{"id":1911,"date":"2011-10-15T15:12:58","date_gmt":"2011-10-15T20:12:58","guid":{"rendered":"http:\/\/blog.law.cornell.edu\/voxpop\/?p=1911"},"modified":"2011-10-15T15:12:58","modified_gmt":"2011-10-15T20:12:58","slug":"the-uniform-electronic-legal-material-act-is-ready-for-legislative-action","status":"publish","type":"post","link":"https:\/\/blog.law.cornell.edu\/voxpop\/2011\/10\/15\/the-uniform-electronic-legal-material-act-is-ready-for-legislative-action\/","title":{"rendered":"The Uniform Electronic Legal Material Act Is Ready for Legislative Action"},"content":{"rendered":"

\"\"<\/a>The Uniform Electronic Legal Material Act<\/a><\/strong>, referred to as UELMA<\/a><\/strong>, is ready for introduction into state legislatures.\u00a0 It has undergone its final proofing and formatting process by the National Conference of Commissioners of Uniform State Laws<\/a> (NCCUSL, or ULC) and has been posted on NCCUSL\u2019s archival Website at the University of Pennsylvania,<\/a> and is soon to come to NCCUSL\u2019s official site<\/a>.\u00a0 The Act will be sent to the American Bar Association<\/a>\u2019s (ABA’s) House of Delegates for approval at the ABA Midyear Meeting in February, 2012 in New Orleans.<\/p>\n

The UELMA addresses important issues in information management, providing sound guidance to states that are transitioning legal publications to digital formats.\u00a0\u00a0 The Act is citizen-oriented, and leaves all issues concerning commercial publishing to state policy and contract law.\u00a0\u00a0 Most importantly, the Act is outcomes-based, keeping it flexible in the face of changing technologies and evolving state practice.\u00a0 A brief account of UELMA\u2019s development and its main provisions is included in this posting.<\/p>\n

The UELMA was drafted in response to a request from the American Association of Law Libraries<\/a> (AALL), following the AALL\u2019s 2007 National Summit on Authentication of Digital Legal Information.<\/a> 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.\u00a0 Foremost among the issues were ensuring the trustworthiness of online legal resources\u00a0 and preserving the electronic publications to provide for continuing accessibility.\u00a0\u00a0 The drafting of a uniform act on these topics was one of the top recommendations of the Summit\u2019s attendees.<\/p>\n

The ULC agreed to consider the development of a uniform law and appointed a Study Committee for that purpose.\u00a0 The Study Committee recommended<\/a> that a law be developed and a Drafting Committee was charged with the task.\u00a0 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.\u00a0 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.\u00a0 UELMA passed its final hurdle with a positive Vote of the States<\/a>, gaining approval by a vote of 45-0 (with 1 abstention and 7 jurisdictions not voting).<\/p>\n

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:<\/p>\n

1.\u00a0 Authenticate<\/em> 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;
\n2.\u00a0 Preserve<\/em> the information; and
\n3.\u00a0 Ensure public accessibility<\/em> on a permanent basis.<\/p>\n

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.\u00a0 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.\u00a0 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.<\/p>\n

For each type of legal material, the state must name a state agency or official as the \u201cofficial publisher.\u201d\u00a0 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 \u201cofficial\u201d and meet the requirements of the Act.\u00a0 If there is a print version of the legal material, an official publisher may designate the online version \u201cofficial,\u201d but the requirements of the Act to authenticate, preserve, and provide access must be met for the electronic version.<\/p>\n

The requirements of the Act are not ended if the official electronic legal material is superseded, overruled, or otherwise ceases to be current law.\u00a0\u00a0 Legal material does not lose its value even if it is no longer in effect.\u00a0 Accordingly, once a source is designated as official, it continues to be covered by the provisions of the UELMA.\u00a0 Historical sources must be preserved and made available.<\/p>\n

The Act does not affect any relationships between an official state publisher and a commercial publisher, leaving those relationships to contract law.\u00a0 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.<\/p>\n

The comments to the UELMA provide a great deal of background on the decisions and intent of the Drafting Committee.\u00a0 In many instances, the comments offer guidance to legislators who will be asked to consider the UELMA for passage.\u00a0 The comments are included with the Act on the University of Pennsylvania\u2019s Biddle Law Library Website<\/a>.<\/p>\n

Some issues specific to one of the three parts of the Act (authentication, preservation, and public access) are as follows.\u00a0 More information on these points can be found in the comments to the Act.<\/p>\n

Authentication (Sections 5 and 6) :\"\"<\/a><\/strong><\/p>\n

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.\u00a0 This approach also leaves it to each state\u2019s discretion to change methods, as necessary or desirable.\u00a0 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.<\/p>\n

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.\u00a0 The burden of proving inaccuracy shifts to the party that disputes the accuracy of the electronic legal material.\u00a0\u00a0 Electronic legal material from other states with substantially similar laws will receive the same presumption of accuracy.<\/p>\n

Preservation (Section 7):<\/strong><\/p>\n

The Drafting Committee spent considerable time debating the preservation provisions.\u00a0\u00a0 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.<\/p>\n

The Drafting Committee decided that, ultimately, all legal material covered by the Act\u2019s authentication provisions should also be subject to its preservation requirements.\u00a0 This was stated simply as requiring preservation of legal material \u201cthat is or was designated as official\u201d under the Act.\u00a0 This language requires that states preserve superseded or amended legal material, which retains importance despite its no longer being currently effective.\u00a0 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.\u00a0 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.<\/p>\n

\"\"<\/a>The Drafting Committee decided to use an outcomes-based approach for the preservation requirements, similar to its approach to authentication.\u00a0\u00a0 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.<\/p>\n

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.\u00a0 Recent natural disasters in the U.S. have highlighted the importance of disaster recovery preparations.\u00a0 Further, information that is preserved in an unusable format is of no value.\u00a0 The comments make clear that migration to new formats or storage media will be required from time to time.<\/p>\n

The comments also note that the Drafting Committee intended that legally significant formatting be preserved.\u00a0 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.\u00a0 Preservation should not change the meaning of the legal material, but rather should ensure that the legal material is capable of being authenticated.<\/p>\n

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.\u00a0 Nor does the Act impose a duty on an enacting state to retrospectively convert its print material to an electronic format.\u00a0 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.\u00a0 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.<\/p>\n

Permanent Access (Section 8):<\/strong><\/p>\n

Citizens must be informed as to government actions if they are to participate effectively in their government.\u00a0 Legal material is an essential information source for citizens to access to become informed.\u00a0\u00a0 The UELMA recognizes this in requiring reasonable availability, on a permanent basis, of legal material, even that which is amended, repealed, or superseded.<\/p>\n

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.\u00a0 The enacting state has discretion to decide where, when, and how to provide access, including whether to charge fees for access.\u00a0 Section 8\u2019s requirement of permanent access does not require a state to provide unlimited access to its preserved legal information.\u00a0 This drafting decision is consistent with the rest of the UELMA, which defers to state policy and practice in its other provisions.\u00a0 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.\u00a0 For this reason, the Act does not address whether states can charge fees for access to preserved electronic legal material.<\/p>\n

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.\u00a0 The \u201cGuiding Principles to Be Considered in Developing a Future Instrument,\u201d<\/a> the best practices \"\"<\/a>document of the Hague Conference on Private International Law<\/a>, were important guidelines that were repeatedly consulted in the drafting process.<\/p>\n

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.\u00a0 Two American Bar Association advisors brought knowledge of and experience with technologies to the drafting process.\u00a0 The observers were very helpful in assisting the Committee in its understanding of the possible impacts of proposed sections of the Act.\u00a0 In some instances, the observers were able to explain existing and emerging technologies that might be used to accomplish the Act\u2019s specified outcomes.\u00a0 The Committee watched technology demonstrations and investigated various authentication processes already in effect.\u00a0 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\u2019s work.<\/p>\n

By designating the Committee\u2019s product a uniform law, the ULC recognized the importance of the topic and urged wide adoption of the Act.\u00a0 The final step in the UELMA\u2019s development will be its introduction into state legislatures.\u00a0\u00a0 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.<\/p>\n

The ULC has appointed an Enactment Committee for the UELMA to assist the larger ULC Legislative Committee with its charge to \u201cendeavor to secure the enactment of [uniform] legislation.\u201d\u00a0\u00a0 The Enactment Committee prepares \u201ctalking points\u201d and summaries of the legislation, and works with individual legislatures, on occasion, to answer questions and further the introduction and approval of the Act.\u00a0 Volunteers from several interested associations are also preparing to work towards the Act\u2019s approval.\u00a0 With strong support from the ULC and volunteers working on its behalf, by next summer the Uniform Act may itself become \u201clegal material\u201d in one or more states.<\/p>\n

\"Barbara<\/a>
\nBarbara Bintliff<\/a><\/strong> is the Joseph C. Hutcheson Professor in Law at The University of Texas School of Law<\/a>, and Director of Research at the School\u2019s Tarlton Law Library and Jamail Center for Legal Research<\/a>. She is The Reporter for The Uniform Electronic Legal Material Act<\/a>.<\/p>\n

VoxPopuLII is edited by Judith Pratt.<\/a> Editor-in-Chief is Robert Richards<\/a>, to whom queries should be directed. The statements above are not legal advice or legal representation. If you require legal advice, consult a lawyer. Find a lawyer<\/a> in the Cornell LII Lawyer Directory<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Uniform Electronic Legal Material Act, referred to as UELMA, is ready for introduction into state legislatures.\u00a0 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\u2019s archival Website at the University of Pennsylvania, and is soon […]<\/a><\/p>\n","protected":false},"author":10,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[220,620,4777,361,4],"tags":[629,628,4839,4838,4844,4841,4843,4779,4842,4778,4840],"_links":{"self":[{"href":"https:\/\/blog.law.cornell.edu\/voxpop\/wp-json\/wp\/v2\/posts\/1911"}],"collection":[{"href":"https:\/\/blog.law.cornell.edu\/voxpop\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.law.cornell.edu\/voxpop\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.law.cornell.edu\/voxpop\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.law.cornell.edu\/voxpop\/wp-json\/wp\/v2\/comments?post=1911"}],"version-history":[{"count":52,"href":"https:\/\/blog.law.cornell.edu\/voxpop\/wp-json\/wp\/v2\/posts\/1911\/revisions"}],"predecessor-version":[{"id":3034,"href":"https:\/\/blog.law.cornell.edu\/voxpop\/wp-json\/wp\/v2\/posts\/1911\/revisions\/3034"}],"wp:attachment":[{"href":"https:\/\/blog.law.cornell.edu\/voxpop\/wp-json\/wp\/v2\/media?parent=1911"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.law.cornell.edu\/voxpop\/wp-json\/wp\/v2\/categories?post=1911"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.law.cornell.edu\/voxpop\/wp-json\/wp\/v2\/tags?post=1911"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}