WSR 08-02-047

PROPOSED RULES

SECRETARY OF STATE


[ Filed December 27, 2007, 9:54 a.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 05-20-115.

     Title of Rule and Other Identifying Information: Preservation of electronic public records at the Washington state digital archives.

     Hearing Location(s): John L. O'Brien Building, Hearing Room D, 504 15th Avenue S.W., Olympia, WA, on March 27, 2008, at 2:00 p.m.

     Date of Intended Adoption: May 1, 2008.

     Submit Written Comments to: Megan Moreno, P.O. Box 40220, Olympia, WA 98504-0220, e-mail mmoreno@secstate.wa.gov, fax (360) 586-5629, by March 21, 2008.

     Assistance for Persons with Disabilities: Contact Megan Moreno by March 21, 2008, TTY (800) 422-8683.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposal is to educate and clarify the requirements of RCW 40.14.010 as it pertains to electronic public records. The proposal establishes procedures for use of the Washington state digital archives for storage of electronic public records. Anticipated effects include: Increased compliance with RCW 40.14.010; better awareness of RCW 42.17.020(42); and comprehension of procedures for use of the Washington state digital archives.

     Reasons Supporting Proposal: RCW 40.14.010 states that any record made or received in the course of business is a public record and must be managed. Records are public records regardless of their physical form or characteristics, as defined in RCW 42.17.020(42). The proposal aids agency's use of the Washington state digital archives to meet requirements previously established in RCW 40.14.010.

     Statutory Authority for Adoption: RCW 40.14.020(6).

     Statute Being Implemented: Chapter 434-662 WAC.

     Rule is not necessitated by federal law, federal or state court decision.

     Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: Management of electronic public records is a preexisting requirement and is not initiated, only clarified, by this proposal. A frequently asked questions document is available with information on public records, e-mail, web sites, metadata, public disclosure, disaster recovery, certified records and fees, how to transfer documents, and other miscellaneous topics. Contact Megan Moreno for a copy, (360) 902-0445 or mmoreno@secstate.wa.gov.

     Name of Proponent: Office of the secretary of state, governmental.

     Name of Agency Personnel Responsible for Drafting: Megan Moreno, 250f Legislative Building, Olympia, Washington, (360) 902-0445; Implementation and Enforcement: Jerry Handfield, 1129 Washington Street S.E., (360) 586-2666.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposal does not affect small businesses.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Jerry Handfield, P.O. Box 40238, Olympia, WA 98504, phone (360) 586-2666, fax (360) 664-8814, e-mail jhandfield@secstate.wa.gov.

December 19, 2007

Steve Excell

Assistant Secretary of State

OTS-9203.2

Chapter 434-662 WAC

PRESERVATION OF ELECTRONIC PUBLIC RECORDS AT THE WASHINGTON STATE DIGITAL ARCHIVES


NEW SECTION
WAC 434-662-010   Purpose.   Pursuant to the provisions of chapters 40.14 and 42.56 RCW, the rules contained in this chapter are intended to ensure that electronic public records that have archival value are securely preserved for present and future access and are transferred to the Washington state digital archives for permanent retention so that valuable historical records of the state may be centralized, made more widely available, and insure permanent preservation.

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NEW SECTION
WAC 434-662-020   Definitions applicable to all sections of this chapter.   Unless the context indicates otherwise, words used in this chapter shall have the meaning given in this section.

     "Archival value" means those public records, as determined by state archivist's appraisal, that are worthy of indefinite or permanent preservation by the archives due to their historical, legal, fiscal, evidential, or informational value.

     "Authentic" means that a public record is accepted by the state archives as genuine, trustworthy, or original. "Authentication" means the process of verifying that a public record is acceptable as genuine, original, or authentic.

     "Chain of custody" means the documentation of the succession of offices or persons who held public records from the moment they were created until they are presented as evidence in a court of law.

     "Confidential" means any public record series, file, record or data base field with restrictions on public access as mandated by federal, state or local laws, or court order.

     "Copy" means a duplicate made from an original public record that is nearly identical to the original but can vary significantly in its fidelity to the original. The informational content on the copy is substantially the same as the original.

     "Data base" means a set of data, consisting of one file, group of integrated files or tables, maintained as an information system managed by a data base management system.

     "Data base management system" means a set of software programs that controls the organization, storage and retrieval of data in a data base, as well as the security and integrity of the data base.

     "Digital archives" means the mass storage facility for electronic records located in Cheney, Washington and operated by the Washington state archives. The digital archives is designed to permanently preserve electronic state and local government records with archival value in an environment designed for long-term storage and retrieval.

     "Digital image" means the product resulting from a process whereby nonelectronic materials such as records, maps, pictures, photographs, books, manuscripts, and newspapers are scanned or otherwise automatically processed to generate digital files.

     "Disposition" means the action taken with a record once its required retention period has expired. Disposition actions include but are not limited to transfer to the archives, preservation on microfilm or digital image, or destruction.

     "Elected official" means any person elected at a general or special election to any public office, and any person appointed to fill a vacancy in any such office.

     "Electronic record" includes those public records which are stored on machine readable materials such as hard disks, floppy disks, CDs, DVDs, flash media cards, USB storage devices, magnetic tape, and any other media designed to store information electronically.

     "Encryption" means the process of rendering plain text unintelligible by converting it to ciphertext so it can be securely transmitted and can only be read by those authorized to decode the plain text from the ciphertext.

     "Media file format" means the type of data file stored on machine readable materials such as hard disks, floppy disks, CD-ROMs, DVDs, flash media cards, USB storage devices, magnetic tape, and any other media designed to store information electronically, as well as the application program necessary to view it.

     "Metadata" means data used to describe other data. Metadata describes how, when, and by whom particular content was collected, how the content is formatted, and what the content is. Metadata is designed to provide a high level of categorization to aid in the storage, indexing, and retrieving of electronic records for public use.

     "Public record" means any record, original or copy, containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, received, used or owned by any state or local agency regardless of physical form or characteristic. For the office of the secretary of the senate and the office of the chief clerk of the house of representatives, public records includes any and all legislative records as defined in RCW 40.14.100.

     "Records committees" means the local records committee created in RCW 40.14.070 and the state records committee created in RCW 40.14.050.

     "Retention period" means the minimum amount of time required for the retention of a records series on a records retention schedule or general records retention schedule approved by a state or local records committee.

     "Records retention schedule" means a legal document approved by the state or local records committee that specifies minimum retention periods for a records series and gives agencies ongoing disposition authority for the records series after the records' approved retention period has been satisfied.

     "Spider, web spider, web crawler, robot, and bot" means a software program that automatically retrieves on-line web content and all documents linked to such content.

     "Usable file format" means the transformation of the data contained in a legacy media file format into a format that can be read on computers currently in use without the loss of information contained in the original file.

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NEW SECTION
WAC 434-662-030   Retention scheduling and disposition of electronic public records.   Electronic records are bound by the same provisions as paper documents as set forth in chapter 40.14 RCW. Electronic records must be retained pursuant to the retention schedules adopted by the records committees. Destruction of, or changes to the retention period of, any public record, regardless of format, requires legal approval from the state or local records committee pursuant to chapters 40.14 RCW, 434-635 WAC and other applicable state laws. Public records that are designated "archival" by the state or local records committee must be maintained pursuant to the provisions of this chapter until such time as they can be transferred to the state archives.

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NEW SECTION
WAC 434-662-040   Agency duties and responsibilities.   Electronic records must be retained in electronic format and remain usable, searchable, retrievable and authentic for the length of the designated retention schedule. Printing and retaining a hard copy is not a substitute for the electronic version unless approved by the state or local records committee.

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NEW SECTION
WAC 434-662-050   Disposition of electronic public records identified by records committees as archival.   Electronic records designated as "archival" must be retained in their original format along with the hardware and software required to read the data in that format unless all the converted records have been sampled for completeness and accuracy of the migration to a new system and/or file format. Original data, hardware, and software must be maintained for a period not less than one year after successful migration to a new system. Agencies have a duty to work with the state archivist for transfer of archival data to the digital archives once records are not in active use and/or a data migration is planned.

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NEW SECTION
WAC 434-662-055   Disposition of electronic public records identified by records committees as nonarchival.   Electronic media rendered obsolete through the verified accurate migration to a more current media file format for readability and not designated as "archival" may be considered a secondary copy and disposed of as directed by chapter 40.14 RCW.

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NEW SECTION
WAC 434-662-060   Authentication and chain of custody of electronic records.   The agency must maintain chain of custody of the record, including employing sufficient security procedures to prevent additions, modifications, or deletion of a record by unauthorized parties. If there is a break in chain of custody, the digital archives must be notified along with the transmittal to the archives.

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NEW SECTION
WAC 434-662-070   Use of encryption on electronic records.   If encryption is employed on public records, the encryption key must be available and usable for the life of the record as designated by the retention schedule for that record. For records designated as archival, the records must be transferred unencrypted to the digital archives.

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NEW SECTION
WAC 434-662-080   Transfer of electronic records to the digital archives.   Archival copies of records maintained at the digital archives may not be backward compatible with the originating system. Therefore, the agency is responsible for an appropriate security back-up of active business records maintained in their own systems. This does not relieve an agency's responsibility to maintain records in original format or create security microfilm as required by other provisions of law.

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NEW SECTION
WAC 434-662-090   Transmittal agreement for transfer of electronic records.   The digital archives must develop a transmittal agreement for the transfer of electronic records from state and local government agencies to the digital archives. At a minimum, a transmittal agreement between the digital archives and a state or local government agency must contain:

     (1) Identification of the document series;

     (2) Disposition authority;

     (3) Number of records to be transferred;

     (4) Method, schedule, and frequency of record transmittal;

     (5) Required metadata fields;

     (6) Media file format;

     (7) Identification of any confidential information or record and the statutory authority for such confidentiality;

     (8) Other technical information necessary for ingestion of electronic data into the digital archives repository; and

     (9) Procedures for collecting any fees for public copies as provided by statute or ordinance.

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NEW SECTION
WAC 434-662-100   Media format for transfer.   When feasible, electronic records will be directly transferred to the digital archives via web services, secure File Transfer Protocol, T-1 line or other direct transmission as outlined in the transmittal agreement. When direct transmission is not practicable, records must be transmitted via portable media formats including, but not limited to tape, CD, DVD, flash media cards, USB storage devices, or diskette.

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NEW SECTION
WAC 434-662-110   Metadata requirements.   Electronic records transferred to the digital archives must contain sufficient metadata to categorize, search and retrieve the records. The digital archives will not accept electronic records that do not contain appropriate metadata as specified in the transmittal agreement.

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NEW SECTION
WAC 434-662-140   Web site management.   All state and local government agencies must retain all web content in accordance with the approved retention schedules. Pursuant to a transmittal agreement, the digital archives will spider state and local government web sites annually, or more frequently. All state and local government agencies shall use the following best management practices in the maintenance of their web sites:

     (1) Each page shall contain meta tags identifying the agency, program area, and date of last modification;    

     (2) Pages available for public viewing shall not contain a "no robots" or other tag precluding the spidering of the site;

     (3) Archived content should be stored on the web server in such a manner that it can be spidered; and

     (4) Data contained in back-end data bases should be identified in the transmittal agreement.

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NEW SECTION
WAC 434-662-150   E-mail management.   E-mail is a public record subject to all of the laws and regulations governing the retention, disclosure, destruction and archiving of public records. The e-mails of elected officials, agency directors, and other senior government officials and policy makers, are archival and must be retained per the approved state and local retention schedules. The e-mails of all other government officials and employees are subject to the records retention periods and disposition promulgated by the records committees, and any and all e-mails with archival value must be retained. Agencies may be relieved of the obligation to permanently retain archival e-mail by transmitting e-mail and all associated metadata to the digital archives pursuant to a transmittal agreement as provided for in WAC 434-662-090. This section does not apply to state legislators or members of the state judiciary.

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