HomeMy WebLinkAboutHouse Joint Resolution 2 Public Records Bill Draft Update_18| 1 |
BILL DRAFT LANGUAGE EXISTING STATUTORY LANGUAGE EXPLANATION OF
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Section 1. Purpose. The purpose of this chapter is to ensure
efficient and effective management of public records and
public information, in accordance with Article II, sections 8
through 10, of the Montana constitution, for the state of
Montana and its political subdivisions.
2-6-201. Purpose. The purpose of this part is to create an
effective records management program for executive branch
agencies of the state of Montana and political subdivisions by
establishing guidelines and procedures for the efficient and
economical control of the creation, utilization, maintenance,
and preservation of state and local records.
Moves to new Part 1 so that
purpose applies universally —
all branches, state and local
gov’t.
Emphasizes Montana
Constitution.
Section 2. Definitions. As used in this chapter, the following
definitions apply:
(1) "Constitutional officer" means the governor,
lieutenant governor, attorney general, secretary of state,
superintendent of public instruction, or auditor, who are the
constitutionally designated and elected officials of the
executive branch of government.
(2) "Essential record" means a public record
immediately necessary to:
(a) respond to an emergency or disaster;
(b) begin recovery or reestablishment of operations
during and after an emergency or disaster;
(c) protect the health, safety, and property of
Montana citizens; or
(d) protect the assets, obligations, rights, history, and
resources of a public agency and its employees, customers, or
Montana citizens.
(3) "Executive branch agency" means a department,
board, commission, office, bureau, or other public authority of
the executive branch of state government.
(4) "Historic record" means a public record found by
the state archivist to have permanent administrative or historic
value to the state.
(5) "Local government" means any city, town, county,
consolidated city-county, school district, or subdivision of one
of these entities.
(6) "Local government records committee" means the
local government records committee provided for in [section
2-6-101. Definitions. (1) Writings are of two kinds:
(a) public; and
(b) private.
(2) Public writings are:
(a) the written acts or records of the acts of the sovereign
authority, of official bodies and tribunals, and of public
officers, legislative, judicial, and executive, whether of this
state, of the United States, of a sister state, or of a foreign
country, except records that are constitutionally protected
from disclosure;
(b) public records, kept in this state, of private writings,
including electronic mail, except as provided in 22-1-1103 and
22-3-807 and except for records that are constitutionally
protected from disclosure.
(3) Public writings are divided into four classes:
(a) laws;
(b) judicial records;
(c) other official documents;
(d) public records, kept in this state, of private writings,
including electronic mail.
(4) All other writings are private.
Definitions consolidated and
universally applicable at the
beginning of public records
chapter.
Archaic, confusing, and
unnecessary definitions
eliminated. Current and
needed definitions revised for
clarity. New definitions added
for terms used throughout
chapter.
Acknowledges and
distinguishes between public
information and public record.
Instead of listing various
formats, recommends
“regardless of physical form
or characteristics”.
UPDATE: New definition
added for “record
manager”.
2-6-202. Definitions. As used in this part, the following
definitions apply:
(1) (a) "Public records" includes:
(i) any paper, correspondence, form, book, photograph,
microfilm, magnetic tape, computer storage media, map,
drawing, or other document, including copies of the record
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BILL DRAFT LANGUAGE EXISTING STATUTORY LANGUAGE EXPLANATION OF
CHANGES
22 21].
(7) "Permanent record" means a public record
designated for long-term or permanent retention.
(8) "Public agency" means any political subdivision,
including a municipality, county, school district, and any
agency or department of the state of Montana.
(9) "Public information" means information, regardless
of physical form or characteristics, relating to the conduct of
the public's business and prepared, owned, used, or retained
by any public agency.
(10) "Public officer" means any person who has been
elected or appointed as an officer of state or local
government.
(11) "Public record" means public information that is:
(a) fixed in any medium and is retrievable in usable
form for future reference; and
(b) designated for retention by the state records
committee, judicial branch, legislative branch, or local
government records committee.
(12) “Records manager” means an individual
designated by a public agency to be responsible for
coordinating the efficient and effective management of the
agency’s public records and information.
(13) "State records committee" means the state
records committee provided for in [section 15 14].
required by law to be kept as part of the official record,
regardless of physical form or characteristics, that:
(A) has been made or received by a state agency to document
the transaction of official business;
(B) is a public writing of a state agency pursuant to 2-6-
101(2)(a); and
(C) is designated by the state records committee for retention
pursuant to this part; and
(ii) all other records or documents required by law to be filed
with or kept by any agency of the state of Montana.
(b) The term includes electronic mail sent or received in
connection with the transaction of official business.
(c) The term does not include any paper, correspondence,
form, book, photograph, microfilm, magnetic tape, computer
storage media, map, drawing, or other type of document that
is for reference purposes only, a preliminary draft, a telephone
messaging slip, a routing slip, part of a stock of publications or
of preprinted forms, or a superseded publication.
(2) "State records committee" or "committee" means the state
records committee provided for in 2-6-208.
2-6-301. Definitions. As used in this part, the following
definitions apply:
(1) "Constitutionally designated and elected officials of the
executive branch of government" means the governor,
lieutenant governor, attorney general, secretary of state,
superintendent of public instruction, and auditor.
(2) (a) "Official records" means any paper, correspondence,
form, book, photograph, microfilm, magnetic tape, computer
storage media, map, drawing, or other document, including all
copies of the record, regardless of physical form or
characteristics, that has been made or received by a
constitutionally designated and elected official of the
executive branch of government in transacting official duties
and preserved for informational value or as evidence of a
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BILL DRAFT LANGUAGE EXISTING STATUTORY LANGUAGE EXPLANATION OF
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transaction.
(b) The term includes electronic mail sent or received in
connection with the transaction of official duties.
2-6-401. Definitions. For the purposes of this part, the
following definitions apply:
(1) "Local government" means:
(a) any city, town, county, consolidated city-county, or school
district; and
(b) any subdivision of an entity named in subsection (1)(a).
(2) (a) "Public records" includes:
(i) any paper, correspondence, form, book, photograph,
microfilm, magnetic tape, computer storage media, map,
drawing, or other document, including copies of the record
required by law to be kept as part of the official record,
regardless of physical form or characteristics, that:
(A) has been made or received by any local government to
document the transaction of official business;
(B) is a public writing of the local government pursuant to 2-6-
101(2)(a); and
(C) is designated for retention by the local government
records committee established in 2-6-402; and
(ii) all other records or documents required by law to be filed
with or kept by any local government in the state of Montana,
except military discharge certificates filed under 7-4-2614.
(b) The term includes electronic mail sent or received in
connection with the transaction of official duties.
(c) The term does not include any paper, correspondence,
form, book, photograph, microfilm, magnetic tape, computer
storage media, map, drawing, or other type of document that
is for reference purposes only, a preliminary draft, a telephone
messaging slip, a routing slip, part of a stock of publications or
of preprinted forms, or a superseded publication.
(3) "Records custodian" means any individual responsible for
the proper filing, storage, or safekeeping of any public records.
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BILL DRAFT LANGUAGE EXISTING STATUTORY LANGUAGE EXPLANATION OF
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Section 3. Access to public information -- privacy and
security exceptions. (1) Every [person] has a right to inspect
and receive examine and obtain a copy of any public
information of this state, except for information that is
constitutionally protected from disclosure because an
individual privacy interest clearly exceeds the merits of public
disclosure or as otherwise expressly prohibited by statute.
(2) A [public officer] may withhold from public
scrutiny information relating to individual privacy or individual
or public safety or security of public facilities, including public
schools, jails, correctional facilities, private correctional
facilities, and prisons, if release of the information may
jeopardize the safety of facility personnel, the public, students
in a public school, or inmates of a facility. Security features
that may be protected under this section include but are not
limited to architectural floor plans, blueprints, designs,
drawings, building materials, alarms system plans, surveillance
techniques, and facility staffing plans, including staff numbers
and locations. A [public officer] may not withhold from public
scrutiny any more information than is required to protect an
individual privacy interest or safety or security interest.
(3) The provisions of this section do not apply to
collections of the Montana historical society when restrictions
on access have been imposed by collection creators or donors.
2-6-102. Citizens entitled to inspect and copy public
writings. (1) Every citizen has a right to inspect and take a
copy of any public writings of this state, except as provided in
22-1-1103, 22-3-807, or subsection (3) of this section and as
otherwise expressly provided by statute.
(2) Every public officer having the custody of a public writing
that a citizen has a right to inspect is bound to give the citizen
on demand a certified copy of it, on payment of the legal fees
for the copy, and the copy is admissible as evidence in like
cases and with like effect as the original writing. The certified
copy provision of this subsection does not apply to the public
record of electronic mail provided in an electronic format.
(3) Records and materials that are constitutionally protected
from disclosure are not subject to the provisions of this
section. Information that is constitutionally protected from
disclosure is information in which there is an individual privacy
interest that clearly exceeds the merits of public disclosure,
including legitimate trade secrets, as defined in 30-14-402,
and matters related to individual or public safety.
(4) A public officer may withhold from public scrutiny
information relating to individual privacy or individual or
public safety or security of public facilities, including public
schools, jails, correctional facilities, private correctional
facilities, and prisons, if release of the information may
jeopardize the safety of facility personnel, the public, students
in a public school, or inmates of a facility. Security features
that may be protected under this section include but are not
limited to architectural floor plans, blueprints, designs,
drawings, building materials, alarms system plans, surveillance
techniques, and facility staffing plans, including staff numbers
and locations. A public officer may not withhold from public
scrutiny any more information than is required to protect an
individual privacy interest or safety or security interest.
Current law addresses access
and privacy in multiple
sections for different types of
information and records.
Consolidates and simplifies
access and
privacy/safety/security
protections in Part 1.
Addresses right to copy and
simplified fees allowable for
public information requests in
New Section 4.
Policy consideration:
current law alternately uses
“person” and “citizen”
throughout Title 2, Chapter
6. We used “person” as it is
the word used in Article II,
Section 9 of the Montana
Constitution.
UPDATE: changed language
in subsection (1); added
existing references to public
schools in subsection (2);
clarified the exemption in
subsection (3).
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2-6-104. Records of officers open to public inspection.
Except as provided in 27-18-111 and 42-6-101, the public
records and other matters, except records that are
constitutionally protected from disclosure, in the office of any
officer are at all times during office hours open to the
inspection of any person.
2-6-110. Electronic information and nonprint records --
public access -- fees. (1) (a) Except as provided by law, each
person is entitled to a copy of public information compiled,
created, or otherwise in the custody of public agencies that is
in electronic format or other nonprint media, including but not
limited to videotapes, photographs, microfilm, film, or
computer disk, subject to the same restrictions applicable to
the information in printed form. All restrictions relating to
confidentiality, privacy, business secrets, and copyright are
applicable to the electronic or nonprint information.
(b) The provisions of subsection (1)(a) do not apply to
collections of the Montana historical society established
pursuant to 22-3-101. …[.]
Section 4. Public information requests -- fees. (1) Every
[public officer] with custody of public information shall provide
a [person] an accurate copy of the information at the
[person's] request, except as provided in [section 3], on
payment of the fees for the copy as provided for this section.
A [public officer] must allow public information to be
inspected at all times during office hours.
(2) A [public agency] may charge a fee for providing
copies of public information to a [person]. The fee may not
exceed the actual costs directly incident to providing the
[person] with a copy, including the time required to gather the
public information.
(1) A person may request public information from a
public agency. A public agency shall make the means of
2-6-110. Electronic information and nonprint records --
public access -- fees.
…
(2) Except as provided by law and subject to subsection (3), an
agency may charge a fee, not to exceed:
(a) the agency's actual cost of purchasing the electronic media
used for transferring data, if the person requesting the
information does not provide the media;
(b) expenses incurred by the agency as a result of mainframe
and midtier processing charges;
(c) expenses incurred by the agency for providing online
computer access to the person requesting access;
(d) other out-of-pocket expenses directly associated with the
request for information, including the retrieval or production
Current law addresses
allowable fees for the
“copying” of public
information in multiple and
confusing sections.
Moves special fees for certain
information to separate New
Section 5.
Policy consideration: how
should public agencies/
officers charge fees
associated with fulfilling
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BILL DRAFT LANGUAGE EXISTING STATUTORY LANGUAGE EXPLANATION OF
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requesting public information accessible to all persons.
(2) Upon receiving a request for public information, a
public agency shall respond in a timely manner to the
requesting person with an estimate of the time it will take to
fulfill the request and any fees that may be charged pursuant
to subsection (3).
(3) A public agency may charge a fee for fulfilling a
public information request. The fee may not exceed the actual
costs directly incident to fulfilling the request in the most cost-
efficient and timely manner possible. The fee must be
documented. The fee may include the time required to gather
public information. However, an agency may not charge a fee
for a public information request that can be fulfilled in less
than one-half hour.
of electronic mail; and
(e) the hourly market rate for an administrative assistant in pay
band 3 of the broadband pay plan, as provided for in 2-18-
301, in the current fiscal year for each hour, or fraction of an
hour, after one-half hour of copying service has been
provided. …[.]
public information
requests?
UPDATE: Rewrote
subsections (1) and (2) to
update and clarify the
language; revised the
formula in subsection (3)
and added requirements
regarding cost-efficiency
and timeliness.
Section 5. Special fees allowable for certain information.
(1) In addition to the fees allowed under [section 4], the
department of revenue may charge an additional fee as
reimbursement for the cost of developing and maintaining the
property valuation and assessment system database from
which the information is requested. The fee must be charged
to persons, federal agencies, state agencies, and other entities
requesting the database or any part of the database from any
department property valuation and assessment system. The
fee may not be charged to the governor's office of budget and
program planning, the state tax appeal board, or any
legislative agency or committee body or its members or staff.
(2) The department of revenue may not charge a fee
for information provided from any department property
valuation and assessment system database to a local taxing
jurisdiction for use in taxation and other governmental
functions or to an individual taxpayer concerning the
taxpayer's property.
(3) All fees received by the department of revenue
under [section 4] and this section must be deposited in the
2-6-110. Electronic information and nonprint records --
public access -- fees.
…
(3) (a) In addition to the allowable fees in subsection (2), the
department of revenue may charge an additional fee as
reimbursement for the cost of developing and maintaining the
property valuation and assessment system database from
which the information is requested. The fee must be charged
to persons, federal agencies, state agencies, and other entities
requesting the database or any part of the database from any
department property valuation and assessment system. The
fee may not be charged to the governor's office of budget and
program planning, the state tax appeal board, or any
legislative agency or committee.
(b) The department of revenue may not charge a fee
for information provided from any department property
valuation and assessment system database to a local taxing
jurisdiction for use in taxation and other governmental
functions or to an individual taxpayer concerning the
taxpayer's property.
Contains language from
current law allowing
additional fees for the Dept.
of Revenue and the exception
granted MHS to charge
additional fees for materials
curated as part of its
collections.
UPDATE: revised the
exemption for legislative
members and staff in
subsection (1); clarified the
purpose for the additional
fees in subsection (4).
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property value improvement fund as provided in 15-1-521.
(4) In addition to the fees allowed under [section 4],
the Montana historical society may charge additional fees for
copies of materials contained in its collections to support the
educational, curatorial, and interpretive efforts for which the
Montana historical society was established pursuant to 22-3-
101.
(c) All fees received by the department of revenue
under subsection (2) and this subsection (3) must be
deposited in a state special revenue fund as provided in 15-1-
521.
(d) Fees charged by the secretary of state pursuant to
this section must be set and deposited in accordance with 2-
15-405.
(4) For the purposes of this section, the term "agency"
has the meaning provided in 2-3-102 but includes legislative,
judicial, and state military agencies.
(5) An agency may not charge more than the amount
provided under subsection (2) for providing a copy of an
existing nonprint record.
(6) Subject to 15-1-103, an agency shall ensure that a
copy of information provided to a requester is of a quality that
reflects the condition of the original if requested by the
requester.
(7) This section does not authorize the release of
electronic security codes giving access to private information.
Section 6 7. Preservation of public records -- possession
of public records. (1) All public records are and remain the
property of the state. The public records must be delivered by
outgoing officials public officers and employees to their
successors and must be preserved, stored, transferred,
destroyed, or disposed of and otherwise managed only in
accordance with the provisions of this chapter.
(2) If any outgoing public officer or employee refuses or
neglects to deliver to the current public officer or employee
any public records that pertain to that public office, the
current public officer or employee may file a complaint in the
district court of the county where the public officer or
employee resides, pursuant to the Montana Rules of Civil
Procedure, to compel the outgoing officer or employee to
deliver any public records still in the outgoing officer or
2-6-205. Preservation of public records. All public records
are and shall remain the property of the state. They shall be
delivered by outgoing officials and employees to their
successors and shall be preserved, stored, transferred,
destroyed, or disposed of and otherwise managed only in
accordance with the provisions of this part.
Technical changes. Maintains
emphasis on preservation.
UPDATE: combined section
6 and section 7 into the
same section and updated
the process language from
old section 7 into new
subsection (2).
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BILL DRAFT LANGUAGE EXISTING STATUTORY LANGUAGE EXPLANATION OF
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employee’s possession.
Section 7. Possession of public records -- compelling
delivery -- attachment and warrant to enforce. (1) Each
[public officer] is entitled to the possession of all [public
records] pertaining to that office or in the custody of a former
[public officer] by virtue of that office.
(2) If any [person] refuses or neglects to deliver any
[public records] pertaining to a [public office] to the current
[public officer], the [public officer] may apply, by complaint, to
any district court or judge of the county where the person
refusing or neglecting resides and the court or judge must
proceed in a summary way, after notice to the adverse party,
to hear the allegations and proofs of the parties and to order
any [public records] to be delivered to the petitioners.
(3) The execution of the order and delivery of the
[public records] may be enforced by attachment as for a
witness and also, at the request of the plaintiff, by a warrant
directed to the sheriff or a constable of the county,
commanding the sheriff or constable to search for the [public
records] and to take and deliver them to the plaintiff.
2-6-106. Possession of records. Each public officer is entitled
to the possession of all books and papers pertaining to that
office or in the custody of a former incumbent by virtue of that
office.
Combines 3 current sections
addressing the “passing on”
of records upon succession of
public officers and remedies
for failure to do so.
The language has not been
updated and could be revised
to reflect current practices if
the committee so directs.
2-6-107. Proceedings to compel delivery of records. If any
person, whether a former incumbent or another person,
refuses or neglects to deliver to the actual incumbent any such
books or papers, such actual incumbent may apply, by
complaint, to any district court or judge of the county where
the person so refusing or neglecting resides and the court or
judge must proceed in a summary way, after notice to the
adverse party, to hear the allegations and proofs of the parties
and to order any such books and papers to be delivered to the
petitioners.
2-6-108. Attachment and warrant to enforce. The execution
of the order and delivery of the books and papers may be
enforced by attachment as for a witness and also, at the
request of the plaintiff, by a warrant directed to the sheriff or a
constable of the county, commanding the sheriff or constable
to search for the books and papers and to take and deliver
them to the plaintiff.
Section 8. Certified copies of records-- [historic records]
and [constitutional officer records] -- certified copies. (1)
The Montana historical society shall reproduce and certify
copies of [historic] records and [constitutional officer] records
in its possession upon the request of any [citizen].
(2) The certified copy of a [historic] record or
[constitutional officer record] has the same force in law as if
made by the original custodian.
(1) A person may request a certified copy of a public
record from a public agency subject to the provisions of
2-6-207. Certified copies of public records. (1) The Montana
historical society shall reproduce and certify copies of public
records in its possession upon application of any citizen of this
state.
(2) The certified copy of a public record has the same force in
law as if made by the original custodian.
Specifies the types of records
in MHS’ possession and
combines two existing
sections.
UPDATE: Revised this
section to include public
records as well; updated the
language and added cross-
references.
2-6-307. Certified copies of official records. (1) The
Montana historical society shall reproduce and certify copies
of official records in its possession upon application of any
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[section 3]. The public agency may charge a fee for the
certified copy of a public record in accordance with [section 4].
(2) A person may request a certified copy of a historic
record or a constitutional officer record from the Montana
historical society subject to the provisions of [section 3]. The
Montana historical society may charge a fee for the certified
copy of a historic record or constitutional officer record in
accordance with [sections 4 and 5(4)].
(3) The certified copy created by the Montana historical
society of a historic record or a constitutional officer record
has the same force in law as if made by the original public
agency that created the record.
citizen of this state.
(2) The certified copy of an official record has the same force
in law as if made by the original custodian.
Section 96. Management of public records -- disposal and
destruction. (1)(a) Each [public officer] is responsible for
properly managing the public records within the [public
officer's] possession or control through an established records
management plan that satisfies the requirements of this
chapter.
(b) [Executive branch agencies] and [local
governments?] shall manage [public records] according to the
provisions of [part 2] and the rules and guidelines established
by the secretary of state, the state records committee, the local
government records committee, and the Montana historical
society.
(c) Local governments shall manage public records
according to the provisions of [part 3] and the rules and
guidelines established by the secretary of state, the local
government records committee, and the Montana historical
society.
(d) Pursuant to 5-2-503 and5-11-105, the legislative
council shall administer the records management plan for the
legislative branch. The legislative branch may seek assistance
from the secretary of state, the state records committee, the
local government records committee, and the Montana
THIS LANGUAGE DOES NOT CURRENTLY EXIST IN STATUTE Emphasizes management of
records through disposition
to address finding that many
records are retained well past
their designated retention.
UPDATE: added subsections
for the different branches of
government to specify
where each branch
can/must look for rules and
guidelines for their records
management plans while
highlighting the autonomy
for the legislative and
judicial branches.
Additionally, we
recommend moving this
section up further in the
draft to make it New
Section 6.
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BILL DRAFT LANGUAGE EXISTING STATUTORY LANGUAGE EXPLANATION OF
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historical society regarding development, implementation, and
administration of the legislative records management plan.
(e) The judicial branch shall establish a records
management plan. The judicial branch may seek assistance
from the secretary of state, the state records committee, the
local government records committee, and the Montana
historical society regarding development, implementation, and
administration of the judicial records management plan.
(2) When a [public record] has reached the end of its
retention period, the [public officer] shall ensure the record is
disposed of, destroyed, or transferred according to the
provisions of this chapter.
Section 10 9. Protection and storage of essential records.
(1) To provide for the continuity and preservation of civil
government, each public officer shall designate certain public
records as essential records. The list must be continually
maintained by the public officers to ensure its accuracy. Each
public officer shall collaborate with the appropriate continuity
of government programs to ensure essential records are
identified and maintained.
(2) Each public officer shall ensure essential records
are efficiently and effectively secured. Each public officer shall
look to the guidance provided by the state records committee
or the local government records committee in choosing
appropriate methods to protect, store, back up, and recover
essential records.
2-6-206. Protection and storage of essential records. (1) In
order to provide for the continuity and preservation of civil
government, each elected and appointed officer of the
executive branch shall designate certain public records as
essential records needed for an emergency or for the
reestablishment of normal operations after the emergency. A
list of essential records must be forwarded to the secretary of
state. The list must be reviewed from time to time by the
elected or appointed officers to ensure its accuracy. Any
changes or revisions must be forwarded to the secretary of
state.
(2) Each elected and appointed officer of state
government shall ensure that the security of essential records
is accomplished by the most economical means possible.
Protection and storage of essential records may be by
vaulting, planned or natural dispersal of copies, storage in the
state archives or in an alternative location provided pursuant
to 2-6-211(2), or any other method approved by the secretary
of state.
(3) Reproductions of essential records may be by
photocopy, magnetic tape, microfilm, or other methods
Makes universally applicable
the duty to designate
essential records to ensure
continuity of government.
Removes requirement to
forward list of essential
records to SOS.
Requires all public officers to
work with appropriate
continuity program and
records committee to ensure
proper management of
essential records.
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BILL DRAFT LANGUAGE EXISTING STATUTORY LANGUAGE EXPLANATION OF
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approved by the secretary of state.
Section 11 10. Prohibition on dissemination or use of
distribution lists -- exceptions -- penalties. (1) Except as
provided in subsections (3) through (9), to protect the privacy
of those who deal with state and local government:
(a) a public agency may not distribute or sell a
distribution list without first securing the permission of those
on the list; and
(b) a list of persons prepared by the public agency
may not be used as a distribution list except by the public
agency or another public agency without first securing the
permission of those on the list.
(2) As used in this section, "distribution list" means
any list of personal contact information collected by a public
agency and used to distribute unsolicited information to the
individuals on the list.
(3) This section does not prevent an individual from
compiling a distribution list by examination of records that are
otherwise open to public inspection.
(4) This section does not apply to the lists of:
(a) registered electors and the new voter lists
provided for in 13-2-115;
(b) the names of employees governed by Title 39,
chapter 31;
(c) persons holding driver's licenses or Montana
identification cards provided for under 61-5-127;
(d) persons holding professional or occupational
licenses governed by Title 23, chapter 3; Title 37, chapters 1
through 4, 6 through 20, 22 through 29, 31, 34 through 36, 40,
47, 48, 50, 51, 53, 54, 60, 65 through 69, 72, and 73; and Title
50, chapters 39, 72, 74, and 76; or
(e) persons certified as claims examiners under 39-71-
320.
(5) This section does not prevent an agency from
2-6-109. Prohibition on distribution or sale of mailing lists
-- exceptions -- penalty. (1) Except as provided in
subsections (3) through (9), in order to protect the privacy of
those who deal with state and local government:
(a) an agency may not distribute or sell for use as a
mailing list any list of persons without first securing the
permission of those on the list; and
(b) a list of persons prepared by the agency may not
be used as a mailing list except by the agency or another
agency without first securing the permission of those on the
list.
(2) As used in this section, "agency" means any board,
bureau, commission, department, division, authority, or officer
of the state or a local government.
(3) This section does not prevent an individual from
compiling a mailing list by examination of records that are
otherwise open to public inspection.
(4) This section does not apply to the lists of:
(a) registered electors and the new voter lists
provided for in 13-2-115;
(b) the names of employees governed by Title 39,
chapter 31;
(c) persons holding driver's licenses or Montana
identification cards provided for under 61-5-127;
(d) persons holding professional or occupational
licenses governed by Title 23, chapter 3; Title 37, chapters 1
through 4, 6 through 29, 31, 34 through 36, 40, 47, 48, 50, 51,
53, 54, 60, 65 through 69, 72, and 73; and Title 50, chapters 39,
72, 74, and 76; or
(e) persons certified as claims examiners under 39-71-
320.
(5) This section does not prevent an agency from
providing a list to persons providing prelicensing or
Closes identified “loophole”
by broadening prohibition to
include “distribution list” and
provides a definition.
UPDATE: revised the
definition in subsection (2)
for clarity.
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providing a list to persons providing prelicensing or
continuing education courses subject to state law or subject to
Title 33, chapter 17.
(6) This section does not apply to the right of access
by Montana law enforcement agencies.
(7) This section does not apply to a corporate
information list developed by the secretary of state containing
the name, address, registered agent, officers, and directors of
business, nonprofit, religious, professional, and close
corporations authorized to do business in this state.
(8) This section does not apply to the use by the
public employees' retirement board of a mailing list of board-
administered retirement system participants to send materials
on behalf of a retiree organization formed for board-
administered retirement system participants and with tax-
exempt status under section 501(c)(4) of the Internal Revenue
Code, as amended, for a fee determined by rules of the board,
provided that the mailing list is not released to the
organization.
(9) This section does not apply to a public school
providing lists of graduating students to representatives of the
armed forces of the United States or to the national guard for
the purposes of recruitment.
(10) A person violating the provisions of subsection
(1)(b) is guilty of a misdemeanor.
continuing educational courses subject to state law or subject
to Title 33, chapter 17.
(6) This section does not apply to the right of access
by Montana law enforcement agencies.
(7) This section does not apply to a corporate
information list developed by the secretary of state containing
the name, address, registered agent, officers, and directors of
business, nonprofit, religious, professional, and close
corporations authorized to do business in this state.
(8) This section does not apply to the use by the
public employees' retirement board of a mailing list of board-
administered retirement system participants to send materials
on behalf of a retiree organization formed for board-
administered retirement system participants and with tax-
exempt status under section 501(c)(4) of the Internal Revenue
Code, as amended, for a fee determined by rules of the board,
provided that the mailing list is not released to the
organization.
(9) This section does not apply to a public school
providing lists of graduating students to representatives of the
armed forces of the United States or to the national guard for
the purposes of recruitment.
(10) A person violating the provisions of subsection
(1)(b) is guilty of a misdemeanor.
Section 12 11. Concealment of public hazards prohibited
-- concealment of information related to settlement or
resolution of civil suits prohibited. (1) This section may be
cited as the "Gus Barber Antisecrecy Act".
(2) As used in this section, "public hazard" means a
device, instrument, or manufactured product, or a condition of
a device, instrument, or manufactured product, that endangers
public safety or health and has caused injury, as defined in 27-
1-106.
2-6-112. Concealment of public hazards prohibited --
concealment of information related to settlement or
resolution of civil suits prohibited. (1) This section may be
cited as the "Gus Barber Antisecrecy Act".
(2) As used in this section, "public hazard" means a
device, instrument, or manufactured product, or a condition of
a device, instrument, or manufactured product, that endangers
public safety or health and has caused injury, as defined in 27-
1-106.
Unchanged.
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(3) Except as otherwise provided in this section, a
court may not enter a final order or judgment that has the
purpose or effect of concealing a public hazard.
(4) Any portion of a final order or judgment entered
or a written final settlement agreement entered into that has
the purpose or effect of concealing a public hazard is contrary
to public policy, is void, and may not be enforced. This section
does not prohibit the parties from keeping the monetary
amount of a written final settlement agreement confidential.
(5) A party to civil litigation may not request, as a
condition to the production of discovery, that another party
stipulate to an order that would violate this section.
(6) This section does not apply to:
(a) trade secrets, as defined in 30-14-402, that are not
pertinent to public hazards and that are protected pursuant to
Title 30, chapter 14, part 4;
(b) other information that is confidential under state
or federal law; or
(c) a health care provider, as defined in 27-6-103.
(7) Any affected person, including but not limited to a
representative of the news media, has standing to contest a
final order or judgment or written final settlement agreement
that violates this section by motion in the court in which the
case was filed.
(8) The court shall examine the disputed information
or materials in camera. If the court finds that the information
or materials or portions of the information or materials consist
of information concerning a public hazard, the court shall
allow disclosure of the information or materials. If allowing
disclosure, the court shall allow disclosure of only that portion
of the information or materials necessary or useful to the
public concerning the public hazard.
(9) This section has no applicability to a protective
order issued under Rule 26(c) of the Montana Rules of Civil
Procedure or to any materials produced under the order. Any
(3) Except as provided in this section, a court may not
enter a final order or judgment that has the purpose or effect
of concealing a public hazard.
(4) Any portion of a final order or judgment entered
or written final settlement agreement entered into that has the
purpose or effect of concealing a public hazard is contrary to
public policy, is void, and may not be enforced. This section
does not prohibit the parties from keeping the monetary
amount of a written final settlement agreement confidential.
(5) A party to civil litigation may not request, as a
condition to the production of discovery, that another party
stipulate to an order that would violate this section.
(6) This section does not apply to:
(a) trade secrets, as defined in 30-14-402, that are not
pertinent to public hazards and that are protected pursuant to
Title 30, chapter 14, part 4;
(b) other information that is confidential under state
or federal law; or
(c) a health care provider, as defined in 27-6-103.
(7) Any affected person, including but not limited to a
representative of the news media, has standing to contest a
final order or judgment or written final settlement agreement
that violates this section by motion in the court in which the
case was filed.
(8) The court shall examine the disputed information
or materials in camera. If the court finds that the information
or materials or portions of the information or materials consist
of information concerning a public hazard, the court shall
allow disclosure of the information or materials. If allowing
disclosure, the court shall allow disclosure of only that portion
of the information or materials necessary or useful to the
public concerning the public hazard.
(9) This section has no applicability to a protective
order issued under Rule 26(c) of the Montana Rules of Civil
Procedure or to any materials produced under the order. Any
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materials used as exhibits may be publicly disclosed pursuant
to the provisions of subsections (7) and (8).
materials used as exhibits may be publicly disclosed pursuant
to the provisions of subsections (7) and (8).
Section 13 12. Secretary of state -- powers and duties --
rulemaking authority. (1) To ensure the proper management
and safeguarding of public records, the secretary of state shall:
(a) establish guidelines and adopt based on accepted
industry standards for managing public records;
(b) upon request of another executive branch agency,
review, analyze, and make recommendations regarding
executive branch agency filing systems and procedures;
(c) establish and operate the state records center for
the purpose of storing and servicing public records not
retained in office space;
(d) provide information and training materials for all
phases of efficient and effective records management;
(e) approve microfilming projects and microfilm
equipment purchases undertaken by all state agencies;
(f) consult with the department of administration
pursuant to [section 14 13];
(g) adopt rules regarding management of public
records;
(h) adopt rules to implement the objectives of the
state records committee and local government records
committee; and
(i) upon request, assist and advise in the
establishment of records management procedures in the
legislative and judicial branches of state government and, as
required by them, provide services similar to those available to
the executive branch.
(2) In addition to the requirements under subsection
(1), the secretary of state may operate a central microfilm unit
that will microfilm, on a cost recovery basis, all records
approved for filming by the office of origin and the secretary
of state.
2-6-203. Secretary of state's powers and duties --
rulemaking authority. (1) In order to ensure the proper
management and safeguarding of public records, the secretary
of state shall:
(a) establish guidelines for inventorying, cataloging,
retaining, and transferring all public records of state agencies;
(b) review and analyze all state agency filing systems
and procedures and approve filing system equipment
requests;
(c) establish and operate the state records center, as
authorized by appropriation, for the purpose of storing and
servicing public records not retained in office space;
(d) gather and disseminate information on all phases
of records management, including current practices, methods,
procedures, and devices for the efficient and economical
management of records;
(e) operate a central microfilm unit that will microfilm,
on a cost recovery basis, all records approved for filming by
the office of origin and the secretary of state;
(f) approve microfilming projects and microfilm
equipment purchases undertaken by all state agencies; and
(g) adopt rules regarding management of public
records.
(2) Upon request, the secretary of state shall assist
and advise in the establishment of records management
procedures in the legislative and judicial branches of state
government and shall, as required by them, provide services
similar to those available to the executive branch.
2-6-404. Rulemaking authority. The secretary of state shall
adopt rules to implement 2-6-402 and 2-6-403.
Makes the central microfilm
unit permissive instead of
mandatory.
Requires the Secretary of
State to consult with the Dept.
of Administration.
Leaves the filing system
review up to the request of
the executive branch agency.
Policy consideration:
should the Legislature grant
rulemaking authority to the
Secretary of State to adopt
rules on behalf of the State
Records Committee?
UPDATE: revised subsection
(1)(a) to clarify that the
industry standards should
be a reference, not a
mandatory standard to be
adopted.
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Section 14 13. Department of administration -- powers
and duties. (1) To ensure compatibility with the information
technology systems of state government and to promote
adherence to records management principles and best
practices, the department of administration, in consultation
with the secretary of state, shall establish standards for
technological compatibility for state agencies for records
management equipment or systems used to electronically
capture, store, or retrieve public records through
computerized, optical, or other electronic methods.
(2) The department of administration, in consultation
with the secretary of state, shall approve all acquisitions of
executive agency records management equipment or systems
used to electronically capture, store, or retrieve public records
through computerized, optical, or other electronic methods to
ensure compatibility with the standards developed under
subsection (1).
(3) The department of administration is responsible
for the management and operation of equipment, systems,
facilities, or processes integral to the department's central
computer center and statewide telecommunications system.
2-6-214. Department of administration -- powers and
duties. (1) In order to ensure compatibility with the
information technology systems of state government, the
department of administration shall develop standards for
technological compatibility for state agencies for records
management equipment or systems used to electronically
capture, store, or retrieve public records through
computerized, optical, or other electronic methods.
(2) The department of administration shall approve all
acquisitions of executive agency records management
equipment or systems used to electronically capture, store, or
retrieve public records through computerized, optical, or other
electronic methods to ensure compatibility with the standards
developed under subsection (1).
(3) The department of administration is responsible
for the management and operation of equipment, systems,
facilities, or processes integral to the department's central
computer center and statewide telecommunications system.
Adds language “in
consultation with the
secretary of state” to
subsections (1) and (2) to
ensure collaboration between
information technology and
records management
communities.
Section 15 14. State records committee -- composition
and meetings. (1) There is a state records committee
composed of:
(a) representatives of:
(i) the department of administration;
(ii) the legislative auditor;
(iii) the attorney general;
(iv) the secretary of state;
(v) the Montana historical society;
(vi) the clerk of the supreme court; and
(vii) the state chief information officer; and
(b) five members representing executive branch
2-6-208. Records committee -- composition and
meetings. (1) There is a committee to be known as the state
records committee composed of representatives of:
(a) the department of administration;
(b) the legislative auditor;
(c) the attorney general;
(d) the secretary of state; and
(e) the Montana historical society.
(2) The representatives are to be designated by the
head of the respective agencies, and their appointments must
be submitted in writing to the secretary of state.
(3) The committee shall meet at least quarterly.
Expands membership to
include representatives of
clerk of supreme court, state
CIO, and 5 executive branch
agencies.
Ensures participation from IT
and legal communities as well
as the records management
community.
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agencies designated pursuant to subsections (4) and (5).
(2) The state records committee is administered by
the secretary of state, and the secretary of state's
representative serves as the presiding officer for the
committee.
(3) The committee members representing the
agencies in subsection (1)(a) are designated by the head of the
respective agencies, and their appointments must be
submitted in writing to the secretary of state. These committee
members serve at the pleasure of the head of their respective
agencies.
(4) To implement subsection (1)(b), the presiding
officer committee members in subsection (1)(a) shall develop a
rotation by which each of the executive branch agencies is
designated to select a representative to serve a 2-year term as
a committee member. The rotation must be adopted by
administrative rule and published in the Administrative Rules
of Montana. The secretary of state shall adopt the rotation by
administrative rule.
(5) The presiding officer COMMITTEE? shall establish
guidelines for the heads of executive branch agencies in
appointing representatives to ensure the executive branch
representatives provide a balance of perspectives from records
management, information technology, and legal professionals.
(6) The committee shall meet at least quarterly.
(7) Committee members shall serve without
additional salary but are entitled to reimbursement for travel
expense incurred while engaged in committee activities as
provided for in 2-18-501 through 2-18-503. Expenses must be
paid from the appropriations made for operation of their
respective agencies.
(4) Committee members shall serve without
additional salary but are entitled to reimbursement for travel
expense incurred while engaged in committee activities as
provided for in 2-18-501 through 2-18-503. Expenses must be
paid from the appropriations made for operation of their
respective agencies.
(5) The state records committee is administered by
the secretary of state, and the secretary of state's
representative serves as the presiding officer for the
committee.
UPDATE: Revised the
process described in
subsection (4); clarified
subsection (5).
Section 16 15. State records committee duties and
responsibilities. The purpose of the state records committee
is to act as a resource for executive branch agencies and
2-6-204. State records committee approval. The committee
shall approve, modify, or disapprove the recommendations on
retention schedules of all public records to determine which
Broadens the duties of the
SRC as a resource for
information and guidance, as
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others by staying at the forefront of records management best
practices. The committee shall:
(1) gather and disseminate information on all phases
of records management;
(2) advise the secretary of state in developing records
management standards, guidelines, and training materials;
(3) develop guidelines to help agencies identify,
maintain, and secure their essential records;
(4) serve as a forum for continuing collaboration
among records management, information technology, and
legal professionals throughout state agencies;
(5) make recommendations to the secretary of state
for rulemaking regarding public records management; and
(6) regularly review existing public records laws and
make recommendations to the secretary of state regarding
pursuing statutory change; and
(7) report to the governor and, as provided in 5-11-
210, the legislature biennially on the activities of the
committee, improvements in records management in state
government, aspects of records management requiring further
improvement, and committee recommendations and plans for
further improvement.
documents not included in the provisions of this part are to be
designated public records and approve agency requests to
dispose of such public records.
well as strengthening the
committee’s advisory role in
decisions related to records
management.
UPDATE: added subsection
(7) with a reporting
requirement.
Section 17 16. Retention and disposition subcommittee --
approval required for record disposal. (1) There is a
subcommittee of the state records committee to be known as
the retention and disposition subcommittee. The
subcommittee is composed of the members of the state
records committee who represent the following offices:
(a) the department of administration;
(b) the legislative auditor;
(c) the attorney general;
(d) the secretary of state; and
(e) the Montana historical society.
(2) The subcommittee shall approve, modify, or
2-6-212. Disposal of public records. (1) Except as provided
in subsection (2), no public record may be disposed of or
destroyed without the unanimous approval of the state
records committee. When approval is required, a request for
the disposal or destruction must be submitted to the state
records committee by the agency concerned.
(2) The state records committee may by unanimous
approval establish categories of records for which no disposal
request is required, providing those records are retained for
the designated retention period.
Maintains the current SRC’s
composition and role in
approving retention schedules
and disposal requests by
establishing a subcommittee
of the current members for
these duties.
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disapprove the recommendations on retention schedules of all
public records.
(3) Except as provided in subsection (4), no public
record may be disposed of or destroyed without the
unanimous approval of the subcommittee. When approval is
required, a request for the disposal or destruction must be
submitted to the subcommittee by the agency concerned.
(4) The subcommittee may by unanimous approval
establish categories of records for which no disposal request is
required, provided that those records are retained for the
designated retention period.
Section 18 17. Historic records -- Montana historical
society -- powers and duties. To ensure the proper
management and safeguarding of historic records, the
Montana historical society shall:
(1) establish and operate the state archives as
authorized by appropriation for the purpose of storing,
preserving, and providing access to historic records transferred
to the custody of the state archives;
(2) in cooperation with the secretary of state, the local
government records committee, and the state records
committee, establish guidelines to inventory, catalog, retain,
transfer, and provide access to all historic records;
(3) maintain and enforce restrictions on access to
historic records in the custody of the state archives in
accordance with the provisions of this part; and
(4) in accordance with the guidelines established
pursuant to subsection (2), remove and destroy duplicate
records and records considered to have no historical value.
2-6-302. Official records management -- powers and
duties. In order to insure the proper management and
safeguarding of official records, the Montana historical society
shall:
(1) establish and operate the state archives as
authorized by appropriation for the purpose of storing and
servicing official records transferred to the custody of the state
archives;
(2) in cooperation with the secretary of state, the local
government records committee provided for in 2-6-402, and
the state records committee provided for in 2-6-208, establish
guidelines for the inventorying, cataloging, retention, and
transfer of all official records;
(3) maintain and enforce restrictions on access to
official records in the custody of the state archives in
accordance with the provisions of this part;
(4) provide adequate housing and care of official
records in the custody of the state archives to insure their
proper preservation and use by the public;
(5) in accordance with the guidelines established
pursuant to subsection (2), remove and destroy duplicate
official records and official records of insignificant historical
value from the records deposited in the state archives.
Clarifies MHS’ role by
explicitly including now-
defined “historic records,”
because existing law is
currently limited to “official
records.”
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Section 19 18. Constitutional officer records -- Montana
historical society. (1) All constitutional officer records remain
the property of the state. The records must be delivered by
outgoing constitutional officers to their successors, who shall
preserve, store, transfer, destroy, or dispose of and otherwise
manage them in accordance with the provisions of this
section.
(2) Within 2 years after taking office as a constitutional
officer, the current constitutional officer shall consult with staff
members of the Montana historical society and transfer to the
Montana historical society all of the constitutional officer
records of the prior officeholder that are not necessary to the
current operation of that office and considered worthy of
preservation.
(3) An outgoing constitutional officer, in consultation
with staff members of the Montana historical society, shall
review constitutional officer records and isolate any items of a
purely personal nature. The personal papers are not subject to
this section, but they may be deposited along with the
constitutional officer records at the Montana historical society
at the officer's discretion.
(4) An outgoing constitutional officer, in consultation
with staff members of the Montana historical society, may
restrict access to certain segments of that officer's records.
Restrictions may not be longer than the lifetime of the
depositing official. Restricted access may be imposed only to
protect the confidentiality of personal information contained
in the records. Restricted access may not be imposed unless
the demand of individual privacy clearly exceeds the merits of
public disclosure.
(5) Any question concerning the transfer or other
status of constitutional officer records arising between the
state archives and a constitutional officer's office must be
decided by a four-fifths vote of the members of the retention
2-6-304. Outgoing officials -- records management
duties. (1) Within 2 years after the completion of the final
term of office of a constitutionally designated and elected
official of the executive branch of government, all of the
official records not necessary to the current operation of that
office are subject to storage, disposal, or transfer in
accordance with the provisions of this part.
(2) All official records of a retiring constitutionally
designated and elected official not necessary to the current
operation of that office and considered worthy of preservation
by the Montana historical society must be transferred to the
custody of the state archives within that 2-year period.
(3) An outgoing official, in consultation with staff
members of the Montana historical society, shall review official
records and isolate any items of a purely personal nature. The
personal papers are not subject to this part, but they may be
deposited with the official papers at the official's discretion.
(4) An outgoing official, in consultation with staff
members of the Montana historical society, may restrict access
to certain segments of official records. Restrictions may not be
longer than the lifetime of the depositing official. Restricted
access may be imposed only to protect the confidentiality of
personal information contained in the records. Restricted
access may not be imposed unless the demand of individual
privacy clearly exceeds the merits of public disclosure.
(5) Any question concerning the transfer or other
status of official records arising between the state archives and
an elected official's office must be decided by a four-fifths
vote of the members of the state records committee.
Consolidates several current
sections to address the
unique concerns related to
managing these specific
records.
Replaces “official record” with
“constitutional officer record”
to lessen confusion; otherwise
much of the language in
current law remains.
UPDATE: revised subsection
(3) for clarity.
Deleted subsection (6)
because it repeats the
language found in New
Section 8.
2-6-303. Ownership of records -- transfer. (1) All official
records remain the property of the state. They must be
delivered by outgoing officials to their successors and must be
preserved, stored, transferred, destroyed, or disposed of and
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and disposition subcommittee.
(6) (a) In accordance with [section 8], the Montana
historical society shall reproduce and certify copies of
constitutional officer records in its possession upon
application of any person.
(b) The certified copy of a constitutional officer record
has the same force in law as if made by the original custodian.
otherwise managed only in accordance with the provisions of
this part.
(2) A public officer may, with the concurrence of the
Montana historical society, transfer to the state archives official
records that the officer has been specifically directed by
statute to preserve or keep in that office.
Section 20 19. Permanent records -- agency
responsibilities -- state records center. (1) All permanent
records no longer required in the current operation of the
office where they are made or kept and all records of each
agency or activity of the executive branch of state government
that has been abolished or discontinued must be maintained
by the agency or transferred to the state records center in
accordance with approved records retention schedules.
(2) When records are transferred to the state records
center, the transferring agency does not lose its rights of
control and access. The state records center is merely a
custodian of the agency records, and access is only by agency
approval. Agency records for which the state records center
acts as custodian may not be subpoenaed from the state
records center but must be subpoenaed from the agency to
which the records belong. Fees may be charged to cover the
cost of records storage and servicing.
(3) Prior to transferring a permanent record to the
state records center, the transferring agency shall first consult
with the state archivist to determine whether the record is also
a historic record. If the record is found to be a historic record,
it must be transferred to the Montana historical society in
accordance with the provisions of [section 18 17].
(4) If an agency does not wish to transfer records as
provided in an approved retention schedule, the agency shall,
within 30 days, notify the secretary of state and request a
change in the schedule.
2-6-211. Transfer and storage of public records. (1) All
public records not required in the current operation of the
office where they are made or kept and all records of each
agency, commission, committee, or any other activity of the
executive branch of state government that may be abolished
or discontinued must be, in accordance with approved records
retention schedules, either transferred to the state records
center or transferred to the custody of the state archives if the
records are considered to have permanent administrative or
historical value.
(2) Subject to approval by the secretary of state
pursuant to 2-6-206, the state records center and the state
archives may store transferred permanent public records in
locations other than in the buildings occupied by the state
records center or the state archives when it is in the best
interests of the state.
(3) When records are transferred to the state records
center, the transferring agency does not lose its rights of
control and access. The state records center is only a custodian
of the agency records, and access is only by agency approval.
Agency records for which the state records center acts as
custodian may not be subpoenaed from the state records
center but must be subpoenaed from the agency to which the
records belong. Fees may be charged to cover the cost of
records storage and servicing.
(4) If an agency does not wish to transfer records as
provided in an approved retention schedule, the agency shall,
Addresses the management
of “noncurrent” or “inactive”
records with lasting value
using current language, but
eliminates current subsection
(2) to avoid confusion
regarding records stored in
electronic format.
Addresses the need for the
state archivist to review these
records to determine historic
value.
UPDATE: deleted subsection
(4).
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CHANGES
within 30 days, notify the secretary of state and request a
change in the schedule.
Section 21 20. Agency records management duties. Each
department head shall administer the executive branch
agency's records management function and shall:
(1) coordinate all aspects of the agency records
management function, including disposition, scheduling, and
transfer in accordance with procedures prescribed by the
secretary of state and the state records committee;
(2) analyze records inventory data and examine and
compare all inventories within the agency to minimize
duplication of records;
(3) review and approve records disposal requests for
submission to the retention and disposition subcommittee;
(4) review established records retention schedules to
ensure they are complete and current and make
recommendations to the secretary of state and the state
records committee regarding minimal retentions for all copies
of public records within the agency;
(5) incorporate records management requirements
into the agency information technology plan provided for in 2-
17-523;
(6) ensure that all agency employees receive
appropriate and ongoing records management training; and
(7) after considering guidance from the state records
committee regarding records manager qualifications, officially
designate a qualified agency records custodian manager to
manage the functions provided for in this section.
2-6-213. Agency responsibilities and transfer schedules.
Each executive branch agency of state government shall
administer its records management function and shall:
(1) coordinate all aspects of the agency records
management function;
(2) manage the inventorying of all public records
within the agency for disposition, scheduling, and transfer
action in accordance with procedures prescribed by the
secretary of state and the state records committee;
(3) analyze records inventory data, examine and
compare divisional or unit inventories for duplication of
records, and recommend to the secretary of state and the
state records committee minimal retentions for all copies of
public records within the agency;
(4) approve all records disposal requests that are
submitted by the agency to the state records committee;
(5) review established records retention schedules to
ensure that they are complete and current; and
(6) officially designate an agency records custodian to
manage the functions provided for in this section.
Names the department head
as the individual responsible
to ensure proper
management of agency
records as part of the effort to
make records management a
higher priority.
Updates language and adds
requirements to provide
records management training
and designate a qualified
records custodian.
UPDATE: revised subsection
(1) and subsection (7).
Section 22 21. Local government records committee --
composition and meetings. (1) There is a local
government records committee.
(2) The committee consists of the following eight
members:
2-6-402. Local government records committee -- creation.
(1) There is a local government records committee.
(2) The committee consists of the following eight
members:
(a) the state archivist;
Minor changes for
clarification.
UPDATE: revised terms to
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BILL DRAFT LANGUAGE EXISTING STATUTORY LANGUAGE EXPLANATION OF
CHANGES
(a) the state archivist;
(b) the state records manager;
(c) a representative of the department of
administration;
(d) two local government records custodians
managers appointed by the director of the Montana historical
society;
(e) two local government records custodians
managers appointed by the secretary of state; and
(f) a person representing the Montana state
genealogical society, appointed by the secretary of state, who
shall serve as a volunteer.
(3) Committee members subject to appointment shall
hold office for a period of 2 years beginning on January 1 of
the year following their appointment.
(4) Any vacancies must be filled in the same manner
they were filled originally.
(5) The committee shall elect a presiding officer and a
vice presiding officer.
(6) The committee shall meet at least twice a year
upon the call of the secretary of state or the presiding officer.
(7) Except as provided in for the member appointed
in subsection (2)(f), members of the committee not serving as
part of their compensated government employment must be
compensated in accordance with 2-18-501 through 2-18-503
for each day in committee attendance. Members who serve as
part of their compensated government employment may not
receive additional compensation, but the employing
governmental entity shall furnish, in accordance with the
prevailing per diem rates, a reasonable allowance for travel
and other expenses incurred in attending committee meetings.
(b) the state records manager;
(c) a representative of the department of
administration;
(d) two local records custodians, appointed by the
director of the Montana historical society;
(e) two additional local records custodians, appointed
by the secretary of state; and
(f) a citizen representing the Montana state
genealogical society, appointed by the secretary of state, who
shall serve as a volunteer.
(3) Committee members subject to appointment shall
hold office for a period of 2 years beginning on January 1 of
the year following their appointment.
(4) Any vacancies must be filled in the same manner
that they were filled originally.
(5) The committee shall elect a presiding officer and a
vice presiding officer.
(6) The committee shall meet twice a year upon the
call of the secretary of state or the presiding officer.
(7) Except as provided in subsection (2)(f), members
of the committee not serving as part of their compensated
government employment must be compensated in accordance
with 2-18-501 through 2-18-503 for each day in committee
attendance. Members who serve as part of their compensated
government employment may not receive additional
compensation, but the employing governmental entity shall
furnish, in accordance with the prevailing per diem rates, a
reasonable allowance for travel and other expenses incurred in
attending committee meetings.
match definitions.
Section 23 22. Local government records committee --
duties and responsibilities. The local government records
committee shall:
2-6-403. Duties and responsibilities. (1) The local
government records committee shall approve, modify, or
disapprove proposals for local government records retention
Adds a local government
records custodian to the
destruction subcommittee.
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BILL DRAFT LANGUAGE EXISTING STATUTORY LANGUAGE EXPLANATION OF
CHANGES
(1) approve, modify, or disapprove proposals for local
government records retention and disposition schedules;
(2) appoint a subcommittee, known as the local
government records destruction subcommittee, to handle
requests for disposal of records. The subcommittee consists of
the state archivist, one of the local government records
custodians managers, and the representative of the
department of administration. Unless specifically authorized by
statute or by the retention and disposition schedule, a local
government public record may not be destroyed or otherwise
disposed of without the unanimous approval of the
subcommittee. When approval is required, a request for the
disposal or destruction of any local government records must
be submitted to the subcommittee by the entity concerned. If
there is not unanimous approval of the subcommittee, the
issue of the disposition of a record must be referred to the
local government records committee for approval. When
approval is obtained from the subcommittee or from the local
government records committee for the disposal of a record,
the local government records committee shall consider the
inclusion of a new category of record for which a disposal
request is not required and shall update the schedule as
necessary.
(3) establish a retention and disposition schedule for
categories of records for which a disposal request is not
required. The committee shall publish the retention and
disposition schedules. Updates to those schedules, if any, must
be published at least annually.
(4) develop guidance for local governments to
identify, maintain, and secure their essential records;
(5) respond to requests for technical advice on
matters relating to local government records; and
(6) provide leadership and coordination in matters
affecting the records of multiple local governments.
and disposition schedules.
(2) The local government records committee shall
appoint a subcommittee, known as the local government
records destruction subcommittee, to handle requests for
disposal of records. The subcommittee consists of the state
archivist and a representative of the department of
administration. Unless specifically authorized by statute or by
the retention and disposition schedule, a local government
public record may not be destroyed or otherwise disposed of
without the unanimous approval of the subcommittee. When
approval is required, a request for the disposal or destruction
of any local government records must be submitted to the
subcommittee by the entity concerned. If there is not
unanimous approval of the subcommittee, the issue of the
disposition of a record must be referred to the local
government records committee for approval. When approval
is obtained from the subcommittee or from the local
government records committee for the disposal of a record,
the local government records committee shall consider the
inclusion of a new category of record for which a disposal
request is not required and shall update the schedule.
(3) The local government records committee shall
establish a retention and disposition schedule for categories of
records for which a disposal request is not required. The
committee shall publish the retention and disposition
schedules. Updates to those schedules, if any, must be
published at least annually.
(4) The committee shall respond to requests for
technical advice on matters relating to local government
records.
(5) The committee shall provide leadership and
coordination in matters affecting the records of multiple local
governments.
Adds a duty to provide
guidance to local
governments regarding
essential records.
UPDATE: revised terms to
match definitions.
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BILL DRAFT LANGUAGE EXISTING STATUTORY LANGUAGE EXPLANATION OF
CHANGES
Section 24 23. Disposal of local government public
records prohibited prior to offering -- central registry --
notification. (1) A local government public record more than
10 years old may not be destroyed without it first being
offered to the Montana historical society, the state archives,
Montana public and private universities and colleges, local
historical museums, local historical societies, Montana
genealogical groups, and the general public.
(2) The availability of a public record to be destroyed
must be noticed to the entities listed in subsection (1) at least
60 days prior to disposal.
(3) (a) Claimed records must be given to entities in
the order of priority listed in subsection (1).
(b) All expenses for the removal of claimed records
must be paid by the entity claiming the records.
(c) The local government records committee shall
establish procedures by which public records must be offered
and claimed pursuant to this section.
(d) The local government records committee shall
develop and maintain a central registry of the entities
identified in subsection (1) who are interested in receiving
notice of the potential destruction of public records pursuant
to this section. The registry must be constructed to allow a
local government entity to notify the local government records
committee when the entity intends to destroy documents
covered under this section and allows the local government
records committee to subsequently notify the entities in the
registry. A local government entity's notice to the local
government records committee pursuant to this subsection
and the record committee's notice to the entities listed on the
registry fulfills the notification requirements of this section.
2-6-405. Destruction of local government public records
prohibited prior to offering -- central registry --
notification. (1) A local government public record more than
10 years old may not be destroyed without it first being
offered to the Montana historical society, the state archives,
Montana public and private universities and colleges, local
historical museums, local historical societies, Montana
genealogical groups, and the general public.
(2) The availability of a public record to be destroyed
must be noticed to the entities listed in subsection (1) at least
180 days prior to disposal.
(3) (a) Claimed records must be given to entities in
the order of priority listed in subsection (1).
(b) All expenses for the removal of claimed records
must be paid by the entity claiming the records.
(c) The local government records committee,
provided for in 2-6-402, shall establish procedures by which
public records must be offered and claimed pursuant to this
section.
(d) The local government records committee shall
develop and maintain a central registry of the entities
identified in subsection (1) who are interested in receiving
notice of the potential destruction of public records pursuant
to this section. The registry must be constructed to allow a
local government entity to notify the local government records
committee when the entity intends to destroy documents
covered under this section and that allows the local
government records committee to subsequently notify the
entities in the registry. A local government entity's notice to
the local government records committee pursuant to this
subsection and the record committee's notice to the entities
listed on the registry fulfills the notification requirements of
this section.
Reduces the notice
requirement from 180 days to
60 days.
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CHANGES
Section 25 24. Definitions. As used in [sections 25 24
through 27 26], the following definitions apply:
(1) "Breach of the security of a data system" or
"breach" means the unauthorized acquisition of computerized
data that:
(a) materially compromises the security,
confidentiality, or integrity of the personal information
maintained by a state agency or by a third party on behalf of a
state agency; and
(b) causes or is reasonably believed to cause loss or
injury to a person.
(2) "Individual" means a human being.
(3) "Person" means an individual, a partnership, a
corporation, an association, or a public organization of any
character.
(4) (a) "Personal information" means a first name or
first initial and last name in combination with any one or more
of the following data elements when the name and data
elements are not encrypted:
(i) a social security number or tax identification
number;
(ii) a driver's license number, an identification number
issued pursuant to 61-12-501, a tribal identification number or
enrollment number, or a similar identification number issued
by any state, the District of Columbia, the Commonwealth of
Puerto Rico, Guam, the Virgin Islands, or American Samoa; or
(iii) an account number or credit or debit card number
in combination with any required security code, access code,
or password that would permit access to a person's financial
account.
(b) The term does not include publicly available
information from federal, state, local, or tribal government
records.
(5) "Redaction" means the alteration of personal
information contained within data to make all or a significant
2-6-501. Definitions. For the purposes of this part, the
following definitions apply:
(1) "Breach of the security of a data system" or
"breach" means unauthorized acquisition of computerized
data that:
(a) materially compromises the security,
confidentiality, or integrity of the personal information
maintained by a state agency or by a third party on behalf of
the state agency; and
(b) causes or is reasonably believed to cause loss or
injury to a person.
(2) "Individual" means a human being.
(3) "Person" means an individual, a partnership, a
corporation, an association, or a public organization of any
character.
(4) (a) "Personal information" means a first name or
first initial and last name in combination with any one or more
of the following data elements when the name and the data
elements are not encrypted:
(i) a social security number or tax identification
number;
(ii) a driver's license number, an identification number
issued pursuant to 61-12-501, a tribal identification number or
enrollment number, or a similar identification number issued
by any state, the District of Columbia, the Commonwealth of
Puerto Rico, Guam, the Virgin Islands, or American Samoa; or
(iii) an account number or credit or debit card number
in combination with any required security code, access code,
or password that would permit access to a person's financial
account.
(b) The term does not include publicly available
information that is lawfully made available to the general
public from federal, state, local, or tribal government records.
(5) "Redaction" means the alteration of personal
information contained within data to make all or a significant
Makes a minor change to
subsection (4)(b).
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BILL DRAFT LANGUAGE EXISTING STATUTORY LANGUAGE EXPLANATION OF
CHANGES
part of the data unreadable. The term includes truncation,
which means that no more than the last four digits of an
identification number are accessible as part of the data.
(6) (a) "State agency" means an agency, authority,
board, bureau, college, commission, committee, council,
department, hospital, institution, office, university, or other
instrumentality of the legislative or executive branch of state
government. The term includes an employee of a state agency
acting within the course and scope of employment.
(b) The term does not include an entity of the judicial
branch.
(7) "Third party" means:
(a) a person with a contractual obligation to perform a
function for a state agency; or
(b) a state agency with a contractual or other
obligation to perform a function for another state agency.
part of the data unreadable. The term includes truncation,
which means that no more than the last four digits of an
identification number are accessible as part of the data.
(6) (a) "State agency" means an agency, authority,
board, bureau, college, commission, committee, council,
department, hospital, institution, office, university, or other
instrumentality of the legislative or executive branch of state
government. The term includes an employee of a state agency
acting within the course and scope of employment.
(b) The term does not include an entity of the judicial
branch.
(7) "Third party" means:
(a) a person with a contractual obligation to perform
a function for a state agency; or
(b) a state agency with a contractual or other
obligation to perform a function for another state agency.
Section 26 25. Protection of personal information --
compliance -- extensions. (1) Each state agency that
maintains the personal information of an individual shall
develop procedures to protect the personal information while
enabling the state agency to use the personal information as
necessary for the performance of its duties under federal or
state law.
(2) The procedures must include measures to:
(a) eliminate the unnecessary use of personal
information;
(b) identify the person or state agency authorized to
have access to personal information;
(c) restrict access to personal information by
unauthorized persons or state agencies;
(d) identify circumstances when redaction of personal
information is appropriate;
(e) dispose of documents that contain personal
information in a manner consistent with other record retention
2-6-502. Protection of social security numbers --
compliance. (1) Each state agency that maintains the social
security number of an individual shall develop procedures to
protect the social security number while enabling the state
agency to use the social security number as necessary for the
performance of its duties under federal or state law.
(2) The procedures must include measures to:
(a) eliminate the unnecessary use of social security
numbers;
(b) identify the person or state agency authorized to
have access to a social security number;
(c) restrict access to social security numbers by
unauthorized persons or state agencies;
(d) identify circumstances when redaction of social
security numbers is appropriate;
(e) dispose of documents that contain social security
numbers in a manner consistent with other record retention
requirements applicable to the state agency;
Changes references from
“social security number” to
“personal information.”
Updates the deadline for
newly-created agencies.
Combines this section with
the section allowing the State
CIO to grant extensions.
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BILL DRAFT LANGUAGE EXISTING STATUTORY LANGUAGE EXPLANATION OF
CHANGES
requirements applicable to the state agency;
(f) eliminate the unnecessary storage of personal
information on portable devices; and
(g) protect data containing personal information if
that data is on a portable device.
(3) Except as provided in subsection (4), each state
agency that is created after [the effective date of this act] shall
complete the requirements of this section within 1 year of its
creation.
(4) The chief information officer provided for in 2-17-
511 may grant an extension to any state agency subject to the
provisions of the Montana Information Technology Act
provided for in Title 2, chapter 17, part 5. The chief information
officer shall inform the information technology board, the
office of budget and program planning, and the legislative
finance committee of all extensions that are granted and of
the rationale for granting the extensions. The chief information
officer shall maintain written documentation that identifies the
terms and conditions of each extension and the rationale for
the extension.
(f) eliminate the unnecessary storage of social security
numbers on portable devices; and
(g) protect data containing social security numbers if
that data is on a portable device.
(3) Except as provided in 2-6-503, each state agency
in existence on October 1, 2009, shall complete the
requirements of this section by September 1, 2012. A state
agency that is created after October 1, 2009, shall complete
the requirements of this section within 1 year of its creation.
2-6-503. Extensions. The chief information officer provided
for in 2-17-511 may grant an extension to any state agency
subject to the provisions of the Montana Information
Technology Act provided for in Title 2, chapter 17, part 5. The
chief information officer shall inform the information
technology board, the office of budget and program planning,
and the legislative finance committee of all extensions that are
granted and of the rationale for granting the extensions. The
chief information officer shall maintain written documentation
that identifies the terms and conditions of each extension and
the rationale for the extension.
Section 27 26. Notification of breach of security of data
system. (1) (a) Upon discovery or notification of a breach of
the security of a data system, a state agency that maintains
computerized data containing personal information in the
data system shall make reasonable efforts to notify any person
whose unencrypted personal information was or is reasonably
believed to have been acquired by an unauthorized person.
(b) The notification must be made without
unreasonable delay, consistent with the legitimate needs of
law enforcement as provided in subsection (3) or with any
measures necessary to determine the scope of the breach and
to restore the reasonable integrity of the data system.
(2) (a) A third party that receives personal information
2-6-504. Notification of breach of security of data system.
(1) (a) Upon discovery or notification of a breach of the
security of a data system, a state agency that maintains
computerized data containing personal information in the
data system shall make reasonable efforts to notify any person
whose unencrypted personal information was or is reasonably
believed to have been acquired by an unauthorized person.
(b) The notification must be made without
unreasonable delay, consistent with the legitimate needs of
law enforcement as provided in subsection (3) or with any
measures necessary to determine the scope of the breach and
to restore the reasonable integrity of the data system.
(2) (a) A third party that receives personal information
Minor changes for style.
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BILL DRAFT LANGUAGE EXISTING STATUTORY LANGUAGE EXPLANATION OF
CHANGES
from a state agency and maintains that information in a
computerized data system to perform a state agency function
shall:
(i) notify the state agency immediately following
discovery of the breach if the personal information is
reasonably believed to have been acquired by an unauthorized
person; and
(ii) make reasonable efforts upon discovery or
notification of a breach to notify any person whose
unencrypted personal information is reasonably believed to
have been acquired by an unauthorized person as part of the
breach. This notification must be provided in the same manner
as the notification required in subsection (1).
(b) A state agency notified of a breach by a third
party has no independent duty to provide notification of the
breach if the third party has provided notification of the
breach in the manner required by subsection (2)(a) but shall
provide notification if the third party fails to do so in a
reasonable time and may recover from the third party its
reasonable costs for providing the notice.
(3) The notification required by this section may be
delayed if a law enforcement agency determines that the
notification will impede a criminal investigation and requests a
delay of notification. The notification required by this section
must be made after the law enforcement agency determines
that the notification will not compromise the investigation.
(4) All state agencies and third parties to whom
personal information is disclosed by a state agency shall
develop and maintain:
(a) an information security policy designed to
safeguard personal information; and
(b) breach notification procedures that provide
reasonable notice to individuals as provided in subsections (1)
and (2).
from a state agency and maintains that information in a
computerized data system in order to perform a state agency
function shall:
(i) notify the state agency immediately following
discovery of the breach of the security of a data system if the
personal information is reasonably believed to have been
acquired by an unauthorized person; and
(ii) make reasonable efforts upon discovery or
notification of a breach of the security of a data system to
notify any person whose unencrypted personal information is
reasonably believed to have been acquired by an unauthorized
person as part of the breach of the security of a data system.
This notification must be provided in the same manner as the
notification required in subsection (1).
(b) A state agency notified of a breach by a third
party has no independent duty to provide notification of the
breach if the third party has provided notification of the
breach in the manner required by subsection (2)(a) but shall
provide notification if the third party fails to do so in a
reasonable time and may recover from the third party its
reasonable costs for providing the notice.
(3) The notification required by this section may be
delayed if a law enforcement agency determines that the
notification will impede a criminal investigation and requests a
delay of notification. The notification required by this section
must be made after the law enforcement agency determines
that the notification will not compromise the investigation.
(4) All state agencies and third parties to whom
personal information is disclosed by a state agency shall
develop and maintain:
(a) an information security policy designed to
safeguard personal information; and
(b) breach notification procedures that provide
reasonable notice to individuals as provided in subsections (1)
and (2).
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Section 28 27. Custody and reproduction of certain
records by secretary of state. (1) The secretary of state is
charged with the custody of:
(a) the enrolled copy of the constitution;
(b) all the acts and resolutions passed by the
legislature;
(c) the journals of the legislature;
(d) the great seal;
(e) all books, records, parchments, maps, and papers
kept or deposited in the secretary of state's office pursuant to
law.
(2) All records included in subsection (1) may be kept
and reproduced in accordance with rules adopted by the
secretary of state in consultation with the state records
committee provided for in [Section 15].
(3) The state records committee may approve the
disposal of original records once those records are reproduced
as provided for in subsection (2), unless disposal takes the
form of transfer of records. Reproduction is not necessary for
transferred records. The reproduction or certified copy of a
record may be used in place of the original for all purposes,
including as evidence in any court or proceeding, and has the
same force and effect as the original record.
(4) The secretary of state shall prepare enlarged typed
or photographic copies of the records whenever their
production is required by law.
(5) At least two copies must be made of all records
reproduced as provided for in subsection (2). The secretary of
state shall place one copy in a fireproof storage place and shall
retain the other copy in the office with suitable equipment for
displaying a record by projection to not less than its original
size and for preparing copies of the record for persons entitled
to copies.
(6) All duplicates of records must be identified and
2-6-111. Custody and reproduction of records by
secretary of state. (1) The secretary of state is charged with
the custody of:
(a) the enrolled copy of the constitution;
(b) all the acts and resolutions passed by the
legislature;
(c) the journals of the legislature;
(d) the great seal;
(e) all books, records, parchments, maps, and papers
kept or deposited in the secretary of state's office pursuant to
law.
(2) All records included in subsection (1) may be kept
and reproduced in accordance with rules adopted by the
secretary of state in consultation with the state records
committee provided for in 2-6-208.
(3) The state records committee created by 2-6-208
may approve the disposal of original records once those
records are reproduced as provided for in subsection (2),
unless disposal takes the form of transfer of records.
Reproduction is not necessary for transferred records. The
reproduction or certified copy of a record may be used in
place of the original for all purposes, including as evidence in
any court or proceeding, and has the same force and effect as
the original record.
(4) The secretary of state shall prepare enlarged typed
or photographic copies of the records whenever their
production is required by law.
(5) At least two copies must be made of all records
reproduced as provided for in subsection (2). The secretary of
state shall place one copy in a fireproof storage place and shall
retain the other copy in the office with suitable equipment for
displaying a record by projection to not less than its original
size and for preparing copies of the record for persons entitled
to copies.
Updates references updated
and recommends recodifying
in Title 2, Chapter 15, Part 4.
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BILL DRAFT LANGUAGE EXISTING STATUTORY LANGUAGE EXPLANATION OF
CHANGES
indexed.
(6) All duplicates of records must be identified and
indexed.
Section 29 28. Filing and copying fees. (1) The secretary of
state shall charge and collect fees for filing and copying
services.
(2) A member of the legislature or state or county
officer may not be charged for any search relative to matters
pertaining to the duties of the member's office or for a
certified copy of any law or resolution passed by the
legislature relative to the member's official duties.
(3) The secretary of state may not charge a fee, other
than as authorized in [section 4], for providing electronic
information.
(4) Fees must be collected in advance and, when
collected by the secretary of state, are not refundable.
(5) Fees authorized by this section must be set and
deposited in accordance with 2-15-405.
2-6-103. Filing and copying fees. (1) The secretary of state
shall charge and collect fees for filing and copying services.
(2) A member of the legislature or state or county
officer may not be charged for any search relative to matters
appertaining to the duties of the member's office or for a
certified copy of any law or resolution passed by the
legislature relative to the member's official duties.
(3) The secretary of state may not charge a fee, other
than the fees authorized in 2-6-110, for providing electronic
information.
(4) Fees must be collected in advance and, when
collected by the secretary of state, are not refundable.
(5) Fees authorized by this section must be set and
deposited in accordance with 2-15-405.
Updates references and
recommends recodifying in
Title 2, Chapter 15, Part 4.
NO SECTION INCLUDED IN BILL DRAFT 2-6-105. Removal of public records. Any record, a transcript
of which is admissible in evidence, must not be removed from
the office where it is kept, except upon the order of a court or
judge in cases where the inspection of the record is shown to
be essential to the just determination of the cause or
proceeding pending or where the court is held in the same
building with such office.
Removes this existing section
because the work group felt it
was outdated and
unnecessary to keep in
statute, is inherent in the legal
hold process, and is
duplicative of civil procedure.
523