STATE ARCHIVES AND RECORDS COMMISSION

The State Archives and Records Commission met at 10:00 a.m., Thursday, December 11, 2003, in the Board Room, Department for Libraries and Archives, 300 Coffee Tree Road, Frankfort, Kentucky.

Members present: James A. Nelson, Chairman; Dr. Thomas D. Clark, representing the University of Kentucky; Dr. William J. Morison, representing regional colleges and universities; Lynne Hollingsworth, representing Citizens-at-Large; James F. Kastner, representing the Kentucky Historical Society; Paul F. Coates, representing Citizens-At-Large; and Sandra L. McAninch, representing the Kentucky Library Association.

Representatives present: Thelma Whiteside, representing Virginia G. Fox, Secretary, Education Cabinet; Amye Bensenhaver, representing A. B. Chandler, III, Attorney General; C. J. Chapman, representing Aldona K. Valicenti, Chief Information Officer, Governor's Office for Technology; Leslie Smith, representing Robert Sherman, Director, Legislative Research Commission; Stephanie Robey, representing Ed Hatchett, Auditor of Public Accounts; Brandon Haynes, representing Joseph E. Lambert, Chief Justice, Supreme Court; and Geoff Pinkerton, representing Mary Lassiter, Acting State Budget Director, Governor’s Office for Policy and Management.

Members not present or represented: Dr. Jack D. Ellis, representing Citizens-at-Large; Sue Carole Perry, representing local governments; and Linda E. Johnson, representing Citizens-at-Large.

Public Records Division staff present: Richard N. Belding, Director, Public Records Division; Diana Moses, Manager, State Records Branch; Jerry Carlton, Manager, Local Records Branch; Glen McAninch, Manager, Technology Analysis and Support Branch; Mark Myers, Resource Management Analyst; Jim Cundy, Regional Administrator; and B. J. Webster, Administrative Secretary.

Guests present: Phil Nally, Marisa Neal and Tina Watts, Finance and Administration Cabinet; and Ryan Halloran, Attorney General’s Office.

Nelson called for introductions by those present.

Mr. Coates, who was reappointed to the Commission, was sworn in prior to the meeting.

Dr. Clark made a motion to accept the minutes of the previous Commission meeting, seconded by Mr. Coates. The vote by members and representatives present was unanimous.

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NEW OR REVISED RECORDS RETENTION SCHEDULES

General Schedule for State Agencies – Fiscal Records

Diana Moses was the records analyst working on the revision of the General Schedule for State Agencies. The General Schedule is one schedule, comprised of three sections. The sections were reviewed as a group.

A General Schedule is a class of records retention schedules that governs the retention and disposition of specified records that are common to several or all public agencies. The schedules that follow contain retention and disposition information for fiscal records, personnel and payroll records, and certain miscellaneous records that are common to all or most state government agencies.

The series being added to the Fiscal Section of the schedule cover numbers F0086 to F0120 and numbers F0122 to F0132. The series being changed are F0011 to F0013; F0022; F0026; F0028 to F0029; F0031; F0034 to F0036; F0041 to F0042; F0045; F0047 to F0048; F0051 to F0053; F0056 to F0058; F0070 to F0071; F0075; F0077 and F0079. The changes were to close the series, as they are no longer being created. The series being deleted are F0008 to F0009; F0014 to F0021; F0023 to F0025; F0030; F0033; F0037 to F0040; F0054; F0063 to F0069; F0073; and F0083. The records that were deleted are now included in other series.

Moses explained that the majority of the changes to the General Schedule were to the Fiscal Records Section, to incorporate documentation, in a paper format, that is external to the Management Administrative Reporting System (MARS) and that supports transactions carried out in the system. MARS is the statewide accounting system that is used by the majority of state agencies. MARS was implemented July 1, 1999 and replaced the former system, the Statewide Tracking and Reporting System (STARS). Approximately 46 new series were added, which is in addition to records that already appear in the schedule. Staff in the Finance and Administration Cabinet identified all the records that are considered supporting documentation to MARS.

As a result of the implementation of MARS and the delegation of the pre-audit function, individual agencies were required by the Finance Cabinet to retain original supporting documentation (documentation external to the system) for eight years, the same period of time that was required under the previous accounting system. Prior to MARS, agencies were only responsible for maintaining duplicate copies of supporting documentation, for a three-year period. The revision of the schedule brings the retention period of eight years into conformity with the Cabinet’s policies and procedures, which are issued to agencies at the beginning of each fiscal year. Agencies were advised by Finance, prior to the implementation of MARS in July 1999, of the need to maintain the documentation for eight years, rather than three.

To justify the extended retention of the source documentation by agencies, Moses had asked that the State Controller, Ed Ross, provide information which would support the proposed eight-year period. Moses distributed a copy of the letter received from Mr. Ross outlining the reasons for the eight-year period to each of the Committee members.

The following reasons were given: 1) to ensure that records are available to support transactions through two gubernatorial administrations; 2) to ensure that all audits and investigations related to the transactions have been completed; 3) to ensure the availability of source documentation for preparation of state budgets; 4) to ensure that agencies are in compliance with all Federal retention requirements; 5) to have information available related to investigations of potentially fraudulent transactions; 6) to have information available related to judgments and claims; 7) to have information available for tax purposes; and 8) to have information available for potential legal actions.

Clark said that the communication from the State Controller set forth several interesting points about the retention of the records, and that he believed there had been effective and efficient attention given to the refinement of the philosophy of the retention and safety of the records. Moses said that from an audit standpoint the records would not be needed for eight years. Mr. Ross’ communication, however, identified other uses for the source documentation, beyond an administrative use, that would justify the eight-year retention.

In response to a question from Morison, Moses said that the revision of the entire General Schedule was comprehensive and brings it up-to-date with current recordkeeping practices throughout state government.

Staff worked very closely with representatives from the Finance Cabinet to identify each of the records that represented supporting documentation to MARS and that would need to be retained by agencies. Moses thanked the representatives that were present from the Cabinet for their input to the revision of the Fiscal Section of the General Schedule.

Moses said that with the change in retention of the records and the lack of space within agencies there would be a need for agencies to utilize the State Records Center for the storage of the fiscal records to a greater degree than was previously necessary. Most agencies have space to accommodate three years’ worth of fiscal records but not eight, Moses said.

In response to a question from Dr. Clark, Moses said there could be re-entry into the files for several reasons, including investigations and litigation. There were several instances, in the past, when the records were the responsibility of the Finance Cabinet, that large volumes of records were retrieved from the Records Center to support various investigations.

Moses reiterated that the documentation in question was external to MARS and would not be duplicated in the system. All transactions are carried out electronically, but the documentation identified in the schedule is needed to support those transactions, should questions arise. Nelson asked what happened with the electronic information. Mr. Nally, representing the Controller’s Office, said that information from 1999 forward is stored in a database that is being retained.

Coates asked about the reference in the Ross communication regarding property and that information about state-owned property would be retained for eight years, unless the property had historical significance. The question was what criteria were used to determine whether a property had historical significance. Ms. Neal, from the Finance Cabinet, said that she did not know if there was a hard and fast rule about determining the historical value of property. The Cabinet would work with Historical Properties to assist in making those determinations. If a property was deemed to have historical significance, then any documentation related to the construction or renovation of the facility would be retained for future use. That information would be dealt with when the schedule for the Finance and Administration Cabinet is revised. The schedule will be submitted to the Commission in the near term.

Please see below for motion and vote.

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General Schedule for State Agencies – Personnel and Payroll Records

Moses was the records analyst working on this schedule revision. The series being added to the schedule are P0032 to P0039. The series being changed are P0003; P0009; P0011; P0015; P0017 to P0021; and P0025 to P0027. Eight of the series were closed and four had a change in retention. The series being deleted from the schedule is P0016, Payroll Reports Not Subject to Audit.

Moses explained that many of the changes to the schedule were related to MARS and its relationship to the Uniform Personnel and Payroll System (UPPS), the automated system used to manage the majority of personnel transactions handled by the Personnel Cabinet.

Some of the series were closed, as they are no longer being created, or can be accessed electronically, which precludes the need for hard copy records to be maintained.

Moses said that there had been discussion in the Advisory meeting regarding the three-year retention period, which meets Department of Labor requirements, proposed for series P0039, Hiring Process Materials File. The series brings together all records pertaining to hiring decisions, such as written comments made during the interview process, interview questions, job advertisements, job postings, resumes, copies of evaluations, written recommendations for hiring, and any other information directly related to the process. Dr. Curry raised the issue of class action suits and that the three-year period would not provide sufficient information in the long term to support litigation. Moses said, in talking with Personnel staff in the Department, that it was not very probable that class actions suits would be filed. The hiring of staff relates directly to employment registers received from the Department of Personnel. There are certain timeframes that must be adhered to that relate to the life of a register. If an individual takes issue with the hiring process, he would have to utilize the appeal levels currently in place, the first of which is to the Personnel Board. Decisions of the Personnel Board can then be appealed to Circuit Court, if the individual is so inclined. Amye Bensenhaver, in discussions with appropriate staff in the Attorney General’s Office, was advised that there is a five-year statute of limitations pertaining to such action. Moses said that Dr. Curry did not recommend a specific retention period during the Advisory meeting. That being the case, Moses asked that the Commission members consider increasing the retention period from three years to five, to conform to the statute of limitations.

Bensenhaver asked what prompted the decision to schedule series P0039 and how pertinent staff in agencies would be notified of its inclusion in the General Schedule. The scheduling of the series was prompted by complaints received by the U.S. Department of Labor concerning hiring practices in state government. With the scheduling of the series, the information regarding hiring decisions will, of necessity, need to be maintained in a central location within agencies. Presumably, that location would be respective state agency personnel offices. Upon approval of the General Schedule, it will be placed on the Department’s website so that all state agency personnel can have access to it.

Bensenhaver asked if the scheduling of the series imposed on agencies a duty to create the documents it contains. Moses said that it did not. The records are already being created but they were not previously required to be retained for any specific period. Scheduling the series, with an approved retention period, requires agencies to maintain the records in a file, in a central location, for the time period specified.

Please see below for motion and vote.

General Schedule for State Agencies – Miscellaneous Records

Moses was the records analyst working on this schedule revision. The series being added to the schedule is M0049, Recordings of Meetings. The series being changed are M0009, Minutes of Agency Staff Meetings, from five years to three; M0016, Request to Inspect Public Records, from destroy when requested record is destroyed, to one year; and M0043, Information Resource Plans. M0043 is being closed, as the plans are no longer created. The series being deleted from the schedule are M0004; M0006; M0012 to M0013, M0015; M0031; M0038 and M0048. Five of the series represent duplicate information, two are managed under other series, and one is no longer created.

Moses informed the Commission members of the addition of series M0049, Recordings of Meetings, to the schedule. The disposition for the series is to “destroy 30 days after minutes have been transcribed and approved, unless challenged.” If challenged, the recordings would be retained until final resolution. The retention conforms to that approved for recordings in schedules used by local government agencies.

An additional change Moses pointed out was a revision of the retention and disposition of series M0016, Request to Inspect Public Records, from “destroy when the requested record is destroyed” to a retention of one year. Moses had consulted with Bensenhaver prior to the meeting to determine if a one-year retention period would be sufficient. Bensenhaver agreed that it would and that the change would bring the General Schedule into conformity with similar local government schedules. A companion record to the Request to Inspect Public Records is the Open Records Register. Its retention will remain five years.

Moses clarified for Bensenhaver that if a challenge was made to the minutes transcribed from a mechanical recording, the recording would not be destroyed until the challenge had been resolved.

In response to comments from Morison regarding the Request to Inspect Public Records, Bensenhaver said that the proposed one-year retention period was a more workable rule than the previous disposition, which required that the request be retained as long as the requested record. Moses said that would mean that if the requested record was a permanent one, the request to inspect it would also be retained permanently.

Morison asked if the records being requested would be destroyed after one year as the request itself would be. Moses responded that they would, as the records would represent supporting documentation to the request. Also, the requested records would be copies and, therefore, duplicates of already existing information.

Morison believed that the requested records, along with the request, represented historical documentation that should be retained permanently. In Morison’s opinion, one year was an odd retention period for an open records request, and he believed that it would have more value as a record, historical or otherwise. Morison said that the University of Louisville had had open records request cases that had gone on for extended periods and that some of them were similar in nature. In those cases, it was good to be able to consult documentation that had previously been created, for consistency sake. Moses said that there was nothing to prevent the University from retaining any of the documentation it believed to be of future value, and that the State University Model could be amended to take that into consideration. The General Schedule for State Agencies is not applicable to universities, Moses said. State government agencies, with the exception of universities, would be affected if an extended retention period were approved. Morison disagreed with Moses’ statement that once a request had been filled, its value would be limited. Morison reiterated that he, as the one at the University of Louisville who handled such requests, could not justify the destruction of the documentation after a year, as he believed it would be important to see what had occurred in the past, and in similar situations.

Clark asked if the importance of the records hinged on who made the request and the environment in which it was made. Morison said that, in his opinion, it did. There was acknowledgement on Morison’s part that many of the requests received by the university would not be worthy of long term retention. Moses said that those would be the ones that should then be destroyed. Moses pointed out again that the General Schedule was not applicable to universities and that any change needed in the retention of open records requests for those entities would be addressed in the State University Model Records Retention Schedule. Morison said that he believed the documentation should be of value to any agency, not just the universities.

There was some discussion about pulling that series from consideration until more information could be provided. Moses said that if the Commission didn’t act upon the proposed retention of one year, the series disposition would automatically revert back to the language of “retain the request as long as the requested record is retained.” As it is an already scheduled series, the current disposition would stand, until another retention period was recommended.

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Dr. Clark made a motion to adopt all three sections of the General Schedule, contingent upon a reconsideration of the proposed one-year retention for series M0016 at a future date, and an increase in the retention of series P0039, from three years to five.

Bensenhaver said that she could not appreciate the difference between state agency and local agency requests to inspect public records. The same retention period of one year was approved by the Commission some time back for similar records at the local government level. Morison stood by his earlier comments, saying that he believed that many, though not all, of the open records requests and accompanying documentation had historical value.

The motion made by Dr. Clark was seconded by Mr. Haynes. In response to a question from Ms. McAninch about the five-year retention period of the Open Records Register and whether it was sufficient, Nelson asked if the Commission members wanted to include it as a series to be re-evaluated, along with the Request to Inspect Public Records. McAninch felt that the retention of both series should be reconsidered, as they related to
each other. Dr. Clark, who made the original motion, and Haynes who seconded it, said that they were in agreement that the motion should be amended. As with the Request to Inspect Public Records, the Open Records Register is an existing series whose retention of five years had been previously approved by Commission. Moses said that its retention would remain five years, until a different recommendation was made.

The amended motion before the Commission members was to adopt all three sections of the General Schedule, contingent upon a reconsideration of the proposed one-year retention for series M0016, Request to Inspect Public Records, and the five-year retention of series M0017, Open Records Register, to be submitted to the Commission at a later date. In addition the motion included an increase in the retention of series P0039, Hiring Process Materials File, from three years to five. The vote by members and representatives present was unanimous.

Department for Training and ReEmployment

Moses was the records analyst working on this new schedule. The series being added to the schedule are 05390, Job Training and Partnership Act Eligibility File; 05391, Summer Youth Program Eligibility File; 05392, Jobs for Kentucky’s Graduates Program Eligibility File; 05393, Rapid Response Database; 05394, Job Training and Partnership Act Eligibility File (8%); and 05395, Management Information System File.

The Cabinet for Workforce Development was created by the General Assembly effective July 1, 1990, to consolidate and reorganize state agencies and boards to centralize and coordinate job training and adult education agencies.

The Department for Training and ReEmployment is headed by a commissioner and is the agency solely designated to assume the role of administrative entity for Title I programs funded under the Workforce Investment Act, passed by Congress August 7, 1998 and implemented in Kentucky on July 1, 1999.

After a brief explanation by Moses, Dr. Morison made a motion to adopt the schedule, seconded by Mr. Coates. The vote by members and representatives present was unanimous.

Ms. Whiteside, representing Virginia Fox, who was recently appointed as Secretary of the new Education Cabinet, asked what impact Governor-Elect Fletcher’s re-organization of state government would have on retention schedules previously approved by the Commission. Belding said that staff frequently had to deal with re-organizations, where agencies are moved from one cabinet or department to another. Department names and titles would, in such cases, be changed to reflect the new information.

Under the Governor’s proposed reorganization plan, the number of cabinets currently in place (approximately 14) would be reduced to a single digit. There will be a significant impact on schedules, although it isn’t clear at this point what the re-alignment of departments/cabinets will be, Belding said. As long as the functions are still being performed by a department, even though its cabinet designation may have changed, its schedule would still be in effect. In some cases, though, entire schedules might have to be re-issued. Over the past eight years of tracking legislation before the General Assembly, Belding said that there had been many instances where the organizational structure of state government was changed in some way that had a records management impact.

Nelson said that, just as there had been meetings with Governor Patton’s Executive Cabinet related to transition, it would be beneficial to meet with Governor-Elect Fletcher’s Executive Cabinet to discuss records management issues to achieve an understanding early in the new administration of what is required.

The following schedules were reviewed as a group.

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Cabinet for Health Services – Office of Inspector General – Community Health Services

Moses was the records analyst working on this schedule change. The series being added to the schedule is 05396, Community Health Facilities License, Certification and Complaint File.

The Office of Inspector General is responsible for the conduct of audits and investigations for detecting perpetration of fraud or abuse of any program, licensing and regulatory functions, reviews of health facilities participating in transplant programs, and notification of prosecuting authorities of any criminal violations.

The Division of Community Health Services is responsible for surveying acute care facilities, health facilities and other licensed or certified health services to assure compliance with laws and regulations. It also investigates complaints of wrongdoing.

Moses said the submissions represent the completion of the revision of the schedule for the Office of Inspector General. The schedule for the other divisions was approved by the Commission at its March 2003 meeting.

Please see below for motion and vote.

Cabinet for Health Services – Office of Inspector General – Licensed Child Care

Moses was the analyst working on this schedule change. The series being added to the schedule are 05397, Licensure and Complaint File; 05398, Adverse Action File; and 05399, STARS for KIDS NOW Quality Rating File.

The Division of Licensed Child Care is responsible for surveying child care facilities to assure compliance with laws and regulations. It also investigates complaints of wrongdoing involving the facilities.

Mr. Coates made a motion to adopt the schedules, seconded by Dr. Morison. The vote by members and representatives present was unanimous.

Kentucky Higher Education Student Loan Corporation – Loan Servicing

Moses was the analyst working on this schedule change. The series being changed is 04934, Manual and System Graduation/Separation Date Change File. The series is no longer being created and is being closed.

The Corporation was created in 1978 and is governed by a board of directors. The Corporation’s statutory powers include the making, purchasing, or selling of insured student loans; procurement of insurance in respect to all student loans; and making agreements with any federal or state agency, person, corporation, association, or entity to accomplish its statutory purposes.

The only change being made to the schedule was to close series 04934, as it is no longer being created.

Dr. Morison made a motion to adopt the schedule change, seconded by Mr. Kastner. The vote by members and representatives present was unanimous.

Department for Libraries and Archives – Administrative Services – Personnel

Moses was the analyst working on this schedule change. The series being added to the schedule is 05389, Training/Travel Authorization Form.

The Department for Libraries and Archives addresses the state’s information and knowledge needs by initiating and directing statewide activities for library and archive development and for public records management.

The Administrative Services Division formulates and implements executive direction for policy, procedures and planning for the Department. It also provides administrative support of the programs of the Department in the following areas: budgeting, fiscal management, personnel management, payroll, grants and contracts, facilities management, systems coordination, shipping and clerical support.

The series being scheduled documents training received by staff and the expenses associated with the training. Information from the series can be used when performance evaluations are conducted at the end of each calendar year.

Mr. Kastner made a motion to adopt the schedule change, seconded by Dr. Morison. The vote by members and representatives present was unanimous.

Department of Parks – Accounting Records

Moses was the analyst working on this schedule change. The series being added to the schedule is 05400, Interaccount Authorization – MARS 38.

The Department of Parks encourages the tourism industry in Kentucky by providing resort park development in areas of low tourist impact, with emphasis on stimulating and creating a demand to be served by private enterprise investment. It provides recreational facilities and protects historically significant sites and natural phenomena in Kentucky.

Moses explained that the record was identified by Finance and Administration staff as being MARS-related. Since the series is agency-specific, it is being added to the Department of Parks schedule, rather than General Schedule for State Agencies.

Ms. McAninch made a motion to adopt the schedule change, seconded by Mr. Kastner. The vote by members and representatives present was unanimous.

Public School District Retention Schedule – Special Education

Jim Cundy was the regional administrator working on this schedule change. The series being added to the schedule is L5576, Student Application for Program – Student Not Accepted. The need to schedule the series came to the attention of staff by the Jefferson County Public School District.

After a brief explanation by Cundy, Dr. Morison made a motion to adopt the schedule change, seconded by Mr. Kastner. The vote by members and representatives present was unanimous.

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Real Estate Commission

Moses was the analyst working on this schedule change. The series being changed is 02154, License File, from permanent to fifteen years.

The Commission is responsible for the licensing of real estate brokers and sales associates. The purpose of licensure boards is to license and regulate the statutorily designated occupations and professions, in order to protect public health, safety and welfare. Specifically, boards administer continuing education requirements, process complaints against licensed practitioners, conduct investigations, hold hearings and take disciplinary actions against incompetent or fraudulent practitioners.

Moses said that the retention of the series was being reduced from permanent to fifteen years. Previously, the records had been stored in the State Archives Center, due to its permanent retention. Upon reevaluation, the decision was made to transfer the records from the Archives to the State Records Center, after discussions with the Commission, until a reduction in retention was proposed. Staff did not believe the series had significant historical or archival value to warrant continued storage in the Archives. The agency concurred and submitted its recommendation of fifteen years.

Dr. Morison made a motion to adopt the schedule change, seconded by Mr. Haynes. The vote by members and representatives present was unanimous.

Department of Workers’ Claims – Security and Compliance

Moses was the records analyst working on this schedule change. The series being added to the schedule is 05388, National Counsel on Compensation Insurance Proof of Coverage Transaction File.

The Department of Workers’ Claims is responsible for administering and enforcing the workers’ compensation program in Kentucky. It processes compensation claims; regulates compliance with the self-insurance and certain insurance requirements of the workers’ compensation laws; and orders and enforces rehabilitation of injured workers in the Commonwealth.

Mr. Kastner made a motion to adopt the schedule change, seconded by Dr. Morison. The vote by members and representatives present was unanimous.

The next item was Other Business.

Nelson distributed a copy of a bill draft submitted by Derrick Graham, State Representative for Franklin County. The draft recommends that the Office of the Attorney General distribute, in January of each year, written information to local public officials identified in the bill that explains the procedural and substantive provisions of the Open Meetings Law and the Open Records Law. Additionally, it provides for the Department for Libraries and Archives to furnish the Office of the Attorney General with written information that explains proper retention and management of public records to distribute to local officials. The local officials would then be required to further disseminate the information to additional officials identified in the bill. The purpose of the dissemination of the information is to educate local officials about the respective laws and their responsibilities in carrying them out.

Bensenhaver, a strong supporter of the bill, believes that Representative Graham has taken a very positive step in proposing the legislation. Its goal is to educate local officials on an annual basis of any significant changes in Open Records and Open Meetings laws. Bensenhaver said that because Graham was receptive to the idea of including records management information, it would reaffirm the intrinsic relationship between the Open Records Act and the State Archives and Records Act, found in KRS 61.8715. The dissemination of the information will involve considerable work on the part of the Attorney General’s Office and the Department, on an annual basis, but will give both agencies the opportunity to highlight significant changes in the laws and to reemphasize the important principles inherent in them.

Belding said that the staff in the Local Records Branch freely acknowledges that communication with local officials about their responsibilities under the State Archives and Records Act is a continuing challenge. The training initiatives that the Branch has undertaken in the last year, in coordination with the Technology Analysis and Support Branch, related to electronic records management issues, have been considerable. There have been frequent discussions about the need for partnership with local officials’ organizations that may already have training initiatives or ongoing training programs in place, such as the Public Officials Essential Skills Institute, provided through the Kentucky League of Cities to public officials to help improve their ability to respond to their obligations while in office.

Belding said that the kinds of communications that are permitted under the bill include the electronic dissemination of the information, which would be an invaluable tool in reaching large groups of local officials, by their function, to provide them with an array of materials and training documents. The bill also requires signatory proof of the receipt of the information by the officials. Chapman asked if the same kinds of communications are carried out for the Executive Branch. Bensenhaver said that the Attorney General’s Office provides information about Open Meetings and Open Records laws through a publication, which is revised every two years, and which explains the requirements of the laws. The two-year period gives sufficient time to reflect any changes in the statutes and significant changes in case law and opinions. The publication is available on the Office’s website, but is not disseminated by any statutory requirement. If the legislation is passed, Representative Graham’s bill would make dissemination of the information a statutory requirement. Chapman said that it would be a great idea to have similar legislation to address dissemination of similar information to agencies in the Executive Branch of government. In responding to comments from Chapman and Whiteside, Nelson acknowledged that many agencies don’t understand what their responsibilities are under the State Archives and Records Act, and are sometimes unfamiliar with those personnel in the agencies who carry out records management duties, such as Records Officers. Nelson said that the Department is a small agency with very few staff and that it is dependent upon agencies to do their part to effectively manage their records. Whiteside said there needed to be some way to better educate agency personnel regarding records management requirements.

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Belding said that when staff met with Governor Patton’s Executive Cabinet to discuss transition issues, one thing that was brought out was the importance of having records management responsibilities emphasized by top management within agencies. Belding said that it doesn’t have the same impact if the most recent person hired is appointed to serve as the agency’s Records Officer. It is important that the individual serving in that capacity understand the agency’s organizational structure and its functions, and have the support of top management. Belding said that, in talking with members of Governor-Elect Fletcher’s transition team, staff tried to stress the importance of having conversations early in an administration to help agencies understand that the management of records and information is every bit as much a part of conducting regular business as other management duties within an agency are.

Nelson said that the Department is often asked which entities support or oppose legislation that is introduced during sessions that has an impact in the areas it has responsibilities for. Nelson said that if the Commission members were so inclined, he would accept a motion to express support for Representative Graham’s bill and even to suggest that its scope be broaden to include other levels of government and public agencies. McAninch so moved, seconded by Ms. Hollingsworth. The vote by the members and representatives present to support the bill was unanimous.

In an aside, Bensenhaver voiced her support for the work of the staff in the Local Records Branch and the State Records Branch and how, through the writing of Open Records opinions, she has come to rely on their expertise and knowledge of local and state government records management issues.

Geoff Pinkerton advised the Commission members that he would be representing Brad Cowgill, the recently appointed State Budget Director, at future meetings.

The last item of business was further discussion concerning the destruction of the records of the former Louisville General Hospital (LGH). The issue was discussed at length at the September 2003 meeting. At that meeting, the Commission approved the termination of the archival retention of patient case files, subject to the Department examining any potential issues that might be associated with access to the records, and also examining the possibility of the issuance of a public announcement regarding their availability to patients that had received treatment at LGH, or to legitimate, established next of kin to the patients. Belding said that there were approximately 1,800 cubic feet of records from LGH, dating from 1923 to 1959, currently being held in the State Archives. In addition, he said there were more than 7,000 cubic feet of records, dating from 1960 to 1977, in the custody of the University of Louisville Archives. Various factors concerning the records were reviewed at the September meeting. One of the factors discussed was the appropriateness of further retention of records that have significant access restrictions. Belding said that archival best practice with records similar LGH’s was to retain administrative records that that provide historical or statistical documentation of the hospital, such as the type of treatments received, etc., rather than patient files. The Department does not hold administrative records of the hospital, just patient ones. Belding said that retention requirements set forth in statute and administrative regulations for patient records had long since been met.

Belding introduced Ryan Halloran, Office of the Attorney General and counsel to the Department, who has taken part in discussions concerning the records over the past couple of month. Halloran said that the initial question was whether the Department could legally destroy the records. Halloran said that there were no legal reasons why the records shouldn’t be destroyed. The next question was whether the University of Louisville should give public notice of the impending destruction of the records so that former patients or next of kin could have access to them, prior to their destruction. Halloran said he expects to have an answer to that question soon. Records of this type are very sensitive and their access is restricted under statute, regulation, and general law, which would preclude disclosure of the information to medical researchers. Halloran said that he was confident the Department did not need to continue to retain the records, as the latest date held is 1959. The bigger issue, according to Halloran, is what would transpire if public notice concerning the records had to be given. Initially, Halloran said, the records were thought to possibly have some historical value but upon further assessment and evaluation, were no longer considered to possess that value.

Coates asked if ownership of the records was germane to the discussion. Aside from those in the custody of the Department, Halloran said that ownership of the balance of the records resided with the University of Louisville. Nelson said that Humana was asked after it took over the hospital if it wanted to assume custody of the files and it did not. Because of that, Belding said that the Department, in the context of a records emergency, assumed custody of the ones it now holds. Morison said he thought that the University was told that, under the circumstances, it had ownership of the records that, at that time, had not met retention requirements, while the ones that had met such requirements were transferred to the State Archives. Both together and separately, the Department and the University provided access to the records, as appropriate, and in coordination with Humana, which held the indices. Belding reiterated that there are significant gaps in the records and that there is no assurance that a particular record is still in existence. Based on information provided by Mark Stone, supervisor of the Archives Center, Belding said that requests for access to the records numbered no more than three or four per year. In addition, Belding said that over the nineteen years the Department has had the records, only about ten of the requested records could be found.

Coates asked if the records are not owned by the individuals, what right do they have to access or receive them. Halloran said that he thought that under statute, a patient has the right to obtain their medical file once at no cost. After that, there would be a cost to the individual. Halloran, in response to Coates, said that under hospital licensure regulations, medical files are retained for a five-year period. Under the Health Insurance Portability and Accountability Act (HIPPA), the period is six years. Given the age of the records, those requirements have been met. Coates questioned why, under the circumstances, the records should continue to be retained or even notice given of their existence. Halloran said that he did not believe there was a legal requirement to advertise the existence of the records but that the University was considering that as a further precaution.

Belding said that the records represent a significant storage and management burden for the Department that is not compensated for by the level of their use. As has been mentioned several times in past meetings, Belding said that the Archives is out of space and that staff has been reevaluating holdings that have been acquired over the past 45 years to make sure that they still meet an archival standard for retention. The LGH records were taken into the Archives with the expectation that they might be used. The level of interest in the records initially expected has not been there, even from those who wrote letters of support when the Department first assumed custody of them. Belding said that the Department has to take into consideration its obligations to other agencies in providing storage of records that clearly have historical value.

In response to a question, Halloran said that he did not know if the hospital kept vital records, such as those documenting births and deaths. Local health departments would have had such records, as well as the Office of Vital Statistics.

Hollingsworth asked if an additional statement of the recommendation of the Commission was needed, as it voted at the September meeting to approve the destruction of the records, providing there were no legal impediments to that action. Since there are none, Coates made a motion to destroy the records, seconded by Hollingsworth. The vote by members and representatives present was unanimous.

There being no further business, Nelson adjourned the meeting at approximately 11:40 a.m.

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