The following is a summary of the above presentation.
In April, 2004, the Records Conservation Board adopted a new Records in Common (RIC) schedule which replaced all special, general and department-wide records schedules (except for certain Comptrollers' Statewide Schedules and municipal disposition schedules. In addition, this new RIC classified electronic records based on content and not media and addressed a new generation of electronic records.
New electronic records (Section F: For documents related to information technology and records management):
- Reference Manuals
- System Infrastructure: records regarding programs, applications and code, maintenance, monitoring and testing, website and systems documentation, technical support, contingency systems development, conversion, enhancement and upgrades.
- System Operations: data deletion, job order runs, intermediate records, audit trails, security, and training.
- Systems Data: database content, website content, legacy system data, data conversion source records, data archival and backup records)
Roles of the Information Technology Division (ITD) and the Supervisor of Public Records:
- Creates policies, standards and guidelines regarding information technology; such as, web accessibility standards and the Enterprise Technical Reference Model which specifies when to use rich text format (RTF), plain text format, http, portable document format (pdf), etc.
Supervisor of Pubic Records:
- Emails should be printed and filed with paper records. If too large to print, this should be stored electronically in agency's electronic records storage system.
- Facsimilie transmissions are public record and could have preservation issues if not on plain paper.
- Meeting minutes must be created in writing using specified paper and ink. If recorded on audiotape, it must be transcribed onto paper.
- Permanent paper is required to preserve "textual information of enduring value" (Executive Order 293). Specified paper and ink is also required for "public records of enduring value" (Executive Order 293).
- Backups should not be used for long term offline data storage.
- Long term data should be archived to a dedicated disk or tape libraries.
- Costs can be associated for searching and segregation.
Electronic Signatures in Global and National Commerce, Inc. (E-SIGN):
- Validates electronic signatures, contracts and other records.
- Applies to states' dealings with business and citizens.
No requirement to use or accept ES, ER except for state governments; except for state government procurement transactions, state government has no choice but to accept electronic signatures and records from citizens and businesses. 15 USCA s. 7001(b)(2)
- States can still specify that electronic records filed with them meet certain "standards and formats". 15 USCA 2004(a)
- States cannot adopt regulations, standards or guidance regarding electronic records unless
(1) consistent with E-SIGN's validating rules;
(2) do not add to requirements of E-SIGN for ES, EC and ER; and
(3) agency makes a finding that the reg, standard or guidance
(a) substantially justified;
(b) methods used to carry out are (A) substantially equivalent to requirements imposed on non-electronic records and (B) will not impose unreasonable costs on acceptance and use of electronic records and
( c ) methods do not require or accord greater legal status or effect to specific technology
- State can adopt performance standards to assure accuracy, integrity, accessibility
- No reimposition of requirement that paper documents be used absent:
Compelling got interest related to law enforcement or national security
Imposing requirement is essential to attaining such interest.
Massachusetts Uniform Electronic Transactions Act (MUETA):
- Massachusetts Uniform Electronic Transactions Act, Mass. Gen. L. ch. 110G, s. 2 et seq.
- Effective February, 2004
- Replaces Title I of Federal E-SIGN and its harsh provisions regarding state government's interaction with private parties
- Like E-SIGN, validates electronic signatures, contracts and other records, including those used in state government transactions
- Defines term "electronic record"
Electronic = relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.
Electronic Record = a record created, generated, sent, communicated, received, or stored by electronic means
Replaces E-SIGN's Harsh provisions
- State government shall decide whether and the extent to which it shall accept electronic records from others, and can specify the manner in format in which such records must be received
- State agencies can specify additional requirements for the retention of records subject to the agency's jurisdiction
- Sweeps away all state law regarding requirements that state records be kept on paper, except for records generated in transactions governed by laws pertaining to:
Creation and execution of wills, codicils and testamentary trusts
UCC, except for sections 1-107, 1-206, 2 and 2A
Adoption, divorce, and other family law matters
- Court orders or notices, or official court documents, including briefs, pleadings and other writings, required to be executed in connection with court proceedings;
- Notice of the cancellation or termination of utility services, including water, heat and power; or of the default, acceleration, repossession, foreclosure, or eviction, or the right to cure, under a credit agreement secured by, or a rental agreement for, a primary residence of an individual;
- Cancellation or termination of health insurance or benefits or life insurance benefits, excluding annuities;
- product, that risks endangering health or safety; or
- Document, required by a statute, regulation, or other rule of law governing, to accompany any transportation or handling of hazardous materials, pesticides or other toxic or dangerous materials
- Retention of Electronic Records; Originals (MUETA s. 12)
- Legal records retention requirements are satisfied by retention of electronic records that:
- Accurately reflect the info set forth in record after it was first generated in its final form as an electronic record or otherwise
- Remains accessible for later reference
- Legal records retention requirements don't pertain to information the sole purpose of which is to enable the record to be sent, communicate or received
- Legal records retention requirements may be satisfied through use of third party records manager
- If law requires that record be presented or maintained in its original form, or provides consequences if the record is not, law satisfied by an accurate, accessible electronic record.
- A law requiring retention of check is satisfied by electronic record of info on front and back of the check that is accurate and accessible
- Law requiring record retention for evidentiary, audit or like purposes is satisfied by accurate and accessible electronic record.
- Government agency may specify additional requirements for the retention of a record subject to the agency's jurisdiction
- Comptroller has not yet authorized use of electronic signatures for state contracts
- Preserves overlap in authority between ITD on the one hand and Secretary, RCB and Supervisor on the other
- ITD, Supervisor, and RCB "determine whether, the extent to which and the manner by which each executive department agency shall create, maintain and preserve electronic records, signatures and contracts and the method of converting paper government records to electronic format." Mass. Gen. L. ch. 110G, s. 17
- S2420: Introduced by Secretary. ITD participated in drafting
- Electronic records shall be created or maintained to ensure the integrity, authenticity, reliability and usability of the electronic records.
- The supervisor of records, in consultation with the chief information officer, shall promulgate regulations to carry out this act.
- Will not apply to electronic records created, generated, sent, communicated, received or stored before the effective date of act. Agencies within the executive department and municipalities must use their best efforts to comply with the act by January 1, 2008.