There has been some traffic on this listserv related to HB1791. HB1791 will
make certain revisions to several sections of the Virginia Public Records
Act. While I agree with some of the changes that would be made by the
legislation, there are other changes that concern me.
I and a few other individuals concerned with the legislation met yesterday
with the legislation's patron, delegate Kirk Cox, Bob Nawrocki, and Nolan
Yelich. Delegate Cox was extremely generous with his time and Bob agreed to
some of the changes that were suggested but there are a number of changes
besides the definition. I've included a link to the legislation, sans any
changes that might be made prior to the public hearing. I've also included
the background report (that I first saw last night) that led to the proposed
legislation.
I would encourage everyone to review the legislation. If you have strong
feelings, pro or con, I would plan to be at the pubic hearing or contact
your local legislator and let them know how you feel.
John Breeden, CRM
http://leg1.state.va.us/cgi-bin/legp504.exe?ses=051&typ=bil&val=hb1791
The Virginia Public Records Act
&
Electronic Records
Background report on first-year recommendations of HJ6
House Joint Resolution 6, passed by the 2004 Session of the General
Assembly, created a two-year joint subcommittee to study the Virginia Public
Records Act ("the Act," § 42.1-76 et seq. of the Code of Virginia),
electronic records, and their effect on the state depository system. The
resolution charged the joint subcommittee with examining the Act and the
extension of its scope to "(i) provide and assign authority to establish and
maintain guidelines or regulations for the creation, transfer, and archival
preservation of electronic state records publications; (ii) provide and
assign authority to establish and maintain procedures for the official
authentication of e-records and documents; and (iii) establish a means to
identify, describe, receive and manage discrete electronic government
information products covered by copyright." As can be seen from the joint
subcommittee's charge, the focus of the study is limited to electronic
records. This will inevitably lead to a discussion of other mediums of
records, as electronic records must be viewed in the context of preservation
of all records. However, it is important to note that the joint
subcommittee was not tasked with overhauling the existing Act or reviewing
generally the powers and duties of the Library of Virginia or its Board.
The joint subcommittee is established as a two-year study. As a result, its
meetings during the 2004 Interim focused on gathering background information
and generally reviewing issues relevant to the study. Part of this work
included the development of ambitious work plan for the second year of the
study. This work plan includes studying the State Documents Depository
Program, including reviewing and making recommendations in light of
electronic records issues concerning the existing statutory authority,
copyright issues, the dissemination of government documents, and metadata.
The joint subcommittee will also study electronic records management issues,
including a review of current practices, a thorough identification of
issues, possible collaboration between the Library of Virginia and the
Virginia Information Technologies Agency, and the authentication of
electronic records. Discussion of these issues will likely highlight other
possible areas of study, such as the need for setting up training programs
or advisory boards, or for the Library of Virginia, in cooperation with
other state and local agencies, to issue new regulations or guidelines
concerning electronic records.
At its second meeting in 2004, the joint subcommittee recommended several
changes to the Act. The changes are meant to be technical in nature, and
aim to clean up the Act so as to prepare for more substantive work during
the second year of the study. These changes were suggested after
consultation with the Library of Virginia, both through its representation
on the joint subcommittee as well as technical staff assistance. The key
recommendations include:
· Amending the definitions of the Act found at § 42.1-77. The
amendments would remove obsolete definitions, and eliminate any reference as
to the format of a record. The proposed amendments would allow the focus of
the definition to rest on whether a record has continuing enduring value,
instead of whether it is in paper or electronic format. Generally, in the
Code of Virginia, definitions are only set out in a given section, act, etc.
when those terms and phrases are actually used in the section or act. The
definitions section is meant to be a tool to aid in understanding the scope
of the substantive provisions, and is not meant to be substantive in and of
itself. There has been an effort in recent years to clean up extraneous
definitions throughout the Code of Virginia. In fact, defining terms that
are not used in the section or act could actually cause legal interpretative
questions, as rules of statutory construction dictate that language is
included in the Code for a purpose. It is not questioned that certain of the
obsolete definitions are highly relevant in the practice of administering
the Act, such as "database" or "software program." However, because the
Code of Virginia seeks to not be mired down in administrative detail, the
appropriate place for such definitions would be regulations or guidelines
developed to administer the Act.
· Amending the definition of a "public record." This new definition
removes any reference to specific mediums -- some mediums were already
outdated, and other newer mediums were not specifically referenced. To
include specific mediums would lead to an almost yearly task of reviewing
the definition and making amendments to it. Specific references could also
lead to the presumption that a newer medium not specifically mentioned did
not fall under the definitions. The better approach seemed to state that
the substance of the record, and not the medium upon which it was stored,
was a determining factor.
· Repealing § 42.1-79.1 relating specifically to the retention and
disposition of medical records, as this provision has been superseded by
state and federal medical records privacy laws.
· Repealing §§ 42.1-83 and 42.1-84 relating to an obsolete
microfilming program at the Library of Virginia. This program no longer
receives funding through the State Budget. Removing the requirements of
this program in no way affects the storage of microfilm already in the
possession of the Library through this program. The removal of this program
reflects that work is no longer being done to obtain and microfilm current
records.
· Clarifying existing practices relating to destruction of records
with no enduring value. Current practice dictates that one must send a
certificate of destruction to the Library of Virginia before destroying any
records. These changes would not require that approval be given by the
Library for records to be destroyed in accordance with an established
retention schedule; instead, it simply requires that agencies send the
certificates of destruction. As can be noted from the new language, the
certificate of destruction on requires approval from the individual agency's
designated records officer.
· Amending other sections throughout the Act to remove specific
references to electronic records and adopt a more medium-neutral approach.
Currently, electronic records are not treated any differently under the Act
than other records; however, the current provisions make specific reference
to electronic records and other records, creating the appearance of a
dichotomous approach. The removal of references to electronic records does
not change the fact that they fall under the purview of the Act. In fact,
this is reflected in the amended definition of a public record, which states
that the medium of the record does not affect the determination as to
whether a record is, in fact, a public record. The changes reaffirm the
current practice that all records -- including electronic records -- fall
under the Act and are subject to the same considerations. It is possible
that during the second year of study, the joint subcommittee will determine
that specific provisions relating to electronic records should be reinserted
into the Code. However, it was clear that the existing references were
outdated and not furthering the specific needs of electronic records;
therefore, the thought process related to removing these definitions
centered around the fact that it would likely be easier for the joint
subcommittee to start with a clean version of a public record, instead of
trying to amend outdated electronic records statutes.
The joint subcommittee recommends these changes in anticipation of its more
substantive work during the 2005 Interim. Other concerns about management
of electronic records, such as the need for a formal training program, the
possibility of establishing an advisory committee to serve as a
collaborative link between the Library of Virginia and other state and local
agencies in developing relevant regulations and guidelines, further
definitional amendments, etc. will all be topics of discussion for future
meetings of the joint subcommittee. Input, suggestions, and concerns from
state and local agencies and citizens is essential as this process continues
to establish the best policies and procedures relating to electronic records
management.
John Breeden, CRM
VDOT Records Manager
804-786-0954
[log in to unmask]
John Breeden, CRM
VDOT Records Manager
804-786-0954
[log in to unmask]
-----Original Message-----
From: Robert Nawrocki [mailto:[log in to unmask]]
Sent: Wednesday, January 19, 2005 08:44
To: [log in to unmask]
Subject: Followup to question on Public Record Definition
If you can identify anyone else who would be interested in commenting on the
VPRA public record definition and they are not a member of va-rol please
forward the message to them. Or you can send their names to me and I will
see that they get a copy of the message about the VPRA public record
definition.
Bob Nawrocki
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