An Act To Amend the Archives and Records Management Law
Maine Legislature, Session 129, LD 0521
Committee: State and Local Government
Sponsors: JORGENSEN, DAVIS, BRADSTREET, FARNSWORTH, GATTINE, HANDY, HANINGTON, MARTIN, MASTRACCIO
Amends: 5 MRSA §92, 5 MRSA §92-A, 5 MRSA §94, 5 MRSA §95, 5 MRSA §95-B, 5 MRSA §95-C, 5 MRSA §96, 5 MRSA §97, 5 MRSA §98

Legislative Document
No. 521
H.P. 378
House of Representatives, January 31, 2019
An Act To Amend the Archives and Records Management Law
Submitted by the Secretary of State pursuant to Joint Rule 204.
Reference to the Committee on State and Local Government suggested and ordered printed.
ROBERT B. HUNT
Clerk
Presented by Representative JORGENSEN of Portland.
Cosponsored by Senator DAVIS of Piscataquis and
Representatives: BRADSTREET of Vassalboro, FARNSWORTH of Portland, GATTINE of 
Westbrook, HANDY of Lewiston, HANINGTON of Lincoln, MARTIN of Sinclair, 
MASTRACCIO of Sanford, McCREA of Fort Fairfield.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  5 MRSA §92, as amended by PL 1997, c. 636, §1, is further amended by 
adding at the end a new paragraph to read:
It is also the policy of the State to ensure that operational, nonpermanent records of 
agencies are preserved for the time required by approved records retention schedules 
established pursuant to section 95-C, subsection 2, paragraph A, subparagraph (3) to meet 
administrative use, legal, fiscal and audit requirements and to ensure compliance with 
requests for public records under the Freedom of Access Act.
Sec. 2.  5 MRSA §92-A, sub-§2, as amended by PL 1997, c. 636, §2, is further 
amended to read:
2.  Archives.  "Archives" means government records that have been determined by 
the State Archivist, with advice from the Archives Advisory Board, to have sufficient 
value to warrant their continued preservation and that are in the physical and legal 
custody of the Maine State Archives.
Sec. 3.  5 MRSA §92-A, sub-§4, as amended by PL 1995, c. 148, §4 and PL 2003, 
c. 20, Pt. OO, §2 and affected by §4, is further amended to read:
4.  State agency or agency.  "State agency" or "agency" means any unit of State 
Government or local government, including any state board or commission, except the 
Legislature and its committees and subcommittees, and the Judicial Department, judicial 
branch but not including the University of Maine System, the Maine Community College 
System and the Maine Maritime Academy.
Sec. 4.  5 MRSA §92-A, sub-§6, as enacted by PL 1997, c. 636, §4, is amended to 
read:
6.  Electronic record.  "Electronic record" means a record whose content is not 
readable unless retrieved by means of an electronic device such as a computer or an audio 
or video player.  An electronic record can be in a structured database or an individual file.
Sec. 5.  5 MRSA §92-A, sub-§7 is enacted to read:
7.  Records retention schedule.  "Records retention schedule" means a policy 
document that defines the minimum time a record must be retained and contains 
disposition instructions on how the record must be handled when no longer needed for 
agency business.
Sec. 6.  5 MRSA §94, as amended by PL 1989, c. 716, is further amended to read:
§94.  Maine State Archives
The office of the State Archivist is a bureau within the Department of the Secretary of 
State and consists of at least 2 organizational units as the State Archivist and the 
Secretary of State determine best suited to the accomplishment of the functions and 
purposes of this chapter.  One organizational unit consists of the State Archivist and 
immediate support staff archives services and one organizational unit consists of records 
management. The office is known as the Maine State Archives. The State Archivist is the 
official custodian of the archival resources of the State and has, upon consent of the 
Secretary of State, the duties and powers established under section 95-C governing the 
creation, use, maintenance, retention, preservation and disposal of agency records.
Sec. 7.  5 MRSA §95, as amended by PL 2009, c. 509, §§2 to 4, is repealed.
Sec. 8.  5 MRSA §95-B, sub-§2, as amended by PL 2001, c. 704, §1, is further 
amended to read:
2.  Safe or vault for preservation.  Each local government shall provide a fireproof 
safe or vault for the preservation of all records that must be retained permanently but are 
not required for business purposes.  The official having responsibility for those records 
shall deposit them in the safe or vault where those records must be kept except when 
required for use.  Beginning in 2002, each local government shall respond to a survey 
distributed biennially by the State Archivist requesting:
A.  A description of the fireproof safe or vault required by this section;
B.  A statement of the adequacy of the safe or vault for the preservation of records 
that must be retained permanently; and
C.  A plan, if any, for the establishment or enhancement of a safe or vault to comply 
with the requirements of this section.
The State Archivist shall report the results of the survey, with recommendations, to the 
joint standing committees of the Legislature having jurisdiction over education and 
cultural affairs and over state and local government matters.
Sec. 9.  5 MRSA §95-B, sub-§2-A, as enacted by PL 2001, c. 704, §2, is repealed.
Sec. 10.  5 MRSA §95-B, sub-§§7 and 8, as enacted by PL 1995, c. 148, §10, are 
amended to read:
7.  Disposition of records.  Records may not be destroyed or otherwise disposed of 
by any local government official, except as provided by the Archives Advisory Board 
records retention schedule established by the State Archivist pursuant to section 95-C, 
subsection 2, paragraph A, subparagraph (3).  Records that have been determined by the 
board to possess sufficient archival value must be preserved by the municipality or 
deposited with the State Archivist.
8.  Rules adopted by State Archivist.  Each local government official shall comply 
with the standards, procedures and regulations issued rules adopted by the Archives 
Advisory Board State Archivist.
Sec. 11.  5 MRSA §95-C is enacted to read:
§95-C.  Powers and duties
1.  Archives services.  The State Archivist has, upon consent of the Secretary of 
State, the following duties and powers regarding archives services:
A.  To administer the office of the State Archivist. In exercising the administration of 
the office, the State Archivist shall formulate policies, establish organizational and 
operational procedures and exercise general supervision. The State Archivist shall 
employ, with the approval of the Secretary of State, and subject to the Civil Service 
Law, such assistants as are necessary to carry out this chapter. The State Archivist 
shall adopt a seal for use in the official business of the office. The State Archivist has 
custody and control of the facilities provided for the administration of this chapter;
B.  To have the right of reasonable access to and examination of all state and local 
government records in the State;
C.  To adopt such rules as are necessary to effectuate the purposes of this chapter. No 
restrictions or limitations may be imposed on the use of records that are defined by 
law as state and local government records or as records open to public inspection, 
unless necessary to protect and preserve them from deterioration, mutilation, loss or 
destruction. Restrictions or limitations imposed by law on the examination and use of 
records transferred to the archives under subsection 2, paragraph A, subparagraph (3) 
remain in effect until the records have been in existence for 75 years unless removed 
or relaxed by the State Archivist with the concurrence in writing of the head of the 
agency from which the records were transferred or the successor in function, if any. 
The State Archivist shall adopt rules governing the transfer of records from the 
custody of one agency to that of another subject to any applicable provision of law.  
Rules adopted pursuant to this paragraph are routine technical rules as described in 
chapter 375, subchapter 2-A;
D.  To accept gifts, bequests and endowments for purposes consistent with the 
objectives of this chapter. The Treasurer of State shall invest such funds if given as 
an endowment in securities according to the laws governing the investment of trust 
funds. All gifts, bequests and proceeds of invested endowment funds must be used 
solely to carry out the purposes for which they were made;
E.  To publish archival material, reports, bulletins and other publications that promote 
the objectives of this chapter. The State Archivist shall establish the price at which 
publications, photocopies and photoduplication services may be sold and delivered. 
The income received under this paragraph and paragraph M must be credited to a 
special revenue account.  Amounts in the account must be carried forward and 
expended by the agency for these purposes;
F.  To report biennially to the Governor and Legislature facts and recommendations 
related to the work and needs of the office of the State Archivist;
G.  To authorize and receive confirmation of the destruction of the state records of a 
state agency that, in the opinion of the head of the agency, are no longer of value to 
the state agency and that, in the opinion of the State Archivist, with advice from the 
Archives Advisory Board, have no archival value to the State;
H.  To receive all agency records transferred to the Maine State Archives under 
subsection 2 and to negotiate for the transfer of official records that in the opinion of 
the State Archivist, with advice from the Archives Advisory Board, have archival 
value from the custody of any public official. The State Archivist shall charge a fee 
sufficient to cover the cost of receiving and processing all transfers from the custody 
of any public official not governed by subsection 2. The fees collected must be 
deposited in the General Fund. Any public official in the State is authorized to turn 
over to the State Archivist those official records legally in that public official's 
custody that are not needed for the transaction of the business of that office whenever 
the State Archivist is willing and able to receive them. Whenever such a transfer is 
made, the State Archivist shall transmit to the office from which the records are 
transferred a memorandum in which the records are described in terms sufficient to 
identify them.  The memorandum must be preserved in the transferring office. Unless 
otherwise directed by law, the state records of any public office, commission or 
committee in the State must, upon the termination of its existence or functions, be 
transferred to the custody of the State Archivist;
I.  To preserve the records of the Secretary of State to the extent the Secretary of 
State determines desirable under the Constitution of Maine and the rules of the State 
Archivist adopted pursuant to paragraph C;
J.  To establish such standards concerning the establishment, maintenance and 
operation of state or local government administered electronic records as are 
necessary to ensure the preservation of adequate and permanent records of the 
organization, functions, policies, procedures, decisions and essential transactions of 
agencies;
K.  To receive legislative records. The Secretary of the Senate and the Clerk of the 
House of Representatives shall obtain the noncurrent records of the Legislature and 
of each legislative committee at the close of each Legislature and transfer them to the 
Maine State Archives for preservation, subject to the orders of the Senate or the 
House of Representatives, respectively, and subject to schedules established in 
consultation with the Executive Director of the Legislative Council;
L.  To make archival material under the State Archivist's supervision available for 
public use at reasonable times. The State Archivist shall carefully protect and 
preserve the materials from deterioration, mutilation, loss or destruction. State 
records maintained by the State Archivist that contain information related to the 
identity of a patron of the Maine State Archives relative to the patron's use of 
materials at the Maine State Archives are confidential; those state records and the 
information contained in them may be released only with the express written consent 
of the patron involved or as a result of a court order;
M.  To furnish copies of archival material upon the request of any person on payment 
in advance of such fees as may be required. Copies of agency records transferred 
pursuant to law from the office of their origin to the custody of the State Archivist, if 
certified by the State Archivist, under the seal of that office, have the same legal force 
and effect as if certified by their original custodian. A facsimile of the signature of 
the State Archivist imprinted by or at the direction of the State Archivist upon any 
certificate issued by the State Archivist has the same validity as the written signature 
of the State Archivist;
N.  To provide centralized photoduplication and records preservation services for 
agencies to the extent the State Archivist determines advisable in the administration 
of the programs under subsection 2 and facilities under paragraph A. The services 
must be furnished to agencies at cost.
Fees collected under this paragraph must be deposited in the General Fund; and
O.  To prepare a detailed explanation of what constitutes a record pursuant to section 
92-A, subsection 5 and records belonging to the State or to a local government or any 
agency of the State pursuant to section 95-A, subsection 1. The State Archivist shall 
include in the explanation practical examples of such records in plain language. Upon 
request, the State Archivist shall provide the explanation to an interested party at no 
cost to the interested party and shall post the explanation on a publicly accessible 
website.
2.  Records management.  The following provisions govern records management.
A.  The State Archivist shall, upon consent of the Secretary of State, establish and 
administer for all state agencies an active, continuing program for the economical and 
efficient management of agency records and for the proper disposition of government 
records. The State Archivist shall, with due regard for the functions of the agencies 
concerned:
(1)  Provide policies, procedures, standards and techniques for effective 
management of state and local government records in the conduct of business;
(2)  Recommend improvements in records management practices for electronic 
records, including the use of electronic records management systems, and for 
physical records, including the use of space, equipment and supplies employed in 
creating, maintaining, storing and servicing state and local government records;
(3)  Establish records retention schedules, in consultation with the heads of 
agencies and their records officers appointed pursuant to paragraph B.  The 
records retention schedules must define the period of time for which each agency 
must retain records based on the following 4 criteria:
(a)  Administrative use;
(b)  Legal requirements;
(c)  Fiscal and audit requirements; and
(d)  Historical and research value.
A state agency shall retain records of value, and transfer custody to the Maine 
State Archives, or dispose, as provided by the records retention schedule, of 
records no longer possessing sufficient administrative, legal or fiscal value to 
warrant their further keeping for business purposes; and
(4)  Obtain such reports from state agencies as are required for the administration 
of the program, including a biennial assessment of agency records management 
programs and currency of agency record schedules, in compliance with policies, 
procedures and standards set by the Maine State Archives.
B.  The head of each state agency shall establish and maintain an active, continuing 
program for the economical and efficient management of records in compliance with 
the standards, procedures and regulations issued by the State Archivist.  The head of 
each state agency shall appoint a records officer and the head of each large state 
agency shall appoint a records officer assistant.  The head of each state agency, 
through that agency's records officer, shall enable and ensure the transfer to the 
Maine State Archives of those records that, in the opinion of the State Archivist, with 
advice from the Archives Advisory Board, have archival value.
Sec. 12.  5 MRSA §96, as amended by PL 1989, c. 503, Pt. B, §9, is repealed and 
the following enacted in its place:
§96.  Archives Advisory Board
1.  Established.  The Archives Advisory Board, established by section 12004-I, 
subsection 8, shall serve to advise the State Archivist in administration of this chapter and 
to perform such other duties as may be prescribed by law.
2.  Members.  The Archives Advisory Board consists of 9 voting members with 
expertise in the administrative, fiscal, legal and historical value of records.  Voting 
members of the board must represent the spectrum of records in the State and are 
appointed by the Secretary of State as follows:
A.  Two public members representing the interests of public access to government 
records, recommended by a public interest group;
B.  Two members from municipal or county government with expertise in local 
government records, recommended by local or county government entities;
C.  One member representing a state or local historical society, recommended by a 
state or local historical society;
D.  One member with expertise in the legal requirements of records retention and 
public records law, recommended by the Attorney General;
E.  One member with expertise in the State's fiscal requirements of records retention, 
recommended by the Governor;
F.  One member from the executive branch with expertise in executive branch 
records, recommended by the Governor; and
G.  One member from the Department of Administrative and Financial Services, 
Office of Information Technology with expertise in electronic records, electronic 
records management systems and emerging technology related to electronic records, 
recommended by the Governor.
The State Archivist serves as a nonvoting member.
3.  Terms; chair; compensation.  The voting members under subsection 2 serve a 
3-year term and continue serving until either reappointed or replaced.  In case of the 
termination of a member's service during that member's term, the Secretary of State shall 
appoint a successor for the unexpired term.  The voting members shall elect a chair. 
Voting members must be compensated as provided in chapter 379.
Sec. 13.  5 MRSA §97, as repealed and replaced by PL 1977, c. 696, §33, is 
amended to read:
§97.  Violation
Violation of any provision of this chapter or any rules and regulations issued adopted 
under section 95 95-C, subsection 3 1, paragraph C, except those violations for which 
specific penalties are provided, is a Class E crime.
Sec. 14.  5 MRSA §98, sub-§1, ¶¶D and E, as enacted by PL 2001, c. 704, §3, 
are amended to read:
D.  Work cooperatively with other state historical records advisory boards, especially 
those in New England; and
E.  Report biennially to the joint standing committees committee of the Legislature 
having jurisdiction over education and cultural affairs and over state and local 
government matters on the board's activities and on the condition of historical records 
in the State; and.
Sec. 15.  5 MRSA §98, sub-§1, ¶F, as enacted by PL 2001, c. 704, §3, is 
repealed.
Sec. 16.  5 MRSA §98, sub-§2, as enacted by PL 2001, c. 704, §3, is amended to 
read:
2.  Authority.  In order to carry out its mission, the board may make expenditures in 
accordance with the following:
A.  Beginning with the 2004-2005 biennium, the Governor shall include in the budget 
submitted to the Legislature each biennium a line item to allow the expenditure by 
the board of any non-General Fund revenues received by the board, including federal 
funds, grants or gifts; and.
B.  Beginning with the 2004-2005 biennium, the Governor shall include in the budget 
submitted to the Legislature each biennium a line item to allow the expenditure by 
the board of any non-General Fund revenues received by the board to fund a full-time 
position.
SUMMARY
This bill makes the following changes to the archives and records management laws:
1.  Adds language to specify that it is the policy of the State to ensure that 
nonpermanent records are preserved for the time required by an approved records 
retention schedule;
2.  Removes the University of Maine System, the Maine Community College System 
and the Maine Maritime Academy from the definition of "state agency" for purposes of 
the Archives and Records Management Law;
3.  Adds language to include the advice from the Archives Advisory Board in the 
State Archivist's consideration of what constitutes an archival record, to change the 
definition of "state agency" or "agency" to include all government agencies that transmit 
records to the Maine State Archives and to change the definition of "electronic records";
4.  Adds language to specify the 2nd organizational unit within the Maine State 
Archives is records management and adds language to the Maine Revised Statutes, Title 
5, section 94 that was stricken from Title 5, section 95 regarding powers and duties of the 
State Archivist;
5.  Changes the laws governing the State Archivist to reflect the 2 organizational 
units of the Maine State Archives: archives services and records management.  It adds 
language to strengthen the records management practices for all state and local 
government agencies by using 4 criteria in the development of a guiding records retention 
schedule: administrative use, legal requirements, fiscal and audit requirements and 
historical and research value;
6.  Specifies when local government records may be destroyed;
7.  Repeals and replaces the laws governing the Archives Advisory Board to change 
the expertise required of members, to provide that members are appointed by the 
Secretary of State and to provide 3-year terms for members; and
8.  Removes the requirement that the Maine Historical Records Advisory Board 
report to the joint standing committee of the Legislature having jurisdiction over 
education and cultural affairs but retains the requirement that the board report to the joint 
standing committee of the Legislature having jurisdiction over state and local government 
matters, which is the committee of oversight for the Maine State Archives.  It also 
removes a reference to funding a full-time position that was eliminated in Public Law 
2015, chapter 480.