NO: 97-05-ST

ORIGINATING AGENCIES: DEPT OF STATE, DEPT OF THE TREASURY

EFF DATE: 7/l/96

EXP DATE: INDEFINITE

SUPERSEDES: NONE

SUBJECT: ADMINISTRATION OF PUBLIC RECORDS OF PRIVATIZED FUNCTIONS AND
SERVICES

ATTENTION: DEPARTMENT HEADS, DIRECTORS OF ADMINISTRATION, AND CHIEF FISCAL
OFFICERS

FOR INFORMATION CONTACT: KARL J. NIEDERER, DIR. PHONE: 609-530-3200

I. PURPOSE

This letter advises State agency managers that private vendors under contract
to provide to the State or to the citizens of this State services formerly
delivered by State agencies (i.e., "privatized" services) may gain access to
and control of public records in connection with such services. Agencies
contemplating privatization of any functions or services are advised to
contact the Division of Archives and Records Management, Department of State
(DARM), to determine if there are public record-keeping requirements that
should be taken into consideration in the preparation of the specifications
of any request-for-proposal (RFP) and/or contract issued for privatized
services with a commercial vendor.

DARM will assist State agencies that wish to contract for privatized services
by identifying public records that a prospective commercial vendor may handle
under the terms of the contract. DARM, in consultation with the Attorney
General's Office, may recommend including language in such RFPs or contracts
which affirms the State's legal ownership of any public records and the
vendor's acceptance of responsibility to administer them in accordance with
the State's public records laws.

Although most of the records handled by commercial vendors in the performance
of contracts for privatized services will be unaffected by the Destruction of
Public Records Act, it is necessary for State agencies to determine prior to
the time of contracting if there is a need for concern about the maintenance
and final disposition of public records which a commercial vendor may obtain.

II. GENERAL DEFINITION

PRIVATIZATION: In its Report to the Governor on Privatization & Competitive
Contracting (1995), the New Jersey Advisory Commission on Privatization
defined this key term as meaning primarily "the contracting out of services
that had previously been provided by the government," and "generally ... the
transfer to the private sector of |government| services or assets."

III. PROCEDURES

State agencies that intend to privatize services that will involve the
maintenance or disposal of public records are hereby directed to incorporate
in their requests-for-proposal (RFPS) and in final contracts for such
services explicit terms affirming the State's legal ownership of any public
records accessed under the contract and the vendors acceptance of
responsibility to administer the records in accordance with the State's
public records laws.

The following is a sample of recommended language for inclusion in
notifications to vendors, RFPs and contracts concerning privatized functions
and service¹:

Records received, retained, retrieved, or transmitted under the terms
of this contract may constitute public records of the State of New
Jersey as defined by N.J.S.A. 47.3-16, and are legal property of the
State. The vendor(s) named in this contract must agree to administer
and dispose of such records in compliance with the State's public
records laws and associated administrative rules.

The State has identified the following as public records under this
contract, subject to the above-cited provisions:

|List all public records by series title and number as set forth
in the agency's record retention schedule approved by the State
Records Committee.|

Although the State has used its best efforts to identify all records
which qualify as public records under this contract, the State reserves
the right to amend the above list from time to time as warranted.

The State Treasurer and the Secretary of State recognize that earlier
privatization contracts may need to be revisited for consistency with these
guidelines. Those contracts shall be reviewed by the originating State
agency, DARM, and the Attorney General's Office to determine if a public
records provision should be incorporated and/or modified. Where appropriate,
the agencies shall attempt to negotiate with the vendor a revision to the
contract to ensure proper and uninterrupted maintenance of crucial public
records.

IV. SUPPORT FOR ADMINISTRATION OF PUBLIC RECORDS BY PRIVATE VENDORS

For assistance with interpreting and applying the State's laws, standards,
rules and regulations for public records administration, contract vendors of
privatized services are referred to the Division of Archives and Records
Management, Department of State, which offers guidance with records and
information management, systems life cycle analysis and program development,
imaging, storage, and archival services. Contact:

Director
Division of Archives and Records Management 2300 Stuyvesant Avenue
CN 307
Trenton, New Jersey 08625-0307
609-530-3200