School district employees, board members, and even students regularly create and receive vast amounts of documents and other data, much of which is subject to specific rules regarding retention, destruction, and disclosure under various state and federal laws. Therefore, all school districts should develop and implement district-specific record retention procedures, not only to comply with these records laws, but also to ensure that the district is in the best position possible if faced with litigation.
Numerous federal and state laws address maintaining, preserving, and destroying records created by school districts. Federal laws that set forth specific record retention requirements include Title VII of the Civil Rights Act of 1964 ("Title VII"), the Family Medical Leave Act ("FMLA"), the Americans with Disabilities Act ("ADA"), the Age Discrimination Employment Act ("ADEA"), the Individuals with Disabilities Education Act ("IDEA") among others. These federal laws address a multitude of documents school districts create or possess, and sometimes the timeframes set forth in those laws for maintaining and destroying documents conflict with one another. Fortunately, the South Carolina Public Records Act ("PRA") authorizes the State Archives and Records Management Division of the State Department of Archives and History ("SCDAH") to develop and publish records retention schedules for various governmental entities, including school districts. The General Records Retention Schedules for School District Records set forth timeframes for maintenance and destruction of documents that meet or exceed federal requirements. Generally, compliance with the SCDAH schedules will ensure that districts are retaining pertinent documents for the requisite periods of time, without forcing districts to research and interpret the aforementioned federal laws. Therefore, districts should carefully consider these schedules when creating a records retention policy or procedures. The SCDAH records retention schedule may be accessed at http://rm.sc.gov/generalschedules/Documents/genskedskldist.pdf.
Both the PRA and the South Carolina Freedom of Information Act ("FOIA") define public records in the same way as "all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials regardless of the physical form or characteristics, prepared, owned, used, in the possession of, or retained by a public body." As such, electronic records, such as emails, are encompassed in the definition of public records and should be retained. However, there is no single retention period applicable to email correspondence. Instead, emails should be categorized by the content of the email and retained according to the schedule for that category of record. For example, if a principal emails the director of human resources about the results of a teacher's ADEPT evaluation, that email would be considered part of the teacher's personnel file and should be retained in accordance with those retention schedules. Many emails sent to and from school district employees, however, would be considered general housekeeping files and may be destroyed as soon as they are no longer needed for reference. The SCDAH recommends that districts print out and file emails that would have been retained by the sender or recipient if they had been received in hardcopy form and that they be kept in the same file or location where the hardcopy version would have been maintained. Districts should also review with their IT departments the system for storing e-mails and other electronic documents.
In addition to record retention requirements, districts must comply with FOIA, which governs disclosure of various types of documents to members of the press and the public, and the IDEA and Family Educational Rights and Privacy Act ("FERPA"), which provide parents a right to access their child's educational records. Districts have 15 work days to respond to a FOIA request and are subject to suit if they do not respond to a FOIA request within that timeframe. Similarly, parents may request access to their child's educational records under FERPA, which records must be provided within 45 days or sooner in certain circumstances. Accordingly, parents and community members who request information under these disclosure laws can easily ascertain whether a district has complied with its record-keeping requirements. If a district fails to produce a document that should have been retained under federal or state law, not only has the district failed to comply with legal requirements, but the public may believe that the district is not acting transparently or in good faith. The impression that a district is withholding information can be detrimental to a district's image and reputation.
Districts also may be asked to produce documents as part of litigation through the discovery process. Once a district has reason to believe a suit may be filed or has been notified of a potential legal claim, the district has a duty not just to identify all records relevant to that matter, but also to preserve those records beyond the normal retention periods. All involved employees must be notified immediately of a "litigation hold" and should be informed as to what documents should be preserved and in what fashion. If a district fails to produce information that should be available, the district may be subject to court sanctions. More specific information on litigation holds can be found in the March 2011 DWT issue of the month at http://www.dwtlawfirm.com/news/25-ediscovery.html.
Separate and apart from any legal duty to retain records under state or federal law, certain other records should be retained by districts to ensure documents relevant to litigation or other legal proceedings (such as special education due process hearings and state complaints, Office for Civil Rights complaints, and Equal Employment Opportunity Commission investigations) can be referenced or produced. Past experience shows that the following documents are frequently requested in those matters and, therefore, best practice is to ensure that a copy is maintained for several years, even in the absence of a mandatory retention schedule:
It is important that districts establish records retention procedures and consistently implement those procedures through the proper education of employees to meet their legal obligations and the expectations of the community. Should you have any questions about records retention and maintenance in general, need to adopt or revise district procedures related to records retention, or need assistance with training district staff, please feel free to contact us.