TITLE 13. CULTURAL RESOURCES

PART 1. TEXAS STATE LIBRARY AND ARCHIVES COMMISSION

CHAPTER 7. LOCAL RECORDS

SUBCHAPTER C. STANDARDS AND PROCEDURES FOR MANAGEMENT OF ELECTRONIC RECORDS

13 TAC §§7.71 - 7.78

The Texas State Library and Archives Commission (commission) adopts amendments to 13 TAC Chapter 7, Local Records, §§7.71, Definitions; 7.72, General; 7.75, Security of Electronic Records; 7.76, Maintenance of Electronic Records Storage Media; and 7.78, Destruction of Electronic Records; and new §§7.73, Policies and Procedures; 7.74, Minimum Requirements for all Electronic Local Government Records; and 7.77, Minimum Requirements for all Electronic Records Systems. Sections 7.71, 7.72, 7.75, 7.77, and 7.78 are adopted with changes to the proposed text as published in the April 30, 2021, issue of the Texas Register (46 TexReg 2876). These rules will be republished. Sections 7.73, 7.74, and 7.76 are adopted without changes to the proposed text as published in the April 30, 2021, issue of the Texas Register (46 TexReg 2876). These rules will not be republished.

Local Government Code, §205.003 requires the commission to adopt rules establishing standards and procedures for the electronic storage of any local government record data of permanent value. The statute also authorizes the commission to adopt rules establishing standards and procedures for the electronic storage of any local government record data whose retention period is at least 10 years on a records retention schedule issued by the commission. The adopted amendments and new rules implement Local Government Code, §205.003 and update the commission's existing rules previously adopted under this statutory authority. The amendments and new rules include changes to reflect best practices and standards of records management and to improve readability and clarity of the rules. Amendments also remove specific standards and requirements when those specific standards or requirements are unnecessary, combine sections with related goals and requirements, and update and standardize language and terms.

Simultaneous with this adoption, the commission is also adopting the repeals of §7.73, Creation and Use of Data Files; §7.74, Creation and Use of Text Documents; §7.77, Retention of Electronic Records; and §7.79, Public Access to Electronic Records. Some of the repealed rule language is unnecessary, as certain specific requirements impose expectations that are stricter than necessary to fulfill minimum requirements. Other repealed rule language has been updated and moved into the adopted amendments and new rules.

SUMMARY OF COMMENTS. The commission published the proposed amendments and new rules in the Texas Register on April 30, 2021, for a 30-day comment period. The commission also posted a notice of the proposal on The Texas Record, an informational blog maintained by the commission's State and Local Records Management Division, on May 28, 2021, and extended the comment period through June 18, 2021. The commission received comments from two interested parties on the proposed amendments and new rules.

COMMENT: One commenter suggested that the definition of "third-party custodian" as proposed in §7.71(16) include a note that it does not include a Records Management Officer that is shared between local governments pursuant to Local Government Code, §203.025(f).

RESPONSE: The commission agrees that the definition of "third-party custodian" is not intended to include a Records Management Officer serving more than one local government. The commission added language to the rule as proposed clarifying that the definition of third-party custodian does not include a third party under a contract with the local government under Local Government Code, §203.025(f).

COMMENT: One commenter noted that the term "enterprise-wide" as used in §7.72(a) did not appear to be defined and suggested the term be clarified.

RESPONSE: The commission believes the commenter intended to refer to §7.73(a) with respect to this comment. The intent behind "enterprise-wide" was to refer to policies and procedures that apply broadly to the entity. For clarity, the rule language has been clarified by referring to the organization, a term more appropriate to governmental entities.

RESPONSE: The commission does not agree that the language as proposed would preclude the use of databases; however, to clarify, the commission is amending the language to clarify the intent, which is that records are independently retrievable within a database management system, electronic records system, or electronic storage media.

COMMENT: One commenter asked whether the term "local government employees" in §7.75, which replaced "personnel," would include unpaid elected officials or unpaid volunteers, who will need access to local governments' records.

RESPONSE: The commission notes that the intent of this change is to ensure the requirement applies to anyone with authorized access to local government records, not necessarily only local government employees. Therefore, the commission modified the rule language by reference to authorized individuals instead of local government employees.

COMMENT: One commenter noted that the amendment in §7.75(b) appears to allow a "separate storage area" for a duplicate copy of essential records and any software or documentation required to retrieve and read the records to be located in the same physical location. The commenter noted that a digital partition on the same physical hard drive is technically a "separate storage area," and questioned whether that was the intent of the amendment. The commenter further noted that rather than require separate buildings, a change to require use of different rooms may be more appropriate.

RESPONSE: The commission disagrees with this comment and believes the rule amendment, as proposed, is effective in allowing local governments flexibility in their approach to properly maintaining records depending on physical space available. Section 7.75(a) already requires local governments to create a program that protects records against unauthorized access and unintentional release of confidential records, as well as to protect records from loss and unintentional deletion through backup and recovery processes. Allowing local governments to maintain a duplicate copy of electronic records in a separate storage area, but not require that area in a separate building, will benefit local governments with facilities limitations. If a local government determined that a digital partition on a physical hard drive created an appropriate "storage area" for the secure storage of a duplicate copy of electronic records, that local government would still be responsible for complying with electronic records management rules and ensuring those records were retrievable in the event of a disaster that resulted in loss of the physical hard drive.

COMMENT: One commenter questioned how the requirement in proposed §7.74(a)(7) that a local government ensure that electronic records are readily retrievable and readable independently of other records in the electronic records system or storage media would work with a database and noted concern the wording may unintentionally preclude the use of databases.

COMMENT: One commenter noted that the changes in §7.76 are great improvements.

RESPONSE: The commission appreciates the comment.

COMMENT: One commenter noted that the requirement in §7.77(a)(1) that local governments maintain a narrative description of the electronic records system that produces, uses, and stores data files places an unnecessary burden on local governments. The commenter further noted that it is not clear what a narrative description would look like.

RESPONSE: The commission notes that existing §7.73(b)(1) already requires local governments to maintain a narrative description of the system. A narrative description is a summary of the purpose and capabilities of the electronic records system. However, the commission is adding language to clarify that the narrative description should cover the purpose and functionality of the system.

COMMENT: One commenter disagreed with TSLAC's determination that there will be no fiscal or growth impact on local governments due to the enforcement or administration of these rules. Specifically, the commenter asserted that the additional policy and technical documentation required by updates to §7.74 and §7.77 will necessitate the time and labor of IT personnel not previously allocated to this purpose. The commenter noted that due to the large amount of server and cloud applications used by their departments in the creation and storage of record information, the county would likely need to dedicate staff specifically to the task of maintaining and updating technical documentation to comply with the rules. The commenter asked that TSLAC reassess the fiscal and growth impact statements included in the proposed changes.

RESPONSE: The commission disagrees that the amendments and new rules will result in a fiscal impact or growth impact on local governments. As noted in the proposal preamble, much of the amendments and new rules reflect existing content that has been moved, combined, and clarified.

Specifically, the language proposed in §7.74(a)(3) regarding system and storage media documentation was moved from §7.72(d)(6). The requirement under proposed §7.74(a)(4) to maintain or migrate any software, hardware, or documentation required to read and access records previously existed in §7.76(a). The requirement under proposed §7.74(a)(5) to maintain metadata to maintain and ensure reliability, use, and authenticity of records is supported by requirements previously contained §7.73(b)(2) and §7.76(a).

The proposed language of §7.77(a)(1)-(2) to maintain technical documentation for electronic records systems previously existed under §7.73(b)(1)-(2). The language of proposed §7.77(a)(3) to outline steps to ensure electronic record systems remain usable, including maintenance of technology and documentation, previously existed under §7.77(a). The proposed requirements of §7.77(a)(4) regarding descriptive and technical metadata maintained by electronic records systems supports the requirement in proposed §7.74(a)(5), and both proposed rules are supported by rule language previously in §7.73(b)(2). Additionally, this new rule language fleshes out the existing §7.73(b)(3) rule language, which states the requirement to maintain documentation of "any other technical information needed to read or process the records." Therefore, because the policy and technical documentation requirements reflected in the amended and new rules are not new, but only a reorganization and clarification of existing requirements, the commission disagrees that these amendments and new rules will result in the impacts described by the commenter.

STATUTORY AUTHORITY. The amendments and new rules are adopted under Local Government Code, §205.003, which requires the Texas State Library and Archives Commission to adopt rules establishing standards and procedures for the electronic storage of permanent records and permits the adoption of rules establishing standards and procedures for the electronic storage of any electronic record with a retention of 10 years or more on a records retention schedule issued by the commission.

CROSS REFERENCE TO STATUTE. Local Government Code, Chapter 205; Government Code, Chapter 441.

§7.71.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Terms not defined in these sections shall have the meanings defined in the Local Government Code, Title 6, Subtitle C, Chapter 201.

(1) Authenticity--The quality of a record as being what it purports to be by establishing the origin, reliability, trustworthiness, and correctness of its content.

(2) Data file--Related numeric, textual, sound, or graphic information that is organized in a strictly prescribed form and format.

(3) Database--An organized collection of structured information or data which makes up records within files that have relationships with other records within other files.

(4) Database management system (DBMS)--Software programs designed to organize, store, and retrieve machine-readable information from within databases.

(5) Disposition--Final processing of local government records by archival transfer under Local Government Code, §203.049 or destruction under Local Government Code, §202.001 or Government Code, §441.0945.

(6) Electronic record--Any information that is recorded in a form for computer processing and that satisfies the definition of local government record data in the Local Government Code, §201.003(8).

(7) Electronic records system--Any information system that produces, manipulates, and stores local government records by using a computer.

(8) Electronic storage media--All physical media capable of being read by a computer including computer hard disks, magnetic tapes, optical disks, or similar machine-readable media.

(9) Essential record--A record as defined in Local Government Code, §201.003(5).

(10) Integrity--The quality of a record as complete and free from unauthorized alteration.

(11) Metadata--Data that summarizes basic information about a record, and which can facilitate tracking, locating, verifying authenticity, or working with specific records or data. Examples include, but are not limited to, author, date created, date modified, file extension, and file size.

(12) Migration--The act of moving data or records from one hardware or software system or configuration to another so that records may continue to be understandable and usable for as long as they are needed.

(13) Records Management Officer--Each elected county officer or the person designated by the governing body of each local government pursuant to the Local Government Code, §203.025.

(14) Reliability--The quality of a record as a full and accurate representation of the activity or transaction it captures.

(15) Text documents--Narrative or tabular documents, such as letters, memorandums, and reports, in loosely prescribed form and format.

(16) Third-party custodians--Parties with which a local government entity may contract for services who are temporarily responsible for the maintenance of local government records, other than an interlocal contract under Local Government Code, §203.025(f).

(17) Usability--The quality of a record as related to the producing activity or that can be accessed, identified, and readily retrieved, and interpreted or read within the broader context.

§7.72.General.

(a) This subchapter establishes the minimum requirements for the maintenance, use, retention, and storage of any electronic record of a local government whose retention period is ten years or more on a records retention schedule adopted under §7.125 of this title (relating to Records Retention Schedules). These requirements are recommended as best practices for electronic records with retention periods of less than ten years. All electronic records are subject to the applicable provisions of the Local Government Code, Chapter 205.

(b) Unless otherwise noted, these requirements apply to all electronic records systems and electronic storage media.

(c) The governing body of a local government and its records management officer, in cooperation with other employees of the local government, must:

(1) administer a program for the management of records created, received, maintained, used, or stored on electronic media;

(2) integrate the management of electronic records with other records and information resources management programs;

(3) incorporate electronic records management objectives, responsibilities, and authorities in pertinent directives;

(4) establish procedures for addressing records management requirements, including recordkeeping requirements and disposition;

(5) make training available for users of electronic records systems that addresses:

(A) the operation, care, and handling of the equipment, software, media, and information contained in the system; and

(B) records management concepts and applicable requirements, including any records management issues as they relate to subparagraph (A) of this paragraph;

(6) develop and maintain up-to-date documentation about all electronic records systems that is adequate to specify all technical characteristics necessary for reading or processing the records and the timely, authorized disposition of records; and

(7) specify the location and media on which electronic records are maintained to meet retention requirements and maintain inventories of electronic records systems to facilitate disposition.

(d) An electronic records system not meeting the provisions of this subchapter may be utilized for records subject to this section, provided the source document, if any, or a paper copy of the record is maintained, or the record is microfilmed in accordance with the provisions of Local Government Code, Chapter 204, and the rules adopted under it.

§7.75.Security of Electronic Records.

(a) Local governments must implement and maintain an electronic records security program for office and storage areas that:

(1) ensures that only authorized individuals have access to electronic records;

(2) provides for backup and recovery of records to protect against information loss;

(3) ensures that authorized individuals are trained to safeguard confidential electronic records; and

(4) minimizes the risk of unauthorized alteration or erasure of electronic records.

(b) A duplicate copy of essential records and any software or documentation required to retrieve and read the records must be maintained in a separate storage area.

(c) For records stored on rewritable electronic storage media, local governments must ensure that read/write privileges are controlled and that an audit trail of rewrites is maintained.

§7.77.Minimum Requirements for all Electronic Records Systems.

(a) Local governments must maintain up-to-date technical documentation for each electronic records system that produces, uses, and stores data files. Documentation must:

(1) include a narrative description of the system purpose and functionality;

(2) describe the physical and technical characteristics of the records, including, but not limited to, each field associated with a record; its name, size, starting or relative position; and the form of the data;

(3) outline steps to ensure the electronic records system remains usable for as long as the system is maintained by the local government, including maintaining any software, hardware, and documentation required to retrieve and read the electronic records;

(4) describe the required descriptive and technical metadata the electronic records system must maintain for electronic records to have reliability, including metadata necessary to adequately support the usability, authenticity, integrity, and preservation of a record; and

(5) incorporate instructions for carrying out disposition of records into electronic records systems.

(b) Local governments must ensure electronic records systems using electronic storage media to maintain the record copy, or data used to generate the record copy, allow for:

(1) all authorized users of the system to retrieve desired records, such as an indexing or text search system;

(2) security to ensure integrity of the records;

(3) exchanging records using an established standard format amongst the departments of the local government using different software/operating systems; and

(4) disposition of the records.

(c) An electronic records system must not create an impediment to access to public records.

(d) Local governments must ensure that records created or maintained in electronic records systems can be:

(1) identified sufficiently to enable authorized personnel to retrieve, protect, and carry out disposition of the records in the system; and

(2) associated with related records in other formats.

(e) A local government must prohibit smoking, drinking, and eating in areas containing electronic records systems that maintain the record copy.

§7.78.Destruction of Electronic Records.

(a) Electronic records may be destroyed only in accordance with the Local Government Code, §202.001.

(b) Each local government must ensure that:

(1) electronic records eligible for destruction are disposed of in a manner that ensures protection of any confidential information; and

(2) electronic storage media used for electronic records containing confidential information is not reused if the previously recorded information can be compromised in any way through reuse.

(c) For the court ordered expungement of information recorded on Write-Once-Read-Many (WORM) electronic storage media, all copies of the information must be destroyed wherever it exists, including any record, index, or reference to the expunged information on other electronic storage media. Methods for expunging information from WORM electronic storage media include:

(1) overwriting the information to obliterate the original data, leaving no evidence of the original information; or

(2) rewriting all the indices, pages, or documents, other than the expunged information, onto new electronic storage media and physically destroying the old electronic storage media.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 11, 2021.

TRD-202103137

Sarah Swanson

General Counsel

Texas State Library and Archives Commission

Effective date: August 31, 2021

Proposal publication date: April 30, 2021

For further information, please call: (512) 463-5591


13 TAC §§7.73, 7.74, 7.77, 7.79

The Texas State Library and Archives Commission (commission) adopts the repeals of 13 TAC §7.73, Creation and Use of Data Files; §7.74, Creation and Use of Text Documents; §7.77, Retention of Electronic Records; and §7.79, Public Access to Electronic Records. The repeals are adopted without changes as proposed in the April 30, 2021, issue of the Texas Register (46 TexReg 2882). The repeals will not be republished.

The commission did not receive any comments regarding adoption of the repeals.

The repeal of these rules is necessary because some of the repealed rule language references specific requirements that impose expectations that are stricter than necessary to fulfill minimum requirements for the management of electronic records. Other repealed rule language has been updated and moved into amendments and new rules in 13 TAC Chapter 7, Subchapter C. The adoption of those amendments and new rules coincides with this adoption and is also published in this edition of the Texas Register.

STATUTORY AUTHORITY. The repeals are adopted under Local Government Code, §205.003, which requires the Texas State Library and Archives Commission to adopt rules establishing standards and procedures for the electronic storage of permanent records and permits the adoption of rules establishing standards and procedures for the electronic storage of any electronic record with a retention of 10 years or more on a records retention schedule issued by the commission.

CROSS REFERENCE TO STATUTE. Local Government Code, Chapter 205; Government Code, Chapter 441.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 11, 2021.

TRD-202103138

Sarah Swanson

General Counsel

Texas State Library and Archives Commission

Effective date: August 31, 2021

Proposal publication date: April 30, 2021

For further information, please call: (512) 463-5591