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AGO 1960 No. 125 - June 22, 1960
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John J. O'Connell | 1957-1968 | Attorney General of Washington

OFFICES AND OFFICERS - COUNTY - CLERK - AUTHORITY TO DESTROY OLD COURT RECORDS

1. County clerks are legally authorized to destroy old court records filed in their offices pursuant to RCW 36.23.065 and 36.23.070.  Destruction of other county records is controlled by chapter 40.14 RCW.

2. Such records may not be destroyed without photostating after they are more than ten years old.

                                                                  - - - - - - - - - - - - -

                                                                   June 22, 1960

Honorable R. DeWitt Jones
Prosecuting Attorney
Clark County
301 Court House
Vancouver, Washington                                                                                                Cite as:  AGO 59-60 No. 125

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office upon two questions which we paraphrase as follows:

            1.  Do county clerks have any legal authority to destroy their old records?

            2.  May such records be destroyed without photostating after they are older than ten years?

            We answer your first question in the affirmative and your second question in the negative, both as qualified in the analysis.

                                                                     ANALYSIS

            1. Authority to destroy records.

            As an introduction to a discussion of the first question it may be helpful to note that Article IV, § 26, of the Washington State Constitution, makes the county clerk by virtue of his office the clerk of the superior court.  RCW 2.32.050 and 36.23.010 as well as other provisions of chapter 36.23 RCW  [[Orig. Op. Page 2]] make him the custodian of court records, files, and other books and papers appertaining to the court.  RCW 36.23.065 then provides in part as follows:

            "Notwithstanding any other law relating to the destruction of court records, the county clerk may cause to be destroyed all documents, records, instruments, books, papers, depositions, and transcripts, in any action or proceeding in the superior court, or otherwise filed in his office pursuant to law, ifall of the following conditions exist:

            "(1) Ten years have elapsed since the filing of any paper in the action or proceeding and the records of the county clerk do not show that the action or proceeding is pending on appeal in any court.

            "(2) The county clerk maintains for the use of the public a photographic film, microphotographic, photostatic or similar reproduction of each document, record, instrument, book, paper, deposition, or transcript so destroyed.

            "(3) At the time of the taking of said photographic film, microphotographic, photostatic or similar reproduction, the county clerk or other person under whose direction and control the same was taken attached thereto, or to the sealed container in which the same was placed and has been kept, or incorporated in said photographic film, microphotographic, photostatic or similar reproduction, a certification that the copy is a correct copy of the original, or of a specified part thereof, as the case may be, the date on which taken, and the fact it was taken under his direction and control.  The certificate must be under the official seal of the certifying officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court.

            "(4) The county clerk promptly seals and stores at least one original negative of each such photographic film, microphotographic, photostatic or similar reproduction in such manner and place as reasonably to assure its preservation indefinitely against loss, theft, defacement, or destruction."  (Emphasis supplied.)

             [[Orig. Op. Page 3]]

            RCW 36.23.070 (§ 3, chapter 201, Laws of 1957) provides as follows:

            "A county clerk may at any time more than ten years after the entry of final judgment in any action apply to the superior court for an authorizing order and, upon such order being signed and entered, destroy any exhibits which have theretofore been filed in such cause:  Provided, That any exhibits which are deemed to possess historical value may be directed to be delivered by the clerk to libraries or historical societies."

            Clearly these quoted provisions provide the requisite authority for county clerks to destroy the court records and other records specified in those statutes under the conditions expressed therein.

            As to other county records, the applicable statutes are found in chapter 40.14 RCW (cf. chapter 246, Laws of 1957).  This chapter replaced chapter 40.12 RCW which was repealed by § 9, chapter 246, Laws of 1957.  RCW 40.14.070 provides as follows:

            "County, municipal and other local government agencies may request authority to destroy noncurrent public records having no further administrative or legal value by submitting to the division of archives and records management, lists of such records, in triplicate, on forms prepared by the division.  The archivist and the chief examiner of the division of municipal corporations of the office of the state auditor and a representative appointed by the attorney general shall review such lists, and either may veto the destruction of any or all items contained therein.  No official public record of any local governmental unit shall be destroyed until it is either photographed, microphotographed, photostated, or reproduced on film or until it is ten years old.

            "Records of county, municipal or other governmental agencies, designated by the archivist as of primarily historical interest, may be transferred to a recognized depository agency, selected by the archivist, in order to relieve local offices of the burden of housing them, to insure their preservation, and to make them available for reference or study."

            As is readily seen from reading the foregoing provisions, county records in general cannot be destroyed without prior authorization from the  [[Orig. Op. Page 4]] committee designated therein.  The specified forms may be obtained by requesting them from the State Archivist, General Administration Building, Olympia, Washington.  Chapter 40.14 RCW, however, has no application to the various records mentioned in RCW 36.23.065 and 36.23.070, supra, because RCW 40.14.080 especially provides as follows:

            "The provisions of this chapter shall not be construed as repealing or modifying any other acts or parts of acts authorizing the destruction of public records save for those specifically named in section 9 of this act; nor shall this chapter affect the provisions of RCW 40.04.020 requiring the deposit of all state publications in the state library."

            It only remains to be noted that § 9 of that act made no reference to the above statutes relating to the superior court clerk.

            Similarly the provisions of chapter 40.20 RCW, mentioned in your letter, have no bearing upon the question.  In our opinion that chapter was enacted for certain purposes only; specifically, to authorize the making and use of copies of original records.  It does not, in our opinion, authorize the destruction of any records because the matter is adequately covered by chapter 40.14 RCW, supra.  The same is true of RCW 36.23.067, also referred to in your letter.

            2. Necessity for photostating.

            In quoting RCW 36.23.065, supra, we emphasized the language requiringall of the specified conditions to be met in connection with destroying the records mentioned therein.  Both the ten-year retention period and photostatic or other similar reproduction are specified as conditions, among others.

            We should add that it is not only necessary that such records be more than ten years old, but RCW 36.23.065, supra, provides that ten years must have elapsed since the filing of any paper in the action or proceeding, and the records of the clerk do not show that the action or proceeding is pending on appeal.  As to exhibits, the language of the statute is quoted in full above.  See RCW 36.23.070,supra.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General

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