Amendment to the Local Records Act Can Result in a Class 4 Felony
september 8, 2014
On January 1, 2015, a new provision of the Local Records Act goes into effect. The existing Act states that "all public records made or received by, or under the authority of, or coming into the custody, control or possession of any officer or agency shall not be mutilated, destroyed, transferred, removed or otherwise damaged or disposed of, in whole or in part, except as provided by law. Public Act 89-272 adds "Any person who knowingly, without lawful authority and with the intent to defraud any party, public officer, or entity, alters, destroys, defaces, removes or conceals any public record commits a Class 4 felony." The punishment for a Class 4 felony is between 1 and 3 years in prison (730 ILCS 5/5-4.5-45(a)) and fines between $25,000 for individuals to $50,000 for corporations (730 ILCS 5/5-4.5-50(b)).
Public entities must submit an Application for Authority to Dispose of Local Records to the Illinois State Archives prior to the destruction of any record. A representative from the State Archive will assist you with conducting an inventory of your records and submitting the Application. Once the State approves the application, the approved application serves as your official Record Retention Schedule. Once the minimum retention period listed on the retention schedule expires, you may again work with representative from the State Archive to prepare a Local Records Disposal Certificate requesting the authority to destroy records.
While most public entities are familiar with the Local Records Act and statutory procedure to destroy records, the most challenging aspect of the Act can be what constitutes a record in the first place. Email? Text message to/from a cell phone paid for by a public body? Memos where each board members is included? What about a carbon copy or an email sent to your personal account? What if you have ten copies of a bid package, are you required to keep all ten?
For questions about what constitutes a "record" under the Local Records Act, guidance on managing electronic records or for direction on the application process, contact any of the Heyl Royster governmental attorneys.