Washington State Archivesand

Records Management Division

January 23, 2007

Presented by:

Tri HowardState Records Manager

Managing Electronic Records in Plain Talk

Overview

• Electronic Records as Public Records

• State Records Committee

• Agency Records Officer

• State Auditor’s Office

• Legal Consequences

• Records that document government conduct and protect citizens’ rights are vital to the strength and integrity of that foundation. In today’s knowledge-based economy, our public records are our state’s most valuable resource.

• Proactive Compliance = Predictable Compliance

• Reactive Compliance = Unpredictable Compliance

“The more confident we become with

computers, the more records we

lose.”

--Phil Coombs, former Washington State Archivist, 2001

Lost Records, Lost History• Governor Gardner’s administrative files (Wang system,

erased)• Governor Spellman’s reports and letters (Mag Cards,

unreadable)• Reports, correspondence “preserved” on floppies (as

large as 12”), most using obsolete software and operating systems (CP/M, EBSDC)

• State agency GIS systems and other databases updated regularly; no data “snapshots” saved from earlier days

The Costs of Improper Electronic Records Management

• Morgan Stanley, May 2005 - $1.45 billion judgment, based in part on their repeated failure to provide relevant e-mails

• Credit Suisse, September 2004 – Investment banker Frank Quattrone sentenced to 18 months in prison for urging colleagues to “clean up” their files when an investigation was imminent. He did win an appeal in 2006 – two years and thousands of dollars later

• King County, June 27, 2005 – Superior Court’s Electronic Court Record system malfunctions; access was severely curtailed until August 1

This could happen to you!

• Port of Olympia, October 2006 - Fines totaling over $14,000 for withholding documents

• Lewis County, November 2006 - Text messages sent by county employee caused a scandal. There were internal investigations, resignations and divorce proceedings

• Spokane, 2005 – Mayor Jim West implicated by e-mails, voters recalled from office

• King County, 2003 - $100,000 fine for delays in public disclosure response

Electronic Records as Public Records (I)

Public Records Act, Chapter 40.14 RCW:

“The term "public records" shall include any paper, correspondence, completed form, bound record book,

photograph, film, sound recording, map drawing, machine-readable material, compact disc meeting current industry ISO

specifications, or other document, regardless of physical form or characteristics, and including such copies thereof, that have been made by or received by any agency of the state of Washington in

connection with the transaction of public business.”

A record is a record is a record

• A record is a record regardless of format. Content is what determines a record. Content is what is subject to retention and disposition according to records management policy and procedures.

=

What makes a record?

All records have three essential parts• CONTENT: The body of the record – text, images, data• STRUCTURE: The appearance and arrangement of

content• CONTEXT: The background information that enhances

understanding the existence of the record and the circumstances the record’s creation and use.

In order for a record to remain complete and authentic, all three parts should be preserved.

A brief word on metadata

THE IMPORTANCE OF METADATA

• Descriptive information that facilitates management of, and access to, the objects being described – “data about the data”

• A means of describing and capturing content, structure and context– What is in the records– Circumstances of creation and use – who, why, when

• Can be automatically generated (e.g. time stamp) or manually created/assigned (e.g. keywords, subject heading)

• Need to maintain as part of complete record – establishes authenticity and history of the record– FBI fingerprint example

ELECTRONIC = TRADITIONAL

Fundamental records management principles are the same with electronic records as with traditional paper records.

• There is a lifecycle• Record series based on content and

function• Retention schedules apply• Authenticity and accessibility preserved for

full length of approved retention

Why is Records Retention Important?

Why?

• To ensure that electronic records (e.g., e-mail) remain authentic and accessible for the full duration of their retention period

• Per RCW 40.10.020 (6)(c), it is the State Archivist’s responsibility to adopt rules governing the accuracy and durability of, and facilitating access to, photographic, optical, electronic, or other images used as public records

RECORDS MANAGEMENT

Levels of Responsibilities

State Records Committee Responsibility

To approve, modify or disapprove recommendations on public records retention schedules and act upon requests to destroy any public records

Agency Responsibility

Chapter 40.14.040 RCW

Agency Director appoints a Records Officer

1) Fulfill the legal mandates and responsibilities

2) To store records in the most efficient and cost-effective manner possible

3) To assure access, protection, and security to the public records

RECORDS OFFICER RESPONSIBILITIES

Why are agency records important to the State Auditor’s Office?

• To promote accountability and openness in government

• They provide documentation to be used during audits

• The lack of compliance can lead to a negative audit finding

Schedule of Audit Findings Benton County

January 1, 2003 through December 31, 2003

Benton County did not comply with the Open Public Meetings Act, public records retention requirements and public records request requirements.

Description of Condition

• During our review of compliance with the Open Public Meetings Act, records retention requirements and public records request requirements, we were unable to obtain from the County all e-mail downloads from county employees, appointed officials, and elected officials for the fiscal year 2003.

• We were informed by the County that the County does not have the capability to retrieve all e‑mails in detailed content and does not have a place where e-mails could be stored for retrieval. We also were unable to identify any central monitoring of e-mail communications to ensure that the County was in compliance with its own policies, the public records retention requirements, and the public records request requirements.

Reliable Evidence

• Physical documentation is one of the strongest, most reliable forms of audit evidence.

• Agency records are used by the auditor to obtain direct personal knowledge and are used as internal evidence.

• Because records retention is central to audit work, a representative from the State Auditors Office is the Chair of the State Records Committee.

Specific Audits

Specific audits of agency records retention programs, include the following:

• Verifying documents were retained• Reviewing records retention policies• Verifying that policies were followed• Ensuring imaging system are approved

Seattle P-I 5/24/04

What are the legal consequences ?

Don’t let this happen to you!An agency will be held legally responsible in the event that they are unable to maintain the accessibility and authenticity of a record for its entire retention period. If it can be proven that an agency disposed of electronic records without first making sure that they would remain complete, authentic and accessible for the full retention period, the consequences – in court, in the media, and in the public eye – can be catastrophic.

Recent Court Cases Reflect that “E-mail is a Record to be Managed,

Maintained and Produced in a Legal Proceeding”  

• Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003)  This landmark case established a new standard for evaluating

whether the plaintiff or the defendant bears the cost of electronic discovery. The defendant was sanctioned for failing to save and produce, in a timely manner, relevant information like e-mails and other documents stored on backup tapes. The jury ordered UBS to pay over $29 million in damages to the plaintiff.

 • Murphy Oil USA, Inc. v. Fluor Daniel, Inc., 52 Fed. R. Serv. 3d

(Callaghan) 168, 2002 WL 246439 (E.D. La. Feb. 19, 2002)  In this case, a court ordered the defendant to print e-mails stored on

93 backup tapes and absorb the cost of $6.2 million. 

Washington Post7/1/2004

EXECUTIVE ETHICS BOARD REASONABLE CAUSE FINDINGS AND SETTLEMENTS

• 2002-53 State employee used a state computer to access a minimum of 63 websites on the Internet, some relating to sports, jokes, auctions, department stores, automobiles, movies, and adult-oriented. In addition, the state employee sent personal e-mail's containing inappropriate content to co-workers, friends, family and outside agencies. Settlement approved on 07-11-03 for a Civil penalty in the amount of $1500 with $500 suspended

• 2001-14 State employee sent and received 135 personal e-mail messages using a state provided computer. Settlement approved on 05-09-03 for a Civil penalty in the amount of $150 with $150 suspended; $75 for agency restitution and for reimbursement of Investigative Costs in the amount of $75

• 2001-06 State employee used state resources to send or receive 30 e-mail's and repeatedly visited Internet websites unrelated to his official duties. Inappropriate use continued after being specifically directed to stop such conduct by the employing agency. Settlement approved on 11-08-02 for a Civil penalty in the amount of $2500 with $1400 suspended

• 2000-29 State employee used state resources over a 32 month period to send or receive 803 e-mail's they were not related to his official duties. Settlement approved on 06-08-01 for a Civil penalty in the amount of $1500 with $750 suspended

How an agency implements an e-mail archiving system is at least as important as the system’s components.

• Quality control• Procedural workflow• Records retention and disposition process• Data migration planning

• Disaster prevention and recovery planning

It’s the details

The Amendments to the Rules of Civil Procedure Addressing Electronically Stored Information Became

Effective on December 1, 2006

The culmination of this rulemaking process has opened a serious dialogue among records managers, general counsel, legal practitioners, and the members of the judiciary. With the new rules come new obligations on attorneys who will increasingly look to records managers for support and assistance with document preservation and production in anticipation of litigation.

What do I look for in a vendor?

Decisions, decisionsSelecting a vendor is a very important decision and since the company you choose will be providing you with technical advice, services and upkeep. Being informed about the technology and terms used by the industry will help in communicating your needs to a vendor.

Also to consider

Assume and plan for the possibility of business failure and the probability of product obsolescence. Insist on open systems architecture, non-proprietary hardware and software. “Non-propriety” means that the chosen hardware and software are not specific to the vendor.

Talking about contractsIf propriety software is in fact the only option available, it should be licensed beyond the length of the contract and provisions to migrate the data to another system must be included in the contract. As there are most often “bugs” in the system, the contract needs to also spell out provisions for implementation, service, upgrades and repairs.

Technology HappensChanges occur faster than you can anticipate, so ongoing upgrades and improvements must be part of the plan. Be sure the vendor you are working with choose the software and hardware to best suit both current and future needs.

Recommended Layers of Sustainable E-mail Management

• Storage Functionality – a focus on archiving, enabling the migration of e-mail and attachments

• Manage Functionality – support for legal discovery and structured retention management of e-mail to reduce liability exposure

• Compliance Functionality – preservation of e-mail as required by law in their native format an available for review and open access on demand for auditors or

public records requests

The Future is Now!

“Anyone who thinks e-mails are outside public records is cruising for a

bruising.”

Chip Holcomb, Senior Counsel with Attorney General’s Office,Tri-City Herald 2/29/04

Questions?