“How Long Do We have to Keep This?” Record Retention for Local Law Enforcement Documents

Written by: Rebekah Maddox Ditto, Esq. and Jennifer D. Herzog, Esq.

Having the honor to represent numerous local law enforcement agencies we often get the question (usually in response to an open records request but sometimes as a result of a lack of space for storage), “How long do we have to keep this?” The good news is – there is an answer! The bad news is – there is not one set retention period for all local law enforcement agency records, and therefore how long an agency must retain a particular document/file/record depends upon the type of record it is and also the applicable retention schedule.

The Georgia Records Act[i] (“GRA”) governs record retention and is applicable to local law enforcement agencies[ii].  The GRA should not to be confused with Georgia’s Open Records Act[iii] governing which government records are to be open for public inspection.  The Division of Archives and History of the University System of Georgia (“Georgia Archives”) provides local governments with a list of common types of records maintained together with recommended retention periods.[iv]  Each local governing authority is required to have a record retention plan – which includes a records coordinator, retention schedule, and provisions for maintenance and security.[v]  This plan must be approved by the State Records Committee before becoming effective.[vi]  Under O.C.G.A. § 50-18-99(d), county officers may recommend to the local government governing body a retention schedule, and schedules previously approved by the State Records Committee will remain in effect until changed by the governing body.  Many local governments choose to adopt verbatim the Georgia Archives recommended records retention schedules locally, although some may adopt stricter local retention schedules if desired.

The length of retention advised by the Georgia Archives for a few of the most common type of local law enforcement records are as follows:

• • Criminal investigation case files involving capital felony cases should be retained for 50 years after the case is adjudicated.
  • Criminal investigation case files involving felony cases (other than capital offenses) should be retained for 7 years after adjudicated.
  • Criminal investigation case files for misdemeanors should be kept for 5 years after adjudicated.
  • Evidence and Property Logs – law enforcement agency must retain for at least 3 years after disposition of property.
    • Logs of property not part of any court proceeding must be retained for at least 1 year after disposition of property.
  • Incident reports involving fire and fire related damage should be kept for 20 years.[vii]

Beware of pitfalls as to specific records! Agencies are bound by any applicable record retention schedule but must also follow any other retention requirements as set out in the law as to specific types of documents.  For example, O.C.G.A. §50-18-96 sets out special retention requirements for video recordings from law enforcement agencies, stating that footage from body cams/dashcams/drone cameras should be retained for at least 180 days.  However, if the recording is part of a criminal investigation, shows a vehicle accident, shows the detainment or arrest of an individual or shows a law enforcement officer’s use of force, and then it should be retained for a minimum of 30 months.    If the recording contains evidence that is part of pending litigation or anticipated pending litigation, then the recording should be retained until a final adjudication of the litigation.   In these situations, the local law enforcement agency must follow any applicable retention schedule and requirements of O.C.G.A.  §50-18-96 and retain the records for the amount of time required.

If a law enforcement agency decides to begin the process of destroying records, we recommend taking an intentional and systematic approach, and further documenting the system and qualifications of what records are being destroyed.  The agency should also make it a coordinated effort with adjacent agencies to determine status of criminal cases, including clerk of courts’ offices, District Attorney’s office, Solicitor General’s Office and County Attorney.

An updated list of retention schedules can be located at on the Georgia Archives website.  (https://www.georgiaarchives.org/records/local_government/)  Any retention schedule is the minimum amount of time law enforcement agency must retain the records.

Note, if a law enforcement agency has already received an open records request for a record that otherwise could or should have already been destroyed under an applicable retention schedule, it is required under the Georgia Open Records Act (O.C.G.A. §50-18-70 et seq.) to produce the record unless an applicable exclusion applies.  If you ever questions regarding drafting a retention schedule applicable to local law enforcement documents, responding to open records requests, or other questions related to county government, please reach out to an experienced member of our Local Government Practice Group team!

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[i] O.C.G.A. 50-18-90 et seq.

[ii] O.C.G.A. 50-18-99.

[iii] O.C.G.A. 50-18-70 et seq.

[iv] Id.

[v] O.C.G.A. § 50-18-99(e).

[vi] O.C.G.A. § 50‐18‐92.

[vii] Id.