yea, but whatcha gonna do?
Chris Flynn
-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]]On Behalf
Of Taylor, Scott
Sent: Friday, February 24, 2006 11:48 AM
To: [log in to unmask]
Subject: [RM] Thanks: RE: [RM] Recreated .MSG file - A Legal Record?
To the listserv, thanks much for sharing your knowledge and your
thoughts. I do appreciate all of your replies! All of you are great!
Thanks again, Scott
-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]] On
Behalf Of Grevin, Frederic
Sent: Friday, February 24, 2006 12:21 PM
To: [log in to unmask]
Subject: Re: [RM] Recreated .MSG file - A Legal Record?
To address Maureen's question about maintaining metadata through
migrations, the DEP Documentation Requirements mandate embedding the
records metadata (based on a prescribed metadata schema) in each file.
Best regards,
Fred.
===============================
Frederic J. Grevin
Director, Records and Archives Management The City of New York
Department of Environmental Protection (DEP)
59-17 Junction Blvd., 11th floor
Flushing, NY 11373-5108
E-mail: [log in to unmask]
Phone: (718) 595-4372
Fax: (718) 595-4387
-----Original Message-----
From: Maureen cusack [mailto:[log in to unmask]]
Sent: Friday, February 24, 2006 10:34
To: [log in to unmask]
Subject: [RM] Recreated .MSG file - A Legal Record?
In response to John:
<There's a case called Public Citizen v. Carlin that explicitly rejects
the argument that metadata must be preserved.>
The Sedona Guidelines are all about reasonableness in recordkeeping
practices as a response to unreasonable spoliation challenges and
charges like what must have come about in the 1999 case mentioned above.
But the above ruling, and Sedona, doesn't mean that metadata
preservation is not important. It does contribute to evidentiary value
of records, especially where computer-generated audit trails help trace
chain of custody like in J.'s issue about migrating MS Outlook content
between repositories. There are 3 much-cited cases (below) which went
the opposite way from Public Citizen v. Carlin.
In response to Chris:
<While it would be my recomendation that all metadata be retained and be
migrated with the record, I don't think ther eis a legal requirement to
do so.>
Here in Ontario, the Evidence Act, R.S.O. 1990, c. E.23, s. 34.1(5.1)(7)
specifies audit trails as a means of proving system reliability and
integrity which is necessary to establish authenticity which in turn is
necessary to establish relevance which is required for admissibility.
Case law is useful if we're talking "legal requirements" . Here's what
I've taken away: Case law and legal commentators in Canada and the US
have made it clear that anyone seeking to admit an electronic record
must lay a proper
foundation for reliability. It's also a Canadian standard CAN/CGSG 72.34
2005 Electronic Records as Documentary Evidence, written by the federal
government standards board. I consider repeated rulings on the same
issue to be pretty strong indication of a "requirement" and something
you would want to mention in a risk management report or guideline -
especially if it justifies your job and your efforts. In these 2 cases
courts refused to admit evidence because there was no proof of system
reliability:
R. v. Sheppard (1992), 97 Nfld & P.E.I.R. 144 (Nfld. S.C.); R. v.
Rowbotham (1977), 33 CCC (2d) 411 at 416 (Ont. Co. Ct.)
In the US case People v. Holowko, (1985), 486 N.E.2d at 878-79 the fact
that
records were computer-generated made the evidence admissible (because it
was
reliable not because it was a business record exception to the hearsay
rule). Presumably the FBI proved they were computer-generated. Audit
trail reports indicate whether something is human-authored or
computer-authored.
Audit trails that are automated can also prove that a record was created
in an ERMS contemporaneous with the activity it is evidence of (as
opposed to being created after the fact when litigation was anticipated
-scrambling to create exculpatory evidence and all that). This
contemporaneous rule is actually legislated: Evidence Act, R.S.O. 1990,
c. E.23, s. 33(3) . Also there's a US case which upheld this rule:
United States v. Blackburn, 992 F.2d 666 (7th Cir. 1993)
The Canadian Standard CAN/CGSG 72.34 2005 specifies in section 8 "audit
trail" what audit metadata needs to describe, how it should be created,
that
it must be backed up, be unalterable etc.
<The records "profession" has ot defined metadata as being a required
component to ensure record integrity>
It has. The 2002 PRO (UK) section 2, Metadata, makes many statements
like
this: page 2, section 1: "when properly implemented, records management
metadata does this (prevents alteration and proves where alteration has
occurred) by:
...establishing the provenance of the record....
....showing whether the record's integrity is intact....
.....demonstrating that the links between documents, held separately but
combining to make up a record, are present".
So in a project like J.'s I would preserve the metadata records from
every system the record has ever existed in permanently. The ideal
would be metadata harvesting ability between systems that capture the
old metadata into the new system - and treat that old metadata record
with same controls as audit metadata. Also the event of exporting
records from one system to another should ideally be captured as
system-generated audit trail metadata.
What would any of you do?
Maureen Cusack, B.A.H., T.E.S.L., M.I.St.
http://www.maureencusack.net
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