NO: 97-07-SCA

ORIGINATINGAGENCIES: DEPT OF STATE, DEPT OF COMMUNITY AFFAIRS

EFF DATE: 7/1/96

EXP DATE: INDEFINITE

SUPERSEDES: NONE

SUBJECT: ADMINISTRATION OF PUBLIC RECORDS OF PRIVATIZED COUNTY AND
LOCAL FUNCTIONS AND SERVICES

ATTENTION: ADMINISTRATORS AND CHIEF FISCAL OFFICERS

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

I. PURPOSE

This letter advises local governmental unit managers that private vendors
under contract to provide to the local governmental unit or to the
citizens of this State services formerly delivered by local agencies
(i.e., "privatized" services) may gain access to and control of public
records in connection with such services. Local governmental units
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 for any invitation-for-bid (IFB) and/or contract issued for
privatized services with a commercial vendor.

DARM will assist local governmental units 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 may
recommend including language in such IFBs and contracts which affirms the
local governmental unit's legal ownership of any public records and the
vendors 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 local governmental units 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."

LOCAL GOVERNMENTAL UNIT- Is defined as any county, municipality, special
district, school district or any public body corporate politic created or
established under any law of this state by or on behalf of any one or more
counties or municipalities.

III. PROCEDURES

Local governmental units that intend to privatize services that will involve
the maintenance or disposal of public records are hereby directed to
incorporate in their invitations-for-bid (IFBs) and in final contracts for
such services explicit terms affirming the local governmental unit's legal
ownership of any public records accessed under the contract and the vendor's
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, IFBs and contracts concerning privatized functions
and services :

Records received, retained, retrieved, or transmitted under the terms of
this contract may constitute public records of |insert name of local
governmental unit| as defined by N.J.S.A. 47.3-16, and are legal
property of |insert name of local governmental unit|. 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 |insert name of local governmental unit| 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 Secretary of State and the Commissioner of Community Affairs recognize
that earlier privatization contracts may need to be revisited for consistency
with these guidelines. Those contracts shall be reviewed by the originating
local governmental unit and DARM to determine if a public records provision
should be incorporated and/or modified. Where appropriate, the local
governmental units 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