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

Plain-English summary

Secretary of State Mark Martin asked whether his Elections Division could destroy older records, including financial-interest statements, lobbyist filings, candidate and political-party petitions, election-official oaths, and political-action-committee reports. Attorney General Leslie Rutledge said Arkansas law set no particular retention period for the listed records. The Secretary could choose how long to keep them, provided the decision was reasonable and served a legitimate governmental purpose.

The opinion gives three qualifications. Records subject to a litigation hold or reasonably related to current or anticipated litigation must be kept. Specific federal laws might impose a retention period for particular documents. Before discarding outdated records other than ephemeral materials, state officials must give written notice to the Arkansas History Commission and turn over records the Commission determines have historical value.

The AG also said the Secretary could choose to digitize records or transfer records not in current use to the History Commission. The opinion quotes a photographic-reproduction law that permits destruction of an original after approved reproduction, except when the document is handwritten and over fifty years old or 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.

What this means for you

Election records managers

For the categories listed in the opinion, the AG found no Arkansas law setting a fixed number of years. A retention decision must be reasonable, consistent within document categories, and made for a legitimate governmental purpose. Keep records covered by a litigation hold or reasonably related to current or anticipated litigation. Notify the Arkansas History Commission before discarding outdated records other than ephemeral materials.

State archivists

The opinion says the History Commission must receive written notice before qualifying records are discarded and may take records it finds historically valuable. It also says officials may transfer official records not currently used in their offices for permanent preservation.

Common questions

Q: How many years did the AG require the Secretary to keep these election records?
A: The AG gave no fixed number. The opinion says no Arkansas law of general application or law specific to the listed records sets a retention period for them.

Q: Can records connected to a lawsuit be destroyed under that discretion?
A: No. The AG expressly said records under a litigation hold and records known to be reasonably related to current or anticipated litigation must be retained.

Q: Must the History Commission be told before older records are discarded?
A: Yes, for outdated records other than ephemeral materials. The opinion says state officials must give written notice and provide records the Commission finds historically valuable.

Q: May the Secretary digitize records?
A: The AG said Arkansas law permits digitization and allows some reproduced originals to be destroyed, subject to the exceptions quoted in the opinion.

Background and statutory framework

The AG assumed the Secretary sought disposal for legitimate reasons such as space and financial resources, rather than to impair the availability of public records. The opinion notes a criminal prohibition on destroying a public record with the purpose of impairing its verity, legibility, or availability. It also suggests considering the nature and filing frequency of each record category when choosing a retention period. Counties have a five-year rule for certain similar records, which the Secretary may consult as an example; the opinion does not make that county rule binding on the Secretary.

Citations and references

The opinion cites Act 1282 of 2015 when suggesting consultation with the Open Data and Transparency Task Force. It quotes the History Commission notice, electronic-retention, and photographic-reproduction rules without printing their section numbers.

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