SPR Bulletin 03-93

TO: Public Records Custodians
SUBJECT: Requirement to Manage Records Created Under
Government Contracts

EXPIRATION DATE: Until superseded
PURPOSE: This bulletin provides guidance and requirements for the creation, management, accessibility, and retention of records created under government contracts.

BACKGROUND:
The purpose of laws regulating the management of government records is to protect the rights and obligations of the government and its citizens. Proper management of records ensures that the government has immediate access to information for the full period of time it is needed to conduct daily business, financial transactions, litigation, maintenance of public property, and development and implementation of public policy. Access to information also secures the public's prerogative to monitor the government and encourage its accountability to the governed.

Records documenting the provision of services by government are the responsibility of the government records custodian. The custodian is required to use permanent-quality paper, inks, and materials to create permanent public records (see: G. L. c. 66, §§ 3-4; also, Executive Order 293); secure and preserve records (see: G. L. c. 66, §§ 8-9, 11-12); provide public access to records (see: G. L. c. 4, § 7, cl. 26; c. 66, § 10); and dispose of records according to disposal schedules approved by the Records Conservation Board for state government records or by the Supervisor of Public Records for county and municipal government records (see: G. L. c. 66, § 8).

Rather than offering direct services to citizens, governments may choose to expend government funds to provide services through vendors. These interactions result in the creation of much documentation, including information about vendor qualifications, financial records relating to contracts and payment, reports to the contracting government entity, and information about programs and their constituents.

Records resulting from contracted activities are vital to the conduct of government functions. For example, certain records are required for contract monitoring, litigation, the prevention of fraud and abuse, and the fulfillment of obligations to citizens served by programs. Because such documentation is critical to ensuring accountability, when in government offices it is routinely accessible to citizens. Therefore, when services are provided through vendors and such records are created and stored in contractors' offices, the same standard applies. This change in location does not abrogate the government's obligation to ensure public accountability and public access to these government records.

FINDINGS:
The Supervisor of Public Records is mandated to oversee the creation, preservation, accessibility, security, and custody of public records (see: G. L. c. 66, § 1 et seq; 950 CMR 32).

When public monies are expended to provide government services to citizens, the public has an interest in the information and records that result. Such records are government records and shall be managed in all respects according to law.

Custodians must provide proper care and management of public records (see: G. L. c. 66, § 1 et seq.). A custodian is defined as a "...person having routine access to or control of public records." (see: 950 CMR 32.03) When a government entity contracts with a vendor to provide government services, the vendor is acting for the government, performing a government function with government funds. The government is considered custodian of certain information generated to fulfill contractual obligations and has a direct interest in the proper management of the resulting records.

ACTIONS:
1. Any government entity entering into a contract, grant agreement, or other agreement with any private entity to provide government services shall include provisions in said agreement describing the creation, security, accessibility, disposition, and custody of records created to satisfy the agreement. All records created in fulfillment of the obligations of the contract are government records and shall be deliverable to the contracting government entity.

2. In the agreement the government entity may enumerate records to be created and specify the media in which information is recorded. Permanent-quality media shall be used to create permanent records.

3. The government entity shall describe in the agreement the actions to be taken by the contractor to ensure the physical and intellectual security of the information created under the agreement.

4. Access provisions contained in the agreement shall conform to G. L. c. 4, § 7, cl. 26; c. 66, § 10, c. 66A, and other pertinent statutes. In no case shall the agreement provide for more stringent restrictions on access than those contained in law. Records systems incorporating electronic media must provide for access to publicly-available information. Access provisions shall include the requirement that public requests for information be made through the contracting government entity.

5. No government records may be destroyed without authorization. Therefore, the government entity shall reference in the agreement any existing disposal schedules approved by the Records Conservation Board for state government records or by the Supervisor of Public Records for local government records which may apply to information created under the agreement. The agreement shall provide for the establishment of new disposal schedules for all records not appearing on existing schedules.

6. Where records are deemed to be of permanent value, the government entity shall designate the media in which information is to be created and/or maintained. Provisions shall be made for appropriate storage and preservation of permanent records by the contractor while in his possession and for their return to the government entity as legal custodian once their usefulness to the contractor ceases. Such records may be transferred to the Massachusetts Archives for permanent retention.

Questions regarding access to records created under government contract should be directed to:

Public Records Division
1 Ashburton Place, Room 1719
Boston, MA 02108
Phone 617-727-2832
Fax 617-727-5914
Email pre@sec.state.ma.us
www.sec.state.ma.us/pre

Questions regarding this bulletin should be directed to:

Records Management Unit
Massachusetts State Archives at Columbia Point
220 Morrissey Blvd.
Boston, MA 02125
Phone 617-727-2816
Fax 617-288-8429
Email recman@sec.state.ma.us
www.sec.state.ma.us/arc/arcrmu