13 TAC §§6.1-6.9
The Texas State Library and Archives Commission proposes
amendments to §§6.1-6.9, relating to records retention scheduling
by state agencies. The amendments revise the definitions and language of the
rules to conform with Government Code, Chapter 441, Subchapter L, enacted
by the 75th Legislature. In addition, the amended rules propose a definition
of when a new agency is effectively established and subject to records retention
scheduling requirements, those instances in which a records retention schedule
of a state agency must be amended during a certification period, and a means
by which the records retention schedule of a state agency may be decertified
for failure to cooperate with the state archivist in the identification of
archival state records.
Michael Heskett, State Records Administrator and Director of the State
and Local Records Management Division of the Texas State Library and Archives
Commission, has determined that for the first five years the sections are
in effect there will be no fiscal implications for state or local government
as a result of enforcing or administering the rules.
Government Code, Chapter 441, Subchapter L requires each state agency to
manage and preserve the records of its activities in the interests of itself,
the state, and its citizens. The records retention schedule developed, certified,
and implemented under these rules is central to the effective fulfillment
of that statutory duty. The anticipated public benefit of the adoption of
these rules is that the rules are amended to conform to the requirements and
intent of Government Code, Chapter 441, Subchapter L. There are no cost implications
to either small businesses or persons required to comply with these rules.
Comments on these proposed rules may be submitted to Tim Nolan, Program
Planning and Research Specialist, Texas State Library and Archives Commission,
P.O. Box 12927, Austin, Texas 78711, by fax to 512-323-6100, or by e-mail
to tim.nolan@tsl.state.tx.us.
These amendments are proposed under Government Code, §441.185(e),
which provides authorization for the commission to adopt rules relating to
the submission of records retention schedules to the state records administrator.
These sections affect Government Code, §441.185 and §441.186.
§6.1.Definitions.
The following words and terms, when used in these sections, shall have
the following meanings, unless the context clearly indicates otherwise. Terms
not defined in these sections shall have the meanings defined in [
the
] Government Code,
§441.180
[
§§441.031-441.039
and §§441.051-441.062
].
(1)
Agency head-The appointed or elected official
who serves by the state constitution, state statute, or action of the governing
body of a state agency as the chief executive and administrative officer of
a state agency.
[(1)
Agency-A state executive, educational,
judicial, legislative, or eleemosynary department, institution, board, or
commission.]
(2)
Archival state record-Any state record
of enduring value that will be preserved on a continuing basis by the commission
or another state agency until the state archivist indicates that based on
a reappraisal of the record it no longer merits further retention.
[(2)
Archival value-The determination
in appraising the value of state records that they have historical value and
are worthy of preservation by an archive.]
(3)
Certification-The process, inclusive of recertification,
by which a records retention schedule or amendments to a schedule are approved
[
by the Texas State Library
] for use by
a state
[
an
] agency during a certification period.
(4)
Certification period-The period of time during which
a records retention schedule, including certified amendments to the schedule,
may be used by
a state
[
an
] agency in the final disposition
of state records without additional authorization from the
director and
librarian
[
Texas State Library
].
(5)
Commission-The Texas State Library
and Archives Commission.
(6)
[
(5)
] Component-A division,
department, program, or other sub-division of
a state
[
an
] agency.
(7)
Confidential state record-Any state
record to which public access is denied under Government Code, Chapter 552,
or other state or federal law.
(8)
Decertification-The process by which
an approved records retention schedule of a state agency is disapproved because
of failure of the state agency to adhere to the requirements of Government
Code, Chapter 441, Subchapter L, and these rules adopted under that subchapter.
[(6)
Director-The director of the State
and Local Records Management Division of the Texas State Library.]
(9)
Director and librarian-The chief
executive and administrative officer of the Texas State Library and Archives
Commission.
[(7)
Essential records-Records that are
necessary to resume or continue a state agency's business; to recreate its
legal and financial status; and to preserve the rights of the agency, its
employees, and its clients.]
(10)
[
(8)
] Final disposition-Final
processing of state records by either destruction or archival preservation
by the commission, by a state agency, or by an alternate archival institution
as permitted by Government Code, Chapter 441, Subchapter L.
(11)
[
(9)
] Records
management
officer
[
administrator
]-The
agency
head [
of an agency
] or the person appointed by the
agency
head
[
of an agency
] to act as the
state
agency's representative
in all issues of records management policy, responsibility, and statutory
compliance pursuant to [
the
] Government Code,
§441.184
[
§441.037
].
(12)
[
(10)
] Records retention schedule-A
document prepared in accordance with §6.2 of this title (relating to
Submission of Records Retention Schedules for Certification).
(13)
[
(11)
] Records series-A group
of identical or related records that are normally used and/or filed together
and that permit evaluation as a group for retention scheduling purposes.
(14)
[
(12)
] Retention period-The
period of time during which state records must be maintained before final
disposition.
(15)
State agency-Any department, commission,
board, office, or other agency in the executive, legislative, or judicial
branch of state government created by the constitution or a statute of this
state, including an eleemosynary institution; any university system and its
components and any institution of higher education as defined by Section 61.003,
Education Code, except a public junior college, not governed by a university
system board; the Texas Municipal Retirement System and the Texas County and
District Retirement System; and any public non-profit corporation created
by the legislature whose responsibilities and authority are not limited to
a geographical area less than that of the state.
(16)
State archivist-The person designated
by the director and librarian to administer the state archives program under
Government Code, §441.181.
(17)
[
(13)
] State record-Any written,
photographic, machine-readable, or other recorded information created or received
by
or on behalf of
a state agency
or an elected state official
that documents [
its
] activities in the conduct of state
business or use of public resources. The term does not include library or
museum material made or acquired and preserved solely for reference or exhibition
purposes
;
[
,
] an extra copy of recorded information
preserved only for reference
;
[
, or
] a stock of publications
or blank forms
; or any records, correspondence, notes, memoranda, or
other documents associated with a matter conducted under an alternative dispute
resolution procedure in which personnel of a state department or institution,
local government, special district, or other political subdivision of the
state participated as a party, facilitated as an impartial third party, or
facilitated as the administrator of a dispute resolution system or organization
.
(18)
State records administrator-The
person designated by the director and librarian to administer the state records
management program under Government Code, §441.182.
(19)
[
(14)
] Texas State Records
Retention Schedule-Figure 1 of §6.10 of this title (relating to Texas
State Records Retention Schedule).
(20)
[
(15)
] Vital
state record
[
records
]-
Any state record necessary to the resumption
or continuation of state agency operations in an emergency or disaster; the
re-creation of the legal and financial status of the agency; or the protection
and fulfillment of obligations to the people of the state
[
Essential
records
].
§6.2.Submission of Records Retention Schedules for Certification.
(a)
Each
state
agency must submit a records retention
schedule to the
state records administrator
[
director
]
for initial certification within one year of the effective date of this section
or within one year of the effective date of
establishment
[
creation
] of a new
state
agency
, whichever later
.
(b)
For the purposes of this section,
a state
[
an
] agency is considered a new
state
agency if through legislative
action subsequent to the adoption of this section, it:
(1)
is created to carry out a new function or activity; [
or
]
(2)
is the product of a merger between components of two
or more
state
agencies; [
or
]
(3)
is a component or components separated from
a state
[
an
] agency or agencies and designated as an independent
state
agency
, or
(4)
becomes a state agency by amendment
to the definition of a state agency in Government Code, §441.180.
(c)
At the discretion of the
state records administrator
[
director
] and on petition from
the records management
officer
[
an agency
] that it will be impossible
for the
state agency
to comply fully with the requirements of subsection (a)
of this section, the
state records administrator
[
director
] may extend the deadline for the filing of a
records retention
schedule for a period on which the
state records administrator
[
director
] and the
records management officer
[
agency
] agree. One or more additional extensions may be granted,
but in no case may the first extension and any additional extensions be for
a combined period of more than
two
[
three
] years from
the effective date of this section
or of the establishment of a new agency
.
(d)
At the discretion of the
state records administrator
[
director
] and on petition from
the records management
officer
[
an agency
], the
state records administrator
[
director
] may permit the
state
agency to submit
records retention schedules on a component by component basis for certification
in lieu of a single submission. The petition must state the reason why the
state
agency believes this alternative method of submission is in the
best interests of its records management program and must provide an estimated
timetable for the submission of schedules for the other components of the
state
agency. Schedules submitted and certified under this alternative
method may be combined by the
state records administrator
[
director
] for the purposes of recertification under §6.3 of this
title (relating to Submission of Records Retention Schedules for Recertification),
with submission for recertification of the combined schedule due on the applicable
anniversary date of the first schedule submitted and certified.
(e)
For the purposes of this section, a new
state agency is considered established on the effective date the first agency
head assumes the position of the elected or appointed chief executive and
administrative officer of the state agency.
§6.3.Submission of Records Retention Schedules for Recertification.
(a)
A records retention schedule must be submitted to the
state records administrator
[
director
] for recertification
annually for the first two years after initial certification.
(b)
After the second recertification, a records retention schedule
must be submitted for recertification once every two years, except for the
following situations.
(1)
If
a state
[
an
] agency with a certified
schedule absorbs another
state
agency; the
records
retention
schedule must be submitted for recertification within one year of the effective
date of the reorganization
, and then will revert, when the schedule is
recertified, to annual or biennial certification depending on the certification
status of the absorbing agency under this section at the time of absorption.
(2)
A state
[
An
] agency may choose
to submit a
complete
retention schedule for
recertification
at any time during a certification period
[
annual certification
].
(c)
A records retention schedule due for recertification under
this section must be submitted to the
state records administrator
[
director
] no later than one year from the end of the month in
which the schedule was certified or last recertified (or two years if the
state
agency is due for biennial recertification).
(d)
At the discretion of the
state records administrator
[
director
] and on petition from
the records management
officer of a state
[
an
] agency that it will be impossible
to comply fully with the requirements of subsection (c) of this section, the
state records administrator
[
director
] may extend the deadline
for submission of the records retention schedule
for up to 90 days from
the end of the month the recertification
of the schedule
was due.
One or more additional extensions may be granted, but in no case may the first
extension and any additional extensions be for a combined period of more than
one year from the end of the month the recertification was due.
§6.4.Submission of Amendments to Records Retention Schedules.
[
(a)
]
During a certification period the
records
management officer must keep
[
agency records administrator is responsible
for keeping the information in
] the
agency's
retention schedule
current by
submitting amendments to the
[
amending the certified
] schedule
to:
[
as needed.
]
(1)
add or drop a records series;
(2)
propose an amended period of time
a records series will be retained;
(3)
propose an amended period of time
a records series will be retained in storage by the commission; and
(4)
indicate changes to information concerning
a records series required under subsection (a)(2) of §6.5 (relating to
Certification of Records Retention Schedules and Amendments).
[(b)
Amendments must be submitted in the form
and manner prescribed by the director.]
§6.5.Certification of Records Retention Schedules and Amendments.
(a)
To be a candidate for certification, a records retention
schedule must:
(1)
list
all
records series maintained by the
state
agency, regardless of medium;
(2)
indicate
[
identify
] the following
for each record series:
(A)
whether the records are
confidential state records
or open to access by the public
[
open or confidential
];
(B)
whether the records are archival state
records
[
that have archival value
] or
state records that
must
be reviewed
by the state archivist
for potential archival value
prior to their destruction
;
(C)
the medium of the records and if the records are converted
from one medium to another; and
(D)
whether the
records [
that
] are
vital state records
[
essential (vital)
];
(3)
ensure that state records maintained by the
state
agency listed in the Texas State Records Retention Schedule are
retained for the minimum periods prescribed
in that schedule
;
(4)
ensure that state records not listed in the Texas
State Records Retention Schedule are kept for a length of time sufficient
to meet administrative, legal, fiscal, and archival requirements; and
(5)
be submitted in a manner and form prescribed by the
state records administrator
[
director
].
(b)
To be a candidate for certification, an amendment to a
records retention schedule must meet the criteria in paragraphs (2)-(5) of
subsection (a) of this section.
[(c)
The records administrator must certify
that the records retention schedule or an amendment to the schedule was prepared
in accordance with Chapter 441, Subchapter C, Government Code and rules adopted
under that chapter].
(c)
[
(d)
] To be certified, a records
retention schedule or an amendment to the schedule must be approved by the
state auditor
[
State Auditor's Office
] and the director and
librarian [
of the Texas State Library
].
Decertification
[
Expiration
of Certification
].
(a)
If
a state
[
an
] agency
fails to submit a records retention schedule to the
state records administrator
[
director
] for recertification by a required deadline or
fails to request an extension, the certification of the currently approved
schedule and any approved amendments to the schedule expires one year from
the end of the month in which the schedule was initially certified or last
recertified (or two years if the
state
agency is due for biennial
recertification) [
and the agency is no longer authorized to dispose of
state records based on the schedule
].
(b)
If a state agency refuses to permit the
inspection of a state records series by the state archivist or fails to respond
to questions from the state archivist concerning the content, use, or other
aspects of a state records series in order for the state archivist to determine
if the series contains archival state records in accordance with Government
Code, §441.186, the director and librarian may order the decertification
of its approved records retention schedule, with decertification effective
30 days from the date of the order.
(c)
If its records retention schedule is decertified
according to this section, a state agency is no longer authorized to destroy
records based on the schedule and must submit requests for the destruction
of its records in accordance with §6.7 of this title (relating to Destruction
of State Records).
§6.7.Destruction of State Records.
(a)
Without a certified records retention schedule,
a
state
[
an
] agency must request authorization from the director
and librarian [
of the Texas State Library
] for the destruction
of any state record.
(b)
A state
[
An
] agency with a certified
records retention schedule must request authorization from the director and
librarian [
of the Texas State Library
] for the destruction of any
state record that does not appear on the schedule or a certified amendment
to the schedule.
(c)
Requests for authorization for the destruction of state
records shall be in a form and manner prescribed by the
state records
administrator
[
director
].
§6.8.Implementation of Certified Records Retention Schedules.
(a)
A state
[
An
] agency must establish
policies and procedures to ensure state records are maintained until the expiration
of the retention periods on its records retention schedule.
(b)
Final disposition of state records must ensure that:
(1)
archival state
records [
having archival
value and
] scheduled to be preserved
by
[
at
] the
commission
[
State Archives
] are transferred to the
commission
[
archives
] on paper
,
[
or
]
on
microform that meets the specifications in
the then most current
version of
American National Standard for Imaging
Materials - Silver-Gelatin Type Black-and-White Film - Specifications for
Stability
(ANSI/NAPM IT9.1,)
[
American National Standard
for Imaging Media (Film)-Silver-Gelatin Type-Specifications for Stability
(ANSI IT9.1-1992)
] or in another medium with prior approval of the state
archivist;
(2)
records scheduled for destruction are
destroyed
[
disposed of
] in a manner that ensures protection for any
sensitive or confidential information; and
(3)
the final disposition of records is documented
by the state agency.
§6.9.Notification by State Records Administrator [ Director ].
Within 30 days of the effective date of these sections, the
state
records administrator
[
director
] shall furnish a written
notice to each
state
agency that is not in current compliance with
the submission requirements of §6.2 of this title (relating to Submission
of Records Retention Schedules for Certification) and §6.3 of this title
(relating to Submission of Records Retention Schedules for Recertification).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
April 21, 1999.
TRD-9902351
Raymond Hitt
Assistant State Librarian
Texas State Library and Archives Commission
Earliest possible date of adoption: June 6, 1999
For further information, please call: (512) 463-5440