Record Keeping Requirements for State Departments of Transportation (2009)

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30 APPENDIX B: RESPONSES TO RECORDS RETENTION SURVEY 1) Does your agency have a records retention policy that pertains to the entire agency? Do any of your departments or divisions (right of way, construction, maintenance, envi- ronmental, legal) have their own policy? Please provide a copy. State Yes No Response Alabama Yes Overall policy for agency approved by director and state re- cords commission. Divisions also have their own records schedule. Alaska Yes State has a records retention policy; Divisions have individ- ual schedules. Arizona Yes Arizona Department of Transportation has a retention pol- icy that includes schedules for individual divisions. Arkansas Yes Agency has a policy, divisions do not have their own indi- vidual policies. Connecticut Yes DOT has several retention schedules depending on unit. Georgia Yes http://sos.georgia.gov/archives/who_are_we/rims/default htm Hawaii Yes State general retention schedule; some departments have forms for records that are unique to their departments. Kansas Yes http://www.kshs.org/government/records/stategovt/browsere tentionschedules.php Kentucky Yes http://www.kdla.ky.gov/recmanagement/schedules/Transport ation.pdf Maryland Yes DOT has a policy, and individual offices have individual policies. Michigan Yes Both agency and individual divisions have policies. Minnesota Yes The agency’s schedule includes both general retention items that all offices and districts share and items specific to the business functions. Mississippi Yes In the process of revising Missouri Yes State has rules regarding records management: 15 CSR 30- 45.010, RSMo. 109.200-109.310, Missouri General Retention and Disposition Schedule. Montana Yes Nebraska Copies of current Department of Roads schedules can be found at http://www.sos.state.ne.us/records. Nevada Yes New Hampshire Yes Each bureau has its own retention guidelines. New Jersey Yes NJDOT has a Records Retention Schedule for the entire De- partment. New York Yes NYSDOT has its own policy. North Carolina Yes Ohio Yes See link http://apps.ohio.gov/rims/General/General.asp. ODOT uses the general schedules, as well as schedules spe- cific to ODOT. See the following link for those schedules: http://apps.das.ohio.gov/rims/Search/SearchResult.asp?Order= s.ScheduleD&hPubsearchNav=PublicResponse&btnSearch=S earch&optActGen=Active&txtSerAuthNo Oklahoma Yes Oregon Yes Tennessee Yes Department has records retention schedule.

31 Texas Yes Utah Yes Utah follows State Records Committee General Retention Schedule. Vermont Yes Virginia Yes Department Policy Memo re records retention, separate pol- icy for e-mail retention. Washington Yes General records retention schedule, currently updating agency unique schedules. Wisconsin Yes DOT and individual departments have policies. 2) Are you required by any statute, regulation or internal policy to retain particular re- cords? If so could you identify and attach the statute, policy or regulation? State Yes No Response Alabama Ala. 41-13-21, DOT has established comprehensive internal policy. Alaska http://www.archives.state.ak.us/records_management Arizona Ariz. Rev. Stat. 41.1347 establishes records retention re- quirements. Arkansas Ark. Code Ann. 25-18-601-605, Ark. Code Ann. 19-4-1108. Connecticut General statute 11-8 controls policies. Hawaii Hawaii Revised Statutes, 94-3. Kansas Kan. Stat. Ann. 45-401. Kentucky See Ky. Rev. Stat. Ann. 171.410 through Ky. Rev. Stat. Ann. 171.740. These statutes may be accessed online at the following address: http://www.lrc.ky.gov/KRS/171-00/CHAPTER.HTM Maryland State Gov’t Article 10-631 to 10-634, Md. Code Regs. 14- 18.02. Michigan Public Act 504 of 1988, Section 18.1285 et seq. Minnesota Minnesota Statutes, Chapter 13, Data Practices Act, Chapter 138, Preservation and Disposal of Public Records. Mississippi Missouri Mo. Rev. Stat. 109.200–109.310, 15 CSR 30–45.010. Montana Yes Nebraska Nebraska Records Management Act, 84-1201. Nevada No response New Hampshire Chapter 5, Archives and Records Management. New Jersey Some records are required to be kept according to state law; those items are reflected in the NJDOT retention schedule. New York Art and Cultural Affairs Law, Section 57.05 Department of Education has jurisdiction over all NY State records. North Carolina General Statute 132. Ohio Oklahoma Oregon Or. Rev. Stat. 192 and Or. Admin. R. 166. Tennessee Yes Texas Chapter 441.183, Tex. Admin. Code Title 13, Chapter 6. Utah Yes Vermont Attached. Virginia 46.2-878 requires written copies of traffic engineering inves- tigations for speed limits to be effective; 46.2-11.4 requires re- cords to be kept of all highways in which speed has been re- duced—several schedules approved by Library of Virginia.

32 Washington Wash. Rev. Code 40.14 general retention schedule covers all state agencies. Wisconsin Wisc. State 16.61, Admin. Code 12. 3) Has your agency’s records retention policy been challenged in court? If so what type of challenge was made, i.e., was the allegation that the policy was not comprehensive enough or that it was not followed? What were the results of the challenge? State Yes No Response Alabama No Alaska No Arizona No Arkansas No Connecticut No Hawaii No Kansas No Kentucky No Maryland No Michigan No Minnesota No Mississippi No Missouri Yes Matt Blunt [Governors Office] was sued for not retaining e- mails per approved records retention schedule Montana No Nebraska No Nevada No New Hampshire No New Jersey No New York No North Carolina No Ohio No Oklahoma No Oregon No Tennessee No Texas No Utah No Vermont No Virginia No Washington No Wisconsin No

33 4) Are you aware of any pending legal challenges of your records retention policy? Are you aware of any legal challenges for your failure to have such a policy or comply with the existing policies? State Yes No Response Alabama No Arkansas Yes Construction claim before an administrative body was filed by contractor in 2008; claim is still pending. Claimant raised the issue of whether Arkansas project design consultant prop- erly kept and retained e-mail correspondence related to the pro- ject as part of their file. Alaska No Arizona No Connecticut No Hawaii No Kentucky No Kansas No Maryland No Minnesota No Mississippi No Michigan No Missouri No Montana No Nebaska No New Hampshire No Nevada No North Carolina No New Jersey No New York No Ohio No Oklahoma No Oregon No Tennessee No Texas No Utah No Vermont No Virginia No Washington No Wisconsin No

34 5) What methods are you using to retain documents? For example, storage of paper documents, microfilm, or scanning and saving to a central computer database. Have you experienced any problems retrieving and authenticating these documents once they are stored? Are you required by law to maintain old systems so that your older documents can be easily retrieved? If you are not required by law, do you maintain old systems for ease of retrieval in new systems? State Yes No Response Alabama Yes Paper stored with their offices then destroyed consistent with retention policy. Final engineering drawings are scanned and digitally stored. Problems are inadequate indexing during scanning that was done by a consultant. Now staff does it and problem has been eliminated. Do not have to maintain old sys- tems but have converted microfilmed documents to digital. Alaska Yes Uses traditional storage methods. Arizona No response. Arkansas Yes Documents are retained by traditional paper storage, micro- film, and scanning. Connecticut Yes Varies by type of record. Hawaii Yes Uses traditional methods—some problems with old micro- film, hard to read. Kansas Yes Several mediums are used depending on the information, source, and user. Procedures must be approved through Elec- tronic Records Committee. Kentucky Yes Currently use traditional storage of paper documents and microfilm. Looking into the process of scanning and saving documents to CD or DVD. No problems with retrieving stored documents, short of occasionally finding that something had been misfiled. Not required by law to maintain old computer systems, but most older systems are maintained in order to be able to obtain historical data. Maryland Yes Paper, CDs, storage online; law requires information to be usable. Michigan Yes Uses many different systems; no problems in retrieving or authenticating; maintains old systems to be able to transition to new systems. Minnesota Yes Many formats are used including paper, microfilm, digital, x- rays, video, databases—agency attempts to migrate media and data and to stay current with technology. The agency is not required by law to maintain old systems. Metadata are re- tained with documents stored in document management sys- tem. Mississippi Yes Mississippi uses all traditional methods. Missouri Yes Paper, scanning, microfilming. Experienced no problems au- thenticating. Understand that law implicitly requires reason- able efforts to retain data. Montana Yes Uses all traditional methods; sometimes has difficulties in lo- cating records due to nonstandardized naming protocol; paper copies easier to find because easier to locate offices that should have them. Nebraska The State Records Center provides scanning and microfilm- ing services. Nevada Yes Permanent storage is microfilm and/or paper. Plans, policies,

35 and procedures for scanning and retaining electronic files, as working files only, are being developed. New Hampshire Yes Paper documents moved to archives facility that has fire pre- vention system to protect and reduce water damage. Facility responsible for maintaining, retrieving, delivering, and track- ing all items. Problems have been that old and new systems are not always compatible. Storage and scanning ensures docu- ment’s retrieval. New Jersey Yes Uses all traditional types; now must be saved in “eye- readable” format like microfilm—also must have methods in place for updating systems as new processes come online. N.J. Admin. Code 15:3 et seq. New York Yes All traditional storage methods used, no special problems. NY regulations require state agencies to maintain a practical method of records retrieval of electronic records—NYCRR, regulation 188.20 relates to retention and preservation of elec- tronic records. North Carolina Yes Maintains old systems to the extent necessary to enable re- trieval. Oregon Yes Uses traditional methods; starting an Electronic Content Management program; custodians must make sure records can be read. Texas Yes Uses traditional methods of storing paper, scanning and mi- crofilming documents. 13 TAC section 6.94 requires agencies to take measures to preserve the accessibility and readability of e- records through retention of the required technology or copying or migrating to replacement technologies. Utah Yes Paper, microfilm, scanning. Agency not required by law to maintain old system; however, some systems are maintained to ensure retrieval of documents. Vermont Yes Microfilm, microfiche, paper, Mylar, blueprints, photos, car- bon copies, digital images, ONBase, COLD Technology (Com- puter Output to Laser Disk–Reports), video logs, CADD, Digi- tal Print Room for plans. Cross Sections, various maps, financial records in databases, accounting programs, CDs, DVDs, removable disk drives, flash drives, optical drives, bio- metric drives. VTrans has been electronically storing docu- ments since 1995. Experienced very minimal problems, and those were successfully corrected by our Information Technol- ogy Unit. Where information was not migrated to newer tech- nology, we must maintain the ability to reproduce the docu- ments. Virginia Yes Paper, microfilm, saving to computer, scanning; no problems authenticating once stored; 42.1-85 requires all state agencies ensure records are preserved, maintained, accessible through- out their life cycle, including converting and migrating records. Washington Yes Traditional storage of paper, using microfilm and scanning. Maintain old systems to ensure easy retrieval of information. Wisconsin Yes Uses traditional methods; problems retrieving have been ex- perienced; required by law to maintain old systems.

36 6) How do you handle “proprietary” or other information contained in bid proposals or other confidential information that the submitter may reasonably believe would be pro- tected from disclosure? State Response Alabama Proprietary and confidential bidding information is maintained in paper for- mat and kept under lock until destroyed consistent with records retention sys- tem. Alaska Alaska Statute 36.30.230. Arizona No response. Arkansas Bid tabulation not released to public until bid is awarded. Bid estimates are not open for public review pursuant to Ark. 25-19-105(b)(9)(A). Connecticut 1-210(b)(24) protected until contract executed; proprietary protected under 1- 210(b)(5). Hawaii Confidential documents kept in a secure folder with limited access. Kansas Open records act exempts from disclosure plans, designs, drawings, or speci- fications which are prepared by a person other than an employee of a public agency or records which are the property of a private person. Kentucky When proprietary information is archived, this portion is filled out with the proper authority cited. This gives notice to archive personnel that the records contained within that shipment are not to be accessed by the public, or by any unauthorized Cabinet personnel. The Open Records Act contains provisions that protect any proprietary information from public disclosure. Personnel are required to fill out a transmittal form to accompany each shipment to the ar- chives. This transmittal has a field asking “Is access to these records re- stricted? If yes, cite authority.” Maryland No response. Michigan Uses FOIA exemptions when applicable. Minnesota Data practices act—chapter 13 of Minnesota Statutes—addresses proprie- tary information. Some aspects of the bidding process are considered not public for periods of time. Mississippi Statute 25-61-9 protects trade secrets/confidential commercial information. Missouri Open Records Act, Missouri Uniform Trade Secrets Act. Montana Montana’s constitution says all records in agency’s possession are public re- cords—no submitter can claim reasonable belief that document would not be provided if requested; however, if a contractor requests a document that might be confidential, such as another contractor’s bid, MDT notifies the submitting party in writing of the request before releasing the documents in case a party would want to file a legal action to prevent MDT from providing it. Nebraska Protects proprietary information. Nevada Records are screened for proprietary information before any public release. New Hampshire Bid proposals, once opened, are available for public disclosure, barring finan- cial and other information outlined in attached policy. New Jersey Addressed in public records law and N.J. Admin. Code 16:1A-1.8, NJDOT regulation. New York Exempts documents that if disclosed would impair contract awards or collec- tive bargaining negotiations or trade secrets. North Carolina N.C. Gen. Stat. 132-1.2 protected if meets statutory criteria—if designated as confidential or trade secret at the time of disclosure. Ohio Sealed bids are exempt from open records law; bidder qualifications are ex- empt; trade secrets are exempt.

37 Oklahoma Not disclosed. Oregon Internal review policy. Texas Security procedures are in place for offices responsible for handling or proc- essing that information. Utah Policy covers. Vermont Bid proposals are regulated as Restricted/Confidential records. The only in- dividuals that can access these records are those who have been granted access by the VTrans Public Records Officer in writing. This information is provided to the Records Center, and only individuals included on this list are allowed to request or view these records. VTrans employees possess a photo ID that in- cludes their photo, signature, agency, division, work address, job title, birth- date, employee ID#, and date of issue. Restricted/confidential information is removed from the paper proposals prior to public viewing. Only authorized personnel are allowed to view this data. Bids that are submitted electronically are sent to an offsite high security SSL server, where all data is highly en- crypted and requires a key for access. The server and a contractor’s document are only accessible by that contractor via a key for uploading the bid proposal and by contract administration personnel responsible for processing the bid submission. Virginia 2.2-3705.6 contains exclusions from FOIA for proprietary and trade secrets, redacted if otherwise subject to disclosure. Washington RCW 42.56 State Public Records Act stipulates what is exempt. Wisconsin Proprietary or trade secret must be identified by vendor/bidder. If it is re- quested, they notify the vendor/bidder of the request; if they want to fight it, they have to handle the litigation. 7) If you receive a request for building layout plans, computer programs, computer cod- ing information, bridge inspections or other structural information, is this request treated differently than other requests for public records? Have you adopted a specific critical infrastructure policy? If so would you please attach a copy to your response? State Response Alaska Refer to FOIA. Arizona Federal Homeland Security Act, A.R.S. 39-121 et seq. Arkansas Records containing measures, procedures, instructions, or related data of a computer/computer system/network, including telecommunication networks, applications, passwords, PINS, etc. are not subject to release pursuant to Ark. Code Ann. 25-19-105(b)(11). Critical information policy not subject to public release. Personnel have made a list of infrastructure and structures plans that are not released to public in accordance with 6 U.S.C. 131, 132 and 133, 23 U.S.C. 40, and Ark. Code Ann. 25-19-105(a)(1)(A). Connecticut Exemptions in FOIA that cover some of these subjects. Hawaii Requests for plans are scrutinized and screened for security purposes—with other state and, if applicable, federal agencies; no specific critical infrastruc- ture policy. Kansas Complies with open records act—turn over records not exempt—one exemp- tion is for software programs for electronic data processing. Kentucky Documents of this nature are excepted from disclosure pursuant to Ky. Rev. Stat. 61.878(1)(m). This statute may be accessed online at the following ad- dress: http://www.lrc.ky.gov/KRS/061-00/878.PDF. Maryland State law 10-618 permits denial of that information. Department has a Criti- cal Infrastructure Plan. Michigan All requests are handled through FOIA process, dependent on statutory ex-

38 emptions. Minnesota Agency has identified critical infrastructures; certain data on those struc- tures are nonpublic—security policy is classified as security information under Minnesota Gov’t Data Practices Act 13.37 1(a). Mississippi Request not treated differently. Missouri MoDOT Critical Infrastructure Information Policy. Nebraska Reviewed on a case-by-case basis. Nevada Records are screened before any public release. New Hampshire Handled on case-by-case basis, no specific policy other than right-to-know law and its limitations. New Jersey Based on public records act, N.J. Admin. Code 16:1A-1.8, and NJDOT regu- lation regarding release of records, N.J. Admin. Code 16:1A-1.8. New York Exempts records which if disclosed would endanger the life or safety of any persons or jeopardize an agency’s capacity to guarantee the security of its in- formation technology assets. North Carolina NCGS 132-1.6 regarding protection of emergency response plans and sensi- tive security information Ohio Any security records are protected from disclosure, trade secrets are exempt, no specific infrastructure policy. Oklahoma Handled mostly just like any other request. Oregon No specific critical infrastructure policy. Texas Has policy on access to critical infrastructure information. Utah Administrative Rule 63G-2-106. Vermont Act 110: An act relating to access to Public Records yes: http://www.leg.state.vt.us/statutes/fullsection.cfm?Title=01&Chapter=005&Sec tion=00317. Virginia 2.2-3705.2 exclusions from FOIA if disclosure would jeopardize the security of any government facility, structure, persons using that facility; critical infra- structure policy is not available for release. Washington Wash. Rev. Code 42.56 State Public Records Act stipulates what is exempt. Wisconsin Federal law 42 U.S.C. 5195c, 6 C.F.R. part 2. Department has a critical in- frastructure policy. 8) Does your agency have a policy advising staff how to handle public records requests? If so would you please attach a copy of the policy to your response? State Yes No Response Alabama Records management policy provides all requests go through legal department; Section 36-12-40 requires opera- tional records to be open to public inspection. Alaska No Arizona Yes Arkansas Requests are sent to legal department to ensure compliance with all appropriate laws. Connecticut Yes Currently in revision. Georgia Ga. Code Ann. 50-18-70. Hawaii Uniform information practices act for handling public re- cords requests; guidelines for personal information records. Kansas Yes Kan. State Ann. 75-3501-3520. Kentucky The Kentucky Attorney General has prepared an outline concerning Open Records and Open Meetings to educate pub- lic employees and assist with the proper handling of public records requests. This outline may be accessed at the follow-

39 ing address: http://ag.ky.gov/civil/outline.htm. Maryland Yes Michigan FOIA Act, Section 15.231. Minnesota No policy regarding records requests, but staff are trained to assist with requests. Mississippi Yes Missouri Yes Montana Nebraska Yes Yes; no copy available at this time. Nevada Informal policy—requests usually go through legal depart- ment. New Hampshire NH DOT Right to Know Policy 103. New Jersey N.J. Admin. Code regulation 47:1A-1.1. New York New York has internal policy advising staff on processing requests for department records. North Carolina In development. Ohio Yes Oregon Yes Texas Yes Utah Yes Vermont DPM concerning compliance with FOIA requests; also has staff tracker to assist in processing requests. Virginia Yes Washington Yes Wisconsin Yes