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Be Cautious Before Disposing of a Public Record


February 12, 2014 by Paul Sullivan
Category: Public Records Act

Be Cautious Before Disposing of a Public Record

Recently, a former city official entered a plea for “injuring public records.” Accepting the plea, the judge stated “You will likely never be a city manager again.” What’s that all about?

A state statute, RCW 40.16.020, prohibits municipal and other public officers from mutilating, destroying, concealing, or falsifying any record or paper relating to the officer’s office. Violation of the statute is a felony and can result in extremely serious penalties: imprisonment for not more than ten years, a fine of not more than $5,000, or both a fine and imprisonment. In addition, if the person is an elected official, conviction of a felony vacates his or her office. RCW 42.12.010(5). But wait, there’s even more: RCW 9.92.120 provides:

The conviction of a public officer of any felony or malfeasance in office shall entail, in addition to such other penalty as may be imposed, the forfeiture of his or her office, and shall disqualify him or her from ever afterward holding any public office in this state.


(Emphasis added.) This section disqualifies the person from any governmental office - elective and appointive - forever.

Another statute, RCW 40.16.010, makes it a felony for any person, not just officers, to “willfully and unlawfully remove, alter, mutilate, destroy, conceal, or obliterate a record, map, book, paper, document, or other thing filed or deposited in a public office, or with any public officer.”

I don’t want to unnecessarily scare anyone. If you toss your personal copy of a meeting agenda after a council or commission meeting, the statute would not be implicated, as the copy would be considered a secondary copy that could be disposed of when it is no longer needed. If a record is destroyed after its retention period has expired, there would be no violation. Or, if a record is inadvertently destroyed or damaged, it is unlikely that a criminal charge would be filed, since there would have been no criminal intent involved. But, the purposeful destruction of records that should otherwise be retained could result in serious consequences.

Given the potential dire consequences associated with the improper destruction of a record, before you hit “delete all” on your computer, or shred a paper document, whether it be at the end of the day or when you leave office, be sure that it is all right to do so. Is the original still on file? Has the retention period run? If you are not sure, ask. Your agency’s records officer, or legal counsel, or MRSC can help.  It’s better - far better - to be sure in advance rather than later being fined, jailed, or told “you’ll never be an official again”

 Think before you shred. Courtesy of recycleharmony.

About Paul Sullivan

Paul has worked with local governments since 1974 and has authored MRSC publications on local elections, ordinances, and general local government operation. He also provides training on the Open Public Meetings Act.

VIEW ALL POSTS BY Paul Sullivan

Comments

"I am not entirely sure, although I believe it dealt with the use of bond funds. (I believe that there were more than one document involved.)"

Paul Sullivan on Feb 26, 2014 1:34 PM

"What kind of record was it?"

Jeff Cox on Feb 26, 2014 12:21 PM

"Thank you for your link to the retention schedules and Helpdesk. They are helpful additions."

Paul Sullivan on Feb 24, 2014 10:02 AM

"The records retention schedules for agencies of local government can be found at http://www.sos.wa.gov/archives/RecordsRetentionSchedules.aspx. Agencies can also contact Washington State Archives' Records Management Helpdesk (recordsmanagement@sos.wa.gov) with any questions."

Scott Sackett on Feb 21, 2014 4:36 PM

"The case was resolved in an Alford plea; it never went to trial and, as far as I know, the issue you raise was not discussed."

Paul Sullivan on Feb 18, 2014 10:49 AM

"The case did not involve Langley and it was a case of a destroyed record, not an altered one."

Paul Sullivan on Feb 18, 2014 10:48 AM

"If this involves the Langley (Whidbey Island) case, the official did not get rid of a record. Rather, he altered it to benefit a relative (i.e. he falsified it). Inadvertent or unthinking disposal is one thing, fraud is another."

Steve Erickson on Feb 14, 2014 8:44 PM

"Paul, I agree that it's wise to be careful about getting rid of records - especially by following the State Archivist's schedules. I advise keeping most records if they can be indexed and readily retrievable because we may want them to defend future civil suits. However, this statute appears to have a major flaw because it doesn't specifically define local government as being covered.by it. The same is true with the powers of the State Archivist. Since this is a criminal statute, lack of clarity would work in favor of a potential defendant. Was this issue addressed in the recent case you are discussing?"

Craig Ritchie on Feb 13, 2014 7:24 AM

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