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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6170

July 18, 1983

GOVERNOR:

Public and private papers, determination of

HISTORICAL COMMISSION:

Public papers of the Governor

STATE, DEPARTMENT OF:

Authority of Secretary of State over gubernatorial records

The Governor may make an initial determination whether records of the Executive Office are personal or public, but that determination is subject to judicial review in an action initiated by the Attorney General after appropriate investigation by the Department of Management and Budget.

The Secretary of State, as head of the Department of State, has supervisory authority over the Michigan Historical Commission in the examination of public records of the Governor which have been certified as without administrative value.

Honorable Richard H. Austin

Secretary of State

State Treasury Building

Lansing, Michigan

Stating your concern about the disposition of gubernatorial papers upon conclusion of the term of the outgoing administration, you have asked whether OAG, 1961-1962, No 3590, p 581 (November 14, 1962), has been affected by changes in federal law regarding presidential records.

The legal advisor to the former Governor has stated that late in 1982, the records of the Governor were examined and divided into two categories: public records and personal records. Some public records were left in the Executive Office. The remainder of the public records considered to be unneeded were boxed and sent to the Records Center. The former Governor took with him the personal records, part of which were sent to the University of Michigan Bentley Library, and part were sent to his home.

OAG, 1961-1962, No 3590 supra, at 589, concluded:

'Under section 13b of the Department of Administration Act, all officials are to deliver such public records as they possess to their successors or dispose of said public records in the manner provided in section 13c prior to leaving office. No exception was made in section 13b for the public documents in the executive office. It must be presumed that an outgoing governor has fulfilled his duty to deliver to his successor all public records. Initially, it is his decision alone as to which of his papers are private and which must be surrendered to his successor because of their public status. This initial determination cannot be interfered with by the Michigan Historical Commission, or any other body, because they are not empowered to enter the executive office to determine which records of the office are public and which are private. Only the department of administration, under its act, is authorized to initiate legal action in order to recover public records removed from the governor's office. This power arises after the removal has taken place. It must be exercised by bringing an action for specific public records.

It must be presumed that a governor who is about to leave office but who is still the chief executive of the state, will adhere to the law and remove only private papers. His initial determination that papers and documents are of a private nature and may be removed is subject to review by the courts as to specific documents. Any public records recovered by court action must be returned to the executive office where their administrative value will be determined. The incumbent governor may retain those which he deems would be of current use, store those with the Department of Administration which he feels will be of future use, and offer to the Michigan Historical Commission those which are of no use and which otherwise would be destroyed, with the approval of the State Administration Board.'

The statutory sections involved in that discussion are 1948 1st Ex Sess PA 51, Secs. 13a-13c, as added by 1952 PA 178; MCLA 18.13a; MSA 3.516(13a); MCLA 18.13b; MSA 3.516(13b); MCLA 18.13c; MSA 3.516(13c). Those provisions have not been amended since enactment, but under 1965 PA 380, Sec. 102, as amended; MCLA 16.202; MSA 3.29(102), the administrative duties have been transferred to the Department of Management and Budget.

My prior opinion did draw on an analogy to the law regarding presidential records as it existed in 1962. The Presidential Records Act of 1978 [PC 95-591; 92 Stat 2523; 44 USC 2201 et seq] does distinguish 'presidential records' from 'personal records' of the President and does indicate that the federal government owns 'presidential records.' Since the definition of 'presidential records' in 44 USC 2201 is similar to the definition of 'records' in 1948 1st Ex Sess PA 51, Sec. 13b, supra, the analogy is still appropriate.

You have also asked three specific questions, which may be stated as follows:

1. May an outgoing governor properly donate public records from his office to a facility such as the University of Michigan?

2. Should all gubernatorial records be placed on a records retention and disposal schedule?

3. What is the proper role of the Secretary of State concerning the Governor's records?

Since these questions are essentially interrelated, they will be treated as a unit.

If records are public records rather than personal records, their disposition is governed by 1948 1st Ex Sess PA 51, Sec. 13c, supra, and under that statute, as long as the agency or department determines that records remain useful, they may be retained and stored by the agency or department. See. OAG, 1961-1962, No 3590, supra, at 582.

Section 13c also prescribes a procedure for transferring records to a state records center and a procedure for authorized disposition or destruction of records. A retention and disposal schedule may be established with the approval of the State Administrative Board. Before any records are actually disposed of or destroyed, a list thereof must be submitted to the secretary of the Michigan Historical Commission in keeping with 1948 1st Ex Sess PA 51, Sec. 13c, supra, and 1913 PA 271 as amended; MCLA 399.1 et seq; MSA 15.1801 et seq. Unless public records pass through this process and the Historical Commission does not claim them, it would not be proper to donate them to any other depository.

On the other hand, personal records may be donated or handled in any way a governor chooses. 1948 1st Ex Sess PA 51, Sec. 13b, supra enumerates what are state records and provides for turnover by outgoing officials, as follows:

'When used in this act the word 'records' shall include any paper, book, photograph, motion picture film, microfilm, sound recording, map, drawing, or other document, or any copy thereof that has been made by any agency of the state of Michigan or received by it in connection with the transaction of public business and has been retained by the agency or its successor as evidence of its activities or because of the information contained therein. All records shall be and remain the property of the state of Michigan and shall be preserved, stored, transferred, destroyed or disposed of, and otherwise managed in accordance with the provisions of this act. Such records shall be delivered by outgoing officials and employees to their successors, and shall not be otherwise removed, transferred, destroyed or otherwise disposed of, without authorization or unlawfully, except as provided for in section 13c, below.'

As explained in OAG, 1961-1962, No 3590, supra, at 582-584, the role of the Michigan Historical Commission, as a type I transfer in the office of Secretary of State, 1965 PA 380, Sec. 30; MCLA 16.130; MSA 3.29(30), does not begin until records have been certified as administratively useless. If records are removed from a public office without following the statutory process, the Department of Management and Budget may request the Attorney General to commence legal action to recover them. 1948 1st Ex Sess PA 51, Sec. 13a supra.

It is my opinion, therefore, that the Governor may make an initial determination whether records are personal or public, but that determination is subject to judicial review in an action brought under 1948 1st Ex Sess PA 51, Sec. 13a(3) and (4), supra. Such action may be initiated by the Attorney General after appropriate investigation by the Department of Management and Budget. It is my further opinion that the Secretary of State, as the head of the Department of State, has supervisory authority over the Michigan Historical Commission in the examination of the public records of the Governor which have been certified to be without any administrative value.

Frank J. Kelley

Attorney General


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