This memo provides general information on developing a county records management program and writing a records ordinance to legally dispose of records. It includes guidelines for the disposition of various records which can be used during the ordinance process.
The Divisions have received many requests for information regarding policies, statutes or administrative rules that govern the retention and the disposition/destruction of county records. These records include social service case records, child placing agency records, licensing/certification files for day care centers, adult family homes, foster homes, group homes and shelter care facilities and mental health, alcohol/drug abuse and developmental disabilities treatment records.
This Numbered Memo will provide general guidelines, relevant statutory references and an example of a well developed county records ordinance. It is the responsibility of each county to work with their program and legal staff to determine appropriate retention periods based on administrative, historical and legal needs and statutory requirements.
We are also providing a list of those counties with approved records ordinance, along with a contact person for each. (Attachment #2)
There are several statutes that relate to the destruction of public records but the primary controlling statute is s. 19.21, Stats. "Custody and Delivery of Official Property and Records." Section 19.21 (5), Stats. specifically governs the destruction of county records as follows:
(5) (a) Any county having a population of 500,000 or more may provide by
ordinance for the destruction of obsolete public records. . .
(c) The period of time any public records shall be kept before destruction shall be determined by ordinance except that in all counties the specific period of time expressed within s. 7.23 or s. 59.52(4)(a) or any other law requiring a specific retention period shall apply. The period of time prescribed in the ordinance for the destruction of all records not governed by s. 7.23 or s. 59.52(4)(a) or any other law prescribing a specific retention period may not be less than 7 years, unless a shorter period is fixed by the Public Records Board under s. 16.61(3)(e).
(d) 1. Except as provided in subd. 2., prior to any destruction of records under this subsection, except those specified within s. 59.52(4)(a), at least 60 days' notice of such destruction shall be given in writing, to the historical society, which may preserve any records it determines to be of historical interest. Notice is not required for any records for which destruction has previously been approved by the historical society or in which the society has indicated that it has no interest for historical purposes. Records which have a confidential character while in the possession of the original custodian shall retain such confidential character after transfer to the historical society unless the director of the historical society, with the concurrence of the original custodian, determines that such records shall be made accessible to the public under such proper and reasonable rules as the historical society promulgates.
(d) 2. Subdivision 1. does not apply to patient health care records, as defined in s. 146.81(4), that are in the custody or control of a local health department, as defined in s. 250.01(4).
(e) The county board of any county may provide, by ordinance, a program for the keeping, preservation, retention and disposition of public records including the establishment of a committee on public records and may institute a records management service for the county and may appropriate funds to accomplish such purposes.
The State Historical Society has waived the notification requirement under s. 19.21(5)(d) for all non-historical records which are identified through the ordinance process. Since most county records do not have secondary historical value it has become much easier for county departments to destroy obsolete records. The attached example of a county records ordinance (Attachment Number A) identifies records with a waiver by "W" and records without a waiver by "N". The Historical Society must be notified prior to destruction for records without a waiver. "N/A" indicates "not applicable" and applies to all county records which are scheduled to be retained permanently.
In the past, county 51 Boards have expressed concerns that a transfer of case records to the State Historical Society would be a violation of confidentiality under s. 51.30 Stats. and Chapter HFS 92 of the Wisconsin Administrative Code. The language in s. 19.21 (5)(d) Stats. recognizes that confidential materials might be given to the historical society. It is therefore the opinion of the Department's legal counsel that the Legislature intended the historical society's acquisition of records through this system to apply even when the records are subject to legal confidentiality controls unless the applicable confidentiality laws specifically call for destruction of the records or, in the case of alcohol/drug abuse treatment records, if the client doesn't consent to transfer. If the society does take possession of such confidential records, however, that agency cannot then release the records to members of the public unless the record requester is eligible under any laws that controlled the record while it was in the hands of the original custodian.RECORDS ORDINANCE
The ordinance mentioned in these statutory references is written at the county level and submitted to the Public Records Board for approval. Establishment of such an ordinance is a significant part of an effective county records management program because under the existing statutory language, records can only be disposed of through an ordinance. It permits counties to organize their records, identify the records' purpose, pull together all applicable state statutes, administrative rules and federal citations regulating county records retention, and determine the length of time records should be retained and the historical value, if any.
If a county does not adopt an ordinance approved by the Public Records Board, its ability to destroy any record is in question. It is recommended that a county write a single records ordinance to cover all records created and maintained as part of daily operations, rather than writing separate ordinances for each responsibility area. For your information, attached is an example of such an ordinance (Attachment #1). This ordinance can be used as a model to develop a county-wide records retention schedule which will allow records disposition on an annual basis. The Public Records Board is available to provide limited technical assistance to county program managers in setting up a county records management program, including the development of a records ordinance. The State of Wisconsin also provides records management training each spring and fall. These programs are all available to county employees and most are provided at no cost. An updated schedule of training events can be accessed at http://www.doa.state.wi.us/divisions/enterprise-operations/bureau-of-enterprise-fleet/state-records-center
The mailing address for the Board is:
Public Records Board
Attn: Steve Hirsch, Executive Secretary
GUIDELINES FOR SOCIAL SERVICES RECORDS RETENTION:
After a review of Federal guidelines and state retention schedules, the Divisions have developed the following minimum recommendations for records retention, which could be included in a county's ordinance.
Retention: Retain for five years after case is closed and destroy as confidential after notifying the State Historical Society since these are non-waiver records.
Retention: Retain for one year after final action/determination and destroy as confidential.
Retention: Retain two years after a facility is closed and destroy. In cases where the license is revoked, retain for four years and destroy. In cases where application for licensing or certification is made but not approved, retain for one year after final determination and destroy.
Retention: Retain until superseded and destroy as confidential material. If these Background Checks are a part of another record series with a longer retention period, the longer retention would apply.
Upon completion, a new Numbered Memo on Adoption Records will be issued.
For most federally funded programs and all state or local funded programs retain current year and four (4) fiscal years. For certain federally funded programs with longer specified records retention requirements, retain current year and six (6) fiscal years of records. If your county has a unified accounting system with financial records subject to both the shorter and longer time periods, financial records must be retained for the longer required time period.
GUIDELINES FOR 51.42/.437 TREATMENT RECORDS RETENTION
Chapter HFS 92 of the Wisconsin Administrative Code, Confidentiality of Treatment Records, sets up the requirements for the management of these records. Section HFS 92.12 requires that treatment records be retained as follows.
REGIONAL OFFICE CONTACT: Area Administrator
CENTRAL OFFICE CONTACT: DCFS: Chris Thomas