Arkansas Secretary of State Mark Martin sought to find out whether he had the legal authority to dispose of decades-old election records, before Attorney General Leslie Rutledge advised him Thursday that such action is legal but requires "discretion."
Rutledge, who issues public responses to legal questions from public officials, released an opinion Thursday to Martin, who had asked if he was allowed to destroy certain election records after a period of time, and if not, whether his office has the authority to digitize or transfer the records to another agency.
Martin's request referred to records dating back more than 20 years and mentioned statements of financial interest; candidate filing information; oaths from election commissioners and elected officials; party and candidate petitions; and lobbyist disclosure reports.
Asked about the inquiry Thursday, Chris Powell, a spokesman for Martin's office, described it as "more of a records retention request; we're not trying to destroy records."
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He provided a copy of a 1994 opinion by then-Attorney General Winston Bryant to a similar request about record retention made by then-Secretary of State W.J. "Bill" McCuen. Powell said Martin's office did not want to rely on the 22-year-old legal analysis.
Powell responded to a Freedom of Information Act request for the records by saying, "You'd probably need a few trucks."
Powell showed a reporter an annex room tucked down hallways connected to the Elections Division Library in the Capitol basement. Inside the room, dozens of boxes labeled with elections dating backed to the 1990s were stacked on filing racks nearly to the ceiling around a cluster of old office chairs and a cardboard map of Arkansas' 75 counties.
Peyton Murphy, the assistant director of the Elections Division, said hundreds of boxes like the ones in the annex room were stored "in every nook and cranny" around the secretary of state's offices, some of which are in the basement.
Certain records, such as statewide election results, are kept indefinitely, Murphy said.
State law generally does not require constitutional officers -- such as the secretary of state, the attorney general or the governor -- to retain records for a specific period of time. However, some specific records not mentioned in Martin's inquiry may have their own retention requirements, according to Rutledge.
"So long as you exercise your discretion reasonably and for a legitimate governmental purpose, the time period after which you can discard old records is left to your discretion," Rutledge wrote in her opinion.
She noted that while her interpretation extends only to state law, federal law could protect some records from destruction.
Other state agencies are required to retain records that are common throughout state government, such a correspondence, legal and financial records, said state archives Director Lisa Speer.
Unlike most other states, Speer said, Arkansas' retention program is administered by the Department of Finance and Administration. The Arkansas History Commission and state archives offer advice to agencies on whether to keep records, and can accept records that have been properly organized into files.
Seeking to increase the number of state agencies working in collaboration with the History Commission, Gov. Asa Hutchinson issued a statewide government memo in February that ordered agencies to begin archiving historical documents with the commission and that pegged the rate at that time to be about 13 percent.
"In an effort to mitigate the continued loss of the state's official history through destruction, neglect, or other circumstances, I hereby direct all directors of state offices, departments, and agencies to assist the Commission in its effort to preserve historical documents and turn over to the Commission any historical documents that are not currently in use," Hutchinson wrote in the memo.
According to Speer, Martin as well as previous secretaries of state has made efforts to turn over older records to the state archives. In June, Martin sent 42 cubic feet of records containing data on campaign contributions and expenditures to the archives, Speer said.
Martin's office again contacted the archives about turning over records several weeks ago, Speer said, though she was unable to say if they were referring to the same records in the inquiry sent to Rutledge's office.
"I think there has been and continues to be records preservation among our constitutional officers, maybe not as consistently as we would like," Speer said. "I would hope that the state archives would have the opportunity to view [the records] in advance."
The destruction of records as described in Martin's inquiry does not seem to violate the state's Freedom of Information Law, said Arkansas Press Association Director Tom Larimer, explaining that the law is intended to ensure transparency, not historical record keeping.
"It does seem odd that a good historical document that somebody may someday be looking for, why they would be seeking to destroy that," Larimer said.
Last year state Treasurer Dennis Milligan, who is also a constitutional officer, reversed a policy in office that required employees to delete emails after 30 days after press groups complained it violated the spirit of public-records laws.
Milligan's chief of staff, Jim Harris, said at the time that the policy was meant to save the office money from storing the emails, according to the Arkansas Democrat-Gazette.
A Section on 11/04/2016