The Retention Dilemma

“For every complex problem there is a solution that is simple, neat, and wrong.”  H.L. Mencken

 One particularly persistent obstacle to adoption of the Paper-On-Demand Court paradigm (and the financial savings attendant to it) is how to handle requirements for permanent document retention.   The historical paradigm consisted of the requirement to keep the original document.  Because, almost by definition, the “original document” was hard copy, that meant storing the paper.  Easy to understand; not always easy, safe or inexpensive to do.   More recent retention requirements include the option to copy paper originals to microfilm or microfiche.

With the advent and acceptance of the legal sufficiency of electronic documents and signatures[i], statutes, court rules and general orders routinely validate the electronic version of a document as the “original” and “official” document.  This is true for documents born on paper and later scanned into an ECM system, as well as for documents born electronically (e.g., documents filed electronically or documents created, e-signed, and filed by the court).

So where does that leave the “permanent retention of the original” paradigm?   Under the traditional paradigm, even “original”, “official” documents would have to be copied to either paper or microfiche.

In most states, and at the federal level, the ultimate responsibility for physical retention standards resides in the archivist.  The archivist of one state in which courts are using ECM and E-signature verified that, under current laws and rules, courts are required to keep either paper or microfilm copies of documents.  For documents existing in digital format, this means printing them out. 

OK, then “When would the court be required to do so?”  The answer: There is no time requirement, other than “Some time in the future.”  On checking with a court administrator, I found that, to the extent there is a plan, it is to await future developments in this area.

A visit to a court in another state, which had also adopted a Paper-On-Demand model, found the existing laws and rules, as well as the current approach, are EXACTLY THE SAME: They too had discontinued microfilming pending long-term resolution of this question, and had done so not arbitrarily.  The court had had, for some time, serious concerns about the long-term integrity of microfilm, not to mention significant storage and equipment costs.

I’m beginning to detect a pattern.  States (and the federal government) have been devoting substantial time and effort to development and administration of rigorous, comprehensive records management standards.  While the standards are technologically agnostic, they DO address the technological issues, including how to guard against records becoming inaccessible through technological obsolescence.  The answer generally consists of periodic required reviews of the current and projected technology, together with explicit plans for record migration from generation to generation.  A 2008 National Association of State CIOs paper[ii] contains a good overview (and source material) of such efforts.

As is common in government, judgments are made based on the state of technology at a point in time, and nobody remembers to reassess the decision at a later date.  Much of the consternation with using electronic documents as the original record is rooted in some early failures.  This stems largely from the fact that, at one point, there was no national (or international) standard for file format that would assure long-term viability.  Therefore, vendors created their own proprietary formats, and some organizations got stuck with an electronic repository of documents that was expensive to convert.

The problem was largely solved years ago when ISO and AIIM established standards for the PDF/A, TIFF (TIFF is the standard for storing scanned documents), and JPEG (for photos) file formats.  Even Microsoft had to acquiesce and start using an international standard (DOCX) for storing their files.

So once again, Mencken’s observation hits the nail on the head.  There are plenty of simple answers to permanent retention, but all come with issues.  None is effective without persistent due diligence.  But given the proper commitment to due diligence, some are more effective and less costly than their predecessors.

[i] See Legal Foundations of E-Signatures, [citation and link]

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