Are records in a Tennessee county mayor's office subject to the county public records commission, and what happens if someone destroys them without authorization?

Subject

Opinion No. 13-48, County Public Records Commission, July 1, 2013

Plain-English summary

Every Tennessee county is required to create a county public records commission under Tenn. Code Ann. § 10-7-401. The commission's job is to provide for the orderly disposition of public records held by county agencies.

Rep. Kent Williams asked three things.

Are records in the county mayor's office within the commission's jurisdiction? Yes. "Public records" within a county are defined in § 10-7-403 to include "all documents, papers, records, books, and books of account in all county offices, including, but not limited to, the county clerk, the county register, the county trustee, the sheriff, the county assessor, the county mayor and county commissioners." The county mayor's office is named explicitly. Records there are county public records and the commission has jurisdiction over their destruction.

Can a county office destroy public records without the commission's authorization? Sometimes. The default rule is that destruction requires the commission's authorization. § 10-7-404(a) gives the commission authority to authorize destruction of public records required by law to be retained, when those records have been photocopied, microfilmed, or preserved by microphotographic process. But there are two routes for destruction without commission action:

• § 10-7-404(d)(1) authority by other law. If another statute or rule expressly authorizes destruction, the commission's authorization is not required. "The authority to destroy original public records granted by this subsection (d) is not exclusive and shall not prevent the destruction of original public records where otherwise authorized."
• § 10-7-404(d)(2) escalation. If the commission fails to act within six months on a request to destroy reproduced records, the office can forward the request to the State Library and Archives. If the State Library doesn't respond within nine more months, the office may proceed with destruction in accordance with Secretary of State regulations. "Temporary records" and "working papers" as defined in § 10-7-301 may also be destroyed without retaining originals under § 10-7-406(b).

The commission may not authorize destruction of any financial record the Comptroller determines is needed for audit purposes until the audit is complete, and may not authorize destruction of any record otherwise required by law to be retained. A county officer or judge of a court of record may stop destruction of records in his or her office.

What are the penalties for unauthorized destruction? None in part 4 of title 10, chapter 7. The statutes creating county public records commissions (Tenn. Code Ann. §§ 10-7-401 to -412) do not establish any penalties. The AG was not aware of any other Tennessee law setting penalties for unauthorized destruction of county public records.

Currency note

This opinion was issued in 2013. 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.

The records-retention sections of Title 10 have been amended periodically, and there are separate offenses elsewhere in Tennessee law (e.g., destruction of government records as obstruction of justice, theft of government property) that could attach to a specific destruction depending on the facts. The AG's "no statutory penalty in part 4" finding is narrow and does not foreclose criminal liability under other code provisions.

Background and statutory framework

Commission creation. § 10-7-401 requires each county legislative body to establish a public records commission "[i]n order to provide for the orderly disposition of public records created by agencies of county government." The 1999 Tennessee Archives Management Advisory at the State Library and Archives is referenced as a guidance document.

Definition of public records. § 10-7-403:

• Documents, papers, records, books, and books of account in all county offices, including the county clerk, register, trustee, sheriff, assessor, county mayor, and county commissioners;
• Pleadings, documents, and other papers filed with clerks of all courts (courts of record, general sessions, former JP courts), and the minute books and other records of those courts; and
• Minutes and records of the county legislative body.

Default rule on destruction. § 10-7-404(a) gives the commission authority to authorize destruction of records required by law to be retained, when those records have been reproduced (photocopied, photostated, filmed, microfilmed, or preserved by microphotographic process). Records required by law to be permanently retained may be destroyed only by majority commission vote. A county officer or judge can prevent destruction of records in his or her own office or court.

Exception: temporary records and working papers. § 10-7-404(a) excepts "temporary records" and "working papers" as defined in § 10-7-301 from the photocopying-before-destruction requirement. § 10-7-406(b) provides that temporary records and working papers may be destroyed in accordance with commission rules without retaining the originals.

Comptroller and audit hold. The commission may not authorize destruction of any financial or other record the Comptroller determines is required for audit purposes until the audit is complete. After audit, disposition follows Comptroller-developed procedures. The commission cannot authorize destruction of any other record otherwise required by law to be retained.

Electronic and computer media: § 10-7-404(d).

• (d)(1) Upon request of the office or department head, the commission may authorize destruction or transfer of original records reproduced onto computer or removable computer storage media, in accordance with Secretary of State standards and §§ 10-7-413 and 10-7-414. The subsection expressly states it is not exclusive: destruction "where otherwise authorized" by law is still permitted.
• (d)(2) Escalation: if the commission doesn't act within six months on a reproduction-based destruction request, the office may forward the request to the State Library and Archives, which can authorize destruction. If the State Library doesn't respond within nine months, the office may proceed with destruction under Secretary of State regulations.

Commission rulemaking. § 10-7-411 authorizes the commission to promulgate rules including disposition schedules and procedures for physical destruction.

No penalties in part 4. Reading §§ 10-7-401 to -412 as a whole, no provision establishes a penalty for unauthorized destruction. The AG was not aware of any other Tennessee statute that does.

Common questions

Can the county mayor's office throw out old correspondence or budget files without going through the commission?

For records required by law to be retained, no, not without commission authorization, unless another law expressly allows it or the records qualify as "temporary records" or "working papers" under § 10-7-301. The county mayor's office should consult the commission's disposition schedule before discarding records.

What counts as a "temporary record" or "working paper"?

Defined in § 10-7-301 and not in this opinion. In practice this covers items like drafts, reference copies, transitory communications, and other materials that don't carry official record value. The commission's rules typically include guidance.

If our commission has been sitting on a destruction request for nine months, what can we do?

Under § 10-7-404(d)(2), if the request involves original records that have been reproduced under Secretary of State standards, you can forward it to the State Library and Archives. Six months of commission inaction is the trigger. If the State Library then sits for nine more months without responding, your office may proceed under the Secretary of State's regulations.

Are there criminal penalties for destroying county records improperly?

Not under §§ 10-7-401 to -412. The opinion explicitly says "[t]his Office is unaware of any other Tennessee law establishing such penalties." Note: that finding is limited to part 4. Other code provisions (e.g., obstruction of justice or theft of government property) could apply on specific facts, and federal records-destruction laws are independent. This opinion does not address those.

Does the Comptroller's audit hold trump the commission's authority?

Yes, with respect to financial records. The commission may not authorize destruction of any financial or other record the Comptroller has determined is needed for an audit, until the audit is complete and the Comptroller has developed disposition procedures.

Can the county legislative body bypass the commission for its own minutes?

The legislative body's minutes are public records under § 10-7-403(3) and fall within the commission's jurisdiction, subject to the same retention rules. Anything required by law to be retained needs commission authorization to destroy, with the exceptions described above.

Citations

Tenn. Code Ann. § 10-7-401 (commission creation). § 10-7-403 (definition of public records). § 10-7-404 (destruction procedure), with subsections (a), (d)(1), (d)(2). § 10-7-406(b) (temporary records and working papers). § 10-7-411 (commission rulemaking). §§ 10-7-401 to -412 (no statutory penalty for unauthorized destruction). §§ 10-7-413 and 10-7-414 (Secretary of State standards). § 10-7-503 (referenced in § 10-7-406(b)). § 10-7-301 (definitions of temporary records and working papers). Prior AG opinion: Op. 95-001 (Jan. 6, 1995).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-048.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

July 1, 2013

Opinion No. 13-48

County Public Records Commission

QUESTIONS

1. Are records in a county mayor's office within the jurisdiction of a county public records commission?

2. Does a county office have the authority to destroy public records without the authorization of the county public records commission?

3. What, if any, are the penalties for the destruction of public records without authorization from the county public records commission?

OPINIONS

1. Yes.

2. A county office has the authority to destroy public records without authorization of the county public records commission if the county office is so authorized by law, pursuant to Tenn. Code Ann. § 10-7-404(d)(1). A county office also has the authority to destroy original public records which have been reproduced in accordance with any regulations promulgated by the Secretary of State within the guidelines and time frames established by Tenn. Code Ann. § 10-7-404(d)(2).

3. The Tennessee statutes creating county public records commissions, codified at Tenn. Code Ann. §§ 10-7-401 to -412, do not establish any penalties for the destruction of public records without authorization from the county public records commission. This Office is unaware of any other Tennessee law establishing such penalties.

ANALYSIS

1. Each county legislative body is required to create a county public records commission "[i]n order to provide for the orderly disposition of public records created by agencies of county government." Tenn. Code Ann. § 10-7-401. See Tenn. Att'y Gen. Op. 95-001 at 2 (Jan. 6, 1995). See also 1999 Tennessee Archives Management Advisory, located at http://www.tennessee.gov/tsla/aps/tama/tama14pubrecscommissions.pdf.

"Public records" within the county are defined as:

(1) All documents, papers, records, books, and books of account in all county offices, including, but not limited to, the county clerk, the county register, the county trustee, the sheriff, the county assessor, the county mayor and county commissioners, if any;

(2) The pleadings, documents and other papers filed with the clerks of all courts, including the courts of record, general sessions courts and former courts of justices of the peace, and the minute books and other records of these courts; and

(3) The minutes and records of the county legislative body.

Tenn. Code Ann. § 10-7-403 (emphasis added).

The definition of "public records" specifically includes all documents, papers, records, and books in the office of the county mayor. Accordingly, the destruction of records in the county mayor's office is within the jurisdiction of the county public records commission.

2. The destruction of county public records is primarily governed by Tenn. Code Ann. §§ 10-7-404 and -406. The county public records commission is granted the authority, with certain exceptions, "to authorize the destruction of any and all public records as defined in § 10-7-403, which are required by law to be retained, when such records have been photocopied, photostated, filmed, microfilmed, or preserved by microphotographic process." Tenn. Code Ann. § 10-7-404(a) (emphasis added). This statute specifically states as follows:

The county public records commission has the right to authorize the destruction of any and all public records as defined in § 10-7-403, which are required by law to be retained, when such records have been photocopied, photostated, filmed, microfilmed, or preserved by microphotographic process, as hereinafter provided; provided, that no record required by law to be permanently retained shall be destroyed without a majority vote of the commission. A county officer or judge of a court of record shall be entitled to prevent the destruction of documents, minutes, or records in the office or court, as appropriate. The requirement to photocopy, photostat, film, microfilm, or preserve by microphotographic process prior to destruction in accordance with this section shall not be required of "temporary records" and/or "working papers" as defined in § 10-7-301. The commission does not have the authority to authorize the destruction of any financial or other record which is determined by the comptroller of the treasury to be required for audit purposes until the pertinent audit has been completed. After the audit, disposition will be determined pursuant to procedures developed by the comptroller of the treasury; provided, that the commission shall not have the authority to authorize the destruction of any other record which is otherwise required by law to be retained.

Thus, in most cases if a public record is required to be retained by law and the record has been copied or preserved by microphotographic process, then only the county public records commission may authorize the destruction of the record. Id.

The county public records commission also may, upon the request of any office or department head of county government having custody of public records, "authorize the destruction or transfer of original public records which have been reproduced onto computer or removable computer storage media" in accordance with standards and procedures established by the Secretary of State, provided that the commission has complied with Tenn. Code Ann. §§ 10-7-413 and 10-7-414. Tenn. Code Ann. § 10-7-404(d)(1). However, this statute recognizes that "[t]he authority to destroy original public records granted by this subsection (d) is not exclusive and shall not prevent the destruction of original public records where otherwise authorized."

The county public records commission is specifically given the authority to promulgate rules and regulations providing for, among other things, procedures for "compiling and submitting to all county offices lists, schedules or time tables for disposition of particular records within the county" and "procedures for the physical destruction or other disposition of public records." Tenn. Code Ann. § 10-7-411.

Additionally, a county officer or department head is authorized to destroy original public records which have been reproduced in accordance with any regulations promulgated by the Secretary of State in accordance with the following procedure:

If the county public records commission fails to act upon a request of a county officer or department head having custody of public records to order the destruction or transfer of original public records after the same have been reproduced in accordance with this subsection (d) within six (6) months of receiving such a request in writing, then the county officer or department head may forward the request to the state library and archives, whereupon the state librarian and archivist, or designated representative, shall have authority to authorize the destruction or transfer of the public records instead of the county public records commission. Failure of the state library and archives to respond to the records disposal request of the county officer or department head within nine (9) months of receiving such a request shall authorize the county officer or department head to destroy the original public records which have been reproduced in accordance with any regulations on this subject promulgated by the secretary of state.

Tenn. Code Ann. § 10-7-404(d)(2).

Finally, any record defined as a "temporary record" and/or "working papers" as set forth in § 10-7-503 may be destroyed in accordance with the rules and regulations adopted by the commission without retaining the originals of such records. Tenn. Code Ann. § 10-7-406(b).

3. The Tennessee statutes creating county public records commissions codified at Tenn. Code Ann. §§ 10-7-401 to -412, do not provide for the assessment of any penalties for the destruction of public records without authorization from the county public records commission. This Office is unaware of any other Tennessee law establishing such penalties.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:

The Honorable Kent Williams
State Representative
Suite G-2 War Memorial Building
Nashville, Tennessee 37243