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JUDICIAL DEPARTMENT
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Clerk of Court Manual

CHAPTER 3

Records Retention

3.0 Introduction

Records management can be defined as the systematic analysis and control of recorded information. Inasmuch as records are essential to government and the ability to reference information accurately and quickly lies at the center of the Clerk of Court's functions, a continuing records management program is critical to the successful operation of this office. One of the primary means of managing records is through the use of records retention/disposition schedules which name and describe records, recommend how long those records should be kept, and indicate what the final disposition should be. Retention schedules may also include recommendations or options for microfilming and inactive or archival storage.

3.1 Filing Systems Required to be Maintained

Clerks of Court are responsible for maintaining accurate records on cases which are in various stages of litigation or prosecution. In order to facilitate the determination of current caseload status and ease of file location, the following filing systems must be maintained:

  1. pending Common Pleas case list
  2. disposed Common Pleas case list
  3. Common Pleas case jackets (both pending and disposed without entry into the judgment roll)
  4. Common Pleas case jackets that have been entered into judgment
  5. pending General Sessions case list
  6. disposed General Sessions case list
  7. pending General Sessions warrants
  8. disposed General Sessions warrants (dismissed , remanded, etc.)
  9. General Sessions case jackets (pending and disposed)
  10. pending Family Court case list
  11. disposed Family Court case list
  12. Family Court case jackets (both pending and disposed without entry into the judgment roll)
  13. Family Court case jackets that have been entered into judgment
  14. pending and disposed cases which are confidential by nature

These systems must be separate and distinct. They must be maintained with the utmost attention to accuracy.

All documents pertaining to the same case must be kept in one location unless they are specifically designated for separate storage (ex: when a defendant is indicted on one or more warrants, an indictment file should be created; and the warrant(s) and all documents previously filed with it pulled from the pending warrant file. These documents should be filed with the indictment in the pending indictment file system). This greatly reduces the risk of loss of important documents and having incomplete files for judicial review. Any case jacket pulled at any time should have all documents pertaining to that case in the jacket. This procedure is especially critical in the case flow from pending warrant to pending indictment.

3.1.1 Documents Kept Separately from Case File

Some case papers, documents and exhibits should be filed separately when their size or volume makes it impractical or impossible to file them with the case jacket. The following items may be stored separately from the case jacket, if the volume becomes problematic:

  1. Exhibits (includes documentary exhibits if necessary)
  2. Transcripts of proceedings
  3. Depositions

These types of case records are used less frequently and are often quite bulky. Whenever material is filed separately from the case to which it pertains, a record should be placed in the case jacket noting the following:

  1. Item description (ex: Deposition of ...)
  2. Date received by the clerk
  3. Storage location

All items stored separately from the case jacket must be clearly marked or tagged with the case number.

3.1.2 Consolidation and Merging of Cases

Consolidation is governed by Rule 42, SCRCP. Case law has provided a distinction between "consolidating" and "merging" cases. Keels v Pierce, 315 S.C. 339, 433 S.E.2d 902 (Ct. App. 1993). When cases are consolidated, they each retain their own identity but an issue common to each case may be addressed by a single ruling. If the cases are merged, there is only one case left. Where cases are merged, the case number and filing date of the earliest action should be used and the other case would be ended by the merger. Notes and cross-references should be made in each file and electronic record to indicate the appropriate action taken and the cases effected. Only in merged cases should a file be closed and integrated with the file to remain active. Place a copy of the order to merge cases in the ended case file jacket.

3.1.3 Change of Venue

1. When venue is changed to another court , the following procedures should be followed:

a. The forwarding court should send to the receiving court:

b. all original documents in the case jacket

c. all transcripts, depositions and exhibits filed with the court in that case

d. a certified copy of the order changing venue

e. a transmittal acknowledging receipt or use by the receiving court

2. The case jacket left in the forwarding court should contain:

a. certified copies of all original documents

b. the transmittal acknowledgment after its return

c. the original change of venue order

3. The receiving court should:

a. review the materials received to make sure that all items listed on the transmittal letter have been received.

b. establish a case jacket for the new case in accordance with previous instruction.

NOTE: the forwarding court should be notified IMMEDIATELY upon the discovery that any material listed as being transmitted was not received.

3.1.4 Expungements

When an order of the court is received requiring the expungement of criminal records, all records, including indices and the like, pertaining to the case named in the order should be destroyed. The common practice of "sealing" the records and maintaining them in a location accessible only by the clerk is not appropriate. The General Sessions case number should be recorded on the order of expungement in case future reference to that case number is necessary. The expungement order should be maintained in a locked file accessible only by the clerk. (See 5.10.1)

3.1.5 Confidential Records

The confidentiality of certain records cannot be stressed enough. The following are, by statute, confidential records and as such are not available for public access:

Abortions for Minors
Juvenile records
Adoptions
Abuse & Neglect
Termination of Parental Rights
All records ordered sealed by the court
Orders of Expungement and affected records

The word CONFIDENTIAL should be stamped on each case jacket.

The files should be kept in a locked file cabinet. Where volume is prohibitive, an area clearly designated specifically for confidential and sealed files should be established. Only authorized personnel should be allowed access to these files and the number of authorized personnel should be limited. Access to any index of confidential records should also be limited to authorized personnel.

Jackets of cases ordered sealed must be placed into an envelope and physically sealed in such a manner that any tampering would be visibly apparent.

If any confidential documents are to be filed in a case which does not fall under the scope of a confidential file, these documents should be placed in an envelope and marked "confidential", sealed and placed in the case jacket. This envelope should also be marked with the corresponding case number. If any request is made to view the open case, the confidential envelope should be removed before turning the case jacket over to the requestor and should be replaced immediately upon the return of the jacket.

No copies shall be made of a confidential report without a written order of the court unless authorized by statute or court rule.

3.1.6 Exhibits

The maintenance of exhibits poses problems peculiar to the court system. The lack of proper indexing and storage of exhibits quickly results in disorganization and can lead to the loss of vital documents and items. Due to the very nature of some exhibits (large quantities of narcotics, weapons, etc.) which require special security precautions, accountability systems are imperative.

Proper index control must be maintained by keeping accurate indexes and insuring that all exhibits are clearly and properly identified. An inventory list may be completed by the court reporter during each trial in which exhibits are accepted. At the end of the trial, the clerk will review the list of exhibits to insure that each exhibit listed is turned over to them. The clerk will sign the exhibit list and provide a copy to the court reporter. If an inventory is not provided by the court reporter, then the clerk should prepare one and obtain the court reporter's signature before the exhibits are accepted. In any case, the clerk should sign the form and provide the court reporter with a copy. (A sample form can be found behind this chapter's Miscellaneous Section. You may wish to retain a vendor to provide a two-part form.)

After taking custody of the exhibits, the clerk should place them immediately in a secure area used specifically for the retention of exhibits. Exhibits must be stored in an area that is secure. All exhibits from the same case should be stored together. One method is to place all exhibits from one case in a heavy envelope, record the case number on the envelope and file it numerically. Notation of the case caption can further assist in later identification of exhibits. Items that are too big to be placed in an envelope may be placed in a box, with a securable lid, for storage. As with the envelope, the case number should be clearly notated on the box.

Please note: There must be extremely restricted access to the exhibit storage area. The number of staff members allowed access should be as limited as possible. No unauthorized person should be left unattended in the exhibit room. When a request to review exhibits is made, the clerk (or an appointed staff member) should retrieve the requested exhibits. A list of exhibits removed should be completed with a notation as to the date of removal, the requesting individual, the staff member who made the removal and, if appropriate, the destination of the exhibits (i.e. to the Supreme Court on appeal). This list should remain with the inventory list in the exhibit room during the time the exhibits are removed. This list should be completed whenever exhibits are removed from the exhibit room, regardless of the reason for their removal.

When a request is made by an individual to view exhibits, they should be reviewed in a public area that is supervised by the clerk's staff. This does not apply when exhibits are physically transferred to another location. Physical transfer of any exhibit should be well documented and closely monitored. When the review is complete and the exhibits are returned, they should be examined in conjunction with the inventory list to make sure that all of the exhibits have been returned. After the inventory list is reviewed and the clerk is satisfied that the exhibits are in order and all are accounted for, the exhibits should be taken directly to the exhibit room and placed in their proper order. When the exhibits are placed back in the exhibit room, notations should be made on the list prepared when the exhibits were removed which reflect the date of return, the inventory check and the name of the person to whom the exhibits were returned.

The Clerk of Court should work closely and on a regular basis with solicitors and attorneys to initiate and implement the return of exhibits to representing attorneys.

When ordered by the court, exhibits may be returned to the submitting party after final judgement has been entered and the time for appeal has elapsed. If an appeal was sought and has been decided, the exhibits may be returned after the time for further appeal has elapsed. This standard applies to criminal and civil courts. (See Rule 606, SCACR)

After the time for appeal has elapsed in criminal proceedings, application may be made to the court for the return or destruction of exhibits. Criminal exhibits will not be destroyed unless specifically ordered by the court. Notice should be given to the circuit solicitor and the defendant or his/her attorney or as otherwise directed by the court. Exhibits from cases in which the death penalty is sought may not be returned or disposed of without the written consent of the Supreme Court.  In the event of the death of the defendant, the circuit court shall direct a disposition of the exhibits.

PLEASE NOTE: The 2008 Post Conviction DNA Procedures Act provides that for certain offenses, evidence should be preserved until the convicted person is released from incarceration, dies while incarcerated or is executed.  If the person was convicted or adjudicated on a guilty or nolo contendere plea, the evidence must be preserved for seven years from the date of sentencing, or until the person is released from incarceration, dies while incarcerated or is executed—whichever occurs first, Section 17-28-320(B).  A January 9, 2009 memorandum from SC Court Administration provides a summary of the 2008 Post Conviction DNA Procedures Act and may be accessed by clicking on the link above.

In civil cases, the clerk shall return exhibits to the submitting party in the following method:

a. Unless the court has ordered some other disposition of the exhibit , the party introducing an exhibit shall immediately reclaim the exhibit from the clerk of court after the expiration of 60 days after the entry of the final judgment in the matter or, if an appeal is taken, 60 days after the remitter is sent by the appellate court.  The party shall sign a receipt for the exhibit (Rule 606(c)(2)(B) SCACR). 

b. If the exhibit is not reclaimed as described above , the clerk of court should prepare a notice and mail it to the attorney or party who submitted the exhibits notifying the attorney or party that the exhibits will be destroyed or disposed of if they are not picked up within 30 days. Pursuant to Rule 606(c)(2)(g), the failure of a party to reclaim an exhibit within 30 days after the time the party is authorized to do so shall be construed as the party’s consent to destroy or otherwise dispose of the exhibit, and no cause of action shall lie against the clerk of court for the destruction or other disposition of the exhibit.  

c. If the notice is returned as undeliverable , the clerk will make every reasonable effort to locate (by telephoning, through the South Carolina Bar, etc.) and shall send a subsequent notice to the attorney or party at the proper address.

d. If attempts by the clerk to locate the party have been unsuccessful, when 30 days have elapsed since the notice was sent , and except as otherwise provided by law or order of the court , the exhibit becomes the property of the county.  

e. The clerk shall deliver the exhibit to the county; provided , however, if the exhibit has no value or de minimus value , the clerk may destroy the exhibit. A record of exhibits which have been disposed of should be maintained. This should include the case number, case name , date notice sent , date of disposal and description of exhibits.

f. When an exhibit is a weapon , controlled substance , poison, explosive or any other kind of property which the offering party may not lawfully possess , the return of the exhibit is prohibited pursuant to Rule 606, SCACR.

g. Pursuant to Rule 606, the court may, on motion by a party or its own motion, direct the release of an exhibit at any time , and may allow the substitution of a copy , photograph or description in place of the exhibit.  If such substitution is allowed , the copy , photograph, or description shall be admissible in any subsequent proceedings to the same extent that the exhibit would have been admissible.  The Court may, on motion by a party or its own motion, direct the retention of an exhibit beyond the period specified by this rule upon a showing of good cause. The Court may on motion by a party or someone having an interest in the exhibit, direct that an exhibit be returned to someone other than the party who introduced the exhibit. 

3.1.7 Separation of Active and Closed Records

All case jackets should be filed together in numerical sequence. Cases in which a judgment has been entered should be filed numerically by judgment roll number. Ideally, judgment roll numbers should be the same as the case number. The assignment of a distinct judgment roll number creates additional indexing and can delay locating a file. All files with same year case numbers which have not been entered into judgment should be maintained in the clerk's office until the great majority of the cases are ended. At this point the records for the entire year may be moved to an inactive records storage facility. Moving all same year files at the same time will maintain the integrity of the numerical filing system. Relocation of case jackets will be far easier in this manner. Same year files should not be moved to inactive storage on a piecemeal or as-ended basis. Cases entered into judgment should also be transported to inactive storage in a periodic, numerically based manner.

3.2 Inactive Records Maintenance

Records that are inactive can be more efficiently maintained in an inactive records storage facility than in the office. When properly constructed and operated, an inactive records storage facility provides the necessary protection for the records and affords reasonable access to any document that is needed. Removing inactive records from the office frees valuable office space which can then be better utilized for maintaining more active records. Maintaining only the most active records in the office contributes to a more efficient office operation.

3.2.1 Establishing an Inactive Records Storage Facility

There are several goals that must be achieved in order to maintain an acceptable inactive records storage facility. The location of the facility, the physical design and construction, and the way in which it is equipped must be adequate to protect the important records that will be stored there. It must have the capacity for high density storage with a maximum utilization space. Reasonable access to the files must be provided.

As with the filing of active records, it is essential that precautions are taken to ensure the safety of these records in the event of natural or man- made disasters. Fire and flood can be quite destructive to prolonging the life of these records. The following will help minimize the havoc which can be wreaked under severely adverse conditions:

A) Protection

Records shall be placed a minimum of three inches from the floor on sturdy, well-supporting shelving units, file cabinets, or wooden pallets. Unbound inactive records shall be stored in file cabinets or in closed containers placed on shelves or pallets. Records shall not be placed in areas subject to flooding or excessive moisture, in areas with exposed water or steam pipes subject to leaking, or in areas that are adjacent to furnaces or boilers unless separated by a four-hour fire wall.

The storage area shall not be located in any area where the risk of natural and man-made disasters pose a significant threat to the facility and its contents. It shall be located sufficiently separate from external hazards to ensure a high degree of safety from such occurrences as fire and flood. It shall be located within the coverage area of a fire station and near a regularly patrolled police route. It shall be secured at all times, and, in the case of an off-site storage facility, if it is not normally open to the public, access shall be restricted to authorized persons. It shall have an operational fire detection mechanism. If an off-site, unstaffed facility, the fire detection mechanism shall have an external audible alarm. It shall contain an adequate supply (one or more) of well-distributed portable fire extinguishers with a minimum classification of IIA:10B:C suitable for extinguishing fires in all record materials stored.

3.2.2 Storage

Shelf space will be used most efficiently and handling will be safer and easier if standard cardboard records center cartons with a capacity of one cubic foot are used. These are the cartons from which all measurements regarding the use of space are derived, and they are recommended above all others. Transfer file boxes and other containers can be expensive and excessively heavy. Often, they are not designed to hold much weight or to be stacked without collapsing or compressing.

3.2.3 Access

The contents of the box must be clearly marked on the box end and an index referencing the location of files should be maintained at the clerk's office. A copy of the index could also be kept on-site at the storage facility.

3.3 Procedure to Restore a Case Filed in Inactive Storage

If a case that has been transferred to inactive storage is reopened at a later date, the following procedures should be used.

1) Create a new case jacket with the appropriate case number and case name. The determination regarding the assignment of a new number or the use of the original number will be made according to established guidelines.

2) Locate the original jacket in inactive storage.

3) Remove all documents from the original case jacket and place them in the new case jacket.

4) Insert a certified copy of the document directing that the case be reopened into the original case jacket. If the case is given a new number upon restoration, this new number should be reflected on the copy of the document that is placed in the original case jacket as a reference to the location and new number of the case.

5) File the original document restoring the case in the new case jacket and file it in its appropriate numerical position in the active case filing system.

6) When the case is disposed it should be filed in its proper numerical sequence.

3.4 Records Retention and Disposition

Included in this manual are the records retention and disposition schedules developed by the South Carolina Department of Archives and History. These schedules have been approved by Court Administration and adopted by order of the Chief Justice. Prepared in accordance with the Code of Laws of South Carolina, 1976, § 30-1-10 through § 30-1-140, the schedules indicate the minimum length of time that records must be retained and comprise a most important step toward the comprehensive management and preservation of Circuit and Family Court records in South Carolina.  For more information, you may contact the Archives and Records Management Department at the South Carolina Department of Archives and History.  The department may be contacted by phone (803) 896-6123 or http://arm.scdah.sc.gov/.

3.4.1 Description of Schedules

The purposes of these schedules are to:

(1) insure that court records are retained as long as needed for administrative, legal, fiscal and other use.

(2) insure that records are retained as long as required by county, state and federal laws and regulations.

(3) identify and provide protection for records of permanent value.

(4) encourage and facilitate the systematic disposal of records no longer needed for any use.

Separate schedules have been developed for records of the Circuit Courts of Common Pleas and General Sessions, Family Courts, and for the miscellaneous records maintained by the Clerks of Court. The schedules are based upon the inventory and analysis of the records of a number of counties and the review and appraisal of these records in terms of their administrative, fiscal, legal and archival values. In producing these retention schedules, an attempt has been made to cover the vast majority of the court records maintained by the Clerks of Court. However, because of the diversity of filing procedures and functions within the various clerks' offices, additional schedules will probably be needed as well as amendments to the present schedules. Procedures for amending existing schedules or establishing additional schedules are outlined in sections 3.4.5 and 3.4.6.

3.4.2 Interpreting the Schedules

Each retention schedule has been designed to cover one record series or type of record. If two or more record series are filed together, the combined file must be kept for the longest retention period of those records. In addition to the title of the record series, each schedule contains a full description of the record to include its function or purpose and a listing of the information contained therein. Schedule statements are often written "        years, then destroy." This means that the records should be retained for           years after the last entry in the record. Retention in the county should be in the office of record or other appropriate records storage facility so as to maximize protection of the documents against loss from natural deterioration, disaster, or theft.

Some schedules contain reference to micrographics using one of these possible wordings:

"PERMANENT. Microfilm optional" - Microfilm may be substituted for the original records IF the microfilm meets state standards in the Code of Laws of South Carolina, 1976, as amended, Regulation 12-200 through 12.203. Before you destroy the originals, you must submit to the State Archives and have approved two copies of the Microfilm Quality Certification for Records Disposition Form.

"PERMANENT. Microfilm for your security" - You cannot destroy the original records after microfilming.

3.4.3 Schedule Implementation Procedures

These schedules are designed to be "continuing" schedules meaning that, once issued, they can be implemented continually until superseded by subsequent revisions or amendments. Retention periods listed in the schedules represent the minimum amount of time that records must be retained. Once that retention period has been reached, the records may either be destroyed or transferred to an archives, as indicated in the schedules. If records are transferred to the South Carolina Department of Archives and History, an advance request must be submitted to that Department in writing, indicating the name or names of the record series, inclusive dates, and an estimate of the volume to be transferred. Archival records should not be transferred to a local historical society, museum, public library, or other interested organizations or individuals without the written permission of Court Administration and the South Carolina Department of Archives and History.

Records that are destroyed in accordance with approved retention schedules should be reported to the South Carolina Department of Archives and History on the Report on Records Destroyed form. A duplicate copy should also be filed in the Clerk of Court's office to document the disposal of the records in accordance with the retention schedules. Blank copies can be obtained upon request from the South Carolina Department of Archives and History by calling the Local Records Unit at 803-896-6122.

If records are microfilmed and the schedule authorizes the disposal of the paper records and /or electronic data after microfilming, two copies of the Microfilm Quality Certification for Records Disposition form must be completed and submitted to the South Carolina Department of Archives and History before the disposal of paper records and/or electronic data. This form certifies that the microfilm has been produced in accordance with the required quality of standard and that security copies of the film have been deposited with the South Carolina Archives.

3.4.4 Methods of Destruction

No one specific method of destruction is prescribed. Recycling or incineration is preferred, but burial in a landfill is acceptable for records of a non-confidential nature. Records that are confidential or restricted should be reduced to an illegible condition before disposal.

3.4.5 Procedures for Amending or Making Additions to Existing Schedules

Although the schedules included in this manual cover the majority of records maintained by the Clerks of Court, there may be specific situations where records cannot be assigned to an existing retention category and will necessitate either the amendment of existing schedules or preparation of additional schedules. All proposed schedule additions and amendments that are needed should be submitted to the South Carolina Department of Archives and History. The clerk should submit a records series inventory form for the series to be added or amended. This request will be reviewed by the Department and an appropriate retention period and disposition will be assigned. The schedule will then be submitted to Court Administration for review and approval. Once this approval is obtained, the schedule will be adopted by order of the Chief Justice and an addendum to this manual will be distributed statewide.

3.4.6 Procedures for Establishing Additional Schedules for Individual Counties

Many counties use forms and keep records that are unique to those counties. These records must be reviewed and individual retention schedules designed and approved for them. The clerk should contact the South Carolina Department of Archives and History to enlist their assistance in the review of the records and to devise retention schedules. After the retention schedules have been developed and approved within the Department, they will be transmitted to Court Administration for review and approval. Once approval is granted by Court Administration and the schedules are returned to the Department, they will be finalized and returned to the county.

3.4.7 Records No Longer Created

Most counties have inactive records that are no longer required to be kept because either the function to which they relate ceased or was combined with another. An example would be records of the court of equity which became defunct in 1968. These and various other inactive court records are often found in active office areas as well as in basements, attics and closets. Since many of these records have permanent value for research purposes or for documenting the functions and activities of discontinued programs, the South Carolina Department of Archives and History should be contacted for advice and recommendations concerning the proper disposition of such materials.

3.4.8 Micrographics Applications

In addition to providing the retention period and final disposition, certain records retention schedules also contain security microfilming recommendations or provide the option of substituting microfilm for paper records and/or electronic data. (See section 3.4.2 for interpreting microfilm recommendations schedules.) Before any records are microfilmed, it is recommended that the South Carolina Department of Archives and History be contacted for advice concerning the feasibility, procedures, legal requirements, and other aspects of such a program. It should be noted that, whenever records are microfilmed, all microfilm must be inspected for accuracy and completeness of content and tested for quality in accordance with the regulation "Quality Standards and Practices for the Microfilming of Public Records", Code of Laws of South Carolina, 1976, as amended, Regulations 12-200 through 12-203. If records of permanent value are microfilmed, security copies of that film must be certified in accordance with these standards and deposited with the Department. Security film copies of records of long-term retention value (10-100 years) may also be deposited with the Archives if space is available. Any records scheduled for destruction after microfilming must meet their requirements or there can be no legal destruction of original records. Also, as mentioned above under section 3.4.3, two copies of the Microfilm Quality Certification for Records Disposition form must be completed and submitted before the paper records and/or electronic data may be destroyed.

3.4.9 Damaged Records

Through the course of years, records have been damaged or lost due to fires, floods, pipe leakage, and insects, as well as natural deterioration. Approval for the retention or destruction of damaged records must be obtained from the Department of Archives and History. In some cases, it may be possible to salvage permanently valuable information through either micro photography or repair and restoration of the paper documents. In times of emergency, especially those involving fire and water damaged records, the South Carolina Department of Archives and History should be contacted immediately for advice and assistance.