HD25 - Report of the Joint Subcommittee To Study the Virginia Public Records Act, Electronic Records, and Their Effect on the State Depository System


    Executive Summary:
    HJR 6; Virginia Public Records Act

    House Joint Resolution 6, passed by the 2004 Session of the General Assembly, created a two-year joint subcommittee to study the Virginia Public Records Act ("the Act," § 42.1-76 et seq. of the Code of Virginia), electronic records, and their effect on the state depository system. The resolution charged the joint subcommittee with examining the Act and the extension of its scope to "(i) provide and assign authority to establish and maintain guidelines or regulations for the creation, transfer, and archival preservation of electronic state records publications; (ii) provide and assign authority to establish and maintain procedures for the official authentication of e-records and documents; and (iii) establish a means to identify, describe, receive and manage discrete electronic government information products covered by copyright."

    The Act is currently administered by the Library of Virginia ("the Library"). The Library is statutorily mandated to maintain and archive public records. Part of this function is to ensure that public records with administrative, legal, fiscal, or historical value are maintained so as to preserve the historical experience of the Commonwealth. The proliferation of the use of electronic records raises new challenges for archiving and that must be addressed to ensure that records created and stored electronically can be accessed in the future, even as technology advances and changes. Key issues that were identified for further review include a need for a clear definition of the term "record", accountability for record keeping, access to government records, and protection of personal privacy.

    The challenges being studied by the joint subcommittee are not unique to the Commonwealth, and are being faced by the federal government, other states, and other countries. The joint subcommittee was briefed on various approaches adopted by the states of Washington, Minnesota, South Carolina, and Kentucky, ranging from the establishment of an electronic records depository to a strong cooperative effort between the technology and archiving agencies of a state to create guidelines. The joint subcommittee also learned about the federal National Archives and Records Administration Electronic Records Archives Project, aimed at managing federal electronic records, and about programs adopted in Australia, Canada, and the United Kingdom.

    In addition to administering the Act, the Library also oversees a state documents depository program. Through the program, the Library receives and distributes copies of state publications across the Commonwealth, so as to help ensure access to important government records. Currently, the Library receives hard copies of agency publications and distributes those copies to 13 geographically diverse libraries throughout the Commonwealth and to the Library of Congress. However, as more and more publications and documents are produced electronically, new challenges and opportunities arise for the continuation of the state documents depository program. The Library must ensure that all publications are properly captured and stored, even those that only exist in electronic format. Receiving electronic publications, however, also opens doors to increased public access to important government publications through electronic dissemination.

    At its second meeting in 2004, the joint subcommittee recommended several changes to the Act. The changes are technical in nature, and aim to clean up the Act so as to prepare for more substantive work during the second year of the study. The key recommendations include:

    • Amending the definitions of the Act found at § 42.1-77. The amendments would remove obsolete definitions, and eliminate any reference as to the format of a record. The proposed amendments would allow the focus of the definition to rest on whether a record has continuing enduring value, instead of whether it is in paper or electronic format.

    • Repealing § 42.1-79.1 relating specifically to the retention and disposition of medical records, as this provision has been superseded by state and federal medical records privacy laws.

    • Repealing §§ 42.1-83 and 42.1-84 relating to an obsolete microfilming program at the Library of Virginia.

    • Clarifying existing practices relating to destruction of records with no enduring value.

    • Amending other sections throughout the Act to remove specific references to electronic records and adopt a more medium-neutral approach. Currently, electronic records are not treated any differently under the Act than other records; however, the current provisions make specific reference to electronic records and other records, creating the appearance of a dichotomous approach.

    The joint subcommittee recommends these changes in anticipation of its more substantive work during the 2005 Interim. The work plan adopted by the joint subcommittee will focus future meetings on the use of metadata in electronic records, authentication of electronic records, copyright issues, and recommendations for best practices.

    As the work of the joint subcommittee is not yet complete, no further report will be issued at this time.