The Uniform Electronic Legal Material Act, referred to as UELMA, is ready for introduction into state legislatures. It has undergone its final proofing and formatting process by the National Conference of Commissioners of Uniform State Laws (NCCUSL, or ULC) and has been posted on NCCUSL’s archival Website at the University of Pennsylvania, and is soon to come to NCCUSL’s official site. The Act will be sent to the American Bar Association’s (ABA’s) House of Delegates for approval at the ABA Midyear Meeting in February, 2012 in New Orleans.
The UELMA addresses important issues in information management, providing sound guidance to states that are transitioning legal publications to digital formats. The Act is citizen-oriented, and leaves all issues concerning commercial publishing to state policy and contract law. Most importantly, the Act is outcomes-based, keeping it flexible in the face of changing technologies and evolving state practice. A brief account of UELMA’s development and its main provisions is included in this posting.
The UELMA was drafted in response to a request from the American Association of Law Libraries (AALL), following the AALL’s 2007 National Summit on Authentication of Digital Legal Information. The purpose of the Summit was to bring national attention to the issues surrounding the rapid rise in the number of states publishing primary legal information resources electronically and, in some cases, cancelling print resources and publishing legal information only in electronic format. Foremost among the issues were ensuring the trustworthiness of online legal resources and preserving the electronic publications to provide for continuing accessibility. The drafting of a uniform act on these topics was one of the top recommendations of the Summit’s attendees.
The ULC agreed to consider the development of a uniform law and appointed a Study Committee for that purpose. The Study Committee recommended that a law be developed and a Drafting Committee was charged with the task. After two years of consideration, including several face-to-face meetings, conference calls, and circulation of numerous drafts by email, the UELMA was read to and debated for the second time at the Annual Meeting of NCCUSL in July 2011. After more than six hours of floor consideration, the NCCUSL Committee of the Whole passed the draft act, sending it to a Vote of the States. UELMA passed its final hurdle with a positive Vote of the States, gaining approval by a vote of 45-0 (with 1 abstention and 7 jurisdictions not voting).
The UELMA, as it passed the Conference, requires a state that publishes official versions of its legal information in electronic format to do three things:
1. Authenticate the information, by providing a method to determine that the legal material is unaltered from the version published by the state officer or employee that publishes the material;
2. Preserve the information; and
3. Ensure public accessibility on a permanent basis.
At a minimum, legal material that is covered by the Act includes the most basic of state-level legal information resources, including the state constitution, session laws, codified laws or statutes, and state agency rules with the effect of law. In recognition of potential separation of powers issues, the UELMA does not automatically include judicial or executive materials, leaving it to the enacting state to decide whether and how to include those resources. States may choose to include court rules and decisions, state administrative agency decisions, executive official documents, or almost any other information resources they designate as legal material.
For each type of legal material, the state must name a state agency or official as the “official publisher.” The official publisher has the responsibility to authenticate, preserve, and provide access to the legal material. If legal material defined by the Act is published only electronically, that material must be designated “official” and meet the requirements of the Act. If there is a print version of the legal material, an official publisher may designate the online version “official,” but the requirements of the Act to authenticate, preserve, and provide access must be met for the electronic version.
The requirements of the Act are not ended if the official electronic legal material is superseded, overruled, or otherwise ceases to be current law. Legal material does not lose its value even if it is no longer in effect. Accordingly, once a source is designated as official, it continues to be covered by the provisions of the UELMA. Historical sources must be preserved and made available.
The Act does not affect any relationships between an official state publisher and a commercial publisher, leaving those relationships to contract law. Copyright laws are unaffected by the Act. The Act does not affect the rules of evidence; judges continue to make decisions about the admissibility of electronic evidence in their courtrooms.
The comments to the UELMA provide a great deal of background on the decisions and intent of the Drafting Committee. In many instances, the comments offer guidance to legislators who will be asked to consider the UELMA for passage. The comments are included with the Act on the University of Pennsylvania’s Biddle Law Library Website.
Some issues specific to one of the three parts of the Act (authentication, preservation, and public access) are as follows. More information on these points can be found in the comments to the Act.
The Drafting Committee considered a wide range of approaches to authentication before settling on a policy of presenting a technology-neutral, outcomes-based document, leaving the choice of method used to authenticate legal material up to the states. This approach also leaves it to each state’s discretion to change methods, as necessary or desirable. What is required is that the official publisher provides a method for the user to determine that the electronic record is unaltered from the one published by the official publisher.
By the terms of the Act, the authenticated electronic legal material will receive a presumption of accuracy, the same presumption that is created by publication of legal material in print form. The burden of proving inaccuracy shifts to the party that disputes the accuracy of the electronic legal material. Electronic legal material from other states with substantially similar laws will receive the same presumption of accuracy.
Preservation (Section 7):
The Drafting Committee spent considerable time debating the preservation provisions. The biggest issues were finding a way to describe what legal material would be covered by a preservation requirement, and how legal material should be preserved.
The Drafting Committee decided that, ultimately, all legal material covered by the Act’s authentication provisions should also be subject to its preservation requirements. This was stated simply as requiring preservation of legal material “that is or was designated as official” under the Act. This language requires that states preserve superseded or amended legal material, which retains importance despite its no longer being currently effective. The comments to Section 7 make clear that the Drafting Committee intended the Act to cover not only the text of the law, but also the materials commonly published with the legal material. This would mean that the lists of legislators and state officials typically published with session laws would be preserved, as would proposed or final state constitutional amendments, legislative resolutions, and any other type of information published with a legal material source.
The Drafting Committee decided to use an outcomes-based approach for the preservation requirements, similar to its approach to authentication. The ultimate outcome of preservation is that legal material may be preserved in an electronic format, in print, or by whatever method the state may choose in the future; consistent with an outcomes-based approach, state policy and preference dictate the preservation method.
If legal material is preserved electronically, the UELMA requires that the integrity of the record be ensured, including through backup and disaster recovery preparations, and that the continuing usability of the legal material is ensured. Recent natural disasters in the U.S. have highlighted the importance of disaster recovery preparations. Further, information that is preserved in an unusable format is of no value. The comments make clear that migration to new formats or storage media will be required from time to time.
The comments also note that the Drafting Committee intended that legally significant formatting be preserved. The complexity of presentation of some legal materials — evident in indentations, italicization, and numbering of internal subdivisions, for example — may indicate or explain legislative or regulatory intent. Preservation should not change the meaning of the legal material, but rather should ensure that the legal material is capable of being authenticated.
The Act recognizes that states have decades, and in some instances centuries, of expertise in preserving print materials, and does not specify preservation requirements or outcomes if the state chooses to preserve legal material in print. Nor does the Act impose a duty on an enacting state to retrospectively convert its print material to an electronic format. If, however, the state chooses to digitize previously non-electronic legal material, and if that newly electronic legal material is designated as official, then the requirements of the Act must be met. Publication of legal material in an official electronic version subsequent to the adoption of the UELMA, even if the same legal material was published previously in print, triggers the requirements of the Act.
Permanent Access (Section 8):
Citizens must be informed as to government actions if they are to participate effectively in their government. Legal material is an essential information source for citizens to access to become informed. The UELMA recognizes this in requiring reasonable availability, on a permanent basis, of legal material, even that which is amended, repealed, or superseded.
The Drafting Committee debated conditions of access over several meetings, finally concluding that states already have long-term, relevant experience in making other materials available through archives, libraries, and state offices. The enacting state has discretion to decide where, when, and how to provide access, including whether to charge fees for access. Section 8’s requirement of permanent access does not require a state to provide unlimited access to its preserved legal information. This drafting decision is consistent with the rest of the UELMA, which defers to state policy and practice in its other provisions. Eventually, the Committee decided that the individual states could set their own requirements for access to legal material preserved under the Act, as long as the access is reasonable and in perpetuity. For this reason, the Act does not address whether states can charge fees for access to preserved electronic legal material.
The Standards section of the Act (Section 9) directs official publishers of electronic legal material to consider developing standards and best practices as they choose and to implement methods for the authentication, preservation, and permanent access of electronic records. The “Guiding Principles to Be Considered in Developing a Future Instrument,” the best practices document of the Hague Conference on Private International Law, were important guidelines that were repeatedly consulted in the drafting process.
Throughout its deliberations, the Drafting Committee was advised and informed by a large number of advisors and observers who came from federal and state governments, commercial legal publishers and software vendors, and a number of interested organizations. Two American Bar Association advisors brought knowledge of and experience with technologies to the drafting process. The observers were very helpful in assisting the Committee in its understanding of the possible impacts of proposed sections of the Act. In some instances, the observers were able to explain existing and emerging technologies that might be used to accomplish the Act’s specified outcomes. The Committee watched technology demonstrations and investigated various authentication processes already in effect. The drafting process was strengthened by the level of support and expertise the advisors and observers brought, but, in the end, the Act was entirely the Committee’s work.
By designating the Committee’s product a uniform law, the ULC recognized the importance of the topic and urged wide adoption of the Act. The final step in the UELMA’s development will be its introduction into state legislatures. Bill sponsors are being identified, and the ULC anticipates the UELMA will be introduced in at least 8 states in January 2012, with the possibility of introduction in as many as 12.
The ULC has appointed an Enactment Committee for the UELMA to assist the larger ULC Legislative Committee with its charge to “endeavor to secure the enactment of [uniform] legislation.” The Enactment Committee prepares “talking points” and summaries of the legislation, and works with individual legislatures, on occasion, to answer questions and further the introduction and approval of the Act. Volunteers from several interested associations are also preparing to work towards the Act’s approval. With strong support from the ULC and volunteers working on its behalf, by next summer the Uniform Act may itself become “legal material” in one or more states.
Barbara Bintliff is the Joseph C. Hutcheson Professor in Law at The University of Texas School of Law, and Director of Research at the School’s Tarlton Law Library and Jamail Center for Legal Research. She is The Reporter for The Uniform Electronic Legal Material Act.
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