Record Keeping Requirements for State Departments of Transportation (2009)

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3 RECORD KEEPING REQUIREMENTS FOR STATE DEPARTMENTS OF TRANSPORTATION By Terri L. Parker Regional Counsel, Missouri Department of Transportation I. INTRODUCTION Transportation agencies continue to be challenged by new and emerging communication methods as they de- velop and improve their strategies for data collection and protection. To competently address related issues, counsel for transportation agencies should be familiar with pertinent legislation and regulations, as well as mandatory and best practices as guidance for maintain- ing records to fit their needs. Applicable law and regu- lations pertaining to keeping, releasing, and destroying records within transportation agencies are discussed in this digest. The reader should be aware that, while this digest discusses rules and cases generally, specific re- search must be done for individual jurisdictions. Sev- eral terms used in the recordkeeping industry are de- scribed briefly in this section. The reader should refer to these definitions as necessary to fully understand and appreciate these discussions. Definitions Electronic records are records stored in a form that only a computer can process. They may include nu- meric, graphic, or text information, which may be re- corded on any medium capable of being read by a com- puter. Electronic signatures have been incorporated as part of federal law as the Electronic Signature in Global and National Commerce Act (ESGNCA)1 and The Uniform Electronic Transaction Act (UETA)2 and many state laws. The intent of these laws is to place electronic documents and the use of electronic signatures on a par with traditional paper-based transactions and the use of manual signatures. These laws were intended to eliminate any concerns that electronic signatures are as enforceable as traditional signatures. Metadata are data that describe other data. Meta- data can provide such information as the author, the last date a document was printed, the date the file was created, the number of words in the document, and when and what changes were made to the document. Records are defined as all books, papers, maps, pho- tographs, machine readable materials, or other docu- mentary materials, regardless of physical forms or 1 Pub. L. No. 106-229, 114 Stat. 464 (2000), codified at 15 U.S.C. § 7001 et seq. 2 Drafted by the National Conference of Commissioners of Uniform State Laws at its Annual Conference, July 23–30, 1999. characteristics, created or received by an agency as evi- dence of its organization, functions, policies, decisions, procedures, or operations.3 Courts have ruled that text messages, instant messages, and voice mail records are public records and are subject to the same disclo- sure laws that apply to e-mails and paper records.4 Records Management is defined as the planning, controlling, directing, organizing, training, promoting, and other managerial activities involved with respect to the creation, use, maintenance, and disposition of re- cords in order to achieve adequate and proper documen- tation of the policies and transactions of the agency. The remainder of this report is organized into three sections and a conclusion. Sections II, III, and IV are summarized below. Section II: Record Retention provides the reader with current information about maintaining and releasing records. It outlines pertinent legislation as well as best practices relating to records retention policies and document management systems. This information should assist agencies in retaining and organizing data. One part of this section is devoted to creating records for administrative needs and the collection of evidence from claim to litigation. Section III: Release of Stored Information— Litigation and Discovery discusses the release of elec- tronically stored information (ESI) in the litigation con- text and some of the challenges implicit in working with electronic information. The chapter includes a best practices section. Section IV: Open Records outlines the broadening definition of “public record” and explores court interpre- tation of public records laws more expansively. One section discusses trends in state and federal open re- cords laws. Other sections are devoted to proprietary information in proposals and critical infrastructure pro- tection acts that are being adopted around the country. To collect current data for this report, a survey was sent to the transportation agencies of each of the 50 states, as well as Washington, D.C., and Puerto Rico, regarding their retention policies. Thirty-one responses were received. A copy of the Records Retention Survey is attached as Appendix A. Responses are compiled and summarized in Appendix B. 3 This definition is found in the Federal Records Act in 44 U.S.C. § 3301. 4 See Detroit Free Press v. City of Detroit, Case No. 08- 100214 (Feb. 5, 2008).