SCT C.S.H.B. 1812 75(R) BILL ANALYSIS STATE FEDERAL & INTERNATIONAL RELATIONS C.S.H.B. 1812 By: Hunter 4-23-97 Committee Report (Substituted) BACKGROUND Current laws relating to state records, archives, and other historical resources were enacted piecemeal over the last 100 years. Although the Texas State Library and Archives Commission has been able to exercise its responsibilities in the management of state agency records and in preserving state records of historical value, current law is scattered throughout several subchapters of Chapter 441, Government Code, and is often ambiguous, unclear, and contradictory. Current law also does not adequately address electronic media. A revision of the state records and archival statutes would enable the commission to provide more effective leadership in the management and preservation of state records and information. PURPOSE As proposed, H. B. 1812 consolidates, clarifies, and modernizes statutes relating to the management of state records and the preservation of archival state records and other historical resources. RULEMAKING AUTHORITY Although the bill does not grant any rulemaking authority to the Texas State Library and Archives Commission or the Records Management Interagency Coordinating Council that they do not already possess, the following sections grant rulemaking authority to the commission: SECTION 1 - Sections 441.185 (e) (f), 441.187(e), 441.188(b), 441.189(a), 441.190, 441.193(c), and 441.199, Government Code. The following section grants rulemaking authority to the Records Management Interagency Coordinating Council: SECTION 1 - Section 441.202(f). SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 441, Government Code, by adding Subchapter L, as follows: SUBCHAPTER L. PRESERVATION AND MANAGEMENT OF STATE RECORDS AND OTHER HISTORICAL RESOURCES Sec. 441.180. DEFINITIONS. Defines "agency head," "archival state record," "commission," "confidential state record," "director and librarian," "historical resources," "records management," records management officer," "state agency," "state archivist," "state record," "state records administrator," and "vital state record." Sec. 441.181. STATE ARCHIVES PROGRAM. Authorizes the commission to take legal custody of and preserve archival state records and other historical resources. Provides for the appointment by of a state archivist by the director and librarian and sets out the duties of that officer. Sec. 441.182. STATE RECORDS MANAGEMENT PROGRAM. Authorizes the commission to assist state agencies in managing state records. Provides for the appointment of a state records administrator by the director and librarian and sets out the duties of that officer. Authorizes the commission to operate the state records center, to perform micrographic and other imaging services, and to provide for or oversee other storage or imaging services. Permits the commission to recover the costs of records management training, records storage, and imaging services. Requires the director and librarian and the state records administrator to file a performance bond with the secretary of state. Sec. 441.183. RECORDS MANAGEMENT PROGRAMS IN STATE AGENCIES. Requires that the agency head of each state agency establish a records management program in the agency and sets out the duties of the agency head regarding the creation and maintenance of the records of the agency. Sec. 441.184. RECORDS MANAGEMENT OFFICER. Requires the agency head of each state agency to act as or appoint someone to act as records management officer for the agency and prescribes the duties of that officer. Sec. 441.185. RECORD RETENTION SCHEDULES. Requires the records management officer for each state agency to submit a records retention schedule to the state records administrator, listing the records of the agency, and proposing how long the records will be retained. Provides that each schedule must be approved by the director and librarian and the state auditor before it can be used as the basis for the lawful destruction of state records. Requires the commission to adopt rules concerning the scheduling process. Authorizes the commission to adopt rules establishing minimum retention periods for state records. Sec. 441.186. ARCHIVAL STATE RECORDS. Requires the state archivist to identify archival state records through records retention schedules or personal inspection. Requires that archival state records be transferred to the custody of the commission when they are no longer needed for the administration of the agency unless other law requires them to remain in the custody of the agency. Provides that if the commission is unable to accept the records, the state agency shall preserve them in accordance with rules adopted by the commission. Permits universities to retain their archives. Forbids the transfer of an archival state record from one agency to another without the consent of the director and librarian. Permits the reappraisal of the historical value of archival state records and their destruction under certain conditions. Establishes procedures for resolving disagreements between the commission and other state agencies concerning the custody of archival state records. Sec. 441.187. DESTRUCTION OF STATE RECORDS. Sets forth the conditions that must be met before a state record may be destroyed. Authorizes the commission to adopt rules establishing the permissible means by which a state record is destroyed. Sec. 441.188. MICROFILMED STATE RECORDS. Provides that any state record may be microfilmed in accordance with rules adopted by the commission and that a microfilmed record created in compliance with those rules is an original record and shall be accepted as such by any court or administrative agency in the state. Sec. 441.189. ELECTRONIC STATE RECORDS. Provides that any state record may be created or stored electronically in accordance with rules adopted by the commission and that certified output from electronically digitized images or other data compilations created in compliance with those rules is an original record and shall be accepted as such by any court or administrative agency in the state, unless barred by a federal law, regulation, or rule of court. Sec. 441.190. PROTECTION, MAINTENANCE, AND STORAGE OF STATE RECORDS. Authorizes the commission to adopt rules regarding the protection, maintenance, and storage of state records. Sec. 441.191. ALIENATION OF STATE RECORDS. Forbids the transfer of a state record out of the custody of the state without the consent of the director and librarian. Permits the temporary transfer of records out of the physical custody of the state for performance of records management or preservation procedures. Sec. 441.192. RIGHT OF RECOVERY. Provides for re-enactment with amendment of Section 441.0105, Government Code, which this bill repeals. Allows state agencies as well as the commission to recover a state record that was illegally removed from state possession and specifies the process for recovering the record. Provides that the commission may ask the attorney general to petition to recover the record. Also awards attorney's fees and court costs to the attorney general if the attorney general recovers the record. Sec. 441.193. CUSTODY OF STATE RECORDS AND OTHER HISTORICAL RESOURCES OF COMMISSION; PUBLIC ACCESS. Provides that all archival state records or other historical resources acquired by the commission become the property of the commission. Requires the commission to adopt rules concerning public access to archival state records. Requires the state records administrator to deny public access to records of another state agency stored in the state records center without written authorization from the agency. Prohibits public access to the original microfilm of state records stored at the state records center. Sec. 441.194. RECORDS OF ABOLISHED STATE AGENCIES. Provides that the records of abolished state agencies shall be transferred to the General Services Commission. Specifies procedures for the maintenance and disposition of the records in cooperation with commission staff. Sec. 441.195. CONTRACTING AUTHORITY. Authorizes the commission to enter into contracts to foster and assist the preservation and management of state records or other historical resources. Forbids contracts to bind the state for the payment of any funds except as authorized by an appropriation from the legislature. Sec. 441.196. SALE OF COPIES OF STATE ARCHIVES. Authorizes the commission to sell copies of state archival records or other historical resources at a price not exceeding 25 per cent above the cost of publishing or producing the copies. Sec. 441.197. SALE OR DUPLICATE OR UNNEEDED MATERIAL. Authorizes the commission to sell duplicate or unwanted archival state records or other historical resources. Revenue from such sale is to be used to preserve the other historical material in the state archives and make it available for research. Sec. 441.198. AGREEMENT WITH MEXICO. Provides for the re-enactment without amendment of Section 441.0115, Government Code, which this bill repeals. Authorizes the commission to negotiate with Mexico for the loan or trade of the battle flags of three Mexican battalions in the possession of the State of Texas for the flag of the New Orleans Greys captured at the Battle of the Alamo. Sec. 441.199. RULEMAKING AUTHORITY. Authorizes the commission to adopt rules it determines necessary for cost reduction and efficiency of record keeping by state agencies and for the state's management and preservation of records. Sec. 441.200. AUDIT. Permits the state auditor to report on a state agency's compliance with Subchapter F and rules adopted under it. Sec. 441.201. RECORDS OF OFFICE OF GOVERNOR. Provide that governor, in consultation with the commission, may designate an institution of higher education or alternate archival institution in this state as the repository for the records of the executive office of the governor created or received during the governor's term of office. Alternate repository must maintain the records according to accepted archival practices and assure public accessibility. Provides the commission will record the arrangement through a memorandum of understanding, a deposit agreement, or other appropriate documentation. Sec. 441.202. ARCHIVES OF GENERAL LAND OFFICE. Provides for the re-enactment with amendment of Section 441.021, Government Code, which this bill repeals. Establishes an archives in the General Land Office and provides that the archives are not subject to transfer to the commission. Specifies the content of the archives of the General Land Office and various duties of the land commissioner in procuring records relating to land grants. Sec. 441.203. RECORDS MANAGEMENT INTERAGENCY COORDINATING COUNCIL. Provides for the re-enactment without amendment of Section 441.053, Government Code, which this bill repeals. Specifies the membership and duties of the council and its member agencies. SECTION 2. Amends Section 51.204, Government Code, to provide that records of courts of appeal are subject to the provisions of this bill. SECTION 3. Amends Section 441.002(g), Government Code, to delete outdated and redundant language and to provide that the director and librarian shall administer programs provided for in this bill. SECTION 4. Amends Section 441.003, Government Code, to provide for the appointment of and to set out the qualifications for a state records administrator. Provides that the same individual may serve as both state archivist and state records administrator. Deletes outdated language concerning other commission employees. SECTION 5. Amends Section 441.006(a), Government Code, to delete outdated and redundant language concerning duties of the commission and to add a new paragraph (8) describing commission duties under this bill. SECTION 6. Amends Section 441.008(c), Government Code, to provide that the commission may not transfer archival state records or other historical resources in the state archives to another library. SECTION 7. Amends Section 441.013(a), Government Code, to provide that the commission will report on activities under this bill in its biennial report. SECTION 8. Repeals the following: (1) Sections 51.205 (relating to the preservation of records by microfilming by courts of appeal), 441.002(i) (relating to disagreement over the proper custody of state records), 441.010 (relating to the custody of records and other materials in the possession of the commission), 441.0105 (relating to the right of recovery of state records from private possession), 441.011 (relating to the relics of the Texas Museum), 441.0115 (relating to an agreement with Mexico concerning certain flags), and 441.012 (relating to the sale of Texas Archives), Government Code. (2) Subchapters B (relating to the archives of certain agencies), C (relating to the Records Management Division of the Texas State Library), D (relating to the preservation of essential records, and K (relating to the reduction and simplification of agency paperwork), Chapter 441, Government Code. SECTION 9. Effective date: September 1, 1997 SECTION 10. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE CSHB 1812 amends SECTION 1 by adding new Section 441.201, and re-numbering old Section 441.201 to Section 441.202 and old Section 441.202 to Section 441.203. These changes provide that a governor, in consultation with the commission, may designate an institution of higher education or alternate archival institution in this state, in lieu of the commission, as the repository for the records of the executive office of the governor created or received during the governor's term of office. Provides the alternate repository must maintain the records according to accepted archival practices and assure public accessibility. Provides the commission will record the arrangement through a memorandum of understanding, a deposit agreement, or other appropriate documentation.