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Letter of the Law: Data Retention—A Museum of Official Records

So, you know the Minnesota Government Data Practices Act (MGDPA) governs access to government data. But have you considered the first two steps? What dataFile boxes must cities keep, and then what data can cities discard? If a city keeps everything, without considering these first two steps, there’s no limit on the data a city maintains. Let’s use a museum analogy. The challenge in running a museum is winnowing out the unimportant artifacts, while preserving and displaying only important artifacts from a particular time and place.

Only then do you let visitors in to view the collection. It’s similar for cities dealing with data. The law does not require that you keep every shred of data—paper or electronic. Keeping too much data means a city may have to search through reams of paper or endless electronic information to produce data, even though it’s not an “official record,” in response to a government data request.

Official Records Act
Let’s take a step back in time. The entire law on data practices used to be found in Minnesota Statutes, chapter 15. But almost all of those laws were moved to chapter 13 in the 1970s. Left behind was one important guiding light for our museum of data, the Official Records Act, defining what information governments must keep. Official records are what government entities must create and maintain.

Official records are defined as those “that are necessary for a full and accurate knowledge” of a city’s activities. This includes all cards, correspondence, discs, maps, memoranda, microfilms, papers, photographs, recordings, reports, tapes, writings, optical disks, and other data, information, or documentary material made or received by a city official pursuant to state law or in connection with the transaction of public business.

But not all data a city may have goes into the museum. One 1968 Minnesota Supreme Court case, Kottschade v. Lundberg, interprets this law, analyzing what constitutes “official activities,” and differentiates thoughts from actions. It finds that public officials need not articulate and record their thought processes behind their actions, noting that “for actions requiring judgment, such articulation would be virtually impossible and would seriously impede the expeditious transaction of public business.”

The Supreme Court reasoned that reading the law otherwise would place almost no bounds on the definition of a public record, and would require saving “any casual jotting, any tear-sheet observation, which discloses the promptings of official action.”

For our museum of city data, first ask if the data is part of an official record of actions. If it’s not, it won’t go in the museum. But what do you do with it? This question leads to records management.

Records Management Act
According to the Records Management Act (Minnesota Statutes, section 138.17), the following types of information are not an official record:

  • Information that does not become part of an official transaction.
  • Extra copies of documents kept only for convenience of reference, stock of publications, and processed documents.
  • Bonds, coupons, or other obligations or evidences of indebtedness, the destruction or other disposition of which is governed by other laws.
  • Library and museum material made or acquired and kept solely for reference or exhibit purposes.

For example, if you have correspondence or messages that are not part of an official transaction, like transitory and non-vital messages on social media, do all these go in the museum? No. Such data may be destroyed after it is read.

Data that is an official record may also be destroyed, but that must be done according to a retention schedule. The Minnesota Clerks and Finance Officers Association keeps a General Records Retention Schedule available at http://bit.ly/1p7w6Fz. A city council must adopt this schedule, or make up its own. The city must notify the state before following the schedule and destroying official records.

Minnesota Government Data Practices Act
The MGDPA (Minnesota Statutes, chapter 13) is like letting the public into our museum of data. It governs who may access government data and how. That collection of government data is the final result of records management. I agree it’s not as cool as dinosaurs.

But before those museum doors open, narrow down the data. Identify what qualifies as an official record. Then—flashing lights here—dispose of data that’s not an official record, and destroy official records pursuant to a retention schedule.

Winnowing down data protects cities and limits the searching needed to respond to data requests. It’s tricky, so check with your city attorney before you start throwing out “old bones.”

Jeanette Behr is a staff attorney and research manager with the League of Minnesota Cities. Contact: jbehr@lmc.org or (651) 281-1228.

Read the May-June 2014 issue of Minnesota Cities magazine

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