Electronic Public Record What is it, and Where Can Agency Lawyers Find It?

What and Where Form, media and formats of the electronic record Location and control

What: Form, Media and Formats of Electronic Record Any and all forms of electronic records created or received by Commonwealth employees, contractors and agents.

What: Examples – s and their attachments – Web pages, old and new – System data (data in the IT system) – System data (data about the system) – Word processed documents

What: Examples – Electronic calendars and to do lists generated by MS Outlook and other desktop software – Videos – Floppy disks – CDs

What: Examples – Audiotape – Microfilm/Fiche – Data storage Tapes – The once and future Forms, Media and Formats

Where: Form, Media and Formats of Electronic Public Record Electronic spreadsheets Voic Deleted material still stored on backup tapes

Where: Form, Media and Formats of Electronic Public Record Records associated with systems – User documentation – Technical documentation – Web site logs (except for security logs) – Information routing and tracking – Maintenance, monitoring, and testing – Security

What: RIC 04/04 See list of documents in RIC 04/04, Section F, Information and Records Management. Go to dx.htm, click on “Statewide Records Retention Schedule 04/04 Has Been Approved..” dx.htm

What: Form, Media and Formats, (cont.) – Development – Conversion, enhancement and upgrade – Data deletion – Job runs – Audit trails – Event logs and – Backup

Where: Location and Control The “copy” problem: – Most electronic records are easily copied – Many are used in contexts in which they are automatically copied: (example: , text messages). – It is highly likely that there is more than one copy of every electronic record in the Commonwealth’s possession.

Where: Location and Control? The Commonwealth’s Electronic Records are Widely Disbursed on state and privately owned systems and hardware

Where Individual employee or contractor: – Hard drive of PC or laptop Central office, remote location, or home for telecommuters – CDs in any location where employee/contractor works – Diskettes in any location where employee/contractor works – Files stored on individual or network drives – PDAs Cell phones (text messages) Blackberry devices Palm Pilots

Where? Location and Control Your CIO or Systems Administrator, Backup tapes – System output – System-related documents – Local area network shared and restricted drives – Remnants: Currently unused equipment containing data Example: Governor Swift’s server

Where? Location and Control Centrically administered systems – HRCMS – NewMMARS – MMIS/NewMMIS – MassMail – Virtual Law Office

Where? Third Party Data Holders ITD: MITC Chelsea Another part of your agency Commercial data center host (Genuity, CSC) Long term storage – State archives (no digital archive yet) Disaster Recovery Contractor – Tapes shipped out periodically for storage

Where? Rules re: Third Party Data Holders Web site or application host: Agency responding to PRR must make the request themselves to the third party, not make the requestor do so. SPR 3-96.

How to Begin Step 1: Freeze the Documents. – Contact key document holders (employees, contractors, agents, CIO, third party data hosts) informing them of the request and requiring them to cease deleting responsive documents Interview your CIO, Systems Administrators and Third Party Data Holders

How to Begin Step 2: Research The Information Architecture of your Agency The electronic storage methods used by your agency Disaster Recovery procedures Backup procedures Orphan systems from the past that still hold agency data

How to Begin Rule 3: Work Closely with Your CIO – He knows the technology – You will have to help him with the scope of the request – Ask him questions about the list of documents that may be involved; he won’t necessarily point out the obscure ones to you.

How to Begin Rule 4: Draft a Discovery Plan and Follow It – The plan: a roadmap for making a good faith effort to locate and copy electronic documents responsive to the public records request – Plan should include tracking cost of labor involved in searching for electronic documents and cost of media used to make copies (CD ROM, etc.)

How to Begin Rule 5 Collect Documents based on your plan

How to Begin SPR 3-96: Some costs can be recouped, some cannot. Track costs for: – Search – Media on which record is copied – But not segregation – Media on which record is copied.

How to Begin Sources of Help: – Public Records Law Practice Group – Techlaw Practice Group – ITD’s General Counsel

Linda Hamel General Counsel ITD (617)