September/October 2022 Issue
Also in this issue: Remembering Mike May | Municipal Regulation of Solar Energy Systems | PSCW Takes Up Third Party Ownership Question
Public Records Retention: When to Say Goodbye
Jared Walker Smith | 10.17.22
While attention on the public records law frequently focuses on receiving and responding to public records requests, that is but one of the several duties of custodians of public records. Equally important is the retention — and occasional destruction — of public records.
Yes, I said destruction. We live in a world of data — this phrase is often used, but well worth repeating. And municipalities, their governing bodies, and municipal utilities must grapple with the issue of how best to maintain, organize and, when it is appropriate, dispose of their data. Ensuring that your municipality has legally permissible and clear policies and procedures on records retention and destruction is essential.
What is a “Record”?
Before you begin dumping your files into the shredder or recycle bin, let’s recall the definition of a “public record.” Not every scrap of paper or electronic file produced in your office must be stored. There are three primary definitions of what qualifies as a record, contained in Wis. Stat. §§ 16.61(2)(b), 19.21(1), and 19.32(2). Each definition is slightly different, but generally “records” are (1) created by the municipality or its contractors in the course of business; (2) received by the municipality for action; or (3) mandated to be retained by statute or regulation. In short, records typically relate to “official public business.” What matters, then, is the content of the record, not its medium, format, or location.
Of course, records are not just physical documents. They may be produced on personal devices or accounts when relating to an official duty of the official or employee. Purely personal messages on personal property, such as a smart phone, are not records, but purely personal messages sent over a municipality’s computer system could be — especially if these messages are relevant to disciplinary proceedings or an investigation of possible misuse of public resources.
Lest you worry about that growing spam or electronic trash folder, not every document produced is a “record” subject to retention laws. Generally, public records do not include reference materials or stock copies; duplicate copies; drafts of working papers created by an individual and not shared with others; general announcements and unsolicited emails; or notes prepared for the creator’s personal use for the sole purpose of refreshing recollection at a later time.
What Records Must Be Retained?
Not all records are eternal, but how do you know which to keep? There is no easy answer and different records may be subject to one or more state or federal retention laws.
In general, Wisconsin records retention laws are principally set out in Wis. Stat. § 19.21. According to unofficial Wisconsin guidance, with limited exceptions, records of local units of government must be kept for a minimum of seven years, and may have to be kept longer. The exceptions include: (1) where a shorter retention period is fixed by the Wisconsin Public Records Board (PRB); (2) municipal utility water stubs, receipts of current billings, and customer’s ledgers, which must only be kept for at least two years; and (3) any taped recording of a meeting by any governmental body may be destroyed no sooner than 90 days after the minutes have been approved and published, if the purpose of the recording was to make minutes of the meeting. However, the exact wording of the statute requires that cities, village, and towns adopt ordinances setting forth their records retention schedules and that, unless approval is sought from the PRB, the minimum retention times set by the ordinance must be as stated above.
Does this mean that your municipality may automatically destroy any record that is over seven years old? No. Without a waiver from the Wisconsin Historical Society (WHS), all local units of government must provide at least 60 days’ written notice to WHS before destroying any record. The WHS may require that records be transferred to the WHS rather than being destroyed. In addition, the PRB has statutory authorization to set longer retention schedules for certain municipal records.
In addition, federal law may establish its own retention schedules. For example, the Internal Revenue Service requires retention of certain tax-related documents; the Occupational Safety and Health Administration requires retention of work-related injury logs; and the Environmental Protection Agency requires retention of records for storage of certain chemicals, to name a few. Often these federally mandated retention periods are less than the default seven years provided by Wisconsin law.
So, what happens when there is a conflict between retention periods? The longest retention period controls.
Adopting a Retention Schedule
While a city, village or town may wish to evaluate, categorize, and adopt its own records retention schedules unique to the community, this is not always practical. Rather than design such a schedule, which requires PRB approval, cities, villages and towns may adopt standard schedules created and published by the PRB. The principal retention schedule is the General Records Schedule, Wisconsin Municipal and Related Records (August 27, 2018), a/k/a, the Wisconsin Municipal Records Schedule (WMRS).
As named, it is a general records schedule for municipalities and, as it is designed both to be tailored to municipalities and broad in its categorization of records, it may not have a specific schedule for every possible record in your possession. Consequently, the PRB also publishes additional statewide schedules geared towards such categories including but not limited to administrative records, budget records, facilities records, and human resources records.
Adoption of any of these records schedules is optional. But adopting such a schedule will waive the requirement that the city, village or town notify the WHS for destruction of many of the more mundane records. To adopt a schedule, a city, village or town must complete and file Form PROB-002, Notification of General Records Schedule Adoption.
Municipal Authority To Adopt Retention Schedules
An observant reader will have noticed that I often use the phrase “cities, villages and towns” when referring to the adoption of records retention schedules. Although subunits of local government, such as a committee, department, or utility commission, may be the custodian of their own records under the Wisconsin Public Records Law, the authority to adopt record retention schedules remains with the city, village or town.
This means that certain subunits of government, such as municipal utilities, must work with the governing body of the municipality to ensure that the adopted records retention schedule includes the unique records and regulations of that subunit. For example, the Public Service Commission of Wisconsin (PSCW) is authorized to establish record retention schedules for regulated utilities. These schedules are found in the various PSCW administrative code chapters and are summarized in the (now outdated) Amended Final Decision in PSCW Docket 5‑US-114 (March 19, 2009). Notably, following PSCW retention periods alone does not obviate the requirement to notify WHS prior to destruction.
Even when a retention schedule allows destruction of a record, other laws — or simply caution — will delay action. A municipality may not destroy or delete an obsolete record subject to a public records request until the request is granted, or until at least 60 workdays after the request is denied. A municipality cannot delete a record related to litigation until the litigation is fully complete. Finally, a municipality should not delete any record related to an ongoing financial or performance audit.
Many new records will be created and stored digitally, and many municipalities may be hoping to turn their archived paper copies into digital files. The good news is that Wisconsin law permits the retention and even reproduction of paper records as original electronic files. However, both retention of electronic files and reproduction of paper records must meet specific standards established by the PRB and by Department of Administration rule under Chapter ADM 12, Wis. Admin. Code. Reviewing these requirements would be an article in and of itself, but the PRB has published helpful guidance available at https://publicrecordsboard.wi.gov/Pages/Resources/Policies.aspx. The bottom line is that creating an electronic original out of a paper copy is not as simple as scanning and disposing and retaining electronic files must be handle thoughtfully.
Adopting a records retention schedule and policy promotes municipal efficiency, protects the municipality in litigation, and is essential for compliance with federal and state laws and regulations. However, schedules and policies are only as good as their implementation. For a records retention schedule to work, your officials and employees have to understand the policies and procedures, as well as their roles and responsibilities in adhering to them, in order to ensure that your municipal records are properly organized and maintained, and when appropriate or necessary, destroyed.
1 See https://publicrecordsboard.wi.gov/Pages/Resources/LocalUnit.aspx
2 Wis. Stat. § 19.21(4)(b).
3 See https://www.wisconsinhistory.o…
4 See https://publicrecordsboard.wi.…
5 See https://publicrecordsboard.wi.…
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situations, and does not purport to be a complete treatment of
the legal issues surrounding any topic. Because your situation
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