The following article on the legality of optical storage was written by and is reprinted with permission of Robert F. Williams, president, Cohasset Associates, Inc., a records management consulting firm in Chicago (www.cohasset.com).
Mr. Williams is the leading authority on the legality of information which has been stored optically or on microfilm. In addition to editing this definitive research study, he is the editor of the award-winning "Legality of Microfilm," has authored many articles and has been the featured speaker at hundreds of seminars.
Is It Legal?
Is optically stored information admissible in a court of law? After cost, the legal admissibility issue is the second most frequently asked optical storage question.
Answering the legality question is like the proverbial iceberg: there is more to it than is initially perceived. Specifically, it involves several different types of evidentiary laws, more than fifty different judicial jurisdictions, and more than one hundred potential regulatory agencies! The legality of optical storage is not only an important subject, but also is a multifaceted one. Ten key questions are addressed here. No single chapter, article or speech, however, can completely cover this subject. Accordingly, a definitive legal research study, "Legality of Optical Storage," has been written.
The information presented here is not represented in any way to be legal advice. For that, readers should rely on their own counsel.
Do laws exist for admitting optically stored records?
Answer: Yes. In all fifty states there are laws that provide a solid legal foundation for admitting optically stored records in court. Although the specific legal basis may differ from one state to another, in most states it is found in the Rules of Evidence. It also can be in the statutory laws.
The key part of the Rules of Evidence provides for the admissibility of "data compilations." This term was introduced into evidentiary law to describe machine readable, computer processed information. It was included in the 1974 revision and the 1975 revision of the Federal Rules of Evidence. In the intervening years, "data compilations" have been used as the basis for admitting magnetically stored information. It is now applicable to optically stored records.
What is data compilation?
Answer: As the term has been applied, it is machine-readable computer data such as a bank account, insurance policy, or any other typical business record in a computer. Such data compilations are ASCII or EBCDIC binary code, and as such, are simply a pattern of zeros and ones. The binary code for the letter A, as an example, is 1100-0001 and for the number one is 1111-0001.
Optical stored information is also a pattern of zeros and ones. Here, the zeros and ones represent the very small light and dark points (picture elements commonly referred to as pixels) that comprise the picture or image of a source document. Thus, although the pattern of zeros and ones have different representations in the data compilations of data and documents (letters and numbers for data; the light and dark components of a picture for documents), the term "data compilation" is equally applicable to machine readable information in either data or document form. This point of equal applicability is reflected in the specific language of the most recent (1975) revision of the Federal Rules of Evidence and the associated Uniform Rules of Evidence (1974). There, Rule 803(6) specifically authorizes the admissibility of a "data compilation, in any form" that has been kept in the regular course of business if it was the regular practice of the business to make the data compilation.
Have there been any court cases regarding optical storage?
Answer: The courts have accepted computerized business records on many occasions. In addressing the term "data compilation," the Federal court has expressed the view that "computer data compilations ... should be treated as any other record of regularly conducted activity."
In the court cases to date, the acceptance of computerized business records has been for magnetically stored information. However, neither the laws nor the court decisions make any reference to a specific type of machine-readable information storage media.
(The primary issue in both the evidentiary laws and the court cases was digital computer information, not the media on which that information in the form of data compilations was stored.)
In admitting evidence, courts seek primary objectives: that the evidence be accurate, reliable, and trustworthy. Magnetic storage has the property of being able to be easily erased and new information written in the same place without any appearance of change. In contrast, write-once-read-many times (WORM) optical storage, with its intrinsic characteristic of non-erasability, offers a significant technological advantage in achieving the court's objectives of accuracy, reliability, and trustworthiness. WORM optical storage, therefore, should have little technical difficulty being accepted by the courts within the framework of existing evidentiary laws and the cases which have been heard upholding those laws.
(It is important to note that the acceptance of "data compilations," or any specific storage medium such as magnetics, optical, micrographics, or even paper printout, does not guarantee the admissibility of particular records from every individual system.)
The decisions concerning admissibility of microfilmed and magnetically stored records suggest that, in the area of business records, courts ultimately will examine the record-keeping practices of a business in determining whether a given process or system creates an accurate and reliable record. The proprietor of every optical storage system must take the necessary steps to make their system's records admissible in a legal or administrative proceeding.
What other factors are important to the admittance of optically stored information?
Answer: There are two and they involve the Best Evidence Rule and the admissibility of hearsay.
The hearsay issue is raised when it is not possible to cross-examine evidence. The challenge in submitting a document is, how do you cross-examine a document? This situation can be overcome by the "Business Records Exception to the Hearsay Rule" which recognizes that certain records which have been created and relied on in the regular course of business possess a certain circumstantial probability of trustworthiness and therefore ought to be received in evidence. In essence, the Business Records Exception to the Hearsay Rule says that "if the record is good enough for a business to rely on in the normal course of its activities, it is reasonable to expect that it is good enough for the courts to rely on in their pursuit of the truth and, in turn, used to decide about a matter pertaining to the business."
The Best Evidence Rule states that the original should be received as evidence unless a satisfactory reason is presented for unavailability. The option for providing copies of records is addressed in existing Federal and State statutory law. The specific statutes are the Federal Business Records Act and its state counterpart the Uniform Photographic Copies of Business and Public Records as Evidence Act (UPA).
In essence, they permit the admissibility of any record which has been "kept in the regular course of business and copied or reproduced by ... any photographic, photostatic, microfilm, microcard, miniature photographic or other process which accurately reproduces or forms a durable medium for reproducing the original." Accordingly, the reproduction is as admissible as the original. The process of recording information optically clearly falls within the law's language of "other process which accurately reproduces or forms a durable medium for reproducing the original."
It is important to note that the hearsay and best evidence rule objections can be applied to all types of documentary evidence. They are not unique to optical storage.
Have the courts established conditions for admitting optically stored information?
Answer: Yes. In the cases that have admitted both computer data compilation and copies of paper records, the courts have set forth certain "foundational requirements" - provisos upon which the admissibility of the records are conditioned.
Historically, the courts have established foundational requirements for the admissibility of microfilmed documents as well as computer data compilations. Although there are differences in the foundational requirements for these two media, all of the foundational requirements are reasonable and relatively easy to achieve. The specifics of these foundational requirements are detailed in the definitive legal research study, "Legality of Optical Storage." It is the conclusion of that study that if optical storage users satisfy the foundational requirements that have been set forth by the courts for microfilm and magnetics, the admissibility of optically stored information will be achieved without difficulty.
If business records are stored on an optical disc, can the original paper records be destroyed?
Answer: The Uniform Photographic Copies of Business and Public Records as Evidence Act clearly states that copies created in the regular course of business are "as admissible in evidence as the original itself in any judicial or administrative proceeding regardless of whether or not the original is in existence or not." Further, it states that "the original may be destroyed in the regular course of business unless held in a custodial or fiduciary capacity or unless its preservation is required by law."
Will government agencies accept optically stored records?
Answer: The trend is that an ever-increasing number of federal and state government agencies will accept optically stored records as evidence. Because the optical storage of information is a relatively new capability, most government agencies have not yet taken a formal position on its use. The first major regulatory entity to approve the use of optical storage or entities under its jurisdiction was the Nuclear Regulatory Commission. The IRS has stated that it is formulating its position. In response to an internal inquiry, the IRS Chief Counsel responded favorably. In time, it is expected that this positive climate will be reflected in a formal taxpayer ruling.
Do optical discs need to be of archival quality to be acceptable as evidence?
Answer: Unless the law specifies a very long retention schedule for the records to be stored, the legality and archivability of optically stored information are two separate issues. Archivability refers to the durability/longevity of the optical media, whereas legality pertains to the admissibility as evidence of information that is optically stored. The acceptance of optically stored records in a legal proceeding is therefore not conditional upon whether the optical media is of archival quality. It should also be noted that the quality level (number of pixels in the image) is not a factor in a document being acceptable as evidence.
What direction is the legality of optical storage headed?
Answer: If experience with the legality of microfilm is a basis for projecting the future of the legality of optical storage, the following trends will continue with respect to optically stored records.
* Many states will pass industry-specific statutes authorizing certain types of businesses, especially governmental functions, to use optical storage and thereby provide for the admissibility of those records. These laws will supplement general statutes and rules of evidence that already exist and as such can be categorized as "nicety" not "necessity-type" laws.
* Virtually all states will pass many application-specific statutes. These will be oriented mostly to government records. Their passage will serve to confirm the use of optical storage.
* Some states will continue the process of adopting the 1974 URE and, in that process, some may rescind their version of UPA, believing that the essence of UPA is contained in the 1974 URE.
* Some states will amend their existing statutes and rules to deal specifically with optical storage.
* Many regulatory entities will promulgate formal regulations regarding their acceptance of optically stored records. Typically, they will focus on procedural provisos.
* Many other regulatory entities, particularly state insurance departments, will set forth positions regarding their acceptance of optically stored records in exchanges of correspondence, known as "pocket regulations."
What should users of optical storage systems be most concerned about?
Answer: It is essential that all optical storage users differentiate between the overall legality of the media and the legality of their specific system. Because there is a solid legal foundation for admitting optical media does not guarantee the admissibility of all optical systems! In a legal proceeding, the specific system from which the documentary evidence has been produced will be evaluated with respect to that particular system's capability to produce accurate, reliable, and trustworthy documents.
Just as records from certain microfilm systems that have not been able to pass these three tests have not been accepted in the past, there undoubtedly will be specific optical systems that will fail this test in the future. Such problems will be due to the user having a lack of adequate operational policies, procedures, and systems audits. Users can have confidence that they can easily and successfully avoid future problems in admitting their optically stored records by following the Implementing Guidelines of Optical Storage Systems presented in "Legality of Optical Storage."