Legal Aspects of Electronic Records - Questions and Answers
Q. Aren't electronic records different from paper records?
A. No. Although physically different, Washington State law makes no legal distinction between paper records and electronic records.
Chapter 40.14 RCW (which governs the retention, destruction and long-term archival preservation of public records) makes no distinction between "paper records" and "electronic records." Both are subject to the laws and regulations governing records retention periods, and the potential destruction or long-term archival preservation of such records.
RCW 40.14.010 defines a "public records" as "...any paper, correspondence, completed form, bound record book, photograph, film, sound recording, map drawing, machine-readable 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, and legislative records as described in RCW 40.14.100."
Chapter 42.17 RCW (the Public Disclosure Act) also makes no distinction "paper records" and "electronic records." Both are subject to regulations governing the disclosure of public records.
RCW 42.17.020(36) defines a "public record" as "...any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics..."
The Office of the Attorney General Open Records & Open Meetings Deskbook, Chapter Three, provides excellent guidance in determining what is a public record.
Q. Are all state and local government agencies required to preserve electronic records?
A. Yes. The laws and regulations governing the retention, disclosure, destruction and long-term preservation of all public records include both state and local government agencies. (Note: Specific statutes and rules apply to the legislative and judicial branches of government.)
RCW 42.17.020(1) defines "Agency" to include "...all state and local agencies.'State agency' includes every state office, department, division, bureau, board, commission, or other state agency." "Local agency" includes every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district, or any office, department, division, bureau, board, commission, or agency thereof, or other local public agency."
Q. Is email an "electronic record" subject to retention laws and regulations?
A. Yes, email is a public record subject to all of the laws and regulations governing the retention, disclosure, destruction and archiving of public records.
Email has become a very important medium in modern government. Its use has supplanted verbal and paper-based communications. Email is now a viable and trusted medium for developing public policy, giving agency approvals, placing orders, formalizing agreements and discussing important matters. A great deal of sensitive information once stored only on paper is now encapsulated only in email.
As dependence on email and its use have grown exponentially, so has public and legal scrutiny regarding the retention and disclosure of email as an electronic record regulated by law. Email is just as disclosable, admissible in court, and critical to maintain during its retention period as paper-based records. Some email is so legally, historically or fiscally significant as to be "archival" and subject to permanent preservation.
Q. Our IT department doesn't have server space to store all of the electronic records we generate. Can we purge the files we don't need if we don't have the hard-disk space to store them all?
A. During the designated retention period, your agency must retain and protect active electronic records whether you need them or not for daily business.
Electronic records are public records subject to the laws governing public disclosure, preservation, destruction and archiving. An agency's difficulty in storing and accessing public records is not an excuse for failing to comply with Chapter 40.14 RCW and Chapter 42.17 RCW
Q. My agency is federally funded and must comply with federal recordkeeping requirements. How do state and federal records management requirements for electronic records differ?
A. Washington State and federal records management programs are similar in that both paper records and electronic records are "public records" subject to retention and recordkeeping requirements. Contact your federal counterpart to determine its recordkeeping requirements, as defined in federal statutes, regulations, and agency directives or guidelines. If state and federal retention periods differ for a record series, use the longer retention period.
For an overview of the Federal Records Management program, the National Archives and Records Administration web site is a good place to start.