When Is a Record Considered Destroyed?

A Washington Municipal Perspective

The question of when a record is officially considered “destroyed” has been at the forefront of my mind lately. I’ve shared my perspective with several clients, but if there’s one thing I can tell you about me, it’s this: if I’m not 100% confident in the advice I’m giving, I will research it into the ground before standing behind it. (Once a ‘Library Scientist,’ always a Library Scientist)

So I did.

What I found was both interesting and, frankly, clarifying. I wanted to share my thoughts in case others are navigating the same question.

Before I go any further, two important disclaimers:

1. This discussion is specific to Washington State municipal entities, though aspects may still be instructive elsewhere depending on your state or local laws.

2. I am not an attorney. You should always consult with your city attorney before making policy decisions related to records retention or destruction.

The Legal Framework: Adequate Search Under the PRA

The starting point for this conversation is Washington’s Public Records Act (PRA), Chapter 42.56 RCW.

As the Municipal Research and Services Center (MRSC) explains:

“The Public Records Act (PRA), chapter 42.56 RCW, requires that agencies perform an adequate search to locate records responsive to a public records request. The PRA itself doesn’t provide detailed provisions on how to conduct an adequate search. Rather, such requirements can be found in court decisions.”

In practice, this means that the reasonableness and adequacy of the search are key. Agencies must show they made a good faith effort that was reasonably calculated to uncover all responsive records.

The operative word here is reasonable.

My Initial Position: The Locked Shred Bin

It has long been my opinion that once a record is placed into a locked shred bin pursuant to policy, it can reasonably be considered destroyed for practical purposes.

Why?

Because it is not ‘reasonable’ to expect an agency to “dumpster dive” into a locked shred bin—particularly when records are buried under other materials and commingled with additional documents awaiting destruction.

If the item was placed in the bin moments ago and is easily retrievable, then I’d argue it is a different story (which is why it is still important to create destruction logs listing the date placed in the shred bin). But generally speaking, requiring staff to sift through a locked shred container to retrieve buried records feels inconsistent with a standard of reasonableness.

That was my working assumption.

Then I kept researching.

Industry Guidance: Not Destroyed Until Physically Destroyed

Both ARMA International and NAGARA generally advise that records should not be considered destroyed until they are physically destroyed. A locked shred bin, under this line of thinking, is a “secure storage location prior to destruction.”

In other words, destruction occurs when the shredding vendor removes and destroys the contents—not when the record is placed in the bin.

By that logic, records in a shred bin are technically still producible until the moment of actual destruction.

On its face, that position makes sense.

But in the context of local government operations, I believe it is critically deficient.

The Practical Reality in Local Government

Many municipalities do not have:

• On-site shredding capabilities

• Daily or even weekly shred service

• The staffing capacity to track every transitory, or other, document placed in a shred bin

Expecting agencies to log, track, and potentially retrieve every transitory record sitting in a shred container could quickly become an insurmountable—and unnecessary—administrative burden.

Records management in local government must balance legal compliance with operational practicality. A standard that ignores operational realities risks becoming unworkable.

Recent Litigation: Rodriguez v. City of Lakewood

To test my thinking, I contacted a Washington city attorney at a widely utilized civil municipal law firm.

Her response was validating.

She referenced Jose Rodriguez v. City of Lakewood, a recent case involving FLOCK Safety camera images. In that matter, the City argued that images stored on the vendor’s servers beyond a 30-day access period were effectively transitory or akin to trash, as the City had not accessed them within that timeframe.

The City Attorney in that case argued there was no affirmative duty to “dig around in the (virtual) trash” for those images. The trial court agreed.

While every case turns on its specific facts, the principle is instructive: agencies are not required to engage in unreasonable retrieval efforts for materials that are effectively discarded pursuant to policy.

The Critical Conditions

That said, this is not a free pass.

In my professional opinion—and echoed by the city attorney I consulted—the defensibility of treating shred-bin records as destroyed hinges on two critical factors:

1. You Have a Compliant Policy

You must have a clear, legally compliant policy governing:

• What qualifies as a transitory record

• When a record may be placed in the shred bin

• Staff training on proper handling and shred-bin destruction logging

• Documentation or tracking of shred pickup/destruction dates

Without policy and training, you lose the foundation for reasonableness.

2. Records Do Not Sit Indefinitely

Timing matters.

If a record is placed in a shred bin on February 1, a request is received on February 2, and the shred service does not occur until March 31, that presents risk. In such a scenario, it may very well be considered reasonable to retrieve the record the day of the request.

Lengthy retention in a shred bin weakens the argument that the record is functionally destroyed, especially if it is (sorry to use the word again) reasonable for the entity to not have to entertain such a lengthy stint. We wouldn't want the courts to try and argue that the city avoided responsible disposition on purpose.

Where I Land (For Now)

After researching, consulting legal counsel, and reviewing relevant guidance, I believe this:

A record placed in a shred bin pursuant to a compliant records policy may reasonably be treated as destroyed for PRA purposes—provided the agency’s policies are clear, staff are trained, shred cycles are timely, and circumstances do not render retrieval reasonable.

But—and I cannot emphasize this enough—you must consult your city attorney before adopting or modifying your practice.

This is an area where operational reality, statutory obligations, and litigation risk intersect. It deserves careful consideration.

If you decide to discuss this with your attorney, I would genuinely be interested in hearing their perspective. These conversations make all of us better at what we do.

As always, thank you for letting me think out loud—and for engaging in these nuanced records management discussions with me.

Sources

• Municipal Research and Services Center (MRSC), Public Records Act (Chapter 42.56 RCW)

• Revised Code of Washington (RCW) 42.56 – Public Records Act

• ARMA International, Generally Accepted Recordkeeping Principles®

• National Association of Government Archives and Records Administrators (NAGARA), Records Management Guidance

• Rodriguez v. City of Lakewood (Pierce County Superior Court, FLOCK Safety records litigation)