Transcript Slide 1

Washington State Archives
and
Records Management Division
Managing Electronic Records in
Plain Talk
Presented by:
Tri Howard
State Records Manager
January 23, 2007
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, machinereadable 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
RECORDS OFFICER
RESPONSIBILITIES
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
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 email 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 Post
7/1/2004
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
It’s the details
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
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, decisions
Selecting 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 contracts
If 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 Happens
Changes 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?