Record Keeping Requirements for State Departments of Transportation (2009)

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Legal Research Digest 52 national Cooperative highway researCh program October 2009 subject areas: ia planning and administration; iC transportation law TRANSPORTATION RESEARCH BOARD OF THE NATIONAL ACADEMIES reCorD Keeping reQUirements For state Departments oF transportation This report was prepared under NCHRP Project 20-6, “Legal Problems Arising Out of Highway Programs,” for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Terri L. Parker, Regional Counsel, Missouri Department of Transportation. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. Contents I. Introduction 3 Definitions 3 II. Record Retention 4 A. Adoption of Records Retention Program 4 B. Records Retention Standards 6 C. Disposal of Records 9 D. Electronic Signatures 9 E. Creating Records for Administrative Needs 10 III. Release of Electronically Stored Information—Litigation and Discovery 12 A. Federal Rule 26 12 B. Federal Rule 33 14 C. Federal Rule 34 14 D. Federal Rule 37 15 IV. Open Records 17 A. The Freedom of Information Act 17 B. Trends in Public Records Laws 23 V. Conclusion 28 Appendix A: Records Retention Survey 29 Appendix B: Responses to Records Retention Survey 30 Appendix C: Employee Witness Statement 40 Appendix D: Documents Related to Recruitment 41 Appendix E: Construction Records 45 Appendix F: Right-of-Way Documents 46 Appendix G: Suggested Protocol for Discovery of Electronically Stored Information 47 Appendix H: Affidavit of Engineer 58 the problem and its solution State highway departments and transportation agencies have a continuing need to keep abreast of operating practices and legal elements of specific problems in highway law. This report is a new pa- per, which continues NCHRP’s policy of keeping departments up-to-date on laws that will affect their operations. applications In recent years, a series of issues have emerged confronting state departments of transportation (DOTs) with a broadening definition of “public record” and the necessity for a system for retain- ing, organizing, and avoiding the spoliation of evi- dence. Specific issues include creating records for administrative needs, collecting evidence in antici- pation of litigation, escrowing documents, dealing with electronic documents/email, being aware of public records laws, and protecting all proprietary information. This project previously published “Freedom of Information Acts, Federal Data Collections, and Disclosure Statutes Applicable to Highway Proj- ects and the Discovery Process,” Orrin F. Finch and Gary A. Geren, NCHRP Legal Research Digest 33, April 1995. There has been a great deal of change since the release of that report and emerging com- munication methods likewise present new problems for developing methods of data information collec- tion, storage, and protection. Federal, state, and lo- cal government agency lawyers and administrative personnel; private contractors; and other transporta- tion professionals will benefit from an awareness of pertinent legislation and regulations, cases, and best practices as guidance for maintaining records to fit their particular needs. While the focus of this digest is on requirements applicable to state DOTs, federal statutes are dis- cussed extensively because many are directly appli- cable to state governments in their capacity as grant- ees. Federal case law is discussed as well, as many of the documentation and retention issues confronting state courts have previously been comprehensively addressed by federal courts. The material covered in this digest should be useful to attorneys, administrators, safety officials, freedom of information officers, risk management personnel, maintenance engineers, and legislators.