New Record Retention Schedule: ED-1 is Being Replaced by LGS-01

While for most of us, coping with the realities of the pandemic has been center stage since late winter, an effort to streamline government records retention has continued. As a result, the ED-1 Record Retention Schedule for school districts and BOCES, has been superseded by the new “Local Governments Schedule”, or LGS-01, for all local governments.

What needs to be done for transition? On or before January 1, 2021, all school districts and BOCES are required to adopt the new Schedule by Board resolution. In the meantime, it is no longer permissible to dispose of records using ED-1 retention requirements. This will require comparing your current records retention procedures against the new LGS-01, to make certain that (a) retention periods are updated, as needed for each class of documents; and (b) that your records inventories are aligned with the new numbering system. In that way, the staff will be prepared to address both retention and disposal in a manner consistent with the new requirements. That project need not be particularly onerous: much of the substance from ED-1 is unchanged; and the State has demarcated new or revised requirements in the LGS-01 by placing a diamond symbol (♦) next to them.

How is the new LGS-01 Schedule organized? The Schedule addresses the function or purpose rather than the mere title of a document, so the function of any given document should guide its classification for retention/destruction. While many records unique to school districts and BOCES remain identified in an Education section (pp. 266-303 of the LGS-01), as a function of consolidation others may be labeled and placed differently than in the old ED-1. Those common items likely to be of concern to school districts and BOCES include “Administration” ( which includes the old “General” and “Miscellaneous” categories); “Buildings and Property Regulation,” “Fiscal,” “Information Technology,” “Personnel/Civil Service” and a new “Executive” Item. Documents relating to the office of the School Superintendent, for example, will now be found in the new “Executive” item.

In the main, there are three reasons for changes in the retention times and/or revising or adding functional items: to make previously disparate retention periods consistent (which in many cases translates to a shorter retention requirement); to address a new function or issue; or to align with retention periods with other state or federal laws. For example, there are several items relating to official meetings, minutes, notes and materials and to recordings that are consolidated for all local governments, with some modifications (Items 48, 51, 69).

General Considerations. The new LGS-01 expressly discusses several issues which, while not new, warrant a refresher as school districts and BOCES think about records retention in the context of transition to the new Schedule.

• Does the format matter? No, where a document meets the functional framework of the Schedule, whether it is paper, computer disc, microfilm or any other medium, it is subject to retention requirements. That is why the new Schedule removed references to specific types of media (e.g., “videotapes”) Particularly given the pandemic-induced reliance upon external internet resources for meetings, remote learning and other reasons, it would be prudent for the records access officer and the IT staff to consult and make certain that information which is stored by such providers is accessible by the district or BOCES in a manner to meet applicable retention requirements.
• How long must records be preserved? Generally, the period specified in LGS-01 will dictate the minimum retention period for documents of any given class or function. There are several exceptions to the rule, for example, for some types of documents another statute may dictate a longer, different retention period (including certain health, licensing and personnel records). If the records are required for litigation, then notwithstanding the schedule they must be retained for one year after the litigation is completely over (which would include any possible appeals). A similar exception exists where a State or federal audit is in process; or while a FOIL request or appeal is pending.
• Retaining the “official” copy. The Retention Schedule applies only to one “official copy of each covered document; and designating the “official” copy is within the discretion of the local governmental unit.”
• Disposing of Duplicates. Where the official copy has been maintained, there is no retention requirement for duplicates existing for administrative convenience (unless required by another statute) or for transitory documents used solely for routine administrative purposes (Items 57-58).

What is the bottom-line regarding disposal? As with so much in governmental operations: document. The State recommends disposal at least annually. Keep a record of the general amount and type of documents discarded; document deviations from the schedule; document inadvertent discards; and report to the Board, also at least annually. The Records Management Officer’s function is not merely a ministerial or warehouseman’s function.

Areas of Particular Concern. Among the purposes of the schedule, as defined by the State, is “to encourage and facilitate the systematic disposal of unneeded records.” On one side of the equation records exist, knowledge of the matters in those records may be attributed to the organization, and the very act of locating information can become exhausting without a thoughtful and consistent disposal plan. On the other side, there are records which may contain information which is difficult to recreate; or which may be of local importance or significance. Our recommendation is to exercise caution and good judgement in doing so, and to look to your school attorneys for counsel and advice when there is a question. LGS-01 makes it abundantly clear at several points that the State did not intend to supersede the independent discretion of the school boards and BOCES on the matter. Three examples may help make the point:

• When the State re-opened the statute of limitations period for the commencement of sexual abuse claims, eligibility for insurance coverage which may have been in effect at the time that claims became an urgent question, unknowable unless long-expired policies and proofs of insurance were retained. It is prudent, therefore, to retain insurance policies in an accessible format indefinitely.
• There are a variety of documents which contain information which over time will be difficult to reconstruct if not maintained: key construction documents, including plans, drawings, contracts, etc. are one example. Another would be documents relating to acquisition of real property, surveys, maps locating underground utilities, etc. Even where there is no ongoing need for all the documents created during a major project, an informed and careful review before destruction may prevent the loss of information that has an enduring value to you.
• In the process of doing its work, a Board of Education will create official minutes which define its policies, contract, and other decisions, and some of the supporting material may be incorporated into the minutes which are retained permanently. The LGS-01 has several provisions relating to other information and notes which provide a general consent for destruction. On occasion, however, some of that information may explain the context of the decision-making or may provide information of local historical significance. The Schedule allows you the discretion to retain such information, where you deem it to exist.

If you have any questions about your District’s transition to the new LGS-01, or regarding document retention and destruction more generally, please contact us at one of the numbers listed below.