I’m a lawyer by training. We like to argue about language and the meaning of words a lot. I’ve seen judges interpret statutes or find hidden rights in the penumbra of a constitutional amendment. I’ve seen a lawyer, who just happened to also be our president at the time, question the meaning of “is.” But I learned something this year that I didn’t know before: when it comes to parsing language, lawyers can’t touch librarians.
It’s a good thing, too — because what needed to come out of the General Assembly’s Joint Committee Studying the Public Records Act most of all was a tightly worded, precise but flexible, comprehensive revision to the statute to carry it far into the future.
It had been thirty years since the act was first passed, and no major revisions had yet been made to the PRA. Like any other statute, it had been poked, prodded, added to, and deleted from by generations of legislators. Unfortunately, some of the revisions were pinned on with the haphazardness of a blindfolded child holding a donkey’s paper tail.
And while amendments were made, some of the act’s premises, definitions, and instructions were not reconciled or updated. For example, here we are in the age of digitization, and the PRA still operated under the presumption that archival records would be preserved only in paper form or by microfilm. The act even specified exactly what type of ink and paper should be used to archive public records, even though such specificity is usually left to regulations and guidelines instead of being written into the code itself.
Joint Subcommittee Chair Kirkland Cox, R-Colonial Heights, appointed a sub-subcommittee to study the State Documents Depository Program. Through the use of informal workgroups, as detailed in Mary Clark’s article “The Virginia General Assembly Studies the Public Records Act and the State Depository Program” (Virginia Libraries 51.4), the joint subcommittee adopted proposed legislation “in concept” to be introduced in the 2006 General Assembly.
Cox created another sub-subcommittee to tackle the precise revisions to the PRA itself. Del. Ryan McDougle, R-Mechanicsville, chaired the sub-subcommittee. Joint committee members Conley Edwards of the Library of Virginia and Rosanna Bencoach of the State Board of Elections were also appointed.
Informal workgroups once again did the real work on the revisions. Under the leadership of Lisa Wallmeyer, executive director of the Joint Commission on Technology and Science, with assistance from JCOTS Staff Attorney Patrick Cushing, stakeholders and interested parties met several times in informal workgroup sessions to refashion the act where needed. Those in regular attendance included representatives from the Library of Virginia — Conley Edwards; records and information management analysts Thomas Wellman and Mark Walsh; and Paul Casalaspi, director of information technology. John Breeden, records administrator at the Virginia Department of Transportation, and Jerome Kendall, records administrator for Chesterfield County, joined me to round out the core of the group. Drafts of proposed changes were also circulated around a 120-member listserv for records managers around the state.
Wallmeyer was first named as staff counsel for the study when she still worked at the Freedom of Information Advisory Council. When the study was first proposed — shortly before the 2004 General Assembly session — one purpose was to bring the PRA in line with FOIA where possible. Though the two statutes are separate and distinct, they nonetheless complement one another. They share many of the same terms and the same objectives. More than one judge or attorney general has looked to one for help in interpreting the other. Consistency between the two was therefore critical. Wallmeyer’s background in FOIA and First Amendment law helped ensure that public access to records was always a part of the revision equation.
To this end, throughout the PRA, the workgroup made changes to clarify that the physical format of a record did not change the record’s characterization. That is, if it is a public record on paper, then it’s still a public record whether it’s a scanned-in image of a record or a record originally created in electronic format.
Several new terms were added to the definitions section of the PRA. Conversion, electronic record, essential public record, lifecycle, metadata, and migration were all added to address the changing nature of records management in the face of new, existing, and evolving technologies. For instance, “conversion” was added to address the steps to take to ensure the integrity of a document when it is saved in a new format (such as from a Word document to a PDF file). Similarly, “migration” is the term chosen to denote the process of moving electronic records from one information system to another (such as from desktop hard drives to servers).
Electronic records proved to be the trickiest term to define. Lengthy discussions determined whether words like “computer” or “digital” should be used. An early version of the definitions evoked a Planet of the Apes feel when it stated that an electronic record was one that required a processing device to make it “intelligible to humans.” In the end, the electronic record was defined broadly to mean “a public record whose creation, storage, and access requires the use of an automated system or device.”
The definition of “public record” was tweaked to remove medium-specific references, and technical changes were made to the definition of “archival quality.” The definition of “archival record” was changed, but not substantively. The four factors for evaluating archival records under the “archival record” definition were actually applicable to all records. These factors — the administrative, fiscal, historical, and legal value of a record — were thus moved to where they were more relevant: in the section dealing with records retention and disposition schedules.
The LVA retained the ability to issue regulations and guidelines to help state and local agencies create, preserve, store, file, reformat, manage, and destroy their records. The task should be made easier with a small but important addition: to require government entities not just to name a records officer, but to tell the LVA who that person is and how to contact that person.
The LVA related the trouble they’ve had over the years getting some agencies to comply with the PRA’s terms. Though the new section won’t guarantee compliance, having a contact point is the first step in rectifying the situation.
Another compliance tool now at the library’s ready disposal is the ability to audit non-complying entities. The ability to conduct a records management audit is discretionary — the library said it doesn’t have the staff or the resources to conduct regular audits — and results must be summarized in a report to the governor and chairs of the general laws and finance committees for both houses of the General Assembly.
The joint subcommittee adopted the workgroup’s final draft with one exception. The workgroup recommended giving LVA the responsibility of naming a state records administrator, just as it already names a state archivist. Though the workgroup agreed that the same person could be named to both positions, the proposal was shot down in the joint committee when committee members realized the LVA did not support the proposal.
Though it was adopted by the joint subcommittee, one provision gave Del. McDougle some heartburn. In the section dealing with confidentiality, workgroup members changed the number of years a confidential record could be kept under wraps from one hundred to seventy-five years. This was to be more in keeping with the way things are done in other states and the Library of Congress, which told Patrick Cushing that its confidentiality periods were even less than seventy-five years.
McDougle worried that, since we’re all living longer now, some adoption records would be made available while parties to the adoption were still alive. Committee member Valerie Mayo said she thought most adoption records were sealed by court order, which would not be disturbed by the change to the PRA.
The joint committee ultimately accepted the change from one hundred to seventy-five years, a good move for public access. Any more than seventy-five years and many families — with or without adoptions — would not be able to conduct genealogical research. Also, other historical records could be unnecessarily withheld for a quarter of a century too long.
The draft, as well as the draft of the State Publications Depository Act, will be presented during the 2006 legislative session. Of course, there’s no telling what sort of spices will be added or portions cut away during the sausage-making process, but bills that have come through study committees, especially ones where the stakeholders were all an active part of the process, often fare well.
The prospect of an easy passage should not dissuade the library community from being actively involved in speaking out on and in favor of the bill when it comes up for discussion in subcommittee and committee meetings. After seeing the work that many of them did in creating the bills, I am quite certain that their eloquent, insightful, and logical words will be persuasive.__________________________
Megan Rhyneis the Associate Director of the Virginia Coalition for Open Government. She lives in Williamsburg. For more information or to contact the author, visit http://www.opengovva.org.