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     Retention requirements for government records operate in tandem with freedom of information statutes, which typically deal only with the public's access to existing records. When records are discarded, they obviously are no longer available for public scrutiny.
     The widespread use of e-mail and other, often ephemeral electronic records has underscored the significance of retention policy. It is estimated that ninety percent of documents created today are in electronic form, of which only thirty percent will be printed.¹
     Since 2001, Arkansas has not had a generally applicable record retention statute.² Although the state's Freedom of Information Act³ gives citizens the right to inspect and obtain copies of public records in any medium,⁴ it does not, except in narrow circumstances, require that records be kept.⁵ Scattered statutory provisions address the retention and disposition of certain records at the state and local levels.⁶
     Near the end of its regular session in 2003, the General Assembly passed a bill that would have required the state's Executive Chief Information Officer (ECIO)⁷ to develop retention requirements for most state agencies.⁸ These regulations were to apply to "public records of more than transitory value."⁹ Governor Mike Huckabee described the bill as "laudable" but vetoed it as "an onerous unfunded mandate" at a time of "fiscal distress" in state government.¹⁰
     Subsequently, the Governor charged the ECIO with (1) developing a retention schedule for state agency records, regardless of medium, and (2) establishing electronic record management standards and guidelines. As permitted by statute,¹¹ the ECIO established a working group to consider these matters. The group includes representatives from state government, the news media, and the legal community. Among the lawyers involved are Rep. Jodie Mahony, who sponsored the 2003 bill, Professor Rick Peltz of the UALR law school, Debby Nye, Scotty Shively, Mac Norton, and David Ivers.
     Under existing law, the ECIO has authority to develop "standards, policies, and guidelines" for information technology, including "retention schedules for control, preservation, protection, and disposition of the electronic records of [state] agencies."¹² Legislative action is necessary with respect to records in other media.
     The General Assembly might, for example, broaden the statutory language quoted above, craft a bill outlining a basic retention policy but leaving the details to the EOIC or another state official or department,¹³ or enact specific retention requirements based on the working group's recommendations. In addition, existing statutes should be examined to ensure that they mesh with the new retention regime.¹⁴
     As of this writing, the working group is finalizing a "general record inventory" consisting of administrative, fiscal, legal, and personnel records that state agencies create and receive in the ordinary course of business. The group will then develop a retention schedule for each record in the inventory.¹⁵
     Fashioning a record retention policy is a daunting task, particularly with respect to information in electronic form, and implementation will not be easy. As the Archivist of the United States has observed, "electronic records pose the biggest challenge ever to recordkeeping in the Federal Government and elsewhere."¹⁶

Endnotes
1. See Patricia Nieuwenhuizen, E-Mail: The Smoking Gun of the Future, National     Law Journal (Dec. 11, 2000), at B9; Corinne L. Giacobbe, Allocating Discovery     Costs in the Computer Age: Deciding Who Should Bear the Costs of     Discovery of Electronically Stored Data, 57 Wash. & Lee L. Rev. 257 (2000).
2. Act 1252 of 2001 repealed the State Records Management and Archives Act     of 1995, previously codified at Ark. Code Ann. §§ 13-4-101 to -112 (Supp.     1995). The 1995 legislation replaced retention provisions adopted in 1973 and     revised in 1987. See Ark. Code Ann. §§ 13-4-101 to 110 (1987).
3. Ark. Code Ann. §§ 25-19-101 et seq.
4. Id. §§ 25-19-103(5)(A), 25-19-105(a)(2)(A).
5. See McMahan v. Board of Trustees, 255 Ark. 108, 499 S.W.2d 56 (1973); Ark.     Op. Att'y Gen. Nos. 2000-220, 97-030. An agency's alteration or destruction of     records after receipt of a proper request for them would be a denial of access     and, therefore, a violation of the Arkansas FOIA. See Hengel v. City of Pine     Bluff, 307 Ark. 457, 821 S.W.2d 761 (1991). Moreover, an agency cannot     transfer records elsewhere to avoid disclosure or allow a person who has     submitted a record to withdraw it after a FOIA request has been made. Ark.     Op. Att'y Gen. Nos. 2002-228, 93-263.
6. E.g., Ark. Code Ann. §§ 7-9-123 (petitions and other records concerning     initiated acts and constitutional amendments); 13-4-301 to -308 (county     records), 14-59-114 & 14-237-112 (municipal accounting records); 19-4-815 &     19-4-1108 (financial records of state agencies); 23-46-211 (records of State     Bank Department); 23-61-107 (records of State Insurance Commissioner). By     order, the Supreme Court has established a retention schedule for its records     and those of the Court of Appeals. See Ark. S. Ct. Admin. Order No. 7.
7. The ECIO position was created in 2001, in large part to facilitate     implementation of online "e-government" services. See Act1042 of 2001,     codified at Ark. Code Ann. §§ 25-33-102 to -107 (Repl. 2002).
8. H.B. 2681 (84th General Assembly, 2003). Regulations adopted pursuant to     the bill would have applied to "all state departments, boards, and     commissions," excluding elected constitutional officers, their staffs, and state     colleges and universities. Id. § 3(b).
9. H.B. 2681, § 4(b)(1). Transitory records were described as those "not received     or created in the course of state business," including "personal messages"     and "other electronic mail, voice mail, telephone messages, and other records     that have no administrative value." H.B. 2681, § 3(c)(1).
10. Inadequate funding also hampered implementation of earlier retention     programs. See Ark. Op. Att'y Gen. No. 94-085.
11. Ark. Code Ann. § 25-33-104(a)(4).
12. Id. § 25-33-104(a)(2)(B). See also id. § 25-33-104(a)(5) (authorizing ECIO to     "[o]versee the development of legislation and rules and regulations affecting     electronic records management and retention").
13. The 1995 legislation established a records commission comprised of various     state officials and created, within the Department of Finance & Administration,     an office of records management. Ark. Code Ann. §§ 13-4 105, 13-4-106     (Supp. 1995) (repealed). Under the statutes in effect from 1987-1995,     responsibility rested with the Arkansas History Commission and the state     historian. Ark. Code Ann. § 13-4-105 (1987) (repealed).
14. See, e.g., Ark. Code Ann. §§ 25-8-102(b) (authorizing director of Department     of Finance & Administration "to install any recordkeeping and other     procedures in his or her office and in other offices and departments of the state     which he or she shall deem necessary or advisable to carry out his or her     functions and duties"); 25-32-117(a) (providing that each state agency is to     "determine whether, and the extent to which, it will create and retain electronic     records" with the scope of the Uniform Electronic Transactions Act).
15. Drew Mashburn of the ECIO's office graciously provided this status report and     other information about the working group for this article.
16. Statement of John W. Carlin, Archivist of the United States (Sept. 21, 1998),     available at
    http://www.archives.gov/records_management/policy_and_guidance /electronic_record_workgroup. report.html.•