Must city councils and other local public bodies keep electronic recordings of meetings once the written minutes are completed?
Question from the public: I recently requested copies of electronic recordings of a committee subject to the Oklahoma Open Meeting Act. The city attorney said the electronic copies don’t exist because the secretary disposed of the recordings after using them to write the meeting minutes. Is the public body required to keep the recordings? I believe Fabin v State (2004 OK 67) covers this very thing.
Unfortunately, state law doesn’t appear to require local public bodies to keep electronic recordings of public meetings after the written minutes are created.
However, no state statute requires that the city destroy (or reuse) the recordings. In other words, no state statute prohibits the city from keeping the recordings.
Therefore, this is a policy question. It best serves the public in a democracy to retain the recordings for a certain number of years. Seek an on-the-record explanation from the elected city officials as to why the electronic recordings of all public meetings are not retained. Perhaps they would decide that future recordings should be kept. If they don’t, this could be an issue for the next municipal elections.
State law does require that the city establish a schedule regarding the retention and destruction of records. What is the city’s retention schedule for records?
Fabian is not necessarily applicable because it concerned the records of state government, not a local government.
At issue in Fabian was whether the Department of Public Safety was required to retain electronic recording of administrative hearings concerning revocation of drivers' licenses. (Fabian & Associates v. State ex rel. Dept. of Public Safety, 2004 OK 67)
The court did not prohibit DPS from ever destroying the tape recordings but said it could do so only “in accordance with The Records Management Act.” (Id. at ¶19)
So we should look to The Records Management Act and to interpretations of the statute for guidance.
The Attorney General’s Office has noted, "The Records Management Act does not apply directly to local governments.” (2002 OK AG 13 ¶5) (see also 2009 OK AG 12, 2001 OK AG 46)
The state statute explicitly differentiates between the records held by the state and those held by local governments. (OKLA. STAT. tit. 67, § 203)
The statute requires the governing body of each county, city, town, village, township, district and authority to, “as far as practical, follow the program, established for the management of state records.” (Id. at § 207)
In at least two formal opinions, the state attorney general has said that under the statute, “political subdivisions are mandated by the Legislature to maintain a records management program, and, ‘as far as practical,’ utilize the program established by the Records Management Act, with the assistance of the Administrator.” (2002 OK AG 13, ¶7) (see also 2001 OK AG 46)
In other words, the attorney general has said, local governments “are not exempt from records management and must use the State Records Management Act as a model to the extent practical.” (2002 OK AG 13, ¶3)
“Such a schedule would determine the amount of time the records must be kept, and in what form. What constitutes ‘as far as practical’ is a question of fact beyond the scope of an Attorney General Opinion. Likewise, the length of time to keep a particular record hinges on the nature of the specific record, which also constitutes a question of fact beyond the scope of an Attorney General Opinion,” the attorney general said in 2005. (Id. ¶8)
Based on the statutory language and the attorney general opinions, the city would not be required to keep its recordings of public meetings once the written minutes are created.
I welcome explanations to the contrary.
Joey Senat, Ph.D.
OSU School of Journalism