How long must Arkansas keep old election records like financial interest statements and candidate filings?

Plain-English summary

Arkansas Secretary of State Mark Martin asked whether his Elections Division could destroy older records of various kinds: financial interest statements, lobbyist disclosures, candidate nomination petitions, new political party petitions, candidate filing information, oaths and commissions of elected officials, election commissioner oaths, and PAC registrations. Some of the records are 20+ years old.

AG Leslie Rutledge said yes, with three caveats. As a general matter, Arkansas law does not prescribe how long the Sec. of State must retain those records, so disposal is at the Sec. of State's discretion, provided the decision is reasonable and serves a legitimate governmental purpose. But three things temper that discretion:

1. Litigation hold. Records subject to a litigation-hold notice, or otherwise reasonably related to current or anticipated litigation, must be kept.
2. Federal law. Some categories of records may be subject to federal retention requirements that the AG can't survey for in one opinion.
3. History Commission first refusal. Section 13-3-107(b)(2) requires state officials to give the Arkansas History Commission written notice before destroying "outdated records, other than ephemeral materials." If the Commission says a record has historical value, the official must turn it over.

The Sec. of State also has the option to digitize records under Ark. Code Ann. § 25-32-112(a), and the photographic-reproduction statute at §§ 16-46-101 to -102 permits making reproductions and destroying the original, except for handwritten documents over 50 years old or documents whose preservation is otherwise required by law.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why does the AG say there is no retention period for these records?
A: Because no Arkansas statute generally applicable to the Secretary of State, and no Arkansas statute narrowly relating to the specific records at issue, sets a retention period. The state's general retention rules at Ark. Code Ann. §§ 25-18-601 to -605 don't apply to elected constitutional officers, so the Sec. of State is outside that framework.

Q: What about the criminal statute that protects public records?
A: Ark. Code Ann. § 5-54-121(a) makes it a crime to destroy a public record "with the purpose of impairing the verity, legibility, or availability" of the record. The AG's analysis assumed the destruction was for legitimate governmental reasons (space, financial resources), not to impair availability.

Q: How does the History Commission step work in practice?
A: Before destroying records, the official gives written notice to the Commission. The Commission then decides whether the records have historical value. If yes, the records must be turned over for permanent preservation under § 13-3-107.

Q: Can the Sec. of State just digitize and toss the originals?
A: Mostly yes. Ark. Code Ann. § 25-32-112(a) provides that "if a law requires that a record be retained, the requirement is satisfied by retaining an electronic record" meeting statutory criteria. The photographic reproduction statute (§ 16-46-101) permits destruction of originals after a faithful reproduction, with the exception of handwritten documents over 50 years old and any document whose preservation is otherwise required by law.

Q: Could the Open Data and Transparency Task Force help?
A: At the time of this opinion, Act 1282 of 2015 was creating an Open Data and Transparency Task Force to develop "best practices" for state record maintenance. The AG suggested consulting with that body. The Task Force is now more than a decade old and its recommendations should be checked against current rules.

Background and statutory framework

Arkansas law treats public-record destruction as a matter of officer discretion plus several specific safety valves. Section 25-18-603(2)(B)(i) carves elected constitutional officers (like the Sec. of State) out of the state's general retention framework. The only criminal-law constraint at § 5-54-121(a) reaches destruction with intent to impair availability, not routine disposal.

Specific safety valves include:

• History Commission notice under § 13-3-107(b)(2). Required before destruction of "outdated records, other than ephemeral materials."
• Litigation holds. Records reasonably related to current or anticipated litigation must be preserved (this is a common-law principle reinforced across Arkansas case law and federal discovery practice).
• Public-records statutes that reinforce availability. Ark. Code Ann. §§ 21-8-603(b)(1), 21-8-606(2), and 7-6-215(a)(1)(D)(iv) require lobbyist filings, statements of financial interest, and PAC registrations to be available for public inspection. The AG read those as availability mandates, not retention mandates.

For benchmarking, the AG noted that counties must keep certain similar records for five years under § 13-4-306(2)(C). The Sec. of State is not bound by that rule but could look to it as a reasonable analogue.

For reproduction and digitization, two statutes are relevant. Section 25-32-112(a) allows retention requirements to be satisfied by electronic records meeting statutory criteria. Section 16-46-101 authorizes photographic reproduction and destruction of originals, with an exception for handwritten documents over 50 years old.

Citations and references

Statutes (selected):

• Ark. Code Ann. § 5-54-121(a) (criminal destruction of public record)
• Ark. Code Ann. § 13-3-107 (Arkansas History Commission turnover and notice)
• Ark. Code Ann. § 13-4-306(2)(C) (county five-year rule)
• Ark. Code Ann. §§ 16-46-101 to -102 (photographic reproduction)
• Ark. Code Ann. §§ 21-8-701 et seq. (financial interest statements)
• Ark. Code Ann. §§ 21-8-401 et seq., 21-8-601 et seq. (lobbyist disclosures)
• Ark. Code Ann. §§ 7-6-215 et seq. (PAC registrations)
• Ark. Code Ann. §§ 25-18-601 to -605 (state records retention rules; elected officers excluded)
• Ark. Code Ann. § 25-32-112(a) (electronic records)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2016-064
November 2, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

The Honorable Mark Martin
Secretary of State
Arkansas State Capitol, Room 256
Little Rock, AR 72201

Dear Mr. Martin:

This is in response to your request for an opinion on the disposition of older records kept in the Secretary of State's Elections Division. Your request states that some of these records date back over 20 years and include the following:

1. Statements of financial interest, as described by Ark. Code §§ 21-8-701 et seq.
2. Lobbyist disclosures, registrations, and activity reports, as described by Ark. Code §§ 21-8-401 et seq. and 21-8-601 et seq.
3. Candidate nomination petitions, as described by Ark. Code §§ 7-10-103, 7-7-103, and 7-8-302.
4. New political party petitions, as described by Ark. Code § 7-7-205.
5. Candidate filing information, as described by Ark. Code §§ 7-7-301, 7-10-103, and 7-6-102.
6. Oaths and commissions of elected officials, as described by Ark. Code §§ 21-2-101 et seq.
7. Election commissioner oaths, as described by Ark. Code §§ 7-4-102 et seq.
8. Political action committee registrations and reports, as described by Ark. Code §§ 7-6-215 et seq.

You pose these questions:

1. Is it permissible to destroy these documents after a certain time period?
2. If so, how many years should we retain these records prior to destroying them?
3. If not, is it permissible to digitize these records or to transfer them to another entity?

RESPONSE

As a general matter, Arkansas law does not prescribe a particular amount of time during which you must retain the records described above. Accordingly, so long as you exercise your discretion reasonably and for a legitimate governmental purpose, the time period after which you can discard old records is left to your discretion.

There are three important caveats to my opinion. First, records subject to a litigation-hold notice and records you otherwise know may be reasonably related to current or anticipated litigation must be retained. Second, I can only answer your question generally and with regard to Arkansas law. Certain documents, based on their specific content, could theoretically be subject to specific federal laws that impose a time period for which the record must be kept. Third, it is important to understand that I am not authorized to say and do not say whether as a matter of good public policy or stewardship you should retain these older records; rather my opinion is confined to answering your specific question about what the law allows you to do. Nonetheless, I do below provide you several options if you choose to retain all or some older records.

DISCUSSION

Question 1: Is it permissible to destroy these documents after a certain time period?
Question 2: If so, how many years should we retain these records prior to destroying them?

No Arkansas law of general application requires you to keep the documents at issue for any particular period of time. Neither does any Arkansas law narrowly relating to the specific records at issue require you to keep them for any particular period of time. The criminal code makes it a crime to destroy a public record "with the purpose of impairing the verity, legibility, or availability of a public record ...." But I assume in this opinion that your decision to not retain older records is not for the purpose of impairing the availability of such record, but rather for legitimate governmental reasons such as space, financial resources, etc. I further assume that your decision will be based on a reasonable exercise of discretion and fairly consistent within categories of documents.

The law does require state officials to give the Arkansas History Commission written notice of their intentions "[b]efore destroying or discarding outdated records, other than ephemeral materials ...." Such records are to be given to the Commission if it determines they have historical value.

Because Arkansas law does not prescribe any period for which you must keep the records you ask about, it is my opinion that you, as custodian of the records, may determine how long to retain them. As noted above, however, your determination must be reasonable and for a legitimate governmental purpose.

The nature of the record at issue, and the frequency, if any, at which it is filed may, of course, be relevant to the question of how long it should be retained. You may also deem it appropriate to look to law binding other officials and entities with respect to retention periods. In this respect, I note that counties are required to keep certain records similar to some of those at issue in your request for five years.

I note that Act 1282 of 2015 (uncodified) calls for the creation of the Open Data and Transparency Task Force to, inter alia, "[d]etermine the best practices for the state to achieve the most efficient system for maintaining the state's public records ...." (emphasis added). You may wish to consult the Task Force with respect to the issues raised by your opinion request.

I also note that a law that appears to apply primarily to documentary evidence and court records nevertheless purports to authorize "any public officer[] whose duty it is to make public records ... to use and employ an approved system of photographic recording ... or other process which accurately reproduces or forms a durable medium for reproducing the original" and thereupon to destroy the original record "unless the document is over fifty (50) years old and handwritten or its preservation is otherwise required by law." Accordingly, for some older documents, you have the authority to make electronic copies of such records.

Question 3: If not, is it permissible to digitize these records or to transfer them to another entity?

While the premise of this question is not technically met, I note that one Arkansas statute provides that "[i]f a law requires that a record be retained, the requirement is satisfied by retaining an electronic record" which meets certain criteria stated in the law. A second statute also authorizes "any state ... official ... to turn over to the Arkansas History Commission, for permanent preservation, any official ... records ... not in current use in his or her office."

While as a general matter Arkansas law may not require you to keep older records, it certainly provides you the ability to decide to digitize those records and/or turn them over to the Arkansas History Commission for more permanent preservation. Indeed, for the older records you identify, the law requires you to give the History Commission written notice and an opportunity to take such records.

Sincerely,

LESLIE RUTLEDGE
Attorney General