Ohio Junction - Electronic Records Committee (ERC) - Legal Obligation to Manage Electronic Records

Legal Obligation to Manage Electronic Records

Local and state public offices have an affirmative legal obligation to manage their electronic records. Not only should records be properly managed for the sake of efficiency, productivity and reductions in storage costs, they should be managed as part of a systematic and continuous records management program in compliance with both state and federal laws. Failure to manage records can lead to civil fines, criminal penalties and sanctions.

This section is intended to explain the sources of the legal obligation to manage records - specifically, electronic records. This section will also explain the legal consequences of a failure to comply.

Ohio’s Public Records Act

Section 149.43(B) of the Ohio Revised Code requires every state and local public office to organize, maintain, and understand its public records. The law states that the office must “organize and maintain public records in a manner that they can be made available for inspection or copying.” The law also states that the public office must “have available a copy of its current records retention schedule”. Last, if a requester makes an ambiguous or overly broad request or has difficulty in making a request for copies or inspection of public records, the office must inform the requester “of the manner in which records are maintained by the public office and accessed in the ordinary course of the public offices' or person's duties.”

If a public office fails to satisfy its recordkeeping obligation under State law, the Ohio Public Records Act allows an aggrieved party to sue the public office. The party may request an order directing the public office to manage its records, explain its system or process of management or provide access to public records. In addition to obtaining the court order, an aggrieved party may be awarded fines, attorney fees and court costs. On the other hand, if a public office has control of its records and recordkeeping practices, not only will it be in compliance with the Public Records Act, it will be better equipped to locate and retrieve records. Risk of future non-compliance with the law may thus be reduced.

Federal and State Rules of Civil Procedure

Federal and State rules governing litigation are another source of a public office’s obligation to organize, maintain and understand its records and recordkeeping processes. The Federal Rules of Civil Procedure is law governing litigation filed in the federal courts. Similarly, the Ohio Rules of Civil Procedure is law governing litigation filed in state courts. Each time your public office sues or is sued in court, it is subject to these rules.

The Rules of Civil Procedure dictate how the parties obtain information from each other during lawsuits. In 2006, the U.S. Supreme Court adopted changes in the Federal Rules to specifically address the management and disclosure of electronic records. The Ohio Supreme Court is following suite by considering a proposal to update the State Civil Rules to be consistent with the Federal Rules.

Both the Federal Rules and the proposed Ohio Rules specifically address electronic records. Under the Federal Rule 26(f), shortly after a lawsuit is filed, counsel for both parties must “meet and confer” on electronic records. Parties have an obligation to disclose to each other, prior to any requests for records from each other, a copy or description by category of all documents and electronically stored information that the disclosing party may use to support its claims or defenses. In addition, both parties have an obligation to evaluate their capacity to comply with document or information demands from the other party.

The amended rules also provide two protections for public offices in litigation for those public offices who already appropriately manage their records. First, Federal Rules 26(f) and 16(b) clarify that a responding party may specify the form or forms that would be necessary to properly comply with an electronic discovery demand by a requesting party. Also, under Federal Rule 26(b)(2)(B), a producing party may not have an obligation to produce information identified ahead of time as inaccessible due to undue burden or cost. As a result, by identifying electronic records early in the process and identifying those that are inaccessible, the responding party can avoid unnecessary expenses and delays in providing records in difficult forms or formats. Second, Federal Rule 37(f) contains a potential “safe harbor” for electronic records that are destroyed in good faith as part of a routine recordkeeping system. In other words, if any electronic records are inadvertently destroyed as part of a routine electronic recordkeeping system before the responding party could reasonably have suspended the process or preserved the records, then the court may forgive the otherwise inappropriate destruction.

Unlike the Ohio Public Records Act, the Federal and State Rules of Civil Procedure are enforced fairly quickly by the judge overseeing the case. If a party is unprepared to explain its management of records, cannot identify the form or formats in which the information is available, or cannot suspend the destruction of relevant information in a timely, good faith manner, then the judge has the discretion to impose additional obligations, adverse inferences, or other sanctions against the unprepared party.

Resources

Ohio Public Records Act
http://ag.state.oh.us/legal/pubs/Ohio_Sunshine_Laws_2008.pdf.

Federal Rules of Civil Procedure
http://www.uscourts.gov/rules/EDiscovery_w_Notes.pdf.

Pending Proposed Changes to the Ohio Rules of Civil Procedure
http://www.sconet.state.oh.us/Communications_Office /Press_Releases/2007/proceduralAmendments_101207.asp