The Evolution of Paperless Government:

The Legal FrameworkMassachusetts Digital Government Massachusetts Digital Government

SummitSummit

September 24, 2004September 24, 2004

The Law Pertaining to Electronic Records Management in MA How Long Must State Agencies’ Electronic How Long Must State Agencies’ Electronic

Records Be Kept? Records Be Kept? What are the Rules Governing State What are the Rules Governing State

Agencies’ Creation and Management of Agencies’ Creation and Management of Electronic Records?Electronic Records?

E-SIGNE-SIGN MUETAMUETA Pending LegislationPending Legislation

How Long Must State Agencies’ Electronic Records be Kept?

Old Records in Common Schedule (prior to April, 2004) Records Conservation Records Conservation

Board, Mass. Gen. L. Board, Mass. Gen. L. ch. 30, s. 42. RCB sets ch. 30, s. 42. RCB sets standards for retention standards for retention and destruction of and destruction of recordsrecords

RCB issued “Records RCB issued “Records in Common” (RIC) in Common” (RIC) Schedule in early Schedule in early 1990s. 1990s.

Prior RIC Prior RIC Email treated as Email treated as

transient record to be transient record to be disposed of when no disposed of when no longer needed; rule longer needed; rule based on media, not based on media, not contentcontent

Silent on “new” Silent on “new” generation of generation of electronic records electronic records

April, 2004

RCB adopts new Records in Common RCB adopts new Records in Common Schedule 04/04 (RIC 04/04)Schedule 04/04 (RIC 04/04)

Replaces all special, general and Replaces all special, general and department wide records schedules (except department wide records schedules (except for Comptrollers Statewide Schedules for Comptrollers Statewide Schedules MMARS 2/99, PMIS 3/99, PCRS 4/99 and MMARS 2/99, PMIS 3/99, PCRS 4/99 and municipal disposition schedules) municipal disposition schedules)

RIC 04/04, cont…

Classifies electronic records based on Classifies electronic records based on their content, not mediatheir content, not media (example: prior (example: prior email rule deleted)email rule deleted)

Addresses Addresses new generation of electronic new generation of electronic records records

RIC 04/04: “New” Electronic Records Section F, for documents related to information Section F, for documents related to information

technology and records management technology and records management History: Records Management Unit; Significant History: Records Management Unit; Significant

ITD involvement in shortening and simplifyingITD involvement in shortening and simplifying IncludesIncludes

Reference manualsReference manuals (Systems manuals and (Systems manuals and technical documentation)technical documentation)

RIC 04/04 “New” Electronic Records, cont.

System infrastructureSystem infrastructure (records re: (records re: programs, applications and code; programs, applications and code; maintenance, monitoring and testing; maintenance, monitoring and testing; website and systems documentation; website and systems documentation; technical support, contingency systems technical support, contingency systems development; conversion, enhancement development; conversion, enhancement and upgrades)and upgrades)

RIC 4/04 “New” Electronic Records”, cont.

(3) agency makes a finding that the reg, (3) agency makes a finding that the reg, standard or guidance (a) is substantially standard or guidance (a) is substantially justified; (b) methods used to carry out are (A) justified; (b) methods used to carry out are (A) substantially equivalent to requirements substantially equivalent to requirements imposed on non-electronic records and (B) will imposed on non-electronic records and (B) will not impose unreasonable costs on acceptance not impose unreasonable costs on acceptance and use of electronic records and ( c ) methods and use of electronic records and ( c ) methods do not require or accord greater legal status or do not require or accord greater legal status or effect to specific technologyeffect to specific technology

RIC 04/04 “New” Electronic Records, cont. System operationsSystem operations (data deletion, job order (data deletion, job order

runs, intermediate records, audit trails, runs, intermediate records, audit trails, security, training) security, training)

Systems dataSystems data (database content, website (database content, website content, legacy system data, data content, legacy system data, data conversion source records, data archival conversion source records, data archival and backup records)and backup records)

What are the Standards for Creating and Managing

Electronic Records?

Prior to Enactment of E-SIGN or MUETA Overlap, with respect to executive Overlap, with respect to executive

department agencies, regarding setting of department agencies, regarding setting of standards for electronic records creation standards for electronic records creation

Prior to Enactment, cont.

Information Technology Division enabling legislation, Information Technology Division enabling legislation, Mass. Gen. L. ch. 7, sec. 4A(d)Mass. Gen. L. ch. 7, sec. 4A(d) The chief information officer shall carry out such The chief information officer shall carry out such

functions as the commissioner may from time to functions as the commissioner may from time to time deem necessary for the efficient and time deem necessary for the efficient and economical administration of information economical administration of information technology systems within the executive technology systems within the executive departments including . . . departments including . . . setting information setting information technology standards . . [and] reviewing and technology standards . . [and] reviewing and approving the planning, design, acquisition and approving the planning, design, acquisition and operation of information technology systems…”operation of information technology systems…”

Prior to Enactment, cont.

Secretary of the Commonwealth:Secretary of the Commonwealth: Supervisor of Public Records: required to Supervisor of Public Records: required to put put

the records of the commonwealth, counties, the records of the commonwealth, counties, cities or towns in the custody and condition cities or towns in the custody and condition required by law and secure their required by law and secure their preservation.Adopt and promulgate regulations preservation.Adopt and promulgate regulations related to the management and preservation of related to the management and preservation of public records. Mass. Gen. L. ch. 66, s. 1 public records. Mass. Gen. L. ch. 66, s. 1

Prior to Enactment, cont.

RCB: set standards for the management and RCB: set standards for the management and preservation of records, and establish schedules preservation of records, and establish schedules for the destruction, in whole, or in part, and for the destruction, in whole, or in part, and transfer to the archives or another appropriate transfer to the archives or another appropriate division within the office of the state secretary. division within the office of the state secretary. Mass. Gen. L. ch. 30, s. 42Mass. Gen. L. ch. 30, s. 42

Archivist: re: non-current records of the Archivist: re: non-current records of the commonwealth, in charge of custody, commonwealth, in charge of custody, preservation, management, and when preservation, management, and when authorized, their destruction authorized, their destruction

Legislative and Judicial Records

Not covered by ITD, Supervisor of Public Not covered by ITD, Supervisor of Public Records or RCBRecords or RCB

ITD’s Historic Role in Setting Electronic Records Rules ITD Policies, Procedures, Standards, and ITD Policies, Procedures, Standards, and

Guidelines, available Guidelines, available athttp://www.mass.gov/itd/spg/publications/standaathttp://www.mass.gov/itd/spg/publications/standards/index.htmrds/index.htm Example: Web accessibility standardsExample: Web accessibility standards Example: Technical reference model specifies Example: Technical reference model specifies

when to use rich text format, plain text format, when to use rich text format, plain text format, http, portable document format, etc. http, portable document format, etc.

Supervisor of Public Records Role SPR 1-99 Electronic MailSPR 1-99 Electronic Mail

Email created or received by employee of Email created or received by employee of gov’t unit is public recordgov’t unit is public record

Contextual data (mailing address, routing Contextual data (mailing address, routing info) is PR and must be retained. Systems info) is PR and must be retained. Systems must retain metadatamust retain metadata

Differs from RIC (manage email Differs from RIC (manage email according to content)according to content)

Supervisor of Public Records Role, cont.

To meet records retention requirements, To meet records retention requirements, PRINT OUT THE EMAIL AND FILE PRINT OUT THE EMAIL AND FILE WITH PAPER RECORDSWITH PAPER RECORDS. If too large to . If too large to print, store electronically in agency’s print, store electronically in agency’s ELECTRONIC RECORDS STORAGE ELECTRONIC RECORDS STORAGE SYSTEMSYSTEM

Supervisor of Public Records, cont. SPR 1-92 Facsimile transmissionsSPR 1-92 Facsimile transmissions

Public recordPublic record Thermal paper: preservation issues if not Thermal paper: preservation issues if not

put on plain paper put on plain paper

Supervisor of Public Records, cont. SPR 2-92: Requirement to maintain minutes SPR 2-92: Requirement to maintain minutes

of meetings in written formatof meetings in written format Minutes must be created in writing using Minutes must be created in writing using

specified paper and ink; if recorded on specified paper and ink; if recorded on audio tape must transcribe onto paperaudio tape must transcribe onto paper

Supervisor, cont.

SPR 2-93 Requirement to Use Permanent PaperSPR 2-93 Requirement to Use Permanent Paper References Exec Order 293 (1990) requiring References Exec Order 293 (1990) requiring

use of permanent paper to preserve “textual use of permanent paper to preserve “textual information of enduring value”information of enduring value”

Requires use of specified paper and ink for Requires use of specified paper and ink for “public records of enduring value”“public records of enduring value”

SPR 1-93 Use of Optical MediaSPR 1-93 Use of Optical Media Currently being revisedCurrently being revised

Supervisor, cont.

SPR 1-96: Backing up and Archiving of SPR 1-96: Backing up and Archiving of Electronic RecordsElectronic Records Backups should not be used for long term Backups should not be used for long term

offline data storageoffline data storage Archive long term data to dedicated disk Archive long term data to dedicated disk

or tape librariesor tape libraries

Supervisor, cont.

SPR 3-96 Application of Public Records SPR 3-96 Application of Public Records Law to Electronic Records AccessLaw to Electronic Records Access Electronic records are subject to the Electronic records are subject to the

PRL’s disclosure requirementsPRL’s disclosure requirements Contract between a third party data host Contract between a third party data host

and public agency does not affect and public agency does not affect disclosure requirement. Agency must disclosure requirement. Agency must request records from third party data request records from third party data host. host.

Supervisor, cont.

SPR 3-96, cont.SPR 3-96, cont. Don’t have to write a program to create records Don’t have to write a program to create records

not in existencenot in existence Once the agency has such a program, it must Once the agency has such a program, it must

provide records that it generatesprovide records that it generates Data segregation may require custodian to write Data segregation may require custodian to write

program to perform the segregation program to perform the segregation electronicallyelectronically

Prospective requests (online subscription or Prospective requests (online subscription or monthly update) not within scope of PRLmonthly update) not within scope of PRL

Supervisor, cont.

SPR 3-96SPR 3-96 Custodian need not produce electronic record in Custodian need not produce electronic record in

format or medium requestedformat or medium requested Software not a public record (!)Software not a public record (!)

““A custodian is not obligated to provide copies A custodian is not obligated to provide copies of a computer program. A computer program of a computer program. A computer program in and of itself is a tool used in the processing in and of itself is a tool used in the processing of data rather than a "record," and therefore is of data rather than a "record," and therefore is not subject to mandatory disclosure.” not subject to mandatory disclosure.”

Supervisor, cont.

SPR 4-96 Fees for Access and Copying of SPR 4-96 Fees for Access and Copying of Electronic Public RecordElectronic Public Record Custodian can charge for costs of Custodian can charge for costs of

searching and segregationsearching and segregation

Electronic Signatures in Global and National Commerce, Inc.

““E-SIGN”E-SIGN”

E-SIGN

Title I of E-SIGN effective in Massachusetts from Title I of E-SIGN effective in Massachusetts from 2000 through February, 20042000 through February, 2004

Validates electronic signatures, contracts and other Validates electronic signatures, contracts and other recordsrecords ““Validates” means gives ES, EC, ER equal Validates” means gives ES, EC, ER equal

legal footing with paper signatures, contracts legal footing with paper signatures, contracts and records. and records.

Did not validate these items in connection with Did not validate these items in connection with government’s non-procurement transactionsgovernment’s non-procurement transactions

Preempted state law to the contraryPreempted state law to the contrary

Harsh provisions regarding state government agency’s interactions with citizens and businesses.

Applies to states’ dealings with business and citizens. Applies to states’ dealings with business and citizens. No requirement to use or accept ES, ER except for No requirement to use or accept ES, ER except for

state governments; state governments; except for state government except for state government procurement transactions, state government has no procurement transactions, state government has no choice but to accept electronic signatures and records choice but to accept electronic signatures and records from citizens and businessesfrom citizens and businesses. 15 USCA s. 7001(b)(2) . 15 USCA s. 7001(b)(2)

States can still specify that electronic records filed States can still specify that electronic records filed with them meet certain “standards and formats”. 15 with them meet certain “standards and formats”. 15 USCA 2004(a)USCA 2004(a)

E-SIGN: Harsh Provisions for States, cont. States cannot adopt regulations, standards States cannot adopt regulations, standards

or guidance regarding electronic records or guidance regarding electronic records unless unless (1) consistent with E-SIGN’s validating (1) consistent with E-SIGN’s validating

rules; rules; (2) do not add to requirements of E-SIGN (2) do not add to requirements of E-SIGN

for ES, EC and ER; andfor ES, EC and ER; and

E-SIGN’s Harsh Provisions, cont.

(3) agency makes a finding that the reg, (3) agency makes a finding that the reg, standard or guidance standard or guidance

(a) substantially justified; (a) substantially justified; (b) methods used to carry out are (A) (b) methods used to carry out are (A)

substantially equivalent to requirements substantially equivalent to requirements imposed on non-electronic records and (B) imposed on non-electronic records and (B) will not impose unreasonable costs on will not impose unreasonable costs on acceptance and use of electronic records andacceptance and use of electronic records and

( c ) methods do not require or accord greater ( c ) methods do not require or accord greater legal status or effect to specific technologylegal status or effect to specific technology

E-SIGN’s Harsh Provisions, cont. State can adopt performance standards to State can adopt performance standards to

assure accuracy, integrity, accessibilityassure accuracy, integrity, accessibility No reimposition of requirement that paper No reimposition of requirement that paper

documents be used absent: documents be used absent: Compelling got interest related to law Compelling got interest related to law

enforcement or national securityenforcement or national security Imposing requirement is essential to Imposing requirement is essential to

attaining such interest. attaining such interest.

Massachusetts Uniform Electronic Transactions Act

““MUETA”MUETA”

MUETA

Massachusetts Uniform Electronic Massachusetts Uniform Electronic Transactions Act, Mass. Gen. L. ch. 110G, Transactions Act, Mass. Gen. L. ch. 110G, s. 2 s. 2 etet seqseq. .

Effective February, 2004Effective February, 2004 Replaces Title I of Federal E-SIGN and its Replaces Title I of Federal E-SIGN and its

harsh provisions regarding state harsh provisions regarding state government’s interaction with private government’s interaction with private partiesparties

MUETA

Like E-SIGN, validates electronic signatures, contracts Like E-SIGN, validates electronic signatures, contracts and other records---including those used in state and other records---including those used in state government transactionsgovernment transactions

Defines term “electronic record” Defines term “electronic record” Electronic = relating to technology having electrical, Electronic = relating to technology having electrical,

digital, magnetic, wireless, optical, electromagnetic digital, magnetic, wireless, optical, electromagnetic or similar capabilities.or similar capabilities.

Electronic Record = a record created, generated, Electronic Record = a record created, generated, sent, communicated, received, or stored by electronic sent, communicated, received, or stored by electronic means.means.

Replacement for E-SIGN’s Harsh provisions State government shall decide whether and State government shall decide whether and

the extent to which it shall accept electronic the extent to which it shall accept electronic records from others, and can specify the records from others, and can specify the manner in format in which such records manner in format in which such records must be receivedmust be received

State agencies can specify additional State agencies can specify additional requirements for the retention of records requirements for the retention of records subject to the agency’s jurisdiction subject to the agency’s jurisdiction

MUETA

Sweeps away all state law regarding requirements Sweeps away all state law regarding requirements that state records be kept on paper, except for that state records be kept on paper, except for records generated in transactions governed by records generated in transactions governed by laws pertaining to: laws pertaining to: Creation and execution of wills, codicils and Creation and execution of wills, codicils and

testamentary truststestamentary trusts UCC, except for sections 1-107, 1-206, 2 and UCC, except for sections 1-107, 1-206, 2 and

2A2A Adoption, divorce, and other family law Adoption, divorce, and other family law

mattersmatters

MUETA, cont.

Court orders or notices, or official court Court orders or notices, or official court documents, including briefs, pleadings and other documents, including briefs, pleadings and other writings, required to be executed in connection writings, required to be executed in connection with court proceedings;with court proceedings;

Notice of the cancellation or termination of utility Notice of the cancellation or termination of utility services, including water, heat and power; or of services, including water, heat and power; or of the default, acceleration, repossession, the default, acceleration, repossession, foreclosure, or eviction, or the right to cure, foreclosure, or eviction, or the right to cure, under a credit agreement secured by, or a rental under a credit agreement secured by, or a rental agreement for, a primary residence of an agreement for, a primary residence of an individual;individual;

MUETA, cont.

Cancellation or termination of health insurance Cancellation or termination of health insurance or benefits or life insurance benefits, excluding or benefits or life insurance benefits, excluding annuities;annuities;

product, that risks endangering health or safety; product, that risks endangering health or safety; oror

Document, required by a statute, regulation, or Document, required by a statute, regulation, or other rule of law governing, to accompany any other rule of law governing, to accompany any transportation or handling of hazardous transportation or handling of hazardous materials, pesticides or other toxic or dangerous materials, pesticides or other toxic or dangerous materials.materials.

MUETA, cont.

Retention of Electronic Records; Originals Retention of Electronic Records; Originals (MUETA s. 12): (MUETA s. 12):

Legal records retention requirements are satisfied Legal records retention requirements are satisfied by retention of electronic records that: by retention of electronic records that: Accurately reflect the info set forth in record Accurately reflect the info set forth in record

after it was first generated in its final form as an after it was first generated in its final form as an electronic record or otherwiseelectronic record or otherwise

Remains accessible for later referenceRemains accessible for later reference

MUETA Retention Requirements, cont.

Legal records retention requirements don’t pertain Legal records retention requirements don’t pertain to information the sole purpose of which is to to information the sole purpose of which is to enable the record to be sent, communicate or enable the record to be sent, communicate or receivedreceived

Legal records retention requirements may be Legal records retention requirements may be satisfied through use of third party records satisfied through use of third party records managermanager

If law requires that record be presented or If law requires that record be presented or maintained in its original form, or provides maintained in its original form, or provides consequences if the record is not, law satisfied by consequences if the record is not, law satisfied by an accurate, accessible electronic record. an accurate, accessible electronic record.

MUETA, cont.

A law requiring retention of check is satisfied A law requiring retention of check is satisfied by electronic record of info on front and back by electronic record of info on front and back of the check that is accurate and accessibleof the check that is accurate and accessible

Law requiring record retention for evidentiary, Law requiring record retention for evidentiary, audit or like purposes is satisfied by accurate audit or like purposes is satisfied by accurate and accessible electronic record. and accessible electronic record.

Government agency may specify additional Government agency may specify additional requirements for the retention of a record requirements for the retention of a record subject to the agency’s jurisdictionsubject to the agency’s jurisdiction

Special note re: contracts

Comptroller has not yet authorized use of Comptroller has not yet authorized use of electronic signatures for state contractselectronic signatures for state contracts

MUETA, cont.

Preserves overlap in authority between ITD on the Preserves overlap in authority between ITD on the one hand and Secretary, RCB and Supervisor on the one hand and Secretary, RCB and Supervisor on the otherother ITD, Supervisor, and RCB “ITD, Supervisor, and RCB “determine whether, determine whether,

the extent to whichthe extent to which and the manner by which and the manner by which each executive department agency shall each executive department agency shall create, create, maintain and preserve electronic records, maintain and preserve electronic records, signatures and contracts and the method of signatures and contracts and the method of converting paper government records to converting paper government records to electronic formatelectronic format.” Mass. Gen. L. ch. 110G, s. .” Mass. Gen. L. ch. 110G, s. 1717

MUETA, cont.

Secretary, Supervisor and ITD shall” Secretary, Supervisor and ITD shall” Encourage and promote Encourage and promote consistency consistency and and

interoperabilityinteroperability with other governmental with other governmental agencies and nongovernmental persons. If agencies and nongovernmental persons. If appropriate, they may specify differing levels appropriate, they may specify differing levels of standards from which governmental agencies of standards from which governmental agencies of the commonwealth may choose in of the commonwealth may choose in implementing the most appropriate standard for implementing the most appropriate standard for a particular application.a particular application.

Defeated and Pending Legislation

Model Notary Act

Introduced last year by SecretaryIntroduced last year by Secretary Electronic notarization provisionElectronic notarization provision Vetoed by Governor on other groundsVetoed by Governor on other grounds Electronic notarization still needed; Electronic notarization still needed;

MUETA authorizes it, but no legislation MUETA authorizes it, but no legislation aligning Secretary’s enabling legislation aligning Secretary’s enabling legislation with MUETA with MUETA

Pending Legislation

S2420: S2420: Introduced by SecretaryIntroduced by Secretary ITD participated in draftingITD participated in drafting Electronic records shall be created or Electronic records shall be created or

maintained to ensure the integrity, maintained to ensure the integrity, authenticity, reliability and usability of authenticity, reliability and usability of the electronic records.   the electronic records.  

Pending Legislation, cont.

The supervisor of records, in consultation with the The supervisor of records, in consultation with the chief information officer, shall promulgate chief information officer, shall promulgate regulations to carry out this act.  regulations to carry out this act. 

Will not apply to electronic records created, Will not apply to electronic records created, generated, sent, communicated, received or stored generated, sent, communicated, received or stored before the effective date of act.  Agencies within before the effective date of act.  Agencies within the executive department and municipalities must the executive department and municipalities must use their best efforts to comply with the act by use their best efforts to comply with the act by January 1, 2008.  January 1, 2008. 

In the future, look for…

The enactment of the Secretary’s electronic The enactment of the Secretary’s electronic records bill (S2420)records bill (S2420)

Thereafter, the Secretary’s drafting of Thereafter, the Secretary’s drafting of standards for electronic records, in standards for electronic records, in consultation with ITD. ITD’s focus in consultation with ITD. ITD’s focus in advising the Secretary will be on open advising the Secretary will be on open standards and interoperabilitystandards and interoperability

Refiling of electronic notarization law Refiling of electronic notarization law

Linda Hamel

General CounselGeneral Counsel

Information Technology DivisionInformation Technology Division

Commonwealth of MassachusettsCommonwealth of Massachusetts

Linda.hamel@state.ma.usLinda.hamel@state.ma.us

(617)-626-4404(617)-626-4404