Managing Trustworthy Digital Public Records

The quality of being genuine, not a counterfeit, and free from tampering. Authenticity is typically inferred from internal and external evidence, including its physical characteristics, structure, content, and context. Authenticity is closely associated with the creator (or creators) of a record. First and foremost, an authentic record must have been created by the individual represented as the creator. Federal rules of evidence stipulate that to be presumed authentic, records and documents must be created in the 'regular practice' of business and there must be no overt reason to suspect the trustworthiness of the record. An authentic copy is one that has been officially certified, especially so that it may be admitted into evidence.

Certified copies have the force of original records. Any public official who causes a record to be copied must attest to it and certify on oath that it is an accurate copy of the original.

A record that is produced by the same impression as the original, or from the same matrix, or by any other technique that accurately reproduces the original. Duplicate records accurately reproduce original records, except that duplicates may contain production, control, indexing, certification, or other data not related to informational content of the records and that do not affect the content of the records. When duplication processes change informational content of the records, the resulting records are considered to be new originals. According to the North Carolina Evidence Code, “a duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original."

A record created or reproduced in any medium by means of any system requiring the aid of electronic technology to make the record intelligible by a person, and which is dependent upon a combination of hardware, software, and computer files. “Electronic record” refers to both records created electronically and digitization of records created in other formats. Electronic records must meet the same legal requirements as paper records. Under G.S. § 66‐317, ("Enacted Statutes G.S. § 66‐317" 2000), a record may not be “denied legal effect or enforceability solely because it is in electronic form.” Additionally, “if a law requires a record to be in writing, an electronic record satisfies the law provided it complies with the provisions of this Article.” This definition does not include microform records, which can be read with the aid of a magnifying glass.

The process of copying documents by reproducing their appearance through photography, micrographics, or scanning. Imaging, by itself, makes no attempt to make any text in the document machine‐ readable, although a system may use optical character recognition to convert imaged text to such form. Imaging, especially scanning, is often used to copy paper documents into a document management system that provides the ability to access the images.

Any process or system that employs a photo‐optical, magnetic, electronic, or other digital device for producing, reproducing, sending, receiving, storing, displaying, or processing records.

A record prepared in the first instance or any counterpart intended to have the same effect by a person executing or issuing it. If data is stored in a computer or similar device, any printout or other output readable by sight shown to reflect the data accurately is an ‘original.’ Original records may present information in a form different from the original information without affecting its quality. For example, information preserved in digital format may be printed on paper using different fonts at different times. When a file is copied to the same or to a different device, it is still considered an original record presuming the copy was successful. Accurate reproductions of the record for the purpose of greater durability, without any added information, are considered preservation duplicates as described below.

Material created or received in the conduct of affairs and intended to be preserved indefinitely because of the enduring value of the information contained in the record or as evidence of the functions and responsibilities of the record’s creator. The ongoing usefulness or significance of records is based on the administrative, legal, fiscal, evidential, or historical information they contain.

A copy of the original that is durable, accurate, complete, and clear, copied in media with greater durability than the original, such as microfilm. Copies have the same force and effect for all purposes as the original record whether the original record is in existence or not. A transcript, exemplification, or certified copy of a preservation duplicate is deemed for all purposes to be a transcript, exemplification, or certified copy of the original record.

"All documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data‐processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions. Agency of North Carolina government or its subdivisions shall mean and include every public office, public officer or official (state or local, elected or appointed), institution, board, commission, bureau, council, department, authority or other unit of government of the state or of any county, unit, special district or other political subdivision of government.”

Information or data in any medium that may be used as evidence or proof, and which is created by, received by, sanctioned by, or proceeding from an individual acting within his or her designated capacity. An official record, as distinguished from drafts, convenience files, or personal papers, is the complete, final and authorized copy of a record, and may warrant further actions to ensure its preservation over time.

Records produced or reproduced in the regular course of business are admissible if it can be established that the process or system used to produce them is reliable and accurate. A regularly conducted activity may include a regular pattern of activity to produce the records on a daily, weekly, monthly, yearly, or other cyclical schedule. A regularly conducted activity may also include records created as part of a regular program of the organization, but at irregular times. For example, when a planned program results in the one‐time reproduction of records created, this is considered a program proceeding in the regular course of business, even though the reproduction only occurred once. This occurs when an agency does a “backfile” conversion of its records, as when paper records are scanned into an electronic or digital imaging system. The record then exists in paper and digital form and both serve as records. Typically, an office would only do a backfile conversion one time. Once the records are in the system, they would not be scanned again.

The process or system used to generate records may include systematic quality control and audit procedures, as well as operational oversight by someone with detailed knowledge of the process or system. If an agency uses an information technology system to create, manage, and store its records, the agency must have established written policies and procedures that describe how a record is created, named, saved, accessed, audited, and transferred from one storage medium to another. All documentation about the system, and any audit testing or log, needs to be maintained by the agency in order to ensure its accuracy.

Records produced within a short period after an event or activity occurs tend to be more readily acceptable as accurate than records produced long after the event or activity. However, a challenge to the admissibility of a record produced long after the event can be overcome by a showing that the time lapse had no effect on the record's contents. For example, a statistical report produced annually in the regular course of business can be shown to accurately consolidate data compiled over the course of a year.

The information technology system should be able to separate confidential from non‐confidential information. A system's inability to carry out this function cannot be used to deny inspection or examination of public records. Because the agency must bear the costs associated with separating such information, it is recommended that the system have this function built in to save time and expense when requests for inspection or copies are filled.

Where records are managed and accessed through a file browser rather than another information technology system, data creators can organize their directories to reflect whether if files within a folder contain confidential information. Simple solutions may be adequate; creating a folder with “confidential” as part of the title gives notice that the folder contains files with confidential information. Internally, sensitive information can also be maintained by administering appropriate read/write access controls to files or folders and by storing such information in specific locations on off‐ network storage systems.

Electronic records may contain metadata, or additional data about the content of an electronic record that may not be immediately visible. Metadata can show:

• Means of creation of the data.
• Purpose of the data.
• Time and date of creation.
• Creator or author of data.
• Placement of data on a computer network.
• File type.
• Standards used.
• Hashing records.
• Other hidden data.

According to the North Carolina Rules of Civil Procedure, “electronically stored information” includes all “reasonably accessible metadata that will enable the discovering party to have the ability to access such information as the date sent, date received, author, and recipients. The phrase does not include other metadata unless parties agree otherwise or the court orders upon motion of a party and a showing of good cause for the production of certain metadata.”

For more guidance about metadata, visit Metadata as a Public Record. 

The trustworthiness of an agency’s records offered in evidence may be judged by its established procedures and how closely those procedures are followed. Procedures should provide for consistent quality control and demonstrate what the organization plans to do in managing and controlling the process or system. Deviations from established procedures will be closely scrutinized, especially if the deviations are from legally required procedures.

Examples of system procedures that the agency should maintain include:

• An electronic records and imaging policy. This should document how electronic records are managed in‐office. This policy should be applied consistently when records are created, copied, modified, or duplicated.
• Procedures for security backup files, which should be a part of a larger continuity of operations plan. These procedures should comply with the Department of Natural and Cultural Resources’ publication, Security Backup Files as Public Records in North Carolina: Guidelines for the Recycling, Destruction, Erasure, and Re‐use of Security Backup Files.
• Procedural manuals describing in detail the proper use of information technology systems used by the agency, such as imaging software and hardware or content management systems.

Formal training programs about system procedures create basic presumption in court that the procedures were correctly followed. If an organization can show the court that staff knew what procedures they were supposed to follow, it can also show that there is a high likelihood that the procedures were in fact followed. All employees, including information technology staff responsible for system maintenance, should be made aware of these policies, be trained on them, and should confirm by initialization or signature that they are aware of the policies and have received training on them.

Training documentation should include documentation of distribution of the written procedures, course materials, attendance of individuals at training sessions, remedial or refresher training programs, certifications of training completion, dates, and other relevant information.

Audit trails document what activities took place as part of the process or system. Audit trails document the identity of the individual(s) who creates, duplicates, modifies, or otherwise prepares the records, what actions are taken by the individual during the course of the process, and when these actions are taken, and describe the results. Properly implemented, audit trails can demonstrate who accessed the system, whether staff followed standard procedures or whether fraud or other unauthorized acts occurred or might be suspected. They can also provide independent confirmation that proper procedures were followed.

Audits performed periodically on the information technology system confirm that the process or system produces accurate results and confirm that the processes actually used follow the procedures set forth in the documentation. Audits should be designed to evaluate the process or system's accuracy, timeliness, adequacy of procedures, training provided, and the existence of audit trails. No particular method of auditing is required for a record, whether original or duplicate, to be admitted as evidence. Audits can take a number of forms:

• Quality control performed by individuals creating the records to verify the accuracy of records at the time of creation. Quality control is used to ensure the accuracy of the system for operational purposes.
• System audits to confirm that systems are appropriate and efficient.
• Administrative audits to detect compliance with regulations and assess risk of fraud.

Audits confirm the accuracy of the process or system for purposes of admissibility of records in evidence. When ruling on the admissibility of the records, courts may require that audits be performed by an independent source (i.e., persons other than those who created the records or persons without an interest in the content of the records, such as a trained auditor who has organization‐wide audit responsibilities). State agencies should adhere to the General Schedule for State Agency Records regarding audits of, and audit trails for, electronic information. The audit trail file containing data generated during the creation of a master file or database should be maintained in office until its administrative value ends.

In some proceedings, a general, non‐technical description of the process or system will be sufficient. In others, more detailed documentation may be required by the courts, including audit history that verifies that any equipment or software involved was operating properly at the time the records were produced. Documentation should be reviewed and updated on a regular basis.

For purposes of laying a foundation for admissibility of records into evidence, actual system procedures followed during the period that the records in question were produced should be maintained in sufficient detail to enable a qualified witness (e.g., the records custodian) to rely on the documentation in describing the process or system to the court. The documentation should explain what should have been done and what was actually done, and explain any deviations from standard procedures. The training, audit trail, and audit documentation should also be presented to confirm the accuracy of the process or system.

At least one set of documentation should be maintained during the period for which the records produced by the process or system could likely be subject to court review. When the documentation changes, old versions should continue to be maintained for the same period of time the records themselves need to be kept per the records retention and disposition schedules. The court will determine the admissibility of the records into evidence based on the accuracy of the process or system in effect at the time the records were produced.

Documentation should describe the process or system used to produce and manage the agency’s imaged records. Documentation should be complete and up‐to‐date. Documentation, in conjunction with training, increases the likelihood that staff is aware of and follows the most current procedures. It also ensures that reliable system documentation is immediately available if needed for court proceedings.

Documentation about the imaging system and process should establish the steps required to get from the beginning to the end of the process. It should describe the system hardware and software, the system environment in terms of the organizational structure, functions and responsibilities, and the system processes. Documentation should also include a description of the records produced and the processes of records disposition, as well as:

• The resolution of scanned images
• The file formats of scanned images
• The file naming conventions used for scanned images
• Whether batch conversion or file re‐naming will be necessary, and what tools are used for such conversions

To assure that the imaged documents remain accessible, an indexing database that facilitates efficient retrieval, ease of use, and up‐to‐date information about the digitized records stored in the system should be developed. This index should capture the content, structure, and context of the imaged records. Additionally, whatever media is used to store imaged data should be clearly labeled with enough information that the contents of the storage medium can be determined.

The following features of a digitized record should be legible with sufficient clarity after imaging so that each can be recognized:

• Individual letters, numbers, and symbols
• Combinations of letters, numbers, and symbols forming words or sentences
• Graphics such as signatures, logos, and pictures
• Other features of records such as color, shape, texture, etc., that relate to the content of the information

Imaging and image enhancement techniques (i.e., techniques for processing the image so that the result is visually clearer than the original image) may be used provided that they do not change the content of the records. If image enhancement techniques are used, the information that is readable or recognizable on duplicates should also be readable or recognizable on originals. It may be advisable to document how such enhancements are made in the imaging process documentation. If image enhancement is performed, an original un‐altered copy of the image should be stored in addition to the altered image.

Audits should be performed routinely on imaged records to ensure no information has been lost during the imaging process, and audits should be adequately documented. For duplicates, audits also should confirm that the duplicates accurately reproduce the originals. This normally involves comparing statistically valid samplings of originals to their corresponding reproductions prior to any destruction of the originals. The actual audit reports indicate whether the statistically valid sampling of records produced accurate results and what remedial procedures were followed if the expected level of accuracy was not achieved.

Creating digital copies of records does not remove the original records from the records retention schedule. If a state agency is considering imaging its files, contact the agency’s records analyst to amend its records retention schedule to allow for the destruction of the original paper copy. If a local agency is considering imaging its files, it must request and record approval for the destruction of the original paper records for each new records series to be scanned through the “Request for Disposal of Original Records Duplicated by Electronic Means” form. This form is located within the Electronic Records Policy and must be approved by the agency’s records analyst before any originals may be destroyed.

A state agency may use either the scanning service provided by the North Carolina Office of Information Technology Services, or scan in‐house. A local agency may scan in‐house or outsource its imaging services. It may choose from those vendors available to state agencies, but is not bound to those vendors. If the agency scans in‐house, it should have a training component and employees are required to sign off that they received the training. If an agency outsources its scanning, it should maintain a copy of the purchase order and a detailed service‐level agreement.