Background Information:

The Federal Rules of Civil Procedure were amended on December 1, 2006, to include broader discovery requirements in the event of a lawsuit. Information about the update can be found at the Lexis-Nexis site: https://www.lexisnexis.com/applieddiscovery/lawLibrary/courtRules.asp.

The Washington Secretary of State's office, in light of the Federal Rules updates, has subsequently stated that electronic records also fall within the scope of the requirement for retention of public records, as described in Chapter 40.14, RCW, see http://apps.leg.wa.gov/RCW/default.aspx?cite=40.14. This means state agencies are compelled to have electronic records retention policies and procedures which address both the potential for response to civil litigation and the statutory requirement to retain public records. Supporting this requirement, the State Archivist has a responsibility to adopt rules governing the accuracy and durability of electronic records (RCW 40.10.020): http://apps.leg.wa.gov/RCW/default.aspx?cite=40.10.020.

The Secretary of State's office has also made the following public statement: "An agency will be held legally responsible in the event that they are unable to maintain the accessibility and authenticity of a record for its entire retention period.  If it can be proven that an agency disposed of electronic records without first making sure they would remain complete, authentic and accessible for the full retention period, the consequences — in court, in the media, and in the public eye — can be catastrophic." (1-23-07 — Enterprise Content Management presentation by Tri Howard {State Records Manager} and Adam Jansen {Digital Archivist}, both from the Secretary of State's office.) During this presentation, the "Disposed of" in this context includes not only the deliberate destruction of data, but also includes the type of casual deleting of e-mail that most college employees do on a daily basis. The Secretary of State's office also has stated there are significant court decisions reflecting that e-mail is a record to be managed, maintained and produced in legal proceedings.

Issue:

The Federal Rules of Civil Procedure were recently amended to include broader discovery requirements which now include electronic e-mails. As a result of these retention changes, members of the Information Technology Commission, as well as other commission members, met to discuss these requirements for retaining electronic e-mails. This committee is chaired by Tom George of Bates Technical College. Derek Edwards, from the AG Office, also participated. Derek explained the Public Retention Act and the SBCTC Public Records Guidelines. He also explained how the electronic records are to be maintained and what the legal consequences might be for not maintaining proper records at our respective colleges. The committee focused their attention on two main issues: 1) the development of a set of recommended policy guidelines for the colleges to consider adopting, and 2) the infrastructure needed to properly maintain the electronic records.

Recommendations:

• The present committee should be expanded to include other commission members in order to develop a set of general electronic records retention policies that each college can consider adopting for their own use. This committee should also address minimum requirements and define types of records to be maintained and the length of time they need to be maintained.
• We request that ITPG create a project steering committee to address infrastructure requirements and costs for a possible records retention system. Since the Washington Community and Technical Colleges are outside the DIS firewall we will not be allowed to use their electronic storage system. The cost for each college to create their own electronic records retention system is probably too expensive to consider. Because of potential cost considerations, the Washington Community and Technical College System should consider the possibility of creating an electronic records retention system in conjunction with K-12 and other State higher education institutions.

We are bringing this issue before you because we believe substantial costs may be incurred, both in creating the necessary infrastructure to comply with the changes in the Federal Rules of Civil Procedure, and if colleges are found to be incompliant in the event of litigation.