Managing Local Public Records in the Online Age

1. Managing Local Public Records in the Online Age An overview presented by Trevor Lewis, Local Records Program Coordinator Vermont State Archives & Records Administration Of the Vermont Secretary of State At VLCT 2011 Town Fair

2. What’s a public record? • “Any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business.” 1 V.S.A. § 317(b) In other words, just about everything

3. Whose records are covered? • “…any agency, board, department, commission, committee, branch, instrumentality, or authority of the state or any agency, board, committee, department, branch, instrumentality, commission, or authority of any political subdivision of the state.” 1 V.S.A. § 317(a) In other words, everyone in government

4. What are the obligations associated with records? • “A custodian of public records shall not destroy, give away, sell, discard, or damage any record or records in his or her charge, unless specifically authorized by law or under a record schedule approved by the state archivist pursuant to 3 V.S.A. § 117(a)(5).” 1 V.S.A. § 317a Don’t assume anything!

5. What happens if…? • “A person who willfully destroys, gives away, sells, discards, or damages a public record without having authority to do so shall be fined at least $50.00 but not more than $1,000.00 for each offense.” 1 V.S.A. § 320(c) Other liabilities can arise in litigation if records have not been kept as needed

6. This is a lot of responsibility- Why? • “That all power being originally inherent in and co[n]sequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.” Vermont Constitution, Chapter I, Article 6

7. What about local officials’ e-mails via ‘other’ accounts (gmail, etc.) • Is it “produced or acquired in the course of public agency business?” • In other words, does it relate to the business of governing? • If so, it’s a record

8. Social Media: Facebook, Twitter, etc. • Is it “produced or acquired in the course of public agency business?” • In other words, does it touch or affect things relating to local officials’ roles in their official capacity (as contrasted with their purely personal lives)? • If so, it’s probably a public record • VLCT has a “model policy” on social media • Consider distinct “official” and “personal” accounts • Be highly alert to situations in which online dialogue might trigger open meeting law implications

9. What about “exemptions” under the Public Records law? • Exempt records are still public records and must still be managed accordingly. • It’s just that the Legislature has taken them out of the realm of presumed openness to examination by the public. • Exemptions only exist as set forth in statute (including by reference to other sources of law). Exemptions are listed in 1 V.S.A. § 317(c) You probably have not and would not put exempt information on the “open” World Wide Web Even if something had been exempt, that exemption was probably waived once it “went online”

10. What about “grey areas?” • “The Public Records Act represents a strong policy favoring access to public documents and records. …. Exceptions to that general policy of disclosure are listed in 1 V.S.A. § 317(c). We construe these exceptions strictly against the custodians of records and resolve any doubts in favor of disclosure. …. The burden of showing that a record falls within an exception is on the agency seeking to avoid disclosure.” • Vermont Supreme Court decision in Wesco, Inc. v. Sorrell, 2004 VT 102 ¶ 10 [internal citations omitted]

11. What if someone requesting records is only out to create embarrassment or bother? • “T]he identity and motive of the requestor cannot be considered when weighing access to public documents.” Vermont Supreme Court decision in Shlansky v. City of Burlington and Burlington Police Department 2010 VT 90 ¶ 11 • Some exceptions- Trade secrets, Statewide voter checklist [there could be other exceptions]

12. Doesn’t digital storage let me keep everything, or at least all my electronic records, indefinitely, “just in case?” • Technologically speaking, yes. • Practically- if you keep it, you’ll need to provide it if it is responsive to a request • To respond to a request, you have to know _everything_ you may have, or spend time checking through _everything_ that you have, in order to see what might be responsive to the request. • You don’t have to keep things just because someone, some day, might ask for them, as long as you are not disposing of them just to avoid producing them in the face of a request • Over time, technology marches on, ever faster. If you retain records in digital form, you need to plan whether and how you can continue to make them readable and available. This can become harder and more resource intensive over time.

13. Are records systems complete and trustworthy?Where are your socks? • Silly question. In my sock drawer, of course! Assumptions are dangerous: • Oh, and in the laundry basket • Oh, and the ones waiting to be put away after washing • In that suitcase I didn’t unpack yet • Then there are those pairs where one sock went missing but I’m hoping it’ll turn up… You DON’T want to find yourself in this situation in the newspaper or on the witness stand!

14. Unmanaged records = high costs: • More storage needed • More to search • Lost information • Mistakes! • More legal risks • Inefficiency

15. Managing Records before a problem situation arises lets you: • Keep what you need • Know what you have • Get rid of the rest! • Spend less time on items that you didn’t actually need to keep! • Close the chapter (when legitimately authorized) on difficult past issues (NOTE: when faced with a record request or a legal dispute, ALL normal retention schedules get put on hold)

16. OK, so you’ve convinced me I need to do something about records, now what? • Information can be an asset or a liability- at moments, it might simultaneously be a mix of both. • If a piece of information has ceased to be an asset, it probably is or will become a liability • Both assets and liabilities need to be managed

17. Points to steer by • Know what you have • Know why you have it • Keep what you need • Get rid of what you don’t need • Do it in compliance with law and standards

18. Temporary vs. Permanent • Permanent means forever, with no end • Examples: real estate records, birth, death and marriage records, minutes of public bodies • Permanent requires serious planning and careful preservation • Temporary means anything less than permanent, even if it’s a really, really long time! (some temporary records are kept 75 years) • Temporary records should have an identified trigger event and time for end of life • Temporary records should be destroyed when that time has arrived piecemeal decisions or bent rules lead to information chaos

19. Records have a life cycle

20. VERY few records are truly permanent • Throughout government as a whole, less than three percent of records (3%) truly should be kept forever

21. Backup ≠ Archive • Backup = a copy made and kept to re-activate current system in the event of unexpected disruption • A backup is just a snapshot, updated over time, and there is no need to keep older backups past a short time frame • There is rarely either need or ability to find specific items within a backup • “"Archives" or "archival records" means public records which have continuing legal, administrative, or historic value.” 3 V.S.A. § 117(a)(2) • Archival materials not only need to be kept and preserved, they need to be find-able

22. “Archiving” • Software and service vendors and others use the term very loosely in a way incompatible with archival public records • For public records that are truly archival, it’s not only essential to preserve them, but also imperative to keep them findable and readily accessible

23. Digital storage presents new issues to manage for true archival (“forever”) material • Life of the physical storage media? • Backup system? • Storage location and environment? • Future availability of equipment to read that storage media? • Future availability of compatible software to read stored electronic records? • Ability to develop and maintain an orderly system for finding & accessing all retained information over the long term? • Resources (skills, time, and budget) to stay “ahead of the curve?””

24. True “forever” media and formats? • If it was “born on paper”- paper! • Backup/ security- proper microfilm lasts hundreds of years (but it is a storage tool, not a management tool) • Records that are “born digital” and whose characteristics are inherently digital may need to stay digital. Choose widespread/ non-proprietary formats!

25. Are we trying to scare you out of ever using electronic and digital documents and systems for long-term or permanent records? • No! • Just understand that it’s not a cure-all • “Know what you are in for” and make sure you have resources before you put your eggs in this basket • Keep records in the format that makes sense: for some things that are “born digital” it would be silly to print copies; for others, paper may take less resources to manage over the long term

26. Don’t let records get… far out Archivist Saves, Restores Original NASA Moon Pictures The Lunar Orbiter Image Recovery Project is restoring and releasing the first up-close pictures of the moon, taken by five unmanned Lunar Orbiter missions in the late 1960s, among them a famous 1966 black-and-white shot of the Earthrise from the surface of the moon. The originals of those images wouldn’t exist today at all, however, if not for the efforts of Nancy Evans, a retired NASA archivist and co-founder of NASA’s Planetary Data System. Evans persuaded NASA’s Jet Propulsion Laboratory to store some 2,000 magnetic tapes that held the image data, saving them from being destroyed. She also located four of the specialized machines—FR-900 Ampex tape drives, of which only a few dozen had ever existed—to read the tapes and then stored them in her own garage. From American Library Association

27. Why Preserve Books? The New Physical Archive of the Internet Archive Physical Archive of the Internet Archive www.archive.org June 16, 2011 -Internet Archive was originally created to maintain a record of online material, then began scanning books, and ultimately decided to preserve books “Internet Archive is building a physical archive for the long term preservation of one copy of every book, record, and movie we are able to attract or acquire. Because we expect day-to-day access to these materials to occur through digital means, the our physical archive is designed for long-term preservation of materials with only occasional, collection-scale retrieval. Because of this, we can create optimized environments for physical preservation and organizational structures that facilitate appropriate access. A seed bank might be conceptually closest to what we have in mind: storing important objects in safe ways to be used for redundancy, authority, and in case of catastrophe. . . . . . . . .The goal is to preserve one copy of every published work.”

28. How long do I keep a web page or an e-mail? • How long do you keep something written in pencil? Or that arrived by fax? Content and Substance, not format or means of transmittal, govern obligations of what to keep and how long to keep it

29. General Record Schedules [GRS] • Developed by VSARA to provide consistency in recordkeeping by agencies for common functions and activities found throughout government • A local government may adopt any or all of the requirements in a GRS • Agency agrees to implement, at a minimum, the retention and disposition requirements outlined in the GRS (where applicable) • Do NOT have to create or receive all of the records listed in the GRS to adopt the GRS • Can tailor a GRS to provide for longer retention times for specific record types; GRS is a benchmark minimum

30. General Records Schedules at:http://vermont-archives.org/records/schedules/general/

31. Tools and Resources • Records Management Handbook • Advice from VSARA on issues concerning records and how to manage them in accordance with Federal and State laws and regulations and industry standards: http://vermont-archives.org/records/handbook/

32. Vermont Standards and Best Practices • The Vermont State Archives and Records Administration (VSARA) and the Department of Information and Innovation (DII) are charged with establishing best practice guidelines and standards for managing government records and information. They have established iSTART as a means for providing consistent advice and collaborating on records and information projects. In addition to VSARA, DII, and iSTART, individual agencies or departments may also have standards or best practices guidelines specific to their records or information. • http://vermont-archives.org/records/standards/vermont.htm

33. Additional food for thought • For some other guidance on factors to consider, there are publications by the federal National Archives & Records Administration (“NARA”) that describe various considerations and recommendations- such as: Managing “web records:” http://www.archives.gov/records-mgmt/policy/managing-web-records.html http://www.archives.gov/records-mgmt/policy/managing-web-records-scheduling.html “Archiving” e-mail: http://www.archives.gov/records-mgmt/bulletins/2011/2011-03.html Surprisingly short life of recordable CDs and DVDs (actual “sure bet” reliability ≤ 5 years ! ): http://www.archives.gov/records-mgmt/initiatives/temp-opmedia-faq.html Guidance on Managing Records in Web 2.0/Social Media Platforms http://www.archives.gov/records-mgmt/bulletins/2011/2011-02.html • Where those refer to “GRS” they are referring to some of the federal government’s General Records Schedules, which would not apply to Vermont municipalities, so use the NARA guidance on a broad level but look to the Vermont GRS for specific provisions. • Federal guidance on these topics is NOT authoritative or binding in VT, but may be helpful “food for thought”

34. Online records are a frontier • There isn’t perfect guidance • The online environment unfolds faster than the law’s ability to reflect it • Each community’s approach to its online presence will be unique • Records Custodians have discretion, within reason, to tailor the GRS to their Records, so you can and should develop your own policy. • Don’t let the perfect become the enemy of the good: “I would rather have a good plan today than a perfect plan two weeks from now.”General Geo. Patton • Once you set policy, Follow It! A policy developed in good faith, consistently followed, will go a very long way towards managing risk. Seat-of-pants lack of policy or departures from policy create great risk. • Update your policies and procedures over time as you learn from experience • Don’t slog through it alone- VSARA, VLCT, e-Vermont project, other communities can all offer support and feedback.

35. For follow up: Trevor Lewis Records Analyst & Local Records Program Coordinator Vermont State Archives & Records Administration 1078 U.S. Route 2, Middlesex Montpelier, VT 05633-7701 802-828-1005 (tel.) | 802-828-3710 (fax) 802-828-3700 (main switchboard) trevor.lewis@sec.state.vt.us www.vermont-archives.org