The Commonwealth's Supervisor of Public Records has issued a number of bulletins addressed to the status of electronic records, each of which must be taken into account by agency counsel advising their clients about the legal requirements applicable to systems that will create or store electronic signatures and records. Agency counsel should read the Supervisor's Bulletins in their entirety; the excerpts below contain only some of their main points.
i. SPR Bulletin No. 3-96, Application of Public Records Law to Electronic Records Access
This SPR, available at http://www.mass.gov/sec/arc/arcrmu/rmubul/bul396.htm , states, among other things, that the availability of information in the custody of Massachusetts governmental entities is dependent upon the substance of the information, rather than the form in which it is maintained. This means that records created or maintained on a computer are subject to the Public Records Law. This SPR also addresses the special obligation of the legal custodian of electronic records under the Public Records Law to ensure that the use of an electronic system does not impede citizens' rights to access government records; the creation of software programs for the purpose of creating new public records in response to public records requests; the custodian's duty to segregate exempt portions of electronic public records; prospective requests for public records, including on-line subscription or monthly updates of information; the status of software under the public records law; and the format and medium in which electronic records are produced to citizens under the Public Records Law.
ii. SPR No. 4-96, Fees for access and copying of electronic public records.
This SPR, available at http://www.mass.gov/sec/arc/arcrmu/rmubul/bul496.htm , addresses the special fee issues that arise in connection with the production of electronic records under the Public Records Law, including fees for computer searches; the prohibition against recovering from citizens making Public Records requests the cost incurred in developing a database or entering information in it; the custodian's duty to write software performing data segregation, without charging the requestor; circumstances under which the agency can charge a fee for writing software in connection with a public records request; and requests for on-line access to records or for a subscription service to electronic information.
iii. SPR No. 1-99, Electronic mail.
This SPR, available at http://www.mass.gov/sec/arc/arcrmu/rmubul/bul199.htm , describes electronic mail systems; defines e-mails as public record; addresses public access to e-mails under the Public Records Law; discusses the status of e-mail in discovery; addresses e-mail deletion; highlights differences between paper correspondence and e-mail with respect to records retention; notes that e-mails used in Commonwealth offices are government property; and asserts the Commonwealth's right to monitor and read employee e-mail.
II Definition of electronic record: Massachusetts Uniform Electronic Transactions Act, Mass. Gen. L. ch. 110G s. 2
"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.
III Who Sets Standards for How Electronic Records are Created and Stored?
Mass.UETA, s. 17 and 18
Section 17. (a) The supervisor of records under section 1 of chapter 66 and clause Twenty-sixth of section 7 of chapter 4, the records conservation board under section 42 of chapter 30, and the information technology division under section 7 of chapter 4A, shall 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. Nothing in this chapter shall affect the existing authority of the supervisor of records, the records conservation board or the information technology division under the cited sections.
(b) The supervisor of records under section 1 of chapter 66 and clause Twenty-sixth of section 7 of chapter 4, and the records conservation board under section 42 of chapter 30, shall determine whether, the extent to which and the manner by which each government agency not in the executive department, nor in the legislative or judicial departments, shall create, maintain and preserve electronic records, signatures and contracts and the method of converting paper government records to electronic format.
Chapter 110G: Section 18 Promotion of consistency and interoperability among governmental agencies and nongovernmental persons; standards
[ Text of section added by 2003, 133, Sec. 3 effective February 24, 2004.]
Section 18. The chief information officer and the supervisor of records shall encourage and promote consistency and interoperability with other governmental agencies and nongovernmental persons. If appropriate, they may specify differing levels of standards from which governmental agencies of the commonwealth may choose in implementing the most appropriate standard for a particular application.