Public records preservation rarely makes headlines. For most it seems a pretty dry topic.

Until, that is, public officials improperly destroy—or are erroneously accused of improperly destroying—public records.

The last widely known incident in Kentucky occurred in 2014 when a Legislative Research Commission director shredded records relating to sexual harassment investigations the weekend after he submitted his resignation.

https://wfpl.org/kentucky-state-police-find-no-misconduct-lrc-director-…

But two major public records preservation stories made headlines last week—one state and one national.

The much more heavily reported of the two involved Speaker of the House, Nancy Pelosi, and whether she violated federal law when she ripped apart her copy of the President's State of the Union address at the conclusion of his remarks.

https://fox8.com/2020/02/07/trump-says-pelosi-broke-the-law-by-tearing-…

Though some remain unconvinced, the simple answer is "No, she did not." Whatever detractors may think of her actions, she violated no laws.

A long list of experts, including Kentucky's own Barbara Teague—former director of the Archives and Records Management Division of the Department for Libraries and Archives—agree that destruction of one of several copies of a record—and not the "record copy" for purposes of preservation—does not violate the law.

A "record copy" is "the copy of a document that is designated for official retention in the files of the administrative unit that is principally responsible for production."

Pelosi's copy of the State of the Union address was not the "record copy" of the address. It was, instead, one of many copies.

Responding to inquiries late last week, the National Archives and Records Administration laid to rest any doubt, stating:

"The National Archives and Records Administration (NARA) preserves and provides access to the permanent records of Federal Agencies and the President in accordance with laws and regulations that govern the disposition of those records. Although NARA also holds the historical records of the House and Senate, those records remain the legal property of the respective Chambers. The rules governing those records are not determined by federal laws or overseen by NARA, but rather by each Chamber's agreed upon rules. While NARA does not have information about the record status of Speaker Pelosi's copy of the speech, NARA will receive the President's version for preservation as a permanent record in accordance with the Presidential Records Act."

This should, but probably won't, resolve the issue.

A far less well known, but more important, story emerged just to our south one week ago today.

The Chattanooga Times Free Press reported that Hamilton County, Tennessee officials destroyed some 1400 pages of public records that were the subject of a pending open records dispute between the newspaper and the county.

https://www.timesfreepress.com/news/local/story/2020/feb/01/hamiltcount…

In the six months that elapsed after the Free Press submitted its open records request, and while discussions about the reasonableness of fees for responsive records were underway, county officials destroyed the records.

Ironically, the records which the Free Press sought consisted of open records requests to the county attorney, and his responses. The request was prompted by the county attorney's assertion that "If it comes into [the county attorney's] office, it's privileged. Our stuff is off limits."

Not surprisingly, the newspaper and the Tennessee Coalition for Open Government reacted harshly, and efforts are underway to legislatively address this problem.

https://www.commercialappeal.com/story/opinion/2020/02/04/removal-hamil…

One thing is very clear. This better not happen in Kentucky.

Our laws expressly recognize an "essential relationship" between the statutes and regulations governing preservation and management of Kentucky's public records and open records statutes and regulations.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23059

Kentucky's regulation makes abundantly clear that "although records retention schedules—established by the State Libraries, Archives, and Records Commission under Chapter 171 of the KRS—set minimum retention periods for public records and authorize destruction of eligible records, "a public agency *must not destroy* records that are the subject of a current or pending Open Records request or an administrative or judicial appeal of an Open Records decision."

https://kdla.ky.gov/records/Documents/Destruction%20Guidelines.pdf

https://apps.legislature.ky.gov/law/kar/725/001/030.pdf

Under Kentucky's state records general schedule, open records requests and responses must be retained by a state agency for three years. Under the local schedule, they must be retained by a local agency one year.

But all bets are off if the requests and responses are the subject of a pending records access dispute.

The records are deemed "frozen" records. This means that—even if "scheduled for routine destruction"—they must be "preserved because they may be needed as evidence in litigation, investigation, audit, merger, or other special circumstance," including a pending open records request.

If, as in Hamilton County Tennessee, a Kentucky official willfully conceals or destroys a public record with intent to violate the open records law, the official "shall be guilty of a Class A misdemeanor for each separate violation."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23117

Additionally, a person who, "knowing he lacks the authority to do so, intentionally destroys, mutilates, conceals, removes, or otherwise impairs the availability of any public records" is guilty of Tampering with a Public Record, a Class D felony.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=19864

There is a far greater likelihood of recurrence of this state controversy than the national controversy that garnered so much attention last week. But both teach important lessons about the essential relationship between public records preservation and records access.

And both prove that records preservation and management is anything but dry and esoteric.