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AGO 1950 No. 288 - June 21, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

DESTRUCTION AFTER MICROFILMING OF ORIGINAL RECORDS BY MUNICIPAL CORPORATIONS

Original paper records of Municipal Corporations, even though they may have been microfilmed, may not be destroyed until they are ten years old, and then only by consent of the State Auditor's office acting through its Division of Municipal Corporations.

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                                                                   June 21, 1950

Honorable Cliff Yelle
State Auditor
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 288

Attention:  !ttMr. Lawrence Hubble, Chief Examiner
            Division of Municipal Corporations

Dear Sir:

            We are in receipt of your letter of June 2, 1950, wherein you have asked the following question:

            Where records required to be kept by a Municipal Department have been microfilmed as authorized by chapter 223, Laws of 1949 (§ 1257-4 to 1257-6 Rem. Supp. 1949) may the head of such department, forthwith destroy the records from which such microfilm were made?

            The conclusions reached are as follows:

            Such records may not be destroyed until they are ten years old, and then only by consent of the State Auditor's office acting through its Division of Municipal Corporations.

                                                                     ANALYSIS

             [[Orig. Op. Page 2]]

            You have advised us that the comptroller of the City of Seattle, acting pursuant to the authority granted by section 1, chapter 223, Laws of 1949 (§ 1257-4 Rem. Supp. 1949 has caused to be microfilmed by an approved process, certain official records consisting of business tax returns, admission tax returns, copies of debit and credit notes, correspondence, and license applications, and that having done so, he desires to destroy the original documents.

            Section 2 of said act (1257-5 Rem. Supp. 1949) provides that:

            "Such photostatic copy, photograph, microphotograph or photographic film record, or copy of the original records shall be deemed to be an original record for all purposes, and shall be admissible in evidence in all Courts or administrative agencies.  A facsimile, exemplification or certified copy thereof shall, for all purposes recited herein, be deemed to be a transcript, exemplification or certified copy of the original."

            Chapter 223, Laws of 1949 was enrolled as H.B. 419.  Section 4 of this bill reads as follows:

            "Whenever such photostatic copies, photographs, microphotographs or reproductions on film shall be placed in conveniently accessible files and provisions made for preserving, examining and using same, the said head of a state department, commission, bureau or board, county office or department, or city office or department may certify those facts to the State Auditor, who shall have the power to authorize forthwith, the disposal, archival storage or destruction of such records or papers."

            The above section was vetoed by the governor and thus did not become a part of the act, nor does the act as finally passed contain any authority for the destruction of public records.

            The sole authority for the destruction of the public records of a municipality is to be found in sections 8-10, chapter 109, Laws of 1941.  (§ 10964-27 to 10964-29, Rem. Supp. 1941) which provide as follows:

             [[Orig. Op. Page 3]]

            "In order to provide available space for the filing and storage of current county and city records, the various County Auditors and City Clerks in the State of Washington are hereby given the authority under the provisions set forth herein, to destroy by fire, the following old records: Warrants, vouchers, tax and other miscellaneous receipts, tax rolls and tax roll accounts, or any other old records that may be approved for destruction in writing, by the State Auditor through its Division of Municipal Corporation: Provided, That in no instance shall such records be destroyed unless they are ten (10) years old."  Section 8, chapter 109, Laws of 1941 (§ 10964-27, Rem. Supp. 1941)

            "County or city records so designated for disposal, must be destroyed during the course of the regular examination of such county or city, and under the supervision of the Division of Municipal Corporations and its examiner or examiners:Provided, that in no instance shall records be destroyed unless they have been audited and examined by the State Auditor, through its Division of Municipal Corporations and its examiners."  Section 9, chapter 109, Laws of 1941 (§ 10964-28, Rem. Supp. 1941)

            "Before any such records are destroyed a complete list of all county records to be destroyed must be certified to by the County Auditor and filed with the Board of County Commissioners, and a copy thereof filed with the State Division of Municipal Corporations.  Before any city records are destroyed a complete list of all such records must be certified to by the City Clerk, and filed with the City Council, or Commissioner of Finance, and a copy thereof filed with the State Division of Municipal Corporations."  Section 10, chapter 109, Laws of 1941, (§ 10964-29, Rem. Supp. 1941)

             [[Orig. Op. Page 4]]

            The 1941 act is not expressly repealed by the 1949 act, nor, in our opinion, does the language of section 2 of the 1949 act, supra, to the effect that such microfilms shall be deemed to be original records for all purposes, impliedly repeal the 1941 act.  Repeals by implication are not favored, and a later act will not operate to repeal an earlier act except in such instances where the later act covers the entire subject matter of the earlier legislation, is complete in itself and is evidently intended to supersede the prior legislation on the subject, or unless the two acts are so clearly inconsistent with, and repugnant to each other that they cannot, by fair and reasonable construction, be reconciled and both given effect.  Rosenthal v. City of Tacoma, 31 Wn. (2d) 32, 195 P. (2d) 102; Abel v. Diking & Drainage Imp. Dist. No. 4, 19 Wn. (2d) 356, 142 P. (2d) 1017.

            Clearly the 1949 act does not purport to cover the entire subject matter of 1941 enactment.  As a matter of fact, the two acts encompass entirely different fields, the one dealing with the destruction of records, and the other dealing with their reproduction.  Nor may it be said that the two acts are so clearly inconsistent with, and repugnant to each other that they cannot, by fair and reasonable construction be reconciled and both given effect.  The legislative declaration to the effect that microfilm copies shall for all purposes be deemed to be original records does not necessitate a conclusion that having made such copies, the paper originals may be forthwith destroyed.

            We are of the opinion that chapter 109, Laws of 1941 is not affected by the passage of chapter 223, Laws of 1949, and that its terms must be fully complied with before paper original documents may be destroyed.

Very truly yours,

SMITH TROY
Attorney General

RICHARD OTIS WHITE
Assistant Attorney General

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