electronic public record what is it, and where can agency lawyers find it?

Electronic Public RecordElectronic Public Record

What is it, and Where Can Agency Lawyers Find It?

What and Where What and Where

Form, media and formats of the electronic record

Location and control

What: Form, Media and What: Form, Media and Formats of Electronic RecordFormats of Electronic Record

Any and all forms of electronic records created or received by Commonwealth employees, contractors and agents.

What: ExamplesWhat: Examples

– Emails and their attachments– Web pages, old and new– System data (data in the IT system)– System data (data about the system) – Word processed documents

What: ExamplesWhat: Examples

– Electronic calendars and to do lists generated by MS Outlook and other desktop software

– Videos– Floppy disks– CDs

What: ExamplesWhat: Examples

– Audiotape– Microfilm/Fiche– Data storage Tapes– The once and future Forms, Media and Formats

Where: Form, Media and Where: Form, Media and Formats of Electronic Public Formats of Electronic Public

RecordRecordElectronic spreadsheetsVoicemailDeleted material still stored on backup tapes

Where: Form, Media and Where: Form, Media and Formats of Electronic Public Formats of Electronic Public

Record Record Records associated with systems

– User documentation– Technical documentation– Web site logs (except for security logs) – Information routing and tracking – Maintenance, monitoring, and testing – Security

What: RIC 04/04What: RIC 04/04

See list of documents in RIC 04/04, Section F, Information and Records Management. Go to http://www.sec.state.ma.us/arc/arcrmu/rmuidx.htm, click on “Statewide Records Retention Schedule 04/04 Has Been Approved..”

What: Form, Media and What: Form, Media and Formats, (cont.)Formats, (cont.)

– Development – Conversion, enhancement and upgrade – Data deletion – Job runs – Audit trails – Event logs and – Backup

Where: Location and ControlWhere: Location and Control

The “copy” problem:– Most electronic records are easily copied– Many are used in contexts in which they are

automatically copied: (example: email, text messages).

– It is highly likely that there is more than one copy of every electronic record in the Commonwealth’s possession.

Where: Location and Control?Where: Location and Control?

The Commonwealth’s Electronic Records are Widely Disbursed on state and privately owned systems and hardware

WhereWhere

Individual employee or contractor:– Hard drive of PC or laptop

Central office, remote location, or home for telecommuters

– CDs in any location where employee/contractor works– Diskettes in any location where employee/contractor

works– Files stored on individual or network drives– PDAs

Cell phones (text messages) Blackberry devices Palm Pilots

Where? Location and ControlWhere? Location and Control

Your CIO or Systems Administrator, Backup tapes– System output– System-related documents– Local area network shared and restricted drives– Remnants: Currently unused equipment

containing data Example: Governor Swift’s email server

Where? Location and ControlWhere? Location and Control

Centrically administered systems– HRCMS– NewMMARS– MMIS/NewMMIS– MassMail– Virtual Law Office

Where? Third Party Data Where? Third Party Data HoldersHolders

ITD: MITC ChelseaAnother part of your agencyCommercial data center host (Genuity,

CSC)Long term storage

– State archives (no digital archive yet)Disaster Recovery Contractor

– Tapes shipped out periodically for storage

Where? Where? Rules re: Third Party Data Rules re: Third Party Data

HoldersHoldersWeb site or application host: Agency

responding to PRR must make the request themselves to the third party, not make the requestor do so. SPR 3-96.

How to BeginHow to Begin

Step 1: Freeze the Documents. – Contact key document holders (employees,

contractors, agents, CIO, third party data hosts) informing them of the request and requiring them to cease deleting responsive documents Interview your CIO, Systems Administrators and Third Party Data Holders

How to BeginHow to Begin

Step 2: Research The Information Architecture of your Agency The electronic storage methods used by your agency Disaster Recovery procedures Backup procedures Orphan systems from the past that still hold agency

data

How to BeginHow to Begin

Rule 3: Work Closely with Your CIO– He knows the technology– You will have to help him with the scope of the

request– Ask him questions about the list of documents

that may be involved; he won’t necessarily point out the obscure ones to you.

How to BeginHow to Begin

Rule 4: Draft a Discovery Plan and Follow It– The plan: a roadmap for making a good faith effort to

locate and copy electronic documents responsive to the public records request

– Plan should include tracking cost of labor involved in searching for electronic documents and cost of media used to make copies (CD ROM, etc.)

How to BeginHow to Begin

Rule 5 Collect Documents based on your plan

How to BeginHow to Begin

SPR 3-96: Some costs can be recouped, some cannot. Track costs for:– Search– Media on which record is copied – But not segregation– Media on which record is copied.

How to BeginHow to Begin

Sources of Help:– Public Records Law Practice Group– Techlaw Practice Group– ITD’s General Counsel

Linda Hamel

General Counsel

ITD

(617)-626-4404

Linda.hamel@state.ma.us