The Significance of “Admissibility of Electronically Filed Federal Records as Evidence”

J. Timothy Sprehe*

All laws are written with a paradigmatic example in mind. When legislators draft bills, they have in mind a set of concrete circumstances, some real life problem the law supposedly will alleviate. However much the legislators try to generalize from the particular, that metaphorical basis remains as a substrate to the law. When technology changes, the underlying metaphor sometimes emerges as a limiting factor, an unnecessary and usually unintended consequence.

The set of circumstances the drafters of Federal records laws envisioned apparently entailed an unquestioning assumption that the records medium would remain constant, that records would always be maintained on paper. The same is true for state records laws. When the circumstances change, legal troubles ensue.

Today the circumstances are changing for Federal and state agencies as they change to electronic or optical records in two ways. First, many agencies are beginning to collect information from the public in electronic medium. Whether the public communicates by telephone data transmission or mails in a diskette, the modality of the information changes from paper-based to electronic computer-based. For regulatory agencies, these information collections are often legally required “filings”: an application to market a new drug; a publicly held company’s annual report to stockholders; the rates to be charged for shipping goods internationally; and so forth. Second, many agencies are beginning to store and preserve their formerly-paper records in electronic or optical medium. Instead of very large rooms full of file cabinets or bookcases bearing paper records, they have much smaller rooms full of magnetic tapes bearing data. These records are quasi-legal documents in the sense that they can be, and often are, introduced in court as evidence during litigation. Before switching to the new technology, therefore, these Federal and state agencies must satisfy themselves that the information in its new electronic or optical form will be accepted in court if necessary.

* Direct all correspondence to: .I. Timothy Sprehe, Sprehe Information Management Associates, 1920 N

Street, N. W., Suite 210, Washington, D.C. 20036.

Government Information Quarterly, Volume 9, Number 2, pages 153-154 Copyright 0 1992 by JAI Press, Inc. All rights of reproduction in any form reserved. ISSN: 0740-624X

154 GOVERNMENT INFORMATION QUARTERLY Vol. g/No. 2/1992

The fact is that, providing the agencies have maintained reasonable documentation and control procedures over the magnetic tapes (or optical disks, or whatever), the courts always accept electronic or optical records. But there is no law saying electronic records are admissible in court; and no law saying they are not.

That is the rub. It takes a technologically educated attorney, functioning as an agency’s general counsel, to understand the issues and render the judgment: Yes, the agency may safely switch to the new technology because the procedures and safeguards the agency has instituted ensure a sufficiently high probability the courts will accept the agency’s electronic or optical records.

The trouble is, at least in the Federal government, most of the general counsels do not have the technological education. In the absence of a legal labor force that is fully computer literate and versed in computer law, the next best thing is an authoritative

opinion the general counsels will respect. Who can render that authoritative opinion? Why, who else but the government’s lawyer, the Department of Justice?

In 1991, the Systems Policy Staff, Department of Justice, released a paper entitled “Admissibility of Electronically Filed Federal Records as Evidence.” Issued as a guideline to program managers and record custodians and a “refresher” for legal counsels, the paper argues that the Federal Rules of Evidence apply to electronic as well as paper records. “However”, as the paper notes, “because electronic files are

particularly susceptible to purposeful or accidental alteration, or incorrect processing, laying a foundation for their admission must be done with particular care.”

In large part because of its source, the Justice Department paper constitutes a major step in removing a bureaucratic barrier to the introduction of new technology for the management of Federal and state records. The reasoning in the paper is neither new nor novel; its importance lies rather in the fact that the U.S. Justice Department is telling attorneys in public bureaucracies that going electronic or optical is a safe bet from a legal standpoint.

However important, the Justice Department paper is not the end of the matter. One thing that remains to be done is the refinement of just what an agency has to do in order to ensure a high probability of legal admissibility. The Association for Information and Image Management (AIIM) is addressing this question in its Task Force for Development of Proposed Performance Standards for the Legal Acceptance of Information Storage Technology Systems. The task force is chaired by George Kondos, the attorney who wrote the Justice Department paper prior to his retirement. The performance standards will be guidelines for systems designers, data managers, and legal counsels that, if followed, will yield a high probability of admissibility. Ultimately, the task force hopes to write model language that is non-media-specific and that can be inserted into laws and regulations in Federal, state, and local agencies.

Persons interested in learning more about AIIM’s task force may write or call Marilyn Courtot, Director, Standards and Technology, Association for Information and Image Management, 1100 Wayne Avenue, Suite 1100, Silver Spring, MD 20910. Telephone: (301) 587-8202.