The following message was sent by Lisa Wallmeyer, Staff Attorney to HJ 6.  I hope some of you will have the opportunity to participate in the subcommittee meetings on Friday.  If you have comments or observations, please forward them to the list or to Lisa directly.

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Conley L. Edwards
State Archivist
Library of Virginia
800 East Broad Street
Richmond, VA  23219
Telephone:  804-692-3554
Fax:           804-692-3556
E-mail:  [log in to unmask]
 
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Subject: HJ 6 Public Records Act Subcommittee

I am sending this email to remind you that the Public Records Act Subcommittee, formed & appointed by Delegate Cox at our last HJ 6 meeting, will meet at 9:30 a.m. on Friday, October 7 in the 6th Floor Conference Room (the full HJ 6 will meet at 2:00 the same afternoon).

In anticipation of the subcommittee meeting, I have held two staff workgroup sessions to meet with interested parties, work on technical issues, and identify issues for review by the subcommittee.  Attached is a draft document summarizing the work of the workgroup thus far.  In addition to reviewing these changes, we have also identified several policy issues for the subcommittee's discussion, such as the authority that should be granted to the Library of Virginia to promulgate regulations or guidelines concerning public records, local public records, penalties, and whether a multi-agency advisory board should be formed to advise the Library Board about electronic records issues.


If you have any questions about Friday's meeting, please do not hesitate to contact me.  Otherwise, I look forward to seeing you there.

Lisa

Lisa Wallmeyer, Staff Attorney to HJ 6
Virginia Division of Legislative Services 910 Capitol Street Richmond, Virginia 23219
(804) 786-3591
Fax: (804) 371-0169
http://jcots.state.va.us

(Proposed changes have been incorporated into the following text. - Conley Edwards)


A BILL to amend and reenact §§ 42.1-77, of the Code of Virginia, to amend the Code of Virginia by adding a section numbered  , and to repeal §  of the Code of Virginia, relating to electronic records and the Virginia Public Records Act.
Be it enacted by the General Assembly of Virginia:
1.  That § of the Code of Virginia is amended and reenacted as follows:
§ 42.1-76. Legislative intent; title of chapter. 
The General Assembly intends by this chapter to establish a single body of law applicable to all public officers and employees on the subject of public records management and preservation and to ensure that the procedures used to manage and preserve public records will be uniform throughout the Commonwealth. 
This chapter may be cited as the Virginia Public Records Act. 

§ 42.1-77. Definitions. 
As used in this chapter: 
"Agency" means all boards, commissions, departments, divisions, institutions, authorities, or parts thereof, of the Commonwealth or its political subdivisions and includes the offices of constitutional officers. 
"Archival quality" means a quality of reproduction consistent with established standards specified by state and national agencies and organizations responsible for establishing such standards, such as the Association for Information and Image Management, the American Standards Association, and the National Bureau of Standards. 
"Archival record" means a public record of continuing and enduring value useful to the citizens of the Commonwealth and necessary to the administrative functions of public agencies in the conduct of services and activities mandated by law that is identified on a Library of Virginia approved records retention and disposition schedule as having sufficient informational value to be permanently maintained by the Commonwealth. In appraisal of public records deemed archival, the terms "administrative," "fiscal," "historical," and "legal" value shall be defined as: 
1. "Administrative value": Records shall be deemed of administrative value if they have continuing utility in the operation of an agency. 
2. "Fiscal value": Records shall be deemed of fiscal value if they are needed to document and verify financial authorizations, obligations, and transactions. 
3. "Historical value": Records shall be deemed of historical value if they contain unique information, regardless of age, that provides understanding of some aspect of the government and promotes the development of an informed and enlightened citizenry. 
4. "Legal value": Records shall be deemed of legal value if they document actions taken in the protection and proving of legal or civil rights and obligations of individuals and agencies. 
"Archives" means the program administered by The Library of Virginia for the preservation of archival records. 
"Board" means the State Library Board.  
"Conversion" means the act of moving electronic records to a different format, especially data from an obsolete format to a current format. 
"Custodian" means the public official in charge of an office having public records. 
"Disaster plan" means the information maintained by an agency that outlines recovery techniques and methods to be followed in case of an emergency that impacts the agency's records. 
"Electronic record" means a public record with data recorded in digital, analog or similar format, regardless of media, that requires a processing device, such as a computer, to make it intelligible to humans.  Ownership of the hardware, software, or media used to create or store the electronic record has no bearing on a determination of whether such record is a public record.  
"Librarian of Virginia" means the State Librarian of Virginia or his designated representative. 
"Lifecycle" means the creation, use, maintenance, and disposition of a public record.
"Metadata" means data describing the context, content, and structure of records and their management through time.
"Migration" means the act of moving electronic records from one information system or medium to another to ensure continued access to the records while maintaining the records' authenticity, integrity, reliability, and useability.
"Original record" means the first generation of the information and is the superior preferred version of a record. Archival records should to the maximum extent possible be original records. 
"Preservation" means the processes and operations involved in ensuring the technical and intellectual survival of authentic records through time. 
"Private record" means a record that does not relate to or affect the carrying out of the constitutional, statutory, or other official ceremonial duties of a public official, including the correspondence, diaries, journals, or notes that are not prepared for, utilized for, circulated, or communicated in the course of transacting public business. 
"Public official" means all persons holding any office created by the Constitution of Virginia or by any act of the General Assembly, the Governor and all other officers of the executive branch of the state government, and all other officers, heads, presidents or chairmen of boards, commissions, departments, and agencies of the state government or its political subdivisions. 
"Public record" or "record" means recorded information that documents a transaction or activity by or with any public officer, agency or employee of an agency. Regardless of physical form or characteristic, the recorded information is a public record if it is produced, collected, received or retained in pursuance of law or in connection with the transaction of public business. The medium upon which such information is recorded has no bearing on the determination of whether the recording is a public record.
For purposes of this chapter, "public record" shall not include nonrecord materials, meaning reference books and exhibit materials made or acquired and preserved solely for reference use or exhibition purposes, extra copies of documents preserved only for convenience or reference, and stocks of publications. 
"Records retention and disposition schedule" means a Library of Virginia-approved timetable stating the required retention period and disposition action of a records series. 

§ 42.1-78. Confidentiality safeguarded. 
Any records made confidential by law shall be so treated. Records which by law are required to be closed to the public shall not be deemed to be made open to the public under the provisions of this chapter. Records in the custody of The Library of Virginia which are required to be closed to the public shall be open for public access 100 years after the date of creation of the record. No provision of this chapter shall be construed to authorize or require the opening of any records ordered to be sealed by a court. All records deposited in the archives that are not made confidential by law shall be open to public access. 
§ 42.1-79. Records management function vested in Board; State Library Board to be official custodian; State Archivist. 
The archival and records management function shall be vested in the State Library Board. The State Library Board shall be the official custodian and trustee for the Commonwealth of all public records of whatever kind, and regardless of physical form or characteristics, that are transferred to it from any agency. As the Commonwealth's official repository of public records, The Library of Virginia shall assume administrative control of such records on behalf of the Commonwealth.  The Library of Virginia shall own and operate any equipment necessary to retain control of electronic archival records in its custody, but may, at its discretion, contract with third-party entities to provide such services or equipment.
The Librarian of Virginia shall name a State Archivist who shall perform such functions as the Librarian of Virginia assigns. 

§ 42.1-79.1. 
Repealed by Acts 2005, c. 787, cl. 2. 

§§ 42.1-80. , 42.1-81. 
Repealed by Acts 2003, c. 177. 

§ 42.1-82. Duties and powers of Library Board. THIS SECTION SUBJECT TO FURTHER DISCUSSION: KEY POLICY ISSUES TO BE DECIDED BY HJ6
The State Library Board shall: 
1. Issue regulations to facilitate the creation, preservation, storage, filing, reformatting, management, and destruction of public records by all agencies. Such regulations shall establish procedures for records management containing recommendations for the retention, disposal or other disposition of public records; procedures for the physical destruction or other disposition of public records proposed for disposal; standards for the reproduction of records by photocopy or microphotography processes with the view to the disposal of the original records. The procedures for the disposal, physical destruction or other disposition of public records containing social security numbers shall include all reasonable steps to destroy such documents by (i) shredding, (ii) erasing, or (iii) otherwise modifying the social security numbers in those records to make them unreadable or undecipherable by any means. Such standards shall relate to the quality of film used, preparation of the records for filming, proper identification of the records so that any individual document or series of documents can be located on the film with reasonable facility, and that the copies contain all significant record detail, to the end that the photographic or microphotographic copies shall be of archival quality. 
2. Issue regulations specifying permissible qualities of paper, ink, and other materials to be used by agencies for public record purposes. The Board shall determine the specifications for and shall select and make available to all agencies lists of approved papers, photographic materials, ink, or other writing materials for archival public records, and only those approved may be purchased for use in the making of such records. These regulations and specifications shall also apply to clerks of courts of record. 
3. Provide assistance to agencies in determining what records no longer have administrative, legal, fiscal, or historical archival value and should be destroyed or disposed of in another manner. Each public official having in his custody public records shall assist the Board in the preparation of an inventory of all public records in his custody and in preparing a suggested schedule for retention and disposition of such records. No land or personal property book shall be destroyed without being first offered to The Library of Virginia for preservation. 
All records created prior to the Constitution of 1902 that are declared archival may be transferred to the archives. 

§ 42.1-83. Records of counties, cities and towns; storage of records. 
Original archival public records of counties, cities, or towns shall be either stored in The Library of Virginia or in the locality at the decision of the local officials responsible for maintaining public records. Original archival public records shall be returned to the locality upon the written request of the local officials responsible for maintaining local public records. Microfilm shall be stored in The Library of Virginia but the use thereof shall be subject to the control of the local officials responsible for maintaining local public records. 

§ 42.1-84. 
Repealed by Acts 2005, c. 787, cl. 2. 

§ 42.1-85. Duties of Librarian of Virginia; agencies to cooperate; agencies to designate records officer. 
The Librarian of Virginia shall administer a records management program for the application of efficient and economical management methods to the creation, utilization, maintenance, retention, preservation, and disposal  for managing the lifecycle of public records consistent with rules, regulations, or standards promulgated by the State Library Board, including operations of a records center or centers. It shall be the duty of the Librarian of Virginia to establish procedures and techniques for the effective management of public records, to make continuing surveys of paper work operationsrecords and records keeping practices, and to recommend improvements in current records management practices, including the use of space, equipment, software and supplies employed in creating, maintaining, and servicing records. 
It shall be the duty of any agency with public records to cooperate with the Librarian of Virginia in conducting surveys and to establish and maintain an active, continuing program for the economical and efficient management of the records of such agency. 
Each state agency and political subdivision of this Commonwealth shall designate as many as appropriate, but at least one, records officer to serve as a liaison to The Library of Virginia for the purposes of implementing and overseeing a records management program, and coordinating legal disposition, including destruction of obsolete records. Designation of state agency records officers shall be by the respective agency head. Designation of a records officer for political subdivisions shall be by the governing body or chief administrative official of the political subdivision. 

§ 42.1-86. Program to select and preserve important records; availability to public; security recovery copies; disaster plans.  
In cooperation with the head of each agency, the Librarian of Virginia shall establish and maintain a program for the selection and preservation of public records considered essential to the operation of government and for the protection of the rights and interests of persons. He shall provide for preserving, classifying, arranging, and indexing so that such records are made available to the public and shall make security recovery copies or designate as security recovery copies existing copies of such essential public records. Security copies shall be of archival quality and shall be made by photographic, photostatic, microfilm, microcard, miniature photographic, or other process which accurately reproduces and forms a durable medium.  A recovery copy may also be made by creating a paper or electronic copy of an original electronic record.  Security Recovery copies shall have the same force and effect for all purposes as the original record and shall be as admissible in evidence as the original record whether the original record is in existence or not. Security Recovery copies shall be preserved in the place and manner prescribed by the State Library Board and the Governor. Public records deemed unnecessary for the transaction of the business of any agency, yet deemed to be of archival value, may be transferred with the consent of the Librarian of Virginia to the custody of The Library of Virginia. 
The Library of Virginia shall develop a plan to ensure preservation of public records in the event of disaster or emergency as defined in § 44-146.16. This plan shall be coordinated with the Department of Emergency Management and copies shall be distributed to all agency heads. The personnel of the Library shall be responsible for coordinating emergency recovery operations when public records are affected. Each agency shall ensure that a plan for the protection and recovery of public records is included in its comprehensive disaster plan.

§ 42.1-86.1. Disposition of public records. 
No agency shall sell or give away public records. No agency shall destroy or discard a public record unless (i) the record appears on a records retention and disposition schedule approved pursuant to § 42.1-82 and the record's retention period has expired; (ii) a certificate of records destruction, as designated by the Librarian of Virginia, has been properly completed and approved by the agency's designated records officer; and (iii) there is no litigation, audit, investigation, request for records pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.), or renegotiation of the relevant records retention and disposition schedule pending at the expiration of the retention period for the applicable records series. After a record is destroyed or discarded, the agency shall forward the original certificate of records destruction to The Library of Virginia. 

§ 42.1-87. Where records kept; duties of agencies; repair, etc., of record books; agency heads not divested of certain authority. 
Custodians of archival public records shall keep them in fire-resistant, environmentally controlled, physically secure rooms designed to ensure proper preservation and in such arrangement as to be easily accessible. Current public records should be kept in the buildings in which they are ordinarily used. It shall be the duty of each agency to consult with the Library of Virginia to determine the best manner in which to store long-term or archival electronic records.  In entering into a contract with a third-party storage provider for the storage of public records, an agency shall require the third-party to cooperate with The Library of Virginia in complying with rules and regulations promulgated by the Board. 
Each agency shall establish and maintain an active and continuing program for the economic and efficient management of public records. The agency shall be responsible for ensuring that its public records are preserved, maintained, and accessible throughout their lifecycle, including converting and migrating electronic records as often as necessary so that information is not lost due to hardware, software, or media obsolescence or deterioration.  Any public official who converts or migrates an electronic record shall ensure that it is an accurate copy of the original record. The converted or migrated record shall have the force of the original.  
Record books deemed archival should be copied or repaired, renovated or rebound if worn, mutilated, damaged or difficult to read. Whenever the public records of any public official are in need of repair, restoration or rebinding, a judge of the court of record or the head of such agency or political subdivision of the Commonwealth may authorize that the records in need of repair be removed from the building or office in which such records are ordinarily kept, for the length of time necessary to repair, restore or rebind them, provided such restoration and rebinding preserves the records without loss or damage to them. Before any restoration or repair work is initiated, a treatment proposal from the contractor shall be submitted and reviewed in consultation with The Library of Virginia. Any public official who causes a record book to be copied shall attest it and shall certify an oath that it is an accurate copy of the original book. The copy shall then have the force of the original. 
Nothing in this chapter shall be construed to divest agency heads of the authority to determine the nature and form of the records required in the administration of their several departments or to compel the removal of records deemed necessary by them in the performance of their statutory duty. Whenever legislation affecting public records management and preservation is under consideration, The Library of Virginia shall review the proposal and advise the General Assembly on the effects of its proposed implementation. 

§ 42.1-88. Custodians to deliver all records at expiration of term; penalty for noncompliance. 
Any custodian of any public records shall, at the expiration of his term of office, appointment or employment, deliver to his successor, or, if there be none, to The Library of Virginia, all books, writings, letters, documents, public records, or other information, recorded on any medium kept or received by him in the transaction of his official business; and any such person who shall refuse or neglect for a period of ten days after a request is made in writing by the successor or Librarian of Virginia to deliver the public records as herein required shall be guilty of a Class 3 misdemeanor. 

§ 42.1-89. Petition and court order for return of public records not in authorized possession. 
The Librarian of Virginia or his designated representative such as the State Archivist or any public official who is the custodian of public records in the possession of a person or agency not authorized by the custodian or by law to possess such public records shall petition the circuit court in the city or county in which the person holding such records resides or in which the materials in issue, or any part thereof, are located for the return of such records. The court shall order such public records be delivered to the petitioner upon finding that the materials in issue are public records and that such public records are in the possession of a person not authorized by the custodian of the public records or by law to possess such public records. If the order of delivery does not receive compliance, the plaintiff shall request that the court enforce such order through its contempt power and procedures. 

§ 42.1-90. Seizure of public records not in authorized possession. 
A. At any time after the filing of the petition set out in § 42.1-89 or contemporaneous with such filing, the person seeking the return of the public records may by ex parte petition request the judge or the court in which the action was filed to issue an order directed at the sheriff or other proper officer, as the case may be, commanding him to seize the materials which are the subject of the action and deliver the same to the court under the circumstances hereinafter set forth. 
B. The judge aforesaid shall issue an order of seizure upon receipt of an affidavit from the petitioner which alleges that the material at issue may be sold, secreted, removed out of this Commonwealth or otherwise disposed of so as not to be forthcoming to answer the final judgment of the court respecting the same; or that such property may be destroyed or materially damaged or injured if permitted to remain out of the petitioner's possession. 
C. The aforementioned order of seizure shall issue without notice to the respondent and without the posting of any bond or other security by the petitioner. 

§ 42.1-91. Development of disaster plan. 
The Library of Virginia shall develop a plan to ensure preservation of public records in the event of disaster or emergency as defined in § 44-146.16. This plan shall be coordinated with the Department of Emergency Management and copies shall be distributed to all agency heads. The personnel of the Library shall be responsible for coordinating emergency recovery operations when public records are affected. Each agency shall ensure that a plan for the protection and recovery of public records is included in its comprehensive disaster plan. 

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