Primer for Local Agency Record Retention Policies

The Municipal Records Act, 53 P.S. §§ 1381 – 1389, governs the retention and disposition of records by most local agencies (third class cities, boroughs, incorporated towns, first and second class townships, any such municipality that has adopted a home rule charter, and municipal authorities created by such municipalities).   53 Pa.CS.A. § 1381.   Local agencies are required to adopt the retention and disposition schedule promulgated by the Pennsylvania Historical Commission and approved by the Local Government Records Committee. 53 Pa.C.S.A. § 1386.

Public records may only be disposed of if the disposition is in conformity with the retention and disposition schedule. 53 Pa.C.S.A. § 1383. Local agencies are required to approve each individual act of disposition of public records by resolution of the governing body. 53 Pa.C.S.A. § 1386.   As explained in the Municipal Records Manual, “the records custodian should identify the records he/she wants to destroy and have the governing body of the municipality concur with these requests for destruction by means of a resolution. For example, if a municipal official wants to destroy ten boxes of canceled checks in accordance with schedule guidelines, the governing body must give its approval. The same is true if two years later he/she wants to destroy another ten boxes of canceled checks.” In addition, local agencies must notify the Pennsylvania Historical Commission before transferring certain original, permanently valuable records to microfilm and disposing of the originals.

The Pennsylvania Historical Commission has established a policy and guidelines for the management of electronic record including electronic mail (e-mail) systems. Importantly, electronic records are to be retained and disposed of pursuant to the same schedules as non-electronic records. The policy offers guidance on procedures to retain and dispose of electronic records, security of electronic records, and selection and maintenance of electronic records storage media.

In recent news, a group of newspapers have asked the Pennsylvania Supreme Court to enjoin the Department of Education from having individual employees purge records, including emails, that each employee deems be “transitory” on a daily basis. The Commonwealth Court did not enter an injunction because it held that the RTKL does not modify, rescind or supersede any record retention policy or disposition schedule of an agency established pursuant to law, regulation, policy or other directive. P.G. Publishing Company, Inc. v. Governor’s Office of Administration, (Pa.Cmwlth., No. 481 M.D. 2014, filed October 31, 2014) (single-judge unreported opinion by Pellegrini, P.J.).   It remains to be seen whether the Supreme Court will entertain the newspapers’ application for extraordinary relief.