Washington public entities must meet new electronic record requirements by end of 2010

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All local government agencies in Washington need to come into compliance with requirements for preserving electronic records and, if they prefer to have their records archived by the state, arranging for transfer to the Washington State Archives. This is part of the ongoing process by which law and policy continue to play catch-up with the technological reality of how everyone does business today.

The newly effective requirements—those for website and e-mail management—must be complied with by the end of 2010. These requirements are part of the overall regulations of electronic records, WAC Chapter 434-662. Highlights of that chapter:

  • Electronic records—including e-mails—are governed like paper records under the statutes and regulations that apply to the preservation and destruction of all public records, regardless of form: RCW Chapter 40.14 and WAC Chapter 434-635. The state Local Records Committee made updates in July 2010 to the local government records retention schedules, including the Local Government Common Records Retention Schedule (CORE) for all local agency records, which is used in conjunction with the separate retention schedules that apply to records of specific types of local agencies, such as school districts, ESDs, law enforcement agencies, health departments and districts, and certain county officials.
  • Under an agreement with the agency, and with its cooperation, the Digital Archives will use “spidering software” to capture and preserve the agency’s website content at least annually.
  • Electronic records—including e-mails—that the State Archives designates as having “archival value” based on their historical, legal, fiscal, evidential, or informational value must be maintained by the local agency in compliance with the new regulations unless and until they are transferred to the state Digital Archives.
  • There are requirements to ensure that electronic records remain usable, searchable, retrievable, and authentic despite variations and changes in hardware, software, and security features.
  • The Digital Archives provides guidance on how electronic records are to be transferred.
  • Separate guidelines govern transfer of the agency’s archival e-mail to the Digital Archives. These provisions apply to e-mails of all elected officials and public employees—except state legislators and judges.

According to Archives staff, one big challenge for some local agencies has been how to archive a huge volume of e-mail records effectively so that the right messages can be retrieved. Records management consultants from the Archives have been assisting some local agencies on-site with this challenge. Additional advice sheets and other resources from Archives on electronic records management are available here, including on particular topics like retention of posts to social networking sites and destruction of hard copy records after they are digitized, which offers potential savings on storage costs.

Next steps

Local agencies should: 

  • Ensure that relevant staff members are aware of the requirements and are on track toward compliance;
  • Consider taking advantage of the records management training the State Archives is providing for local agency staff around the state;
  • Consider signing up to receive the State Archives' Local Government Updates, which Archives staff says is the best way for local personnel to keep informed;
  • Ensure that both records management and IT personnel are part of discussions about coordinating with the state Digital Archives; and
  • Consider whether the agency may be due for a broader review of its records practices for other purposes (see below).

Additional resources

More resources on records requirements for local agencies in Washington include:

  • Washington’s Public Records Act, RCW Chapter  42.56;
  • Statutory provisions, starting at RCW 43.105.250, that encourage state and local agencies to manage their records electronically and make them more accessible to the public; 
  • Other resources and information on services to local governments from the State Archives; and
  • The opportunity for a local agency to have a public records job opening circulated to the State Archives Local Government Updates e-mail list, by sending a request torecordsmanagement@sos.wa.gov (if possible, the agency should provide a link to a job announcement on its own website, but the text of the announcement with contact name, phone number, and e-mail address also is acceptable).

Related issues and reminders

For local governments, records management has legal implications beyond the new archiving requirements. In fact, the new rules may be a good opportunity to revisit these related issues together. Some important issues, recent developments, and resources include these: 

  • Agencies must be prepared to comply with federal court rules for discovery of electronic records in litigation and to place a “litigation hold” on the destruction of any potentially relevant electronic records as soon as litigation begins to be reasonably anticipated. These rules have been in effect since 2006, and a January 2010 court case shows how impatient the courts may be with non-compliance almost four years later—and how severe the penalties can be.
  • The Washington Attorney General (AG) publishes advisory model rules on public records compliance under WAC Chapter 44-14 as a way of suggesting best practices for agencies, and the AG’s Open Government Ombudsman provides online resources on open records requirements. Public records requests can severely tax limited agency resources and aresubject to abuse, but the potential penalties for non-compliance can be downright ruinous.
  • On June 10, 2010, a new law adopted as Senate Bill 6367 went into effect allowing an agency responding to a public records request to provide the requestor a link on the agency's website to the specific records requested, except that if the requester informs the agency that he or she cannot access records online, the agency must provide hard copies or allow the requester to use an agency computer.
  • The legislature failed to pass another request by local governments, embodied in House Bill 2583 and Senate Bill 6368, that would have (1) allowed a public records requester and the agency to meet in person before either side files a lawsuit, (2) prevented a lawsuit from commencing until 15 days after this meeting and stopped the clock on the deadline for filing the suit and the  accrual of penalties during this window, (3) required the plaintiff either to certify to the court that the meeting took place or explain why not, and (4) allowed the court to reduce or eliminate any financial award to a plaintiff that failed to conduct the meeting in good faith. This would have given an agency a better chance to clarify exactly what a requester is seeking, but without requiring the requester to justify or explain its motives.
  • The federal Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009 provided for stricter enforcement of the privacy requirements of the Health Insurance Portability and Accountability Act (HIPAA), so agencies and private companies that handle protected health information potentially have greater legal exposure.

For more information or assistance

Tom Hutton
206.462.6782
teh@pattersonbuchanan.com

Mark Anderson
206.462.6768
maa@pattersonbuchanan.com

Derek Bishop
206.462.6712
dab@pattersonbuchanan.com

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