Up Front

Below is the latest news, trends, and analysis from the January-February 2010 issue of Information Management. At the end of each item is an "END" mark just in case you need to step away and pick up where you left off.

OPEN RECORDS

Metadata Is Public Record, Says Arizona Supreme Court

Arizona’s Supreme Court, in a precedent-setting ruling that may influence other states, has ruled that electronic metadata is public record under state law and must be disclosed as part of a public records request.

The ruling came in Lake v. City of Phoenix, a case involving a Phoenix police officer who filed a lawsuit accusing his superiors of backdating a document related to his work performance.

According to Wired.com, demoted Officer David Lake had filed a federal lawsuit accusing Phoenix of employment discrimination. He also filed a public records request for documents related to his performance, including notes written by his supervisor documenting his work performance. The city provided paper records, but his subsequent request for the records’ electronic metadata was refused. He believed at least one of the paper documents had been backdated to before his demotion and wanted the metadata to prove it.

Metadata is hidden data embedded in electronic documents that shows when a document was created, accessed, or edited. The city argued that such “data about data” was not part of the public record. Releasing this type of information to the public would result in an “administrative nightmare” and force public officials to spend “countless hours” trying to identify the metadata, according to the city.

Two lower courts agreed with Phoenix, differentiating between “record” and “public record.” But the state Supreme Court overruled them, its justices unanimously agreeing that “if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure” under Arizona’s public records laws.

“It would be illogical, and contrary to the policy of openness underlying the public records law, to conclude that public entities can withhold information embedded in an electronic document, such as the date of creation, while they would be required to produce the same information if it were written manually on a paper public records,” Arizona Supreme Court Justice W. Scott Bales said.

He added that metadata “is part of the underlying document; it does not stand on its own. When a public officer uses a computer to make a public record, the metadata forms part of the document as much as the words on the page.”

In response to the city’s claim that supplying metadata would place an undue burden on city workers, the court noted that the metadata request could easily be met by giving requesters access to documents in their original electronic format, instead of printing them out.

The Associated Press (AP) and several other media organizations, as well as the Reporters Committee for Freedom of the Press, wrote an amicus brief supporting Lake’s request.

Although the ruling applies only in Arizona, the case could influence other courts. The Washington Supreme Court will soon hear a similar metadata case. According to the AP, last year, an appellate court in the state ruled that metadata in e-mail received by a city’s deputy mayor was public record according to Washington’s public records law. Unlike Arizona's public records law, however, Washington’s law stipulates that such data is subject to disclosure. END

OPEN RECORDS

White House Preserves Social Media Content

To comply with Presidential Records Act (PRA) requirements, the Obama administration has announced plans to archive content posted to social media sites where the Executive Office of the President (EOP) has a presence, including Facebook and Twitter.

It is seeking service providers and a social media archivist to assist in the task. The contractor must be able to capture, store, extract to approved formats, and transfer to the National Archives and Records Administration (NARA) all content associated with the sites. Capture and storage must include text, graphics, audio, and video in any existing file format that is uploaded to the site or created directly on the site. The content must be captured (and later displayed) in context, and it must be stored and transferred in such a way that will allow relationships among record content, associated comments, and related objects to be kept just as they were on the web page at the time of capture.

EOP officials want to capture the posted content at least twice a day, according to a notice posted by the administration seeking private firms to take on the project. In addition, officials said the provider will have to organize and filter the data, make it searchable, and provide a web-based tool that government employees can use to manage the records. Currently, EOP social media content is captured using application program interfaces and daily screen shots.

Critics have accused the White House of a lack of transparency and of collecting web users’ data and comments without notice or consent; however, the effort is required by the PRA. Passed in 1978 in response to former President Richard Nixon’s attempts to hold onto his presidential records, the PRA mandates that records created or received by the president are considered by law to be public records. In this case, “records” include everything from handwritten letters to a Facebook message. The White House said it is being cautious by asking the provider it hires to capture either all citizen comments posted or to be able to capture a sample of comments using a sampling methodology provided by the EOP.

According to OMB Watch, Obama’s archiving efforts are neither new nor unique. The George W. Bush administration archived comments received by its website but did not interact with citizens on Facebook and Twitter to the extent that the current administration does and, therefore, did not need to archive that content. The Obama administration already archives information from its Facebook and Twitter sites using application programming interfaces available to anyone from the networking sites themselves.

The Bush administration was not as concerned with such long-term electronic archiving and often archived electronic records in printed form, OMB Watch said. Under Obama’s administration, the government is increasing efforts at long term electronic preservation. This means future presidential records will be searchable and organized by, for example, keyword, date, and file, making them easier to access. END

GOVERNMENT RECORDS

White House Posts Visitors Log

In a first for any U.S. president, Barack Obama recently released part of the usually secret visitors log online.

During his first six months in office, the log revealed, Obama met frequently at the White House with labor leaders, senators, lobbyists, business executives, liberal activists, and Oprah Winfrey.

The partial list of 481 records, covering the first six months of the Obama presidency, is not a comprehensive list of everyone who met with the president and his top staff members. The administration released records for only those visitors about whom a specific request was made on the Whitehouse.gov website, according to The Washington Post. The White House said more records would be released soon.

Among the visitors were Andy Stern, head of the Service Employees International Union, who logged the most visits with at least 19; former vice president Al Gore, who visited four times; and actors Denzel Washington and George Clooney. END

PRIVACY

Oklahoma Law Could Make Abortion Records Public

Ajudge has temporarily blocked the enforcement of a controversial new law in Oklahoma that would require doctors to post patients’ private abortion records online.

Abortion and privacy rights advocates have said The Statistical Reporting of Abortions Act (HB 1595), which was set to take effect November 1, 2009, violates patient privacy rights and is meant to intimidate women who may be considering the procedure.

The law requires the Oklahoma Department of Health to publish online personal, sensitive information on all abortion patients, including the woman’s race, marital status, financial situation, education background, number of previous pregnancies and abortions, how the abortion will be paid for, reason for seeking the abortion, and the county where the procedure was performed, according to a Fox News report.

Women’s names and addresses are not part of the information required to be published on the state-run website, but women and doctors must provide the other information as part of a questionnaire they would be required to complete in their doctor’s office.

According to the law, Fox News said, doctors who do not provide the information face criminal penalties and could lose their medical licenses.

Two Oklahoma women filed suit against the legislation September 29, alleging that it violates a state constitutional requirement that bills cover a single subject, according to The Tulsa World. Rights advocates contend that the abortion-reporting law also violates the Health Insurance Portability and Accountability Act, which is meant to protect patients’ privacy and governs how their identifying information can be used. The law also states all information in medical records must remain confidential and patients’ identifying information cannot be made public.

Oklahoma residents have expressed their fears that posting private details online will allow patients to be identified, especially those women located in small towns. But Oklahoma State Rep. Dan Sullivan, the Republican who authored the bill, told Fox News that individuals cannot be identified through the data required. He also said the information will help educate segments of the population with high rates of unwanted pregnancies. END

WEB

Web Addresses Go Global

The Internet will soon become a lot more inviting for most of the world. Web users worldwide will soon be able to use web addresses written completely in their native languages rather than exclusively in Romance languages.

The Internet Corporation for Assigned Names and Numbers (ICANN) voted at its annual meeting to allow scripts, including Arabic, Chinese, Korean, and other non-Latin languages, in Internet addresses for the first time in an attempt to make the web more accessible to the world.

The decision is a “historic move toward the internationalization of the Internet,” Rod Beckstrom, ICANN’s president and chief executive, told The New York Times. “We just made the Internet much more accessible to millions of people in regions such as Asia, the Middle East and Russia.”

According to The Times, the change affects domain names (e.g., .com, .edu), which have been limited to 37 characters — 26 Latin letters, 10 digits, and a hyphen. But beginning next year, domain names can consist of characters in any language. In fact, an entire web address can be written in a non-Latin alphabet.

ICANN officially began accepting applications for non-Latin domain names November 16. They will be used beginning in mid-2010, according to The Times.

Internet addresses in non-Latin scripts could lead to a sharp increase in the number of global Internet users, ICANN officials said. Of the 1.6 billion Internet users worldwide, more than half use languages that have scripts not based on the Latin alphabet, said The Times. END

GOVERNMENT RECORDS

Souter’s Records Closed Until 2059

Currently, no formal policy or law exists to govern the preservation or release of the records of U.S. Supreme Court justices, but many believe one is needed.

Consider the recent case of former Justice David H. Souter. Upon his retirement in September, he agreed to donate his personal and professional documents to the New Hampshire Historical Society in his home state. However, per his wishes, the records are closed to the public, including researchers, historians, and journalists, for 50 years from the date of his retirement.

According to The Washington Post, only Supreme Court documents that are part of an official case record, such as briefs, final opinions, and orders, must be preserved for any length of time. But no such rules govern a justice’s work product, which could include notes from private conferences, opinion drafts, or case-related communication with colleagues or clerks. If they want to, The Post noted, Supreme Court justices are within the law to order their documents shredded, burned, or otherwise destroyed. In fact, Justice Charles Evans Whittaker did just that after leaving the court in 1962.

For these reasons, critics say justices have too much leeway in determining the fate of their records. Justices are public servants paid by taxpayers and, therefore, many contend their records should be public.

The Brownell Commission studied the issue in the 1970s and recommended that justices’ working papers be considered public records and made public 15 years after a justice’s retirement, The Post said.

Congress discussed the matter in 1993, after the controversial release of the papers of the late Justice Thurgood Marshall. But the justices themselves did not seem to like the idea of opening their records. Then-Chief Justice William H. Rehnquist, in a letter to lawmakers, wrote that legislation was “not necessary and that it could raise difficult concerns respecting the appropriate separation that must be maintained between the legislative branch and this Court.”

The legislation was not pursued. END

OPEN RECORDS

Florida Court Records to Go Public

The Florida Supreme Court recently approved rules making most state court records available to any Internet user, according to the Orlando Sentinel.

Florida files more than 19 million court documents each year, the Sentinel reported. Making those digital would provide instant access to divorce records, court testimony, and judicial orders to anyone anywhere in the world.

It’s quite a change for the state, whose Supreme Court has since 2006 barred county clerks from posting court records online over concerns that online thieves and telemarketing companies might take advantage of the information. Traditionally, however, under the state’s open-records law, everything in a paper court file is available to the public unless it is ordered sealed by a judge.

To find middle ground, last year a committee was formed to study court records in the state. It recommended a new rule that created 19 categories for confidential documents, including sexually transmitted disease records, paternity determinations, names of child abuse victims, and identities of confidential informants, according to the Sentinel. In addition, lawyers can ask a judge to close certain records. None of these will be made available online.

The biggest hurdle is how to pay the costs of a statewide web portal to access court records, committee members told the Sentinel. But clearly, supporters contend, online court records will inevitably save the public money. END

ARCHIVES

Another NARA Hard Drive Goes Missing

On the heels of losing a hard drive full of sensitive data from the Clinton White House and a multi-million-dollar settlement for exposing veterans’ sensitive data, the National Archives and Records Administration (NARA) is under investigation for losing another hard drive containing confidential records.

This time, the inspector general of NARA is investigating a potential data breach affecting 70 million U.S. veterans, according to Wired.com. The probe involves a defective hard drive NARA returned to its vendor for repair and recycling without first destroying the data. From there, it went missing.

The hard drive, which helped power eVetRecs, the system veterans use to request copies of their health records and discharge papers, failed in November 2008, Wired.com reported. At that time, the agency sent it back to the vendor, GMRI, for repair. GMRI could not fix it, so it sent the drive to another contractor to be recycled. The maintenance contract stipulated that if NARA did not return the faulty drive, GMRI would have billed the agency $2,000 for a replacement.

According to Wired.com, the drive was one of six containing an Oracle database with detailed records on 76 million veterans, including millions of Social Security numbers dating back to 1972.

The Pentagon requires that old drives be de-magnified or physically destroyed. In a 2006 report still in effect, the National Institute of Standards and Technology (NIST) suggests purging and destruction methods, while Office of Management and Budget rules require agencies follow NIST standards and encrypt sensitive data being sent or stored off site.

According to Wired.com, NARA said it is not worried about the lost drive because its contractors signed privacy clauses as part of their contracts. The agency said alerting veterans at this point would cause unnecessary panic because there is no evidence that the data contained on the drive has been breached.

NARA has since changed its policy to require sensitive media be destroyed by the agency itself. The Veteran’s Administration lost a laptop containing personal records on more than 25 million veterans in 2005 and last year paid $20 million to settle a class action suit over the breach. END

LIBRARY

Europe’s Digital Library Size Doubles

Europeana, Europe’s multilingual digital library (www.europeana.eu) has more than doubled to include nearly 4.6 million digitized books, maps, photographs, film clips, and newspapers since its launch in November 2008.

The European Commission (EC) has announced plans to increase the number of digitized items in the collection to 10 million in 2010. Still, only 5% of all digitized books in the EU are available on Europeana, according to Viviane Reding, EU commissioner for information society and media.

The biggest challenge is Europe’s fragmented copyright framework, Reding said. Earlier this year, for example, a French aggregator had to withdraw photographs from Europeana because it had the right to disseminate the material only on French territory.

Currently, Europeana includes mainly digitized books that are in the public domain and no longer protected by copyright law (which extends to 70 years after the death of the author). It does not include, for legal reasons, out-of-print works (some 90% of the books in Europe’s national libraries) or orphan works (estimated at 10% to 20% of in-copyright collections) still in copyright, but whose authors cannot be identified. END

ARCHIVES

NARA, Footnote.com Announce Online Holocaust Records

The Internet’s largest interactive Holocaust collection has been released by the National Archives and Records Administration (NARA) and Footnote.com.

For the first time, more than one million Holocaust-related records, including millions of names and 26,000 photos from NARA, are available online at www.footnote.com/holocaust.

Records available online at Footnote.com include:

• Concentration camp registers and documents from Dachau, Mauthausen, Auschwitz, and Flossenburg
• The “Ardelia Hall Collection” of records relating to the Nazi looting of Jewish possessions, including looted art
• Captured German records, including deportation and death lists from concentration camps
• Nuremberg War Crimes trial proceedings

The collection also includes nearly 600 interactive personal accounts of individuals who survived or perished in the Holocaust provided by the U.S. Holocaust Memorial Museum. The project incorporates social networking tools that enable visitors to search names, share their insights, create pages to highlight their discoveries, and add photos, comments, and stories. A fee is charged to access the records, but there is no charge to access and contribute to these social media pages. END

E-DISCOVERY

Survey Reveals RMs’ E-Discovery Confidence Lacking

Nearly 80% of records managers (RM) are not confident their company’s electronically stored information (ESI) is accurate, accessible, and reliable, according to a recent survey by Forrester Research and ARMA International.

The September 2009 Forrester Research report, “Records Management: User Expectations, Market Trends, and Obstacles,” written by Forrester Senior Analyst Brian W. Hill, reviews survey findings and provides recommendations for organizations as they face complex regulatory environments, greater e-discovery challenges, and uncertain budgets.

Key findings in the survey include:

• 56% of records management stakeholders plan to increase software spending in 2010. More than half of RM decision makers said they expect to deploy additional licenses or pilot or implement new products.
• More than 26% of RM decision makers reported they are “very confident” in their ability to meet privacy requirements and 45% said they were “somewhat confident.”
• Despite the need for integrating retention management functionality to a wider array of ESI and the critical need to synchronize e-discovery, archiving, and RM applications, in 36% of organizations, records management stakeholders are not included in the IT strategic planning process.
• More than 80% of RM decision makers use technology applications for physical records management. This figure dramatically decreases for ESI.
• Enforcement is still a weak spot for organizations as it relates to ESI retention policies. Nearly half of the survey participants use any type of technology solution to enforce retention policies for file shares, desktops, or other electronic assets. Remarkably, only 63% of RM stakeholders currently leverage technology to enforce RM for e-mail.

ARMA members can download a copy of the report at www.arma.org/research. END

<Insert Records Management E-Discovery Graph>

LEGISLATION

New Changes for FRCP

As of December 1, 2009, some of the Federal Rules of Civil Procedure (FRCP) have changed with most of the changes affecting timing requirements and deadlines.

Specifically, the changes affect Rules 6, 12-15, 23, 27, 32, 38, 48, 50, 52-56, 59, 62, 65, 68, 71.1, 72, and 81. Rules 48 and 62.1 were added, and Rule 13 (f) was rescinded.

The new Rule 6 adopts the “days-are-days” method, which counts every day when determining a deadline, including intermediate weekends and holidays, according to Law.com. This eliminates current inconsistencies and confusion that has often arisen in cases where legal holidays and weekend days occur during the deadline period.

Law.com said the new rule also creates a standard for electronic filing: When the clerk or court’s office is closed on the last day for filing, the deadline for filing will be extended to the first accessible day. According to the new rule, the last day for electronic filing ends at midnight in the court’s time zone and for filing by other means when the clerk’s office closes.

Another change regarding new time periods extends one-, three-, or five-day periods to seven-day periods. Periods that were 10 or 11 days are now 14 days, and those that were 20 days are now 21 days.

Under the new Rule 56, there is a new process for filing a motion for summary judgment. Now, any party may move for summary judgment at any time up to 30 days after discovery ends. The party defending against summary judgment then has 21 days to file a response, Law.com said. A reply by the moving party is due 14 days after the response is served.

Rules 48(c) and 62.1 were added in the 2009 amendments. The former allows for a juror poll, taken at the party or the court’s request. Depending on the outcome, a court may direct the jury to continue deliberations. The court may also order a new trial. The latter creates guidelines for a court ruling on a motion for relief that is barred by a pending appeal.

Under this rule, Law.com said, if a motion for relief is made that the court lacks authority to grant because of pending appeal, the court has three options: 1) defer considering the motion, 2) deny the motion, or 3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue. END

GOVERNMENT RECORDS

Fresno Officials Destroy 16 Years of Records

Fresno, Calif., officials, acting with the city council’s approval, destroyed 16 years of tape recordings of council meetings from 1992 through 2007, The Fresno Bee reported.

The Bee said state and local law allows cities to periodically reduce the amount of dated documents  from its archives, but at least one city council member has said destroying the tapes was a mistake and the resolution that allows such destruction should be revised.

In September 2008, the Fresno City Council unanimously approved a revised records retention schedule that allows the city to destroy several reports and documents after one or two years. In keeping with these guidelines, the city clerk’s office recently requested permission from the city attorney’s office to destroy eight boxes of council meeting tapes. The request was approved and the tapes were destroyed.

The city clerk’s office now has cassette tapes only of council meetings in 2008 and 2009, as tapes from the 1970s through the early 2000s were destroyed a few years ago. According to The Bee, Fresno’s website has video and audio recordings of council meetings dating back to August 2006, and city hall has the past five years of council meetings on CD.

City officials note that the council-approved minutes, not the tapes, are the official record of council meetings. However, City Clerk Rebecca Klisch told The Bee the tapes have legal value to city hall and the public. For example, she said, her staff occasionally uses the tapes to provide verbatim transcripts to the city attorney’s office.

There was no legal requirement to destroy the tapes, and space was not an issue, according to The Bee. END

E-MAIL

Boston Attorney General Investigates E-Mail Destruction

In Boston, a records request for information regarding a federal corruption investigation has revealed a possible cover up and illegal records destruction by a mayoral aide.

One year ago, federal prosecutors issued a subpoena for copies of any e-mail mayoral aide Michael Kineavy exchanged with two targets of a corruption investigation, state Sen. Dianne Wilkerson and City Councilor Chuck Turner, according to The Boston Globe. The newspaper, which was investigating Mayor Thomas Menino’s role in the corruption investigation, issued a public records request to the mayor’s office in April 2009.

After receiving that request, the city revealed that Kineavy had been double deleting his e-mails each day, in  violation of state law, which requires public records to be retained for two years. Under the law, city e-mails are public records.

In October, the City of Boston posted on its website scanned copies of nearly 5,000 e-mails sent to and from Kineavy, who has taken an unpaid leave of absence from his job as the mayor’s policy and planning chief. The e-mails are from computers of other city employees who exchanged e-mails with the mayor’s aide, The Globe said. The city said it would be expensive to retrieve much of the deleted e-mail, which would be available only by recovering data from two hard drives Kineavy used over the past two years, but that it will retrieve “everything possible,” turn it over to investigators, and make it public. The city also turned over a hard drive containing copies of Kineavy’s two hard drives to Secretary of State William Galvin.

Galvin, who is charged with overseeing the state public records law, subsequently ordered the city to seize Kineavy’s computer and hire a forensics firm to retrieve deleted e-mails. After reviewing some of the recovered records, Galvin determined some e-mails were deleted inappropriately. He sent the case to Attorney General Martha Coakley to determine whether the law had been broken.

Coakley’s investigation into whether Kineavy broke the law by inappropriately deleting e-mails is ongoing. To date, no e-mail has been found linking the Menino administration to any wrongdoing in the federal corruption investigation. END

RECORDS

Britain Increases Surveillance Budget

Britain’s plan to expand its surveillance program includes £200 million ($300 million U.S.) a year to access details of every citizen’s online moves – that’s £380 million ($569 million U.S.) a minute spent on Internet surveillance.

According to The Daily Mail, state agencies and councils already make one request every minute to spy on the phone and e-mail records of British citizens. The number of spying efforts carried out by police, town halls, and other government departments has increased by 44% in the past two years to a rate of 1,381 new cases every day.

Ministers say the five-year cost of the existing surveillance program is £55.61 million ($83 million U.S.), an average of £11million ($16 million U.S.) a year, which goes to phone companies and service providers to pay for keeping and providing private customer information. Providers must save customer data – details including who, when, and where, not the actual content – for a minimum of one year.

About 653 bodies are currently allowed access to this information, including the Financial Services Authority, ambulance service, fire authorities, councils, and prison governors.

The new rules allowing access to Internet records, called the Intercept Modernisation Programme, were introduced by Parliament at the end of 2009, according to The Daily Mail.

Ministers had originally wanted to store the information on a massive government-run database, but opted against it because of privacy concerns. END

PRIVACY

PATRIOT Act Reauthorized with Amendments

In early October, the Senate Judiciary Committee passed a bill to extend the USA PATRIOT Act. The PATRIOT Act, originally enacted to combat terrorism, gives government officials the ability to conduct various types of surveillance without waiting for court orders. The act has been the focus of civil liberties groups, who have criticized its lack of privacy protections.

The extension bill includes two amendments:

• First, the Department of Justice would have to discard any illegally obtained information received in response to a National Security Letter.
• Second, the government must notify suspects of “sneak and peek” searches – home searches conducted without notifying the resident – within seven days instead of 30. END

ARCHIVES

NARA’s Top-10 Challenges

David Ferriero has been confirmed as the 10th archivist of the United States. According to a semiannual report to Congress by the Office of Inspector General (OIG), the National Archives and Records Administration (NARA), which Ferriero oversees, is facing significant challenges. These challenges include, as published in FederalComputerWeek.com:

1. Electronic records archives – The system “has experienced delivery delays, budgeting problems, and contractor staffing problems,” according to the OIG, which concluded that the program’s success is uncertain.
2. Records management – The report says NARA must determine how best to identify and handle agencies with critical records management needs, considering the increasing volume of electronic records.
3. IT security – This area continues to present major challenges, according to the report, and “NARA must ensure the security of its data and systems or risk undermining the agency’s credibility and ability to carry out its mission.”
4. Public access to records – The OIG said NARA has a critical role to play in ensuring the timeliness and integrity of the declassification process so it can provide records access to the public.
5. Storage needs – NARA must ensure its facilities and those of other agencies comply with its records storage regulations.
6. Preservation needs – The report states NARA is finding it difficult to address the ever-increasing backlog of records that need to be preserved.
7. Project management – The OIG said NARA must improve project planning, developing adequately defined requirements, analyzing and testing systems to support their acquisition and deployment, and overseeing projects to ensure desired results are delivered within budget.
8. Physical and holdings security – The report warns NARA must maintain adequate levels of security to protect the safety and integrity of its staff and records from natural and manmade disasters.
9. Contract management and administration – Another challenge for NARA, according to the OIG, is to continue strengthening its workforce and improving the management and oversight of its contractors.
10. Workforce issues – NARA must assess its human capital needs so it can effectively hire, retain, and train people with the technological and content know-how that the agency needs for the future, the report noted. END

OPEN RECORDS

Dallas County Courts Going Digital

In the next few years, Dallas County’s criminal, family, and civil case files will be available on the Internet to residents. The Dallas County district clerk’s office is converting paper court files to electronic format. The paper files are being destroyed after they are converted.

The goal, Dallas County District Clerk Gary Fitzsimmons told The Dallas News, is to finish the process by July. The first criminal court to make the switch to electronic records in August required 17 district clerk employees working a combined 250 hours scanning thousands of documents over a weekend.

Paper will still be produced, but it will then be scanned and shredded. In civil court, attorneys can file documents electronically. According to The Dallas News, state law allows for the destruction of the documents and for Fitzsimmons to designate the electronic files as originals.

Dallas County residents will eventually be able to view public court records online from any computer, with the exception of medical and sealed records. Fitzsimmons said he is not sure when the records will be available online or whether there will be a fee for access.

Currently, the public can access electronic records for the 283rd District Court from a computer terminal outside the courtroom. Also, prosecutors can access the files from their desks, and defense attorneys have access in an assigned workroom, The Dallas News reported.

The cost of making the county’s court records digital will be partially paid for by a new, statewide $4-per-conviction fee dedicated to imaging and technology, Fitzsimmons said. The fee was first assessed September 1, and the clerk’s office will begin collecting it in January. Additionally, the fee for civil court filings has increased from $5 to $15.

STUDY

Gartner Predicts Strong Future for RM Software

Industry analyst Gartner predicts that half of all Global 2000 companies will implement records management (RM) by 2013 in its recently published “MarketScope for Records Management.” The firm also believes software-as-a-service (SaaS) and open-source records management solutions will emerge during the next two years.

According to the report, the records management software license and maintenance market was $460 million in 2008, up 15% from 2007. Top reasons for the strong demand include the need for companies to deal with increasing regulation and legal discovery issues. The RM market’s compound annual growth rate is expected to be 12% over the next five years.

Gartner added that records management products are increasingly part of electronic content management systems. The report cites HP’s acquisition of Tower Software, Autonomy’s acquisition of Interwoven, and Open Text’s purchase of Vignette. All the acquired companies had records management modules as part of their capabilities. In the future, Gartner predicts, RM will be a part of an organization’s content management infrastructure rather than a standalone system.

Gartner also said that RM functionality is trending toward enhanced integration with e-mail archiving and the inclusion of electronic discovery functionality. The analyst firm predicts that discovery support functionality will be a core component of RM solutions in the next five years.

To view a reprint of the report, visit www.gartner.com/technology/media-products/reprints/ca/vol2/article3/article3.html. END

E-RECORDS

NARA Releases E-Records Guidance

In November, the National Archives and Records Administration’s (NARA) new guidance on managing electronic records became effective. However, critics say the new rules may not go far enough in ensuring electronic information is protected because of the Archives’ lax enforcement, nextgov.com reported.

The new regulations are meant to update 1980s rules on federal records management and include new terms and definitions that make e-records management clearer for agencies. They define e-records management in broader terms, making it clear that all requirements also apply to e-records.

The guidance also covers content created in new media formats, such as Twitter and Facebook, although they do not specifically refer to these new media types. NARA said it offers additional directions on handling such formats through its website and other guidance.

According to FCW.com, the new rules also:

• Change the conditions under which non-record materials can be taken from agencies by a departing employee
• Clarify how records should be kept when a contractor operates a program for an agency
• Require agencies to get NARA’s permission before loaning original permanent or unscheduled records to other federal agencies
• Require agencies to notify NARA when records that could threaten health, life, or property are missing
• Address how NARA and agencies should handle credible allegations of unlawful or accidental removal, defacing, altering, or destroying records
• Change the regulations regarding NARA’s inspections of agency management programs

Records management experts and government transparency advocates said the new guidance will not make a difference if NARA does not step up policing of its rules. They have often criticized NARA and other agencies, pointing out that the issues they face concerning storing and retrieving an ever-increasing amount of erecords stem from a lack of enforcement of the rules, not a lack of rules, according to nextgov.com.

For the first time, the new guidance specifies how and when NARA will conduct inspections to monitor compliance.

“NARA may undertake an inspection when an agency fails to address specific records management problems involving high risk to significant records,” the regulations state. “Problems may be identified through a risk assessment or through other means, such as reports in the media, congressional inquiries, allegations of unauthorized destruction, reports issued by the [Government Accountability Office] or an agency’s inspector general, or observations by NARA staff members.”

This represents a major policy change for NARA, but the doubts remain.

“NARA can issue all the guidance in the world, but if it’s not implemented, who cares?” said Anne L. Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington, in an interview with nextgov.com. “The challenges just keep getting greater and greater, with the new media and the Twitter and tweets.”

E-MAIL

E-Mail No Longer Rules

E-mail is passé, according to an August 2009 report by the Nielsen Co., which found that 276.9 million people used e-mail across the United States, several European countries, Australia, and Brazil, up 21% from 229.2 million in August 2008. But, the number of users on social networking and other community sites jumped 31% to 301.5 million people.

E-DISCOVERY

Kroll Ontrack Study: Companies Not Prepared for E-Discovery

While most companies have a document retention policy in place, far fewer have implemented an e-discovery readiness plan to handle e-discovery requests, according to a recent study from Kroll Ontrack.

“The 2009 ESI Trends Report” surveyed 461 IT professionals and in-house counsel from the United States and Britain. It found that, no matter which side of the pond they are on, many companies are just not prepared for e-discovery. In fact, the study revealed most firms deal with e-discovery requests on a case-by-case basis, despite increasing demands for ESI. This costs them time and money, not to mention increases the risk of sanctions and fines, Kroll Ontrack said.

The report found that 87% of U.S. companies and 80% of British firms have a document retention policy, but only 46% and 41%, respectively, have a policy addressing e-discovery readiness.

Kroll Ontrack found that many companies rely on their document retention policy to help them respond to e-discovery requests. But this means companies must either design fresh litigation-hold protocols for every case or risk not implementing the hold. This could result in lost or spoiled information, according to Jason Straight, senior managing director of Kroll Ontrack’s ESI consulting practice.

This year’s survey also reveals 77% of U.S. companies and 56% of U.K. companies believe their ESI discovery policy or strategy is repeatable and defensible. Only 57% of U.S. and 39% of U.K. corporations have procedures in place to preserve potentially relevant data when litigation or a regulatory investigation is anticipated.

Among companies that do have an e-discovery readiness policy, the Kroll Ontrack survey shows IT and legal departments typically share responsibility. Twenty percent of U.S. and 13% of British companies say responsibility lies principally with the chief information officer and IT management, while 35% of U.S. and 21% of British companies said their IT and legal departments collaborate on e-discovery requests.

Nearly half of companies surveyed haven’t updated their policies over the past year to include new technologies, according to Kroll Ontrack. Straight said such policies should be updated twice a year or whenever new technology is introduced into the organization.

Kroll Ontrack’s 2009 ESI survey also revealed that:

• Only 6% of U.S. organizations do not have a document retention policy; this rises to 13% in the U.K.
• In the United States, IT professionals are most aware of their policy (88%); in the U.K., 83% of in-house legal advisers are most aware.
• In the United States, 24% of companies and 30% of companies in the U.K. do not know whether they have an ESI discovery readiness strategy or not.
• Awareness of ESI discovery readiness policies is higher among IT professionals (51% in the United States and 45% in the U.K.) than in-house legal advisers (39% in the United States and 37% in the U.K.).
• Of companies that do have policies in place, 11% in the United States and 20% in the U.K. say responsibility for the plan lies with a crossfunctional team.

According to Kristin Nimsger, president of Kroll Ontrack, “The best way for corporations to ‘do more with less’ is to implement sensible ESI preparedness strategies. Having a sound document retention policy is an important step, but without a reliable mechanism to ensure that the policy is properly implemented and, more importantly, may be suspended in response to litigation, companies are still at risk.” END

From January - February 2010