basic areas regarding public records of a municipality are: 1. Creation of the records 2. Filing System for Active and Inactive Records 3. Storage System for Active and Inactive Records 4. Retrieval and Reproduction 5. Disaster Recovery Plans 6. Disposition (Archive or Destruction) A good starting point is to organize all files in the Clerk's office in a system that is simple to understand and use. After working with the system, other employees may ask for your help in setting up their files so that they may be used by others. You may have records in several formats (on paper, microfilm and/or digitally). The official record copy is the format that is kept for the full retention period, as designated by the municipality. Prior to destruction, records should be reviewed for historical significance, and moved to the archives or another historical repository. Some historical records are already permanent records. A sample resolution designating an official archives repository is shown on page 8-5. Destruction of public records shall only be done at the direction of the governing body of the municipality. The Clerk should request permission to destroy those records that have served their purpose and are no longer necessary. A list should be compiled for the governing body's information. A simple motion is all that is required to approve the records destruction list. If the governing body approves the destruction of records, you should prepare a Certificate of Destruction listing the records you are destroying and the date of destruction and file it as permanent record in the minute book. The destruction of records without the approval of the governing body may be considered tampering with public record, a fourth degree felony ( ). The New Mexico Administrative Code (NMAC) also has rules regarding the Management of Electronic Records ( NMAC) and Microphotography Systems, Microphotography Standards for imaging ( NMAC). Storage of indexed microfilm records of original permanent records can be done at the State Records Center and Archives. Contact them for further information. INSPECTION OF PUBLIC RECORDS (IPRA) ( through ) Access to public records is the focus of the Inspection of Public Records Act (IPRA) ( through ). A citizen has a fundamental right to have access to public records. The citizen s right to know is the rule and secrecy is the exception. Where there is no contrary statute, the right to inspect public records must be freely allowed. (Newsome, 90 N.M. at 797). Exceptions are listed in , other specific statutes or decided by case law; for instance, medical records and ambulance service information. The statutes contain a procedure and timetable for replying to written requests for inspection; read it carefully. Be sure to read the footnotes. Requests for documents may be oral or written, and notification by is considered a written notice ( F). The timetables contained in the Act apply only to written requests. You may request written requests for record-keeping purposes but you may not ask Joe Citizen the purpose for his request. 8-2

3 If you have any doubt whatever whether a document is a public record or not, check with your municipal attorney or the Municipal League. Another helpful resource is the Inspection of Public Records Act Compliance Guide, published by the New Mexico Attorney General s Office and accessible through their web site ( or at the Municipal League s website, Research/Resources link. Be advised that this is a guide and not the law. There may be instances where the Guide interprets law. Understand that the law, not the Guide, will control in the event of a conflict. You must provide a reasonable opportunity for the inspection of all municipal public records in your custody during ordinary business hours, and you must, upon request, furnish copies of all municipal public records in your custody. You may charge a reasonable fee, usually the cost of making the copies, (not to exceed $1.00 per 11x17 page) for providing them. A notice describing the procedures and fees for inspecting records must be posted in a conspicuous location at the administrative office of the municipality ( ). Many municipalities adopt the inspection policy by resolution, Not all municipal public records will be in your custody, even if you think they should be. Other department heads, supervisors and employees become very territorial with the information in their files. The most professional way of overcoming this problem is to organize the historical records (minutes, ordinances and resolutions) and be able to provide them on request. Use your department heads, supervisors and other municipal employees to brainstorm and set requirements for furnishing records between departments. Present your ideas to the governing body, enlist their support and get their approval. 8-3

4 SAMPLE RESOLUTION RESOLUTION NO. DESIGNATING OFFICIAL CUSTODIAN OF PUBLIC RECORDS WHEREAS, New Mexico State Statute Chapter 14, Article 1, Article 2 and Article 3 classifies preservation, restoration, destruction, inspection and exemptions from public inspection of public records, and WHEREAS, the duties of City Clerk, as defined in Section NMSA 1978, are protection of public records and furnishing copies of public records; NOW, THEREFORE BE IT RESOLVED that the office of City Clerk shall be the official custodian of public records for the (City, Town, Village) of to adhere to all official guidelines as statutes and regulations are adopted; and BE IT FURTHER RESOLVED that the (City, Town, Village) of hereby adopts the Records Retention and Disposition Schedules as developed by the Records Management Division of the State Records Center and Archives, as a guide to records retention. PASSED, ADOPTED AND APPROVED this day of, 20. Mayor ATTEST: City Clerk 8-4

5 SAMPLE RESOLUTION RESOLUTION NO. DESIGNATING OFFICIAL ARCHIVES REPOSITORY WHEREAS, the City Clerk has been named the Custodian of Records of the (City, Town, Village) of ; and WHEREAS, the (City, Town, Village) has adopted the Records Retention and Disposition Schedules as developed by the State Records Center and Archives as the retention schedules of the (City, Town, Village) of ; and WHEREAS, a location is needed to house the historical records of the (City, Town, Village) of. NOW, THEREFORE, BE IT RESOLVED that the (City, Town, Village) of names as the official archives repository for the (City, Town, Village) of records. hereby PASSED, ADOPTED AND APPROVED this day of, 20. Mayor ATTEST: City Clerk 8-5