Laws, Policies, Standards, and Guidelines
INLS 525: Managing Electronic Records
Week 8 (3/5)
Access, Openness, & Discovery
Freedom of Information Act (FOIA)
- Enacted in 1966, then amended 5 times
- Default assumption is disclosure
- 9 categories of exemptions
- Time limits on notice, but providing actual records has to happen "promptly"
- Fee structure based on type of requestor (commercial; educational/scientific or news; other)
- Current practice (GAO report, 2005):
- Increase in requests
- Backlog is growing
- Dramatic differences between agencies
Open Records Laws – North Carolina
... the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law.
... no public agency shall ... acquire any electronic data‑processing system for the storage, manipulation, or retrieval of public records unless it first determines that the system will not impair or impede the agency's ability to permit the public inspection and examination, and to provide electronic copies of such records.
... it is the public policy of North Carolina that the hearings, deliberations, and actions of [public] bodies be conducted openly.
Discovery
- Search and delivering records can be expensive, particularly when there is limited intellectual control.
- Delete doesn't mean delete.
- The Sedona Principles: Best Practices, Recommendations and Principles for Addressing Electronic Document Production (2005)
- Risk Profiler Self-Assessment for E-Discovery – ARMA and NetDiligence (2006)
- Several companies provide specialized training and certification.
- What is "privilege,"
- why is it important to electronic recordkeeping, and
- what makes it complicated to ensure?
Federal Rules of Civil Procedure
New Rules as of Dec 1, 2006 for ESI
- ESI (electronically stored information) is type of discoverable information
- Requires parties to permit requestors "to inspect, and copy, test, or sample any designated documents or electronically stored information"
- Requires, identifies topics for and sets timeframe for early discussion (& reporting to judge of discussion) — includes "preserving discoverable information," "form or forms in which it should be produced," "claims of privilege or protection"
- Limits obligations on producing ESI that isn't "reasonably accessible," unless good cause is demonstrated
- Provisions for producing party to notify opposing party, court and retrieve privileged information that was inadvertently produced
- Format: kept in usual course of business as ordinarily maintained and are reasonably usable
Holds (reminder)
When receiving notice or having reasonable anticipation of litigation, must cease normal disposition actions that would destroy related data, e.g.
- Implementing deletion based on retention schedules
- Recycling of backup tapes
- Perhaps even defragmenting hard drive
Warrant
Derived from laws, regulations, case law, IT standards, auditing standards, best practices that suggest or mandate particular recordkeeping behavior
A society or culture endorses certain recordkeeping procedures and
endows them with the ability to create trustworthy records.
If archivists are to take their rightful
place as regulators of an organization's documentary requirements, they will
have to reach beyond their own professional literature and understand the
requirements for recordkeeping imposed by other professions and society in
general.
Duff, Wendy. "Harnessing the Power of Warrant." American Archivist 61 (1998): 88-105.
Legal Requirements
- Mandated by society - identified via compilations & guidelines, legal research, organizational analysis
- 1,000+ federal statutes & regulations govern retention of records
- Also many state, county, & municipal regulations
- Examples of activities/industries:
- agriculture,
- banking,
- communications,
- construction,
- health care,
- manufacturing,
- transportation,
- utilities
Standards
Although tedious and obscure, negotiations over standards are among the most complex and important political arenas of modern societies, with myriad institutional, financial, symbolic, and practical dimensions.
—Edwards, Paul N. "'A Vast Machine': Standards as Social Technology." Science 304, no. 5672 (2004): 827-28, 828.
Lessons
- Standards battles are not (necessarily) about "best" technical solution, but competing worldviews & sets of interests
- It takes considerable resources to contribute to standards development, so players have to see a direct benefit to them – educated guesses about those perceived benefits will help you to better understand the process
- "Openness" can vary by degree
- "De jure" (i.e. official) standards can come from many different types of groups/processes – e.g. ISO, consortium, government body, UN, professional association
Standards Strategies for Stakeholders
- Get everyone to adopt as a standard something that:
- You've already implemented
- Includes technology others will have to license from you
- Will create a large market for products where you have an advantage
- Try to block standardization (if you don't want interoperability)
- Don't participate
- Participate but drag your heels
- Embrace but add proprietary extensions, or don't implement fully or correctly
The User-Provider Standardization Planning Model
Cargill, 1997, p. 92
The User-Provider Standardization Planning Model
Cargill, 1997, p. 92
Proprietary and Open Standards
- Three dimensions of openness
- Public process of creation
- Freedom to use
- Public availability of full specification
- Licensing fees for proprietary technologies required to implement specification
- Ability to make changes
The Players
- Standards Development Organizations (e.g. ANSI, ISO, & IETF)
- Professional & Trade Associations
- Consortia (W3C, OASIS, & DCMI)
Detail work usually done within individual organizations & technical committees
Formal approval through ISO by member bodies
Standards Profiles
- Sedona Principles
- Model Requirements for the Management of Electronic Records (MoReq2)
- Open Archival Information System (OAIS)
- Trustworthy Repositories Audit & Certification (TRAC)
- Content Management Interoperability Services (CMIS)