EHB-R Data/Records Retention

LOCAL RECORDS RETENTION SCHEDULE

Litigation Hold

On receipt of notice from legal counsel representing the District that a litigation hold is required, the routine destruction of governmental records, including paper and electronic records, which are or may be subject to the litigation hold shall cease.  The destruction of records subject to a litigation hold shall not resume until the district has received a written directive from the attorney representing the district authorizing resumption of the routine destruction of those records.

Right-to-Know Request – Hold

On receipt of a Right-to-Know law request to inspect or copy governmental records, the Superintendent shall cease any destruction of governmental records which are or may be the subject of the request.  The records shall be retained regardless of whether they are subject to disclosure under RSA Chapter 91-A, the Right-to-Know law.  If a request for inspection is denied on the grounds that the information is exempt, the requested material shall be preserved for no less than 90 days and until any lawsuit pursuant to RSA 91-A:7-8 has been finally resolved, all appeal periods have expired, and a written directive from the attorney representing the District authorizing destruction of the records has been received.

Retention Periods

The recommended retention periods in the NHSBA sample regulation, except where another statute or rule are cited, are based on the New Hampshire requirements for municipalities as set forth in RSA 33-a:3-a where a category of records is listed in that statute which is not addressed in school law, consideration of the civil statutes of limitation in New Hampshire, and the guidance last issued several years ago by the New Hampshire Department of Education.

Where different retention periods are required or recommended by different sources of legal authority, the longest retention period is recommended, but the shorter period is cited with the source of legal authority.

The General Education Provisions Act (GEPA) 20 U.S.C. 1232f requires that district “shall keep records which fully disclose the amount and disposition by the recipient of [federal] funds, the total cost of the activity for which the funds are used, the share of that cost provided from other sources, and such other records as will facilitate an effective financial or programmatic audit . . . . for three years after the completion of the activity for which the funds are used.” Therefore, while other authorities suggest that a purchase order, with accompanying documentation, may need to be retained only until the records are audited, plus 1 year, if the purchase is in part or in whole with federal funds the record must be retained for three years after the completion of the activity for which the funds are used, a much longer period of time.  We have tried to flag with an “*” categories of records which may include documents related to the use of federal funds and require retention of those documents for a longer period.  Districts will need to decide whether to simply apply the longer period to all documents in the category or to have a system of segregating for longer retention those documents related to use of federal funds.

The NHSBA is engaged in an ongoing effort to identify legal authority, where it exists, for the retention period for each category of records.  We plan to issue further updates as this work progresses.  This update is being released now, even though that research is not yet complete, because the existing sample regulation has retention periods which we know are not consistent with current law and regulation.

Prior to destroying any class of records for which no definitive legal authority regarding retention is identified, we recommend that each District consult with local legal counsel and your insurance carrier for any recommendations they may have on retention periods.  The recommended retention period is a minimum.  Unless destruction is required by law, where governmental records have historical value or other considerations warrant retention, the records may be retained for a longer period or permanently.

Special Education Records

Dept of Education Administrative Rule 1119.01, Confidentiality Requirements, section (b)(1)

“An LEA shall not destroy a student’s special education records prior to the student’s 25th birthday, except with prior written consent of the parent or, where applicable, the adult student, pursuant to 34 CFR 300.624(b).  The LEA must maintain a copy of the last IEP that was in effect prior to the student’s exit from special education until the student’s 60th birthday.  An LEA may retain and store the student’s special education records in electronic form or any other form. An LEA shall provide a parent or adult student a written notice of its document destruction policies upon the student’s graduation with a regular high school diploma or at the transfer of rights or whichever occurs first.  The LEA shall provide public notice of its document destruction policy at least annually.”

*  =  If record related to federal funds:

Federal Funds

Records of amounts and disposition/use of federal funds, 20 U.S.C. 1232f, (a):

“Each recipient of Federal funds under any applicable program through any grant, subgrant, cooperative agreement, loan, or other arrangement shall keep records which fully disclose the amount and disposition by the recipient of those funds, the total cost of the activity for which the funds are used, the share of that cost provided from other sources, and such other records as will facilitate an effective financial or programmatic audit. The recipient shall maintain such records for three years after the completion of the activity for which the funds are used.” (emphasis added).

Electronic Records

The state law on preservation of electronic records, RSA 33-A:5-a Electronic Records, does not explicitly apply to school districts, but does provide guidance: “Electronic records as defined in RSA 5:29, VI and designated on the disposition schedule under RSA 33-A:3-a to be retained for more than 10 years shall be transferred to paper or microfilm, or stored in portable document format/archival (PDF/A) on a medium from which it is readily retrievable. Electronic records designated on the disposition schedule to be retained for less than 10 years may be retained solely electronically if so approved by the record committee of the municipality responsible for the records. The municipality is responsible for assuring the accessibility of the records for the mandated period.”

See Policy EH, EHB, GBJ & JRA

Revised: May 2017