ELECTRONIC RECORDS MANAGEMENT

Laws, Standards, and Best Practices

Joseph D. Chin, Jr. State of Michigan

Director, Strategic Initiatives & Records Management Services

MAMC 14th Annual Conference June 20, 2013

What do we mean by electronic records?

Scanned Paper Documents

Born Electronic

Email

Shared Drive Content

Electronically submitted information

Electronic Records Include digital images, e-mail, databases, word

processed documents, spreadsheets, CAD, GIS, web pages, etc.

Dependent upon specific hardware and software to be accessed and used

Original technology used to create electronic records will eventually be obsolete

Need to work with information technology staff to develop preservation plans for retaining electronic records long-term (more than 10 years)

Records Exist in Many Formats

The medium used to document an official

government activity is irrelevant

The content of the record determines if it is

evidence of an official government transaction,

action, or activity

Records can be stored as paper, photographs,

maps, drawings, microfilm, databases, digital

images, spreadsheets, e-mail, tweets, etc.

Legal

Records Reproduction Act

MCL 24.401 - 24.406

Authorizes the reproduction of public records by

Michigan government agencies at all levels

Requires that certain technical standards be

promulgated to regulate quality Microfilm

Digital imaging

Digital migration

Imaging and Microfilming Standards Reproductions cannot be used as official records if

they were not created according to SOM standards

Standards were promulgated August 2005: Conversion of Paper or Microfilm to Digital Images

Conversion of Paper to Microfilm

Conversion of Digital Images to Microfilm

“Best Practice” documents explain how and why

these technologies should be used

State of Michigan Standards

Regardless of the format, records must be

authentic, reliable, have integrity, and be

usable and accessible

Standards and best practice documents

available at

www.michigan.gov/recordsmanagement

Digital Imaging Standard Format

Any Lossless Compression

Prefer TIFF

PDF Concerns

Sample for quality

Resolution

200 – 300 DPI

Written Procedures

Media

Public Records

The Michigan Freedom of Information Act

(FOIA) (Public Act 442 of 1976, as

amended), defines public records as

recorded information “prepared, owned,

used, in the possession of, or retained by a

public body in the performance of an

official function, from the time it is

created.”

Freedom of Information Act (FOIA) FOIA allows the public to request copies of government records

Some records are exempt from disclosure

If a message still exists (in active accounts, on backup tapes, etc.) when a FOIA request is received, it must be evaluated by legal staff for release

If messages are destroyed on a regular basis, in accordance with approved Retention and Disposal Schedules, they may no longer exist when a FOIA request is received Agency will not be penalized for not releasing the record

Open Meetings Act

A quorum of members of public bodies (as defined

by FOIA) cannot use e-mail or social media sites to

deliberate issues outside of a public meeting

The e-mail and social media accounts of members

of public bodies (elected or appointed) can be

eligible for release in accordance with FOIA and

can be used as evidence in litigation

Michigan Historical Commission

Act (MCL 399.5)

Section 5 of the Michigan Historical Commission Act (MCL 399.5) identifies

local government agencies, indicating that those agencies must work with

the State Archives of Michigan to protect and preserve local public records.

This law expressly applies to counties, multi-county agencies, schools,

municipal agencies, and includes local departments, boards, commissions,

and institutions. The law also applies to local public officers engaged in the

discharge of legally imposed responsibilities.

Public records as public property.

Two laws provide that local government records belong to the people of Michigan.

A. Section 491 of the Michigan Penal Code (MCL 750.491) declares that all official

books, papers, and records created by (or received in) any office or agency of the

political subdivisions of the state of Michigan are considered public property, belonging

to the people of the state.

B.Section 5 of the Michigan Historical Commission Act (MCL 399.5) provides that all

records required to be kept by local public officers in the discharge of their duties,

records required to be filed in local public offices, and records which represent

memorials of transactions of local public officers, are considered to be property of this

state.

Penalty for removal, mutilation, or destruction

of public records.

Section 491 of the Penal Code (MCL 750.491) declares the improper disposal of local

government records to be a crime. This law states as follows: “Any person who shall

willfully carry away, mutilate or destroy any of such books, papers, records or any part of

the same, and any person who shall retain and continue to hold the possession of any

books, papers, or records, or parts thereof, belonging to the aforesaid offices and shall

refuse to deliver up such books, papers, records, or parts thereof to the proper officer

having charge of the office to which such books, papers, or records belong, upon

demand being made by such officer, or, in cases of a defunct office, the Michigan

historical commission, shall be guilty of a misdemeanor, punishable by imprisonment in

the state prison not more than 2 years or by a fine of not more than $1,000.00.”

Litigation and Discovery

• Protecting Your Government Agency

Litigation During litigation parties can request copies of records they consider to

be relevant evidence to the case Some records that are exempt from disclosure under FOIA and other laws

could be admitted as evidence

Immediately cease all destruction of relevant e-mail in active accounts

and on backup tapes when litigation is imminent Government agencies do not want to be charged with destroying evidence

Court rules address the role of electronically stored information as

evidence in federal courts Amendments to the Federal Rules of Civil Procedure went into effect on

December 1, 2006

Amendments to the Michigan Court Rules for Civil Procedure went into

effect on January 1, 2009

e-Discovery

Discovery is the process in which records are

sought, located, secured, and searched with the

intent of using them as evidence in a civil or

criminal legal case

E-Discovery is the process for addressing the unique

issues associated with using electronically stored

information (ESI) as evidence

Court Rules

Federal Rules of Civil Procedure Amended December 1, 2006

Michigan Court Rules for Civil Procedure Amended January 1, 2009

Address the role of electronically stored

information (ESI) as evidence in court proceedings.

Electronically Stored Information It’s about more than e-mail

Desktop e-records (unstructured data)

Databases, GIS, CAD (structured data)

Data management tools (logs) that track activity

Processes for creating, accessing, editing,

destroying ESI

Backup tapes are often a target in discovery

Deleted files

Random Access Memory (RAM)

Challenges

Volume of ESI is steadily increasing

Users control most aspects of the lifecycle

Duplication

Disorganization

Lack of acceptable use/etiquette controls

Technology obsolescence

Lack of security

Lack of awareness/consequences

E-mail Retention

Yes. E-mail is a record!

E-mail was invented in October 1971 Technology to support sending electronic messages

between computers in different locations

E-mail use increased steadily over the past 20 years,

and the trend will continue

Today, most employees cannot function effectively

at work without e-mail

Over 40 Years Worth of E-mail

Quiz: True or False?

Q. My information technology department automatically deletes all e-mail in the system after 90 days, so I am not responsible for keeping e-mail beyond that period of time.

A. FALSE: We don’t keep all paper records for only 90 days. If an e-mail message is related to a contract, we need to keep it as long as all other contract records. If the message is related to a personnel issue, we need to keep it as long as all other personnel records.

Q. I am the only person who can see the messages in

my government e-mail account. It is private.

A. FALSE: Information technology staff and

management may choose to monitor the activity

in your e-mail account. In addition, the messages

may become the subject of a FOIA request or

litigation. If this happens, legal staff may review

your e-mail messages to find evidence.

Q. If I am one of 50 people who receive a message,

and I do not have to fulfill an assignment as a

result of that message, then I can destroy it.

A. TRUE: The sender should retain the message, as

well as any employees who are assigned a task as

a result of the message.

Q. It is best to save all e-mail messages that I send

and receive, in case I need to prove I did

something.

A. FALSE: It is best to destroy e-mail messages that

have fulfilled their retention period so they do

not waste space on the computer system. Also,

these messages could become a liability if a FOIA

request or litigation discovery request is

received.

What is the Retention Period for E-mail? There is no single retention period for all e-mail, just like

there is no single retention period for all paper.

E-mail is a format that a record is stored in.

Retention is based upon the content of the message, and the

business process it supports.

If an e-mail message is related to a contract, it needs to be

kept as long as all other contract records. If the message is

related to a personnel issue, it needs to be kept as long as

all other personnel records.

E-mail Liabilities In recent years, public officials and government employees

have been caught using electronic messaging systems

inappropriately, saying things they did not want to be

public knowledge, or destroying electronic records

illegally.

Some have lost their jobs

Some have had to pay hefty fines

Some have gone to jail

Policies

RMS published a model e-mail retention policy

(fill-in-the-blank) on our website Defines status of e-mail as records

Responsibilities

Storage options

You are Effectively Managing Your E-mail If… Messages that are still in your e-mail account (inbox

and sent mail): Have not been read yet, or

Are related to tasks awaiting further action

Messages that are official records are filed in with

other records that document the business process,

either electronically or in paper form

Messages that are not official records are deleted

Tips for Reducing Account Size

Keep it Clean: Make retention decisions right away; upon receiving or sending a message

The longer you wait to clean out messages, the harder it will be to remember which messages are important

Message Strings: Retain only the last message in the conversation, if it includes the content of all the previous messages

If an earlier message has an attachment not included in a later message, it probably needs to be retained in addition

Calendars: Retain appointments for 2 years Trash: Empty deleted items daily

E-mail Storage

E-mail software is not intended/designed to be a

records storage/retention tool

Some government employees are permitted to use

the e-mail system for recordkeeping

Some government employees must store messages

outside of the e-mail system for recordkeeping

Messages should be stored with the other records

for the business process

E-mail Storage Options Print and file messages in a hard copy system –

destroy electronic copy Permitted as long as there is no active FOIA or

litigation activity

Save the messages on a network drive

Move messages to the e-mail system’s archive

File messages in a Document Management

System’s repository

E-mail archiving software

Other Communications Tools

Instant/Text Messages, Voice Mail, Blogs, Social Media sites, RSS Feeds,

etc. Same records management principles apply:

If the communication is recorded it is a record

Status about the communication as a public record depends up on the content

Who should retain it depends upon responsibilities of sender/receiver

Records supporting the same business process need to be stored together on

media that will keep them accessible and usable for the entire retention period

Records can be a liability or an asset

Content created and stored on government resources is not private

Resources not owned and managed by government could contain public records,

and these records may become the subject of FOIA requests and litigation

BEST PRACTICES

Records Management is Risk Management

Understand the risk of loss--loss is not just

inadvertent destruction… Disaster (fire, flood, etc)

Intentional and illegal destruction or alteration

Security breech (theft, misuse or fraud)

System backup process failed

Human error

Technology obsolescence Deterioration

Common Misconceptions

Electronic storage is cheap

Imaging is the best solution

CDs will last for 50 years or more

Microfilm is an obsolete technology

Paper storage is expensive

Paperless is better

+

30% of records need to be retained but are not retrieved

regularly, and should be moved off-site to

low-cost storage

Step 1: Records Situation Analysis

• Match records to Retention and Disposal Schedules

• Identify records not covered by a schedule

Step 2: Evaluate What is Left

Step 3: Evaluate Storage Options for

Remaining Records

Office Filing

System (paper)

Active Electronic

System

(read/write)

Microfilm System

Inactive Electronic

System

(read only)

If you answered “Yes”: = preferred = acceptable = not recommended

Are records retrieved frequently

shortly after creation?

Are records retrieved frequently over

their entire retention period?

Are records used by multiple people

or used at multiple sites?

Are copies often sent to people

outside the office (including FOIA)?

Does retrieval need to be

immediate?

Are records created or received

electronically?

Do the records have a retention

period greater than 50 years?

Are records modified after

creation/filing?

Step 3: Evaluate Storage Options for

Remaining Records

Recordkeeping Solutions Define your problem

Define your current processes

Identify all potential solutions Destroy unnecessary records

Improve indexing/access tools or security

Reduce record retention period

Eliminate unnecessary or redundant processes/records

Off-site storage

Microfilm

Electronic forms (e-commerce)

Document imaging

Analyze/compare the costs of the solutions

Digital Imaging Digital imaging is not new

Foundations in Fax technology

First Fax Patent in 1843

Fax (and digital imaging) became common place

in the early to

mid 1970s

Early vs. Current Imaging

Early Imaging Systems

• Scanners unreliable and created poor images

• Not enough computing power

• Limited storage solutions

• Limited network speeds

• Weak security

• Underpowered, unreliable, unforgiving and uncontrolled

• Failure rate exceeded 50%

Current Imaging Systems

• More reliable scanners produce accurate representations of the original

• More powerful computers

• More efficient network speeds

• Improved security

• Capture standards

• Legally accepted as a storage, retrieval and distribution technology

Pre-Implementation Considerations

•Often under estimated Preparation

•Selecting hardware/software to meet application needs Scanning

•Index attributes and how that information will be gathered Indexing

•Verify and correct Quality Control

•Test and measure the results Quality Assurance

•Where/how/when Storage

•Getting the image out Disposition

Scanning Procedures

Format – recommended TIFF or TIFF-wrapped PDF

Resolution – recommended 200-300 DPI

Color – recommended black and white

Color – procedure for special documents that

require color

Dimensional aspects of original documents

Single-side or duplex

Optical Character Recognition (OCR)

Scanning Model Options

Centralized

• Central logistic location

• Post-process

• At the mailroom

• Advantages

• Highly Controlled

• Consistent Quality

• Disadvantages

• Capturing too much

• Routing/transporting paper

Decentralized

• Multiple Scan Centers

• Advantages

• Somewhat controlled

• Consistent Quality

• Eliminates transportation

• Disadvantages

• Expenses

• Changes over time

Task Oriented

• At the desktop

• Advantages

• Immediate capture

• Enable workflow

• Avoid filing/routing

• Disadvantages

• Little control

• Inconsistent quality

• Expenses

Scanning Process Options

Pre-Process

• Advantages

• Able to leverage system for entire process

• Disadvantages

• Does not work well with view only systems

• Scanning process may delay information availability

• Additional change management for process staff

Post-Process

• Advantages

• Less change management

• Disadvantages

• Not able to fully leverage system

• Managing two systems, paper and electronic

• Greater potential for misplaced documents

Quality Considerations

• Completed at the scanner

Quality Control

• Completed after conversion, usually by the end user

Quality Assurance

Indexing Considerations

Values

Data Entry

Pre-Existing Data

OCR

ICR

Bar Codes

Disposition How long to keep paper

after scanned?

How will paper be

disposed of?

How long to keep

scanned images?

Retention Schedules

Triggers

Outside Vendors

Documentation Standard Operating Procedures

Document Preparation

Scanning Processes

Indexing Methods

Quality Control

Quality Assurance

Disposition

Contact

Migration Exit strategy

Necessary for all systems

Needs to be addressed in the

planning stage

Additional Considerations

Technical expertise

Migration software

Hardware

Risk of information loss

Vendors

Common Threads

Records must…regardless of the format Be authentic Be reliable Have integrity Be usable and accessible

Agency is responsible for the proper management of records and information for the life of the retention schedule

Records Management Services is responsible for providing guidance/direction about compliance

Information Technology Responsibilities Maintaining a full and accurate inventory of resources that are

used Documenting backup procedures in writing Ensuring a complete and successful backup of data and records Purging backup tapes on a regular basis to ensure that deleted e-

mail messages and other electronic records cannot be recovered Restoring data and records from backup tapes Working with attorneys to protect e-mail messages that are

needed as evidence It may be difficult to fulfill these responsibilities if you use a

private service provider (such as G-mail, Twitter, Facebook, etc.), since you do not have physical custody of the records and do not control their disposition

FORMATS

Micrographics

Benefits Reduce space requirements (~ 98%) Ease of duplication and distribution Preserve information (long-term stability) Minimal system dependence Security/protection (working and security copies) Integrity of records Improve filing and retrieval activity Eliminate misfiles ($125 per incident)

When to use Microfilm

Records

Static

Voluminous

Long retention period

Low retrieval activity

Centralized access is sufficient

CD Rot (Wikipedia) CD rot (or DVD rot) is a common phrase describing

the tendency of CD or DVD discs to become

unreadable within a few years of manufacture. The

causes of this effect vary from oxidation of the data

carrying layer to ultra-violet light damage and

debonding of the adhesive used to stick the layers of

the disc together. Since much use is made of CDs and

DVDs as backup media, the potential impact of data loss is great.

Document Imaging Benefits

Reduce space requirements (~ 50,000 pages fit on

a disk)

Indexing and cross-reference

High speed retrieval

Sharing documents across a network or the

internet

Easily integrated with document management

systems, databases and other tools

When to use Document Imaging Records

Static and dynamic

Voluminous

High retrieval activity

De-centralized access from multiple

locations

Simultaneous multi-user access

Microfilm/Imaging

Digital images satisfy the need for short-term high-

volume retrieval

Microfilm satisfies the need for reduced storage

and long-term accessibility, while avoiding digital

migration costs

State of Michigan Master Contracts

Imaging Contract

The Records Management Services administers the State of Michigan's master contract for imaging services. Both state and local government agencies can use these services. The Records Management Services works with the vendor to ensure that agencies receive a quality product at a fair price. Agencies that use this contract will receive consulting services from the Records Management Services to ensure that a quality product is created. These consulting services include:

• Analyzing the records to determine if microfilming meets the agency's needs.

• Analyzing the business process to determine when in the record lifecycle the microfilming should take place.

• Assisting the agency with cost-justifying the need for the imaging application.

• Developing a Statement of Work that is signed by the agency and the vendor to ensure that a quality product is created.

Microfilming Contract

The Records Management Services administers the State of Michigan's master contract for microfilming services. This contract is available to all state and local government agencies. Agencies that use this contract will receive consulting services from the Records Management Services to ensure that a quality product is created. These consulting services include: • Analyzing the records to determine if microfilming meets the agency's needs.

• Analyzing the business process to determine when in the record lifecycle the microfilming

should take place.

• Assisting the agency with cost-justifying the need for the microfilm application.

• Developing a Statement of Work that is signed by the agency and the vendor to ensure that a quality product is created.

Additional Benefits Contracts were competitively bid (government

agencies do not need to re-bid to procure the services)

Billing is handled by SOM SOM monitors vendor compliance and resolves

issues SOM expertise and experience SOM develops the SOW to help agencies get the

services they need, instead of the services the vendor wants to sell

Peace of mind

CURRENT AND FUTURE

INITIATIVES

FOR

THE STATE OF MICHIGAN

• Identify paper-intense processes to transform using

electronic document management providing cost savings

and improve citizen services

• State agencies and citizens would benefit from a more

streamlined and efficient process improving the

timeframe to deliver services more quickly. Cost

reduction including storage of paper records. Reliable

solution for e-discovery cases.

DTMB Strategy Alignment

Existing: Expand and maximize shared services opportunities

Targeted: Assess the need and facilitate the development of

state and local business shared solutions

Outreach and Engagement: Participate in strategic

partnerships to share and increase the use of best practices

TRIM & THE CLOUD (Future Initiative)

• HP TRIM (Total Records and Information Management) is a scalable enterprise

document and records management solution that simplifies the capture,

management, security, and access to your information in business context. It enables

your business to easily comply with regulations and policies, and helps you secure

information from inappropriate access and misuse. TRIM has the capability of

managing all records, from point of creation to final disposition, regardless of format.

• Local units of government will be able to initiate a records management electronic

solution without the cost of bidding, infrastructure costs, implementation costs for a

flat fee.

• Web facing for public access to records deemed “public” by the government entity for

FOIA. (http://rim.metro-region.org/- Portland, Oregon)

• Currently State Agencies pay a one time fee of $400 per seat and $30 a month

maintenance. No additional costs for implementation or infrastructure. $8 per gb per

month for storage. (1 GB = approximately 30-45 thousand pages)

HP TRIM

Total Records and Information Management

A centralized repository for managing all SOM records, from the point of creation to final disposition, regardless of format

Developed to provide robust document management functionality for state agencies

Administered at the program level

Low total cost of ownership

HP TRIM Functionality

Document Management

• Check-out/ Check-in

• Revision Control

• Robust Searching

• Secure Access to Records

Electronic Image Management

• Bulk Image Import

• Redaction

Workflow

• Routing • Task

Assignment • Time

Management • Workload

Management

Records Management

• Business Process Ownership of Records

• Audit Trails • Compliance

with Retention and Disposal Schedules

Records Storage Contract

• Provides records storage for the following counties:

• Wayne, Macomb, Oakland and Genesee

• Contact RMS if interested in utilizing

Web based software

Intuitive user interface

Basic functionality and features

Simple administration and security

Content centrally uploaded and managed

IRMA

What is IRMA?

Image Repository for Michigan Agencies

Developed to provide simple image storage and retrieval functionality for state agencies

A digital records center for active and inactive records

Low total cost of ownership

IRMA Basic Model

Records are submitted to the state’s imaging

vendor for scanning

Vendor provides images and indexes to RMS

RMS imports images into IRMA and notifies agency

Agency has access to images via intra-net

IRMA Service Fees

• $150 Per Yr. per GB

• 1 GB = approximately 30-45 thousand pages -or- approximately 15 record center boxes

Monthly per GB

Sources for More Information

Sedona Conference http://www.thesedonaconference.org/

Publications Commentary on Legal Holds: The Trigger and The Process

Best Practice Recommendations and Principles for Addressing

Electronic Document Production

Best Practice Guidelines and Commentary for Managing

Information and Records in the Electronic Age

Commentary on ESI Evidence and Admissibility

Best Practices for the Selection of Electronic Discovery Vendors

We can help!

Records Management Services

3400 N. Grand River Ave.

Lansing, Michigan 48909

(517) 335-9132

http://www.michigan.gov/recordsmanagement/

QUESTIONS

Thank You!