CHAPTER 211

FORMERLY

SENATE BILL NO. 283

AN ACT TO AMEND CHAPTER 5, TITLE 29, DELAWARE CODE RELATING TO DELAWARE PUBLIC RECORDS LAW.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section I. Amend Chapter 5, Title 29, Delaware Code by striking current subchapters I

and II excepting §506 and §508, which shall be moved to new subchapter II and designated §558 and §559 respectively, enacting a new subchapter 1 titled Public Records, and thereby redesignating present subchapters III and IV as new subchapters II and III. New subchapter I to read as follows:

"§501. Statement of legislative intent; short title

The General Assembly finds that public records are essential to the administration of state and local government. Public records contain information which allows government programs to function, provide officials with a basis for making decisions, and ensure continuity with past operations. Public records document the legal responsibility of government, protect the rights of citizens, and provide citizens with a means of monitoring government programs and measuring the performance of public officials. State and local government records also reflect the historical development

of the government and of the citizens which It serves. Such records need to be systematically managed to ensure preservation of historically valuable materials, to provide ready access to vital information, and to promote the efficient and economical operation of government.

The General Assembly Intends by this act to establish a single body of law applicable to all public officers and employees on the subject of public records management and preservation and to ensure that the procedures used to manage and preserve public records will be uniform throughout the State.

This subchapter may be cited as the Delaware Public Records Law.

§502. Definitions

As used in this Chapter, the following terms shall have the meanings indicated:

(a) 'Public record' means any document, book, photographic image, electronic
data recording, paper, sound recording or other material regardless of physical form or characteristics, made or received pursuant to the law or ordinance in connection with the transaction of public business by any officer or employee of this State or any political subdivision thereof.

(b) 'Political subdivision' includes counties, cities, towns, districts,

authorities and other public corporations and entities whether mandated by
constitution or formed by an act of the General Assembly.

(c) 'Local government' means any county, city, town, municipality, or other
government, created by an act of the General Assembly, that is not a state agency, department, board, or commission

(d) 'Governing body' means the county council, levy court, city or town
council, board, or commission, or other body authorized by law to govern the affairs of a local government

(e) 'Agency' shall mean any office, department, board, commission, or other
separate unit of government of this State, Including all branches of government: executive, legislative and Judi-dal.

(f) 'State archives and records program' shall mean the agency administered by
the Department of State, whose primary responsibilities Include the implementation and enforcement of the provisions of this Chapter.

(g) 'Records retention and disposition schedule' means a ilst or other
Instrument describing records and their minimum retention periods which is Issued by the Department of State

(h) 'Records officer' is any person or persons designated according to the
provisions of this Chapter. whose responsibilities include the development and oversight of records management programs.

(i) 'State Archives' is to be the repository for the historical records of
this State and all political subdivisions thereof.

(j) 'Historical records' are those records that contain significant
information about the past and present and are therefore worthy of long-term preservation and systematic management for historical and other research.

(k) 'Vital records' are those records which contain information required to
continue functioning during a disaster, or to reestablish operations after a calamity has ended. They must be protected from destruction because they offer

direct evidence of legal status, ownership, accounts receivable, and the

particulars of obligations incurred by governments. Vital records provide
accountability and establish the policies which direct the operation of government.

(1) 'Custodian of public records' is the person designated, pursuant to

Section 520, or who Is otherwise responsible for the creation or maintenance of public records.

§503. Duties of the Department of State concerning public records

The Department of State, also referred to In this Chapter as the 'Department', through the State archives and records program, shall be responsible for establishing and enforcing the policies and guidelines for the management and preservation of all public records of this State and the political subdivisions thereof.

The Department shall have the power, duty and authority to:

(1) Establish and administer an archives and records management program for
the application of efficient and economical methods to the creation, utilization, maintenance, retention, preservation, and disposal of public records.

(2) Analyze, develop, establish, and coordinate standards, procedures, and
techniques of record-making and record-keeping.

(3) Preserve and administer in the State Archives such records as may be
transferred into its custody, carefully protecting such materials, and filing, classifying and cataloguing them for use. Provided, that any materials placed in
the keeping of the Department under special terms or conditions restricting their use shall be made accessible only in accordance with such terms or conditions.

(4) Initiate appropriate action to recover records removed unlawfully or
without authorization.

(5) Establish a centralized micrographics program for the benefit of all
agencies, at the full cost of such goods and services, In accordance with §6531 of this title.

(6) Institute and maintain a training and information program in records and

information management to bring approved and current practices, methods, procedures, and devices for the efficient and economical management of records to the attention of all agencies and political subdivisions.

(7) Establish and maintain a program in cooperation with state agencies and
the political subdivisions of this State for the selection and preservation of vital records, or those records which are considered essential to the continuing operation of government and to the protection of the rights and privileges of citizens.

(8) Promulgate, following consultation with state agencies, the political
subdivisions of this State, and State and Local Records Commissions, such rules and regulations as may be necessary to carry out the purposes of this Chapter.

§504. Duties of public officials and employees concerning public records

(a) It shall be the responsibility of every public official and employee to

adequately document the transaction of public business and the services and programs for which such persons are responsible; to retain and adequately protect all public records in their custody; to cooperate with the Department, State and Local Government Records

Commissions and records officers In the establishment and maintenance of an active and continuous program for the economical and efficient management of public records.

(b) No officer, member or employee of any agency of this State or any political subdivision thereof shall destroy, sell or otherwise dispose of any public record or printed public document or official Correspondence In his care or custody or under his control without first having advised the Department of State of their nature and obtained its consent.

§505. Storage and protection of public records

(a) All public records of this State and the political subdivisions thereof shall be kept 10 facilities maintained by the agencies and offices responsible for the creation and maintenance of such records, unless the consent of the Department is obtained to their transfer or storage elsewhere.

(a) The chief administrative officer responsible for maintaining an office or
offices wherein public records are created or kept shall establish such safeguards against damage, removal or loss of records as he shall deem necessary and as may be required by rules and regulations issued under authority of this Chapter. Such
safeguards shall Include but are not limited to notifying all officials and employees of the requirements and penalties of this Chapter.

§506. Delivery of records to successors

The custodian of any public records shall, at the expiration of his term of office, appointment or employment, deliver custody and control of all public records kept or received by him in the transaction of his official business to his successor, supervisor, or records officer, or, If there be none, to the Department of State.

§507. Preservation of plans of State buildings and public works

(a) Complete copies of as-built drawings and specifications for all buildings and other public works that are built on state property, including alterations thereto, shall be deposited with the Department for preservation and safekeeping In the State Archives.

(b) The Department of Administrative Services Shall not approve final payment for any construction project until permanent archival-quality copies of the architectural and engineering drawings have been deposited with the Department of State.

§508. Deposit of deeds to State-owned _property_ with Department

All State agencies shall deposit with the Department of State for preservation and safekeeping In the State Archives the original deeds to all state-owned property. The Department shall give a receipt for each deed received in its custody.

§509. Duty of public officials to consult Department of State before repairing records

All public officials of this State and the political subdivisions thereof shall consult with the Department of State regarding proper methods and materials before undertaking the repair or restoration of any public record.

§510. Transfer of records upon termination of State agencies.splitical subdivisions

(a) All public records which are in or shall come Into the possession of any State agency shall, upon termination of such agency. be transferred to the custody of the Department of State, provided that such transfer Is consistent with the provision of any

such termination.

(a) All public records which are In or shall come Into the possession of any
political subdivision of this State shall, upon termination or revocation of the charter of such political subdivision, be transferred to the custody of the Department of State.

§511 Certified cop les of recolds delivered to Department for_ preservation

The Department of State may issue certified Cop les of any public records in its custody, as provided by §)0003 of this code, subject to restrictions listed to §10002, which certified copies shall be admissible In evidence in any court of justice In the same manner and entitled to the same weight as certified copies made by the official from whose office such records were received.

§512. Transfer of records to the State Archives

(a) The Department may select and transfer to the State Archives such public
records which it deems to be of an historical or public interest and which now are, or shall hereafter be, in the custody of any public official of this State or any political subdivision thereof. Selection and transfer shall be based upon terms and conditions
established in the Department's approved records retention and disposition schedules, and according to the rules and regulations established pursuant to the provisions of this Chapter.

(b) The Department shall provide written notice a minimum of ten working days
prior to such transfers, unless there is immediate, actual or threatened damage, loss, or destruction of public records, In which case, such transfer may be without notice.

§513. Acquisition and custody of federal records; access by federal employees

(a) The Department may acquire and take Into its protective custody such public records In the custody of the government of the United States as may relate to the State. The provisions of this section have particular reference to the selective
service records pertaining to Delaware, but early naturalizations, court proceedings and similar records may be acquired at the discretion of the Department or its qualified agent.

(a) Agents of the Federal Bureau of Investigation are assured access to such
federal records which may be transferred under this section and the Department of State shall grant access to such records to other qualified federal employees upon presentation of proper identification.

§514. Inspection by Department of_public records

For the purpose of this Chapter all custodians of public records of this State and the political subdivisions thereof shall; upon the request of the Department, afford to It all proper and reasonable access to and examination of all public records In their custody.

§515. Microfilming services* appropriations and expenditures

(a) All General Fund appropriations authorized by the State's annual budget for central microfilming services identified within each agency budget should be credited by the Secretary of Finance to Central Microfilm Services Unit of the Bureau of Archives and Records Management, Division of Historical and Cultural Affairs.

(b) No expenditure In addition to those set forth in memorandum form and credited to the Central Microfilm Services Unit as provided for In subsection (a) of this section may be used for the development, implementation or maintenance of microfilm programs or projects without the prior written approval of the Bureau of Archives and Records Management, Division of Historical and Cultural Affairs. Any programs and projects in operation must adhere to standards established by the Bureau to allow for ongoing program expenditures.

(c) Any program or function of any State agency which Is funded by federal or other special funds, or any local government, which requires microfilm services, must Include provisions for the anticipated cost of such services and payment thereof must be made by such agencies to the Central Microfilm Services Unit of the Bureau of Archives and Records Management, Division of Historical and Cultural Affairs. (Code 1935,
§10906; 42 Del. Laws, c.96, §4; 29 Del. C. 1953, §3330; 57 Del. Laws, c. 608, §§113, 1J; 65 Del. Laws, c. 348, §99.)

§516. Responsibility of Department concerning records created or reproduced by

photographic or microphotographic means; admissibility of photographic copies of records in evidence

The Department shall be responsible for monitoring the use of photographic or microphotographIc processes in the creation or duplication of public records. The Department shall enforce compliance with approved procedures and standards of quality, to be established by the Department pursuant to the provisions of this Chapter, regarding creation and storage of public records by microphotography or other means. Destruction of original records which have been duplicated In this manner shall require the prior approval of the Department of State. Photographs, photocopies or

microphotographs of any record photographed, photocopied , microphotographed as
provided In this Chapter shall have the same force and effect as the originals thereof
would nave had and shall be treated as originals for the purpose of their admissibility

In evidence. Certified or authenticated copies of such photographs, photocopies or

microphotographs or enlargements thereof shall be admitted In evidence equally with the original photographs, photocopies or microphotographs.

§517. Standards for methods and materials used for public records

(a) All custodians of public records of this State and the political subdivisions thereof, whose duty It shall be to create any public record required by law, shall not use or permit to be used for recording purposes, any materials or methods which do not meet standards of quality established by the Department.

(b) The Department of State may require that certain records shall be kept on permanent-durable paper. The Department may require the microfilming of records that
are not produced on permanent-durable paper.

(a) The Department shall make available, upon request, its standards of quality
for methods and materials.

§518. Recovery of records; replevin

(a) The chief administrative officer of each State agency and political
subdivision of this State shall notify the Department of State of any actual, impending or threatened unlawful removal, defacing, alteration or destruction of records that shall come to his or her attention, and with the assistance of the Department shall initiate action through the Attorney General for recovery of such records as shall have been unlawfully removed and for such other redress as may be provided by law.

(b) Upon the request of the Department, the Attorney General shall have the
authority to enjoin, recover and replevin any public records which have been unlawfully transferred or removed In violation of Title 29, Chapter V, Subchapter I of this code or otherwise transferred or removed unlawfully through whatever means of equitable relief necessary. Such records shall be returned to the office of origin.

§519. State Archives to bedepository_for reports publications; rules and regulations

(a) The State Archives is hereby constituted the central depository for the
reports, publications, rules and regulations of the governments of this State and all political subdivisions thereof. it shall be the duty of all State agencies and
political subdivisions of this State to deposit with the State Archives--two copies of the best edition of all reports and publications issued for general public

distribution. Said deposit shall also include two complete and current sets of
respective rules and regulations and any changes as they occur.

(b) The Department of State shall have the authority to determine whether or not

any of said publications lack sufficient information for retention as research materials, and it may request the publishing agency to discontinue depositing such publications with the Department. The Department of State may preserve microfilm copies of any publications deposited for preservation, and may destroy the originals after certified microfilm copies have been made and preserved. (29 Del. C. 1953, §3309; 51 Del. Laws, c. 207; 57 Del. Laws, c. 608, §§1B, 1E, IF; 62 Del. Laws, c. 327, §2.)

§520. Custodian designated

(a) The chief administrative officer or officers charged by law with the

responsibility of maintaining offices having public records shall be the official

custodian of such public record.

§521 Appointment of records officers

(a) Each state agency and political subdivision of this State shall designate as
many as appropriate, but at least one, records officer to serve as liaison with the State archives and records program for the purpose of implementing and overseeing a records management program, coordinating legal disposition, including destruction of obsolete records

(a) Appointment of State agency records officers shall be made by the respective heads of each agency.

(b) Appointment of records officers for the political subdivisions of this State
shall be made by the chief administrative official of such political subdivision.

§522 State Records Commission; creation purpose, and function

(a) There is hereby created a State Records Commission, composed of the Secretary of State, who shall serve as chairman, the Secretary of Administrative Services, the Attorney General, the Auditor of Accounts, the Director of the State Budget Office, the Chief Justice of the State Supreme Court, the Chairman of the Senate Executive Committee, the Chairman of the House Administration Committee, two public members to be appointed by the Governor to serve at his pleasure, and the head of the State archives and records program, who shall serve as secretary of the commission. Any member of the commission may designate a substitute.

(a) The Commission shall advise the Department of State concerning State
government records retention and disposition, policies and procedures, rules and regulations, and State services needed to assist or advise State agencies concerning the management and preservation of public records.

(b) The Commission shall meet at least once every year, and upon the call of the chairman.

§523. Local Records Commission' creation, purpose, and function

(a) There Is hereby created a Local Records Commission which shall consist of

elected, administrative, legal, and fiscal officials of county and municipal governments, representatives of local government associations, other users of local government records, and public members, all of whom shall be appointed by the Governor to serve at his pleasure, there shall be ten members of this commission In addition to the head of the State archives and records program who shall also be a member and serve as chairman and secretary of the commission. Any member of the commission may designate a substitute.

(b) The commission shall advise the Department of State concerning local
government records retention and disposition, policies and procedures, rules and regulations, and State services needed to assist or advise local governments concerning the management and preservation of public records.

(a) The commission shall meet at least once every year, and upon the call of the chairman.

§524. Records retention and disposition schedules

The Department of State shall, after consultation with appropriate State agencies, political subdivisions of this State, and State and Local Records Commissions, establish records retention and disposition schedules setting forth the minimum length of time that records need to be retained. If any law specifically provides a retention period different from that established by the records retention and disposition schedule established herein, the retention period established by law shall govern.

§525. Penalties

Wilfull failure to comply with sections 504, 507, 508, 509, 511, 512, 514, and 517, by any person, shall subject that person to a fine of not less than 5100.00 for each conviction.

Approved February 5, 1988.