west virginia legislature - special report ......records act” as mandated by west virginia code...

SPECIAL REPORT

DEPARTMENT OF ADMINISTRATION State Records Retention and Management

October 2009PE 09-09-455

AUDIT OVERVIEW

The Department of Administration Has Not Administered the “Records Management and Preservation of Essential Records Act” as Mandated by West Virginia Code §5A-8-1 et. seq.

There Are Areas of Concern Over the Level of Protection the State’s Records Are Receiving, Most Notably That the Storage Facility Used to Store State Records Has Been Cited With Several Fire Violations by the Charleston Fire Department

WEST VIRGINIA LEGISLATIVE AUDITOR

PERFORMANCE EVALUATION & RESEARCH DIVISION

JOINT COMMITTEE ON GOVERNMENT OPERATIONS

Senate

Edwin J. Bowman, ChairHerb Snyder, Vice-ChairWalt Helmick Donna BoleyClark S. Barnes

House of Delegates

Jim Morgan, ChairDale Stephens, Vice-ChairSam ArgentoRuth RowanPatti SchoenCraig Blair, Nonvoting Scott G. Varner, Nonvoting

Agency/ Citizen Members

Dwight CalhounJohn A. CanfieldW. Joseph McCoyKenneth Queen James Willison

JOINT COMMITTEE ON GOVERNMENT ORGANIZATION

Senate

Edwin J. Bowman, ChairHerb Snyder, Vice-ChairRichard BrowningDan FosterJeffrey V. KesslerBrooks McCabeJoseph M. MinardCorey L. PalumboRobert H. PlymaleRandy WhiteBob Williams Jack YostDonna J. BoleyDon CaruthDave Sypolt

House of Delegates

Jim Morgan, Chair Dale Stephens, Vice-Chair Sam J. Argento Brent BoggsGreg Butcher Samuel J. Cann, Sr. Roy GivensDaniel J. Hall William G. Hartman Barbara HatfieldMike ManypennyDale Martin Daniel PolingMike Ross

Doug Skaff, JrMargaret A. StaggersRandy SwartzmillerJoe TalbottDaryl E. CowlesPat McGeehanCarol MillerJonathan MillerThomas PorterRuth Rowan

Aaron AllredLegislative Auditor

Building 1, Room W-314State Capitol ComplexCharleston, West Virginia 25305(304) 347-4890

John SylviaDirector

Denny RhodesResearch Manager

Megan KueckResearch Analyst



Martin ValentLegislative Photographer

Tina BakerReferencer

Performance Evaluation & Research Division | pg. �

Special Report October 2009

CONTENTS

Executive Summary .......................................................................................................................................................................................... 5

Objective, Scope and Methodology ........................................................................................................................................................... 9

Issue 1: The Department of Administration Has Not Administered the “Records Management and Preservation of Essential Records Act” as Mandated by West Virginia Code §5A-8-1 et. seq ........................................................................................................11

Issue 2: There Are Areas of Concern Over the Level of Protection the State’s Records Are Receiving, Most Notably That the Storage Facility Used to Store State Records Has Been Cited With Several Fire Violations by the Charleston Fire Department .......................................................................................................................................................17

List Of TablesTable 1: FY 2007 - FY 2009 Total Payments to NOVA Records, LLC ...............................................................................................19

List Of AppendicesAppendix A: Transmittal Letter to Agency ............................................................................................................................................27Appendix B: Fire Inspection Report and Follow Up Letters ............................................................................................................29Appendix C: Additional Images of the NOVA Facililty .......................................................................................................................39Appendix D: Additional Images of the Virginia Records Center ....................................................................................................43Appendix E: Agency Response ..................................................................................................................................................................45

Tina BakerReferencer

pg. 4 | West Virginia Legislative Auditor

Department of Administration

Performance Evaluation & Research Division | pg. 5


EXECUTIVE SUMMARY

Issue 1: The Department of Administration Has Not Administered the “Records Management and Preservation of Essential Records Act” as Mandated by West Virginia Code §5A-8-1 et. seq.

TheLegislativeAuditorexaminedtheRecordsManagementandPreservationofEssentialRecordsAct,aspartofastudyofrecordsretentionandmanagement.TheSecretaryoftheDepartmentofAdministrationisstatutorilychargedastheadministratorofthestaterecordsprogram.WestVirginiaCoderequirestheSecretaryoftheDepartmentofAdministrationtoestablishprocedures for recordsmanagement. TheSecretarystatedthatextensivediscussionhasoccurred,althoughtheseprocedureshavenotyetbeencreated.Sincetheseprocedureshavenotbeencreated,stateagencieshavebeencreatingandfollowingretentionguidelinesontheirown. Additionally, the following mandates have not been fulfilled, since proceduresforrecordsmanagementhavenotbeencreated:

• Collectionofrecordsretentionschedulesfromstateagencies.• Reviewoftheprogramforselectionofpreservationofessential

staterecords.• Submission of an annual report to the Governor and the

Legislature.

Furthermore, the Act establishes the Records Management andPreservationAdvisory Committee to advise the Secretary of DOA onrecords management issues. The Legislative Auditor could not find record of when this committee last met, and believes this committeeshouldbemergedwithRecordsManagementPreservationBoard,whichisconcernedwithcountyrecords.

Issue 2: There Are Areas of Concern Over the Level of Protection the State’s Records Are Receiving, Most Notably That the Storage Facility Used to Store State Records Has Been Cited With Several Fire Violations by the Charleston Fire Department.

The statewide records storage contract is administered by theDepartment ofAdministration and managed by NOVA Records, LLC.

West Virginia Code requires the Secretary of the Department of Administration to establish procedures for records management. The Secretary stated that extensive discussion has occurred, although these procedures have not yet been created.

pg. � | West Virginia Legislative Auditor


NOVARecords,LLC,islocatedat1545HansfordStreetinCharlestonand houses over 183,558 cubic feet of state agency records. TheLegislativeAuditorhadanumberofconcernsregardingtheNOVAafteranAugust2009 tourof thefacility. Asa resultof theseconcerns, theLegislativeAuditorcontactedtheStateFireMarshalandtheCharlestonFireDepartment.TheseinquirieslaterrevealedthattheNovaRecords,LLC,facilityhadbeencitedwithnineviolationsbytheCharlestonFireDepartment.IncorrespondencewiththeDepartmentofAdministration,it seems thatDOAwasunawareof theseviolations. Additionally, theLegislativeAuditor had concerns about the heat and humidity of thefacility, based on correspondences with theVirginia Records ProgramManager.

Recommendations

1. The Legislative Auditor recommends that the Department ofAdministration fulfill the statutory responsibilities outlined in West Virginia Code §5A-8-1 et. seq. by properly managing state records.

2. The Legislative Auditor recommends that the Secretary of the Department of Administration report to the Joint Committee onGovernment Organization in January 2010 with a projection of when records retention policies and procedures for state agencies can be finalized.

3. The Legislative Auditor recommends that the Department ofAdministration comply with other mandates of the Records Management andPreservationAct.

4. The Legislative Auditor recommends that the Records Management and Preservation Advisory Committee and the Records Management PreservationBoardmerge.

5. The Legislative Auditor recommends that the Secretary of the Department of Administration ensure that the State’s records haveadequate fire protection.

6. The Legislative Auditor recommends that the Secretary of the Department of Administration reevaluate the need for a state recordsstorage facility with conditions that meet best practices instead of the facility currently offered by NOVA Records, LLC.

Performance Evaluation & Research Division | pg. �


7. TheLegislativeAuditorrecommendsthattheLegislatureconsiderdefining the term “fireproof” in the Code of State Rules §148-14-1 et. seq.

8. The Legislative Auditor recommends that the Department ofAdministration address the contract requirements that have not been met.

pg. � | West Virginia Legislative Auditor




OBJECTIVE, SCOPE & METHODOLOGY

ObjectiveThe objective of this study was to examine the Department ofAdministration’s compliance with statutory mandates made in WestVirginiaCodeChapter5A,Article8,Section1et.seq.andtoreviewthefacilitythatisusedtostorestaterecords.

ScopeThescopeofthereportfocusedontheDepartmentofAdministration’sfulfillment of statutory mandates made by the Records Management and PreservationofEssentialRecordsAct,since2006.Also,theLegislativeAuditor concentrated on the Department of Administration’s contractwithNOVARecords,LLC,beginningin2007.

Methodology

TheLegislativeAuditorutilizedinformationcontainedincorrespondenceswith the Secretary of the Department of Administration, notes andphotographs collected from touring theNOVA Records, LLC, facility,fire inspection reports provided by the Charleston Fire Department, and informationregardingtherecordsmanagementobtainedfromtheVirginiaRecordsProgramManager.Additionally,WestVirginiaCodeandWestVirginiaCodeofStateRuleswereusedinthisstudy.Everyaspectofthisreview complied with the GenerallyAccepted GovernmentalAuditingStandards(GAGAS)assetforthbytheComptrollerGeneraloftheUnitedStatesofAmerica.



The Department of Administration Has Not Administered the “Records Management and Preservation of Essential Records Act” as Mandated by West Virginia Code §5A-8-1 et. seq.

Issue Summary

As part of a study of records retention and management,the Legislative Auditor examined the Records Management andPreservationofEssentialRecordsAct.TheSecretaryoftheDepartmentofAdministration isstatutorilydesignatedas theadministratorofstaterecordsandischargedwiththeirmanagement.Aspartofthestatutorydutiesoftheadministrator,WestVirginiaCode§5A-8-1et.seq.requiresguidelines for establishing retention standards for state agencies. TheLegislative Auditor found that the Department of Administration isnot fulfilling its responsibilities and has not established a records retentionprogram. By theDepartment ofAdministrationnotmeetingthesestatutoryrequirementsandnotofferingpropermanagement,stateagencieshavebeencreatingandfollowingretentionguidelinesontheirown. Additionally,sincearecordsmanagementprogramhasnotbeenestablished, othermandates requiredby theRecordsManagement andPreservation of Essential Records Act cannot be fulfilled.

West Virginia Code §5A-8-5 Establishes the Secretary of the Department of Administration as the “Administrator” of the State Government Records Program

West Virginia Code §5A-8-1 et. seq., known as the RecordsManagementandPreservationofEssentialRecordsAct(Act),designatesthe Secretary of the Department of Administration (DOA) as theadministratorofthestaterecordsprogram.Astheadministratorofstaterecords, the Secretary is statutorily charged with management of thefollowingtypesofstaterecords:

• a record of a department, office, commission, board or other agency;

As part of the statutory duties of the administrator, West Virginia Code §5A-8-1 et. seq. requires guidelines for establishing retention standards for state agencies. The Legislative Auditor found that the Department of Administration is not fulfilling its re-sponsibilities and has not established a records retention program.

ISSUE 1



• arecordoftheLegislature;• a record of any court, whether statewide or local jurisdiction;

and• anyrecorddesignatedortreatedasastaterecordunderlaw.

Additionally,recordsareconsideredthefollowing:

• documents,• books,• paper,• photographs,• soundrecordings,and• othermaterialregardlessofphysicalformorcharacteristics.

Furthermore, West Virginia Code §5A-8-4 defines essential records as thefollowing:

• Records containing information necessary to the operation ofgovernmentintheemergencycreatedbyadisaster.

• Recordscontaininginformationnecessarytoprotecttherightsandinterest of persons or establish and affirm the powers and duties ofgovernment in the resumptionof operations after a disaster,whicharenotnecessaryinemergencycreatedbydisaster.

The Department of Administration Has Not Established Records Management Procedures for State Agencies

WestVirginia Code §5A-8-7 requires that the Secretary of theDepartmentofAdministration

1. Establish standards, procedures, and techniques foreffectivemanagementofrecords

2. Make continuing surveys of paperwork operationsand recommend improvements in current recordsmanagement practices including the use of space,equipment and supplies employed in creating,maintaining,storingandservicingrecords

3. Establishstandardsforrecordretentionschedulesanddisposalofunnecessarystaterecords

Performance Evaluation & Research Division | pg. 1�


4. Selectthestaterecordsthatareessentialanddeterminetheircategory

5. Obtainreportsfromstateagenciesthatarenecessaryforprogram

In response to whether standard procedures have been created, the Secretary of DOA stated that extensive discussions have occurred, although standards have not yet been created. Additionally,noinventoryreportshavebeencollectedfromstateagenciesinthepastthree fiscal years that were requested by the Legislative Auditor, although reportshadbeencollected in thepast. TheSecretary’s response is asfollows:

Extensive research, planning, and discussions have occurred within the Department of Administration related to records management, generally, and to program framework and options in order to create and adopt a uniform state-wide records management policy and procedures; however, standards, procedures, and techniques have not yet been created.

WithoutguidancefromtheDOA,stateagencieshavebeenforcedtocreateandadheretorecordsretentionschedulesontheirown.Recently,the LegislativeAuditor conducted a survey of state agencies’ recordsretention practices, and found that there is inconsistency in how longagenciesmaintainrecords.Thesurveyresultsshowthatsomeagenciesmaybemaintainingrecordsfortoolong,whichmaycauseagenciestospendfundsonrecordsstorageunnecessarily.

Multiple agency representatives stated in their survey responsethatrecordsweremaintaineduntilcompletionofalegislativeaudit.TheLegislativeAuditorfoundthatstateagencieshaveconsultedtheArchivessectionof theDivisionofCulture andHistory forguidance in storingrecords,whichwasasourceforinformingagenciesthatrecordshadtobestoreduntilanauditwascomplete.The Legislative Auditor states that agencies are not required to store records indefinitely until a legislative audit is completed. This is a clear effectof theDOAnothavingstandardprocedures.Ifprocedureswereinplaceforstateagencypersonneltoreferto,theywouldnothavetoconsultotherentities,andpossiblyreceiveinformationthatisnotnecessarilyabestpractice.As a

Without guidance from the DOA, state agencies have been forced to create and adhere to records retention schedules on their own.



result, the Legislative Auditor recommends that the Department of Administration adhere to the requirements of §5A-8-7, and establish records retention standards for state agencies. Furthermore, theLegislativeAuditorrecommendsthattheSecretaryoftheDepartmentofAdministrationreporttotheJointCommitteeonGovernmentOrganizationinJanuary2010withaprojectionofwhenrecordsretentionpoliciesandprocedures for state agencies can be finalized.

Upon the Creation of Records Management Procedures for State Government, the Department of Administration Should Comply with the Other Mandates of the Records Management and Preservation of Essential Records Act

In addition to establishing standards for records management,the Secretary of DOA is statutorily required to fulfill mandates that aredependenton thecompletionof the requirementsoutlined inWestVirginia Code §5A-8-7. Specifically, the Act mandates the following responsibilitiestotheSecretary:

• Collectrecordsretentionschedulesfromstateagencies(§5A-8-9(c)).

• Review at least once a year the program for the selection ofpreservationofessentialstaterecords(§5A-8-14).

• Submit an annual report to the Governor and the Legislature(§5A-8-19).

SincetheDepartmentofAdministrationhasnotcreatedarecordsmanagementprogramforstategovernment,othermandatesestablishedbytheActcannotbecompleted.Furthermore, upon the completion of a records management program the Legislative Auditor recommends that the Department of Administration comply with other mandates of the Records Management and Preservation of Essential Records Act.The Records Management and Preservation Advisory Committee Is Not Functioning

WestVirginiaCode§5A-8-6establishestheRecordsManagement

If procedures were in place for state agency personnel to refer to, they would not have to consult other entities, and possibly receive information that is not necessarily a best practice.



andPreservationAdvisoryCommitteetoadvisetheSecretaryofDOAonstaterecordsmanagementissues.ThestatuteestablishesthefollowingasmembersoftheCommittee:

The governor, [the] auditor, [the] attorney general, president of the Senate, speaker of the House of Delegates, the chief justice of the supreme court of appeals, a judge of a circuit court to be appointed by the governor, the director of the office of emergency services, and the director of the section of archives and history of the division of culture and history, or their respective designated representatives.

Althoughthestatutedoesnotestablishthefrequencythatitistomeet, the Legislative Auditor could not find record of when the Committee lastmet.Inanauditreleasedin2008ontheboards,commissions,andcommitteesoftheDepartmentofAdministration,theLegislativeAuditorrecommendedthattheLegislatureshouldconsidermergingthefunctionsof the Records Management and Preservation Advisory Committeewith the Records Management Preservation Board under the DivisionofCultureandHistory. TheRecordsManagementPreservationBoardisalsoestablishedundertheRecordsManagementandPreservationofEssentialRecordsAct,butisconcernedwiththepreservationofcounty records ratherthanstaterecords. SincetheAdvisoryCommitteeforstaterecordsisstillnotactivelymeeting,theLegislativeAuditorstandsbytheoriginalrecommendationofmergingthetwoentities.

Conclusion

TheRecordsManagementandPreservationofEssentialRecordsAct designates the Secretary of the Department of Administration asadministrator of state records. As the administrator of state records,the Secretary of DOA is statutorily charged with the creation andimplementationofarecordsmanagementprogram.Thusfar,theSecretaryhasnotcreatedorimplementedthisprogram.WithoutguidancefromtheDOA, stateagencieshavebeen forced tocreateandadhere to recordsretentionschedulesontheirown.Also,sinceDOAhasnotestablishedrecordsmanagementproceduresfor thestate,otherstatutorymandateshave not been fulfilled. Specifically, the Records Management and

Although the statute does not establish the frequency that it is to meet, the Legislative Auditor could not find record of when the Committee last met.

pg. 1� | West Virginia Legislative Auditor


PreservationAdvisoryCommitteehasnotbeenfunctioningasrequiredbyStateCode.

Recommendations

1. The Legislative Auditor recommends that the Department ofAdministration fulfill the statutory responsibilities outlined in West Virginia Code §5A-8-1 et. seq. by properly managing state records.

2. The Legislative Auditor recommends that the Secretary of the Department of Administration report to the Joint Committee onGovernment Organization in January 2010 with a projection of when records retention policies and procedures for state agencies can be finalized.

3. The Legislative Auditor recommends that the Department ofAdministration comply with other mandates of the Records Management andPreservationAct.

4. The Legislative Auditor recommends that the Records Management and Preservation Advisory Committee and the Records Management PreservationBoardmerge.



There Are Areas of Concern Over the Level of Protection the State’s Records Are Receiving, Most Notably That the Storage Facility Used to Store State Records Has Been Cited With Several Fire Violations by the Charleston Fire Department.

Issue Summary

The Legislative Auditor reviewed the facility for storage ofstaterecords,managedbyNOVARecords,LLC.Thefacilityprovidesadequate storage capacity for state records. However, the LegislativeAuditor observed a number of concerns over the manner in whichdocuments were stored and the level of protection against substantialdamage. The LegislativeAuditor’s initial observations suggested thatthe risk of fire damage may be high. As a result of these concerns, the LegislativeAuditormadeinquirieswiththeStateFireCommissionandthe Charleston Fire Department concerning the storage facility. TheinquiriesrevealedthatthestoragefacilityusedbytheStateforitsrecordshadrecentlybeencitedbytheCharlestonFireDepartmentwithseveralfire violations. As of the time of this report, these violations were still unresolvedtothesatisfactionoftheCharlestonFireDepartment.Oneoftheunresolvedmattersinvolvestheneedforasprinklersystem.ItappearsthattheDepartmentofAdministrationwasunawareofthissituation.TheLegislativeAuditorhasasecondaryconcernthatformostoftheState’srecords,thefacilityprovidesnoclimatecontrolforlongtermprotectionagainstheatandhumidity.Overall,thestoragefacilitymeetstheState’sbasicstorageneeds;however,thelevelofprotectionthatisprovideddoesnot follow best practices. The LegislativeAuditor’s primary concernis that fire protection at the facility is below standard. The Legislative Auditor recognizes that using a storage facility that provides climatecontrolmaybecostprohibitivefortheState.Therefore,itisapolicyissuefortheDepartmentofAdministrationandtheLegislature.Nevertheless,the LegislativeAuditor recommends that the State’s records be givengreater fire protection than presently is provided.

ISSUE 2

As of the time of this report, these violations were still unresolved to the satisfaction of the Charleston Fire Department.

The Legislative Auditor recommends that the State’s records be given greater fire protection than presently is provided.



The Department of Administration Administers a Statewide Contract with NOVA Records, LLC, for the Storage of State Records

NOVA Records, LLC, (NOVA) is the current vendor of thestatewidecontractforthestorageofstateagencyrecords.ThecontractisadministeredbytheDepartmentofAdministration(DOA).NOVA’sCharlestonfacilityhousesover183,558cubicfeetofstateagencyrecordsandislocatedat1545HansfordStreet,abouthalfofamilefromtheStateCapitolComplex.Image1showstheexteriorofthefacility.

Image 1

Exterior of NOVA Records, LLC, Charleston Storage Facility



FromFY2007toFY2009,theStatehaspaidover$1.6milliontoNOVARecordsManagement to store state records. Table1 showsthe total amount that state agencies have paid over the past three fiscal years.

Table 1FY 2007 - FY 2009 Total Payments to NOVA Records, LLC

FY2007 $565,131FY2008 $570,286FY2009* $524,474

Total $1,659,891Source: Information provided by the Department of Administration

* FY 2009 totals through May 14, 2009.

NOVA Records, LLC, Is Not Providing State Records Adequate Fire Protection West Virginia Code of State Rules §148-14-3 specifies guidelines forastaterecordscenter.TheRulesmandatethephysicallocationandfacilityrequirementsthataretobemaintainedbythecenterasfollows:

The West Virginia State Records Center shall be a fireproof storage facility located in a centralized location in West Virginia which may be owned and/or operated or privatized.

As a result of touring the NOVA facility inAugust 2009, theLegislative Auditor had concerns about whether the facility was fireproof, and whether it offered the best protection against fire. Specifically there wereconcernsaboutthelackofasprinklersystem,andawoodroofwithelectricalwiringattached(seeImage2).Additionally,insomestorageareas,boxeswerestackedclosetothetopofthewoodroof(seeImage3).AdditonalimagesoftheNOVAfacilitycanbefoundinAppendixC.

As a result of touring the NOVA facility in August 2009, the Legislative Auditor had concerns about whether the facility was fireproof.



Image 2

Electrical wiring attached to wood roof

Image 3

Boxes of records stacked close to the top of the wood roof



The LegislativeAuditor contacted the State Fire Marshal withquestions about fire code requirements for the NOVA facility. With theassistanceoftheStateFireMarshal,itwasrevealedthatthestoragefacilityhadbeenrecentlyinspectedbytheCharlestonFireDepartment,andthebuildinghadseveralviolations.TheCharlestonFireDepartmentprovided the Legislative Auditor with the fire inspection report dated May15,2009.Thefacilitywascitedforthefollowingviolations:

1. Lackofexitsignsandillumination2. Lackofcoversforjunctionboxes3. Storageheightsofcombustibles4. Storageheightsandclearancefromceiling5. Refusestoredaroundshreddersandcompactors6. Aisle widths of filing systems7. Verticalopeninginviewingareaormezzanine8. Inadequateexitoffthemezzanine9. Headroom

The inspection report was signed as being received by arepresentativefromNOVA.TheCharlestonFireDepartmentsentaletterto NOVA dated June 3, 2009 with specific instructions for maintaining the facility in accordance with current fire and life safety standards, and notified the company that a plan of action was needed within 60 days. A copy of the inspection report, and follow-up letter are included inAppendixD.TheCharlestonFireDepartmentsetadeadlineofAugust31,2009astheresultofaverbalrequestbyNOVAforanextension.TheactionplanwasultimatelysubmittedtotheCharlestonFireDepartmentonSeptember3,2009.Inturn,theCharlestonFireDepartmentrespondedtotwooftheitemsintheactionplanbystating:

Your plan of action DOES NOT meet the minimum requirements ofthecode.

Anadditional30dayshasbeengiventoNOVAtore-submittheactionplan.It does not appear that the Department of Administration was aware of the violations at the state records storage facility, since the Legislative Auditor was not informed of the violations through DOA. Before learning of the fire violations, the Legislative Auditor had

With the assistance of the State Fire Marshal, it was revealed that the storage facility had been recently inspected by the Charleston Fire Department, and the building had several violations.

An additional 30 days has been given to NOVA to re-submit the action plan.



contactedtheSecretaryoftheDepartmentofAdministrationtorequestwhether he was satisfied that NOVA provided a facility that protected documents from disasters, such as fire. In his response, the Secretary statedthatthroughtoursanddiscussionwithNOVA,theDOAis:

…satisfied that NOVA Records, LLC, is able to protect documents from disasters such as fire....

The Legislative Auditor has determined that the state recordsstorage facility is not fireproof, as required by the Code of State Rules. Although the term “fireproof” is not defined in the Rules, the Legislative Auditor is basing his conclusion on the fire inspection report from the CharlestonFireDepartment.TheLegislativeAuditorrecommendsthatthe Legislature define the term “fireproof” in order for the Department of Administration and/or vendors to have guidance for fire protection of staterecordsinthefuture.

NOVA Records, LLC, Is Currently in Violation of the Statewide Records Storage Contract

Perthe2007statewiderecordsstoragecontract,thefacilitythatmaintainsstaterecordsmustprovidethefollowingrequirements:

The vendor must provide a facility that will protect all documents from disaster as defined in West Virginia Code 5A-8-3 which states: “Disaster” means any occurrences of fire, flood, storm, earthquake, explosion, epidemic, riot, sabotage, or other conditions of extreme peril resulting in substantial damage or injury to persons or property within this state, whether such occurrence is caused by an act of God, nature, man, including an enemy of the United States.

The inspection report from the Charleston Fire Departmentindicatesthatthefacilitydoesnotadequatelyprovideprotectionagainstfire for the facility’s content. In fact, the inspection report indicates that some conditions at the facility are increasing the risk of damage by fire.

The Legislative Auditor recommends that the Legislature define the term “fireproof” in order for the Department of Administration and/or vendors to have guidance for fire protection of state records in the future.



The Legislative Auditor Has Some Concerns With the Department of Administration’s Oversight of the Records Storage Contract

WestVirginiaCode§5A-3-4authorizesthepromulgationofrulesregarding the Purchasing Division. In turn, the “Procedures Handbook” createdby thePurchasingDivisionprescribesprocurement regulationsto state agencies. Section 10.2.3 of the “Procedures Handbook” states thefollowingregardingtheresponsibilitiesofstateagencieswhichareinvolvedincontractswithvendors:

The agency is responsible for monitoring vendor performance and compliance with the specifications [of the contract] on a daily basis.

As statedpreviously, theLegislativeAuditor toured theNOVArecordsstoragefacilityinAugust2009,andimmediatelyhadconcernsas a result of the conditions. The Department ofAdministration hadindicated that it was satisfied that the facility had adequate fire protection. Those conditions should have been observed by the Department ofAdministration since it is responsible for administering the statewidecontractwithNOVA.Additionally,thereareafewotherminorareasthatDOAshouldaddressconcerningthecontractwhichareasfollows:

1. The Department of Administration stated that it has not verified ifthefacilityfollowstheAssociationofRecordsManagersandAdministrators (ARMA) guidelines, although it has verified NOVAisamemberofARMA.

2. NOVAisnotsupplyingtheDOAwithmonthlyreportsshowingtheagenciesthatstoredocumentsandthetotalamountofcubicfeetperagencyatthefacility.However,NOVAissupplyingreportsdirectlytoeachindividualagencyregardingthetotalamountofstoragebytheagencyaswellasmonthlybillingamounts.TheDOAshouldreceivethesesamereportsfromNOVA.

3. NOVA stated that it has conducted background checks of itsemployees, but the Department of Administration has not verified ifthisistrue.

Those conditions should have been observed by the Department of Administration since it is responsible for administering the statewide contract with NOVA.



The State of Virginia Manages a Records Storage Facility with Greater Protection of Records than West Virginia’s Storage Facility Throughresearchonrecordsmanagementpractices,theLegislativeAuditorfoundthatthestateofVirginiahasastate-runfacilitylocatedinRichmond,Virginia.Thisfacilityrepresentsabestpracticeinthestorageofstaterecords.TheLegislativeAuditorcontactedtheRecordsProgramManagerforVirginia’sstaterecordstobetterunderstandrecordsfacilitymanagement. In contrast to the facility which houses West Virginiarecords, theVirginia records facility is fullyequippedwitha sprinklersystem and emergency lighting, which are backed by a generator. AphotographofthefacilityisshowninImage4.AdditionalphotographsareincludedinAppendixD.

Image 4

Virginia Records State Storage Facility

In contrast to the facility which houses West Virginia records, the Virginia records facility is fully equipped with a sprinkler system and emergency lighting, which are backed by a generator.



Also,theVirginiarecordscenterisanenvironmentallycontrolledfacilitywhichcreatesastableclimateforrecords.Thecenterismaintainedat 72 degrees, and at 45 percent relative humidity. According to theRecordsProgramManager,heatandhumidityaredetrimentaltorecords.Additionally, a room that is allowed to fluctuate in both temperature and relativehumiditymaycausecondensationonthearticlesintheroomandacceleratethedecompositionofpaperrecords.TheVirginiafacilitywasbuiltwithanappropriationof$10million.TheFY2010budgetforthecenteris$474,000,andconsideringitgenerated$450,000foritsserviceslast fiscal year, the facility is almost self-sustaining.

Conclusion

TheDepartmentofAdministrationhasentered intoastatewidecontractwithNOVARecords,LLC,tostoretherecordsofWestVirginiastate government. The contract requires NOVA to maintain certainoperatingenvironmentandfacilityguidelines.Basedonobservationsbythe Legislative Auditor’s staff and most notably the fire inspection report provided by the Charleston Fire Department, the State does not haveadequate fire protection for the storage of state records. The Charleston Fire Department cited the NOVA facility for nine fire inspection violationsinitsreportdatedMay15,2009.TheLegislativeAuditorwillmonitor NOVA’s actions in correcting the fire inspection violations at the state records storage facility, and will update the Joint Committeeon Government Organization and Joint Committee on GovernmentOperations at an appropriate time. Fire protection clearly must beenhancedtotheCharlestonFireDepartment’sstandardsfortheStatetocontinue using the facility, but the LegislativeAuditor must point outthe lack of a sprinkler system or fire suppression system in the facility. WhilenotrequiredbytheCharlestonFireDepartment,asprinklersystemwouldbeconsideredcorrectiveactionforsomeoftheviolations. TheStateshouldevaluatewhetherafacilitywithasprinklersystemorotherenhancements would be the best option. A secondary concern is thelackofclimatecontrolinmostofthefacility.TheLegislativeAuditorrecognizes that enhancing fire protection beyond the requirements of the CharlestonFireDepartmentorprovidingclimatecontrolwouldcomeata significant cost. Providing a best-practice facility similar to the state of VirginiamaybeacosttheStatecannotincuratthistime.Therefore,itisapolicyissuefortheDepartmentofAdministrationandtheLegislature.TheLegislativeAuditorrecommendsthattheSecretaryoftheDepartment

Fire protection clearly must be enhanced to the Charleston Fire Department’s standards for the State to continue using the facility, but the Legislative Auditor must point out the lack of a sprinkler system or fire suppression system in the facility.

The State should evaluate whether a facility with a sprinkler system or other enhancements would be the best option.



ofAdministrationreevaluatetheneedforastaterecordsstoragefacilitywithconditionsbetter than thosecurrentlyofferedbyNOVARecords,LLC.

Recommendations

5. The Legislative Auditor recommends that the Secretary of the Department of Administration ensure that the State’s records haveadequate fire protection.

6. The Legislative Auditor recommends that the Secretary of the Department of Administration reevaluate the need for a state recordsstorage facility with conditions that meet best practices instead of the facility currently offered by NOVA Records, LLC.

7.TheLegislativeAuditorrecommendsthattheLegislatureconsiderdefining the term “fireproof” in the Code of State Rules §148-14-1 et. seq.

8. The Legislative Auditor recommends that the Department ofAdministration address the contract requirements that have not been met.



Appendix A: Transmittal Let-



Appendix B: Fire Inspection Report and Follow Up Letters

pg. �0 | West Virginia Legislative Auditor


Performance Evaluation & Research Division | pg. �1


Performance Evaluation & Research Division | pg. ��


pg. �� | West Virginia Legislative Auditor


Performance Evaluation & Research Division | pg. ��


pg. �� | West Virginia Legislative Auditor




Appendix C: Additional Images of the NOVA Facility

NOVA Facility Shredding Area

Loading Dock Door



Entrance to the Main Storage Facility

Loading Dock Door With Multiple Holes



NOVA Storage Area



Interior of the Virginia Records Center

Exterior of Virginia Records Center

Appendix D: Additional Images of the Virginia Records Center

Loading Dock Door at Virginia Records Center



Appendix E: Agency Response



Building 1, Room W-314, State Capitol Complex, Charleston, West Virginia 25305

telephone: 1-304-347-4890 | www.legis.state.wv.us /Joint/PERD/perd.cfm | fax: 1- 304-347-4939

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