Data-Centric eFiling

This is Part 6 of 10 in the eFiling Blog Series, check out Part 5 here.

It’s easy to think of the key differentiating feature between traditional, paper document filing and eFiling as relating primarily to the method whereby the document is transported and received. That is, physically in traditional filing, and electronically in eFiling. And, of course, that is a key differentiating feature; but only one of many.

Beyond how the document is delivered, consider what is delivered. At the most primitive level, imaged documents – basically, pictures – can be delivered. PDF documents containing image and text are marginally better. Yes, these documents are electronic; but it’s like playing “Where’s Waldo” to find the relevant information on the page. eFiling documents in this way is referred to as “Document-centric eFiling”.

At the other end of the spectrum, there may be no document at all. Data is entered by the sender, validated, transmitted and stored by the eFiling system. Virtually all commerce on the Internet is done using a data-centric approach. The important point is that the focus is on the data, not on any particular document – and once you have validated data in a computer many other efficiencies are possible.

So why do many eFiling systems still use a document-centric approach? The answer lies in tradition. Courts are steeped in it, and the rules were developed before computers existed – so the paper document has reliably served the role as the primary communication vehicle for centuries.

Traditional documents still serve many functions. Most married couples would rather frame their wedding certificate than a URL, for instance. But where a document exists to be a vehicle for transmission and/or a repository of the data, it is simply in the way. So data-centric systems produce documents on-the-fly, when needed.

In addition, there are some very important side benefits to a Court or Prosecutor in adopting a data-centric model: 1) The recipient has reduced data entry costs (and less data entry errors), 2) The filer provides more complete data – because the eFiling system prompts and validates data along the way, 3) cases flow faster with less exceptions, 4) searching and managing cases is more productive, and many other benefits.

The spectrum from most primitive (playing “Where’s Waldo on a screen”) to most sophisticated (totally data-centric) has been labeled the eCourts Maturity Model.  The National Center provides an excellent overview by Bob Roper and Jorge Basta.  Using this model, courts can determine where they fall on the maturity spectrum.

The Maturity Model has two dimensions: First, how closely is data capture, transmission, and storage tied to documents (called the Forms/Documents Migration Dimension); and second, what is the business and technological environment of the court (called the System Characteristics dimension).

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eFiling Maturity Model
Bob Roper and Jorge Basta, eCourts Maturity Model, eCourts 2012, December 10, 2013

Along the Forms/Document Migration dimension, the spectrum runs from scanned paper (image based forms) to static PDFs  (static forms) to fixed PDF based forms with data fields (dynamic forms) to wizard-like data entry, where forms are generated later as needed (forms-free).

The Systems Characteristics include factors such as who is filing, what can the eFiling system do (what are its functions and features), how well does it integrate with other systems, how is the system designed (including whether it is based on standards), and how well can the court adapt its culture and business processes to include the new ways of doing things.

With the tremendous strides in the technological power and sophistication of not just eFiling but all court supporting technology, the real question for a court today has shifted  to where the court wants to be. While few may want to be stuck in the lower left corner, not every court is necessarily anxious to try to move all the way to the upper right (see, for example, In Praise of Tortoises). Is the court ready to let go of the paper and wet signatures? Does the court itself, or its partners, have the systems and infrastructure in place to support true forms-free filing?

The point here is that there is a long way to go on the eFiling journey. For lots of reasons, many of them covered in past pieces here, moving to pure data-centric eFiling offers profound benefits. But it takes planning, work, and commitment.  Using the eCourts Maturity Model as one tool can help structure these efforts.

Coming up next: Blog 7 of 10: eFiling Blog Series – Criminal Cases

Funding eFiling: Calculating the Cost

This is the conclusion of Part 3 of 10 in the eFiling Blog Series. Check out the first half of Part 3 here.

fundingefiling2Handling of indigents in an eFiling system will be profoundly affected by the chosen funding model. In a fully court-funded model with no user-based fees, it’s simple: indigents can be handled the same as any other filers. However, any model deriving funding from user fees or service charges, both policy and procedural considerations are highly significant. On the policy side, there are access to justice considerations. Any model basing fees on total cost divided by number of filings must, in order to avoid major underestimation of real revenue, fully account for the portion of eFiling attributable to indigents.

A number of courts have made the mistake of calculating costs based on number of filings, only to later realize that filings by indigents comprise a large portion of the totals; and those must be “carried” by the rest. Then, the system must be able to identify and appropriately process those who are exempt from fee payments (which may occur in many places during the filing process; not simply where “filing fees” are typically collected).

In any event, any system that is collecting fees from filers (whether eFiling fees, or other statutory fees) should have a mechanism to handle indigents. The most common mechanism is to allow the user to file an “application for waiver” document which the court can approve on a case by case basis and thereafter the user can file to that case without cost.

A major consideration with Pro Se litigants, particularly in a “mandatory” eFiling system, is making the system easy to use for those who have never used it before. Consider: in the paper world, one could mail a document to the court. Courts didn’t have to help people figure out how to use the postal service. With eFiling, people are in a completely new and unfamiliar world. Will the interfaces be simple enough; and how much will the support (including real-time, “live” personnel) cost? A related topic is the “morphing of what used to be court law libraries into staffed media centers which, among other things, can support pro-se litigants.

Again, aside from a fully court-funded model, a seminal question is “What ARE other government agencies?” Clearly prosecutors, but how about indigent defense providers? Executive agencies? Private contractors on government contract? And so on. Then, how and how much should each various class pay?  And to whom? In the paper world, the court never bore the cost of postage for incoming filings; does this imply the court should have no responsibility for the cost to submit a document to a private filing portal? Politically, the court’s partners will undoubtedly notice the cost if they are required to bear it, even if the actual “filing convenience fee” is waived. Models could include, for example, a “purpose-built” EFSP for use by partner agencies to streamline the filing process.

Refer back to Rule 1. eFiling is NOT free. For example, because we are not used to thinking of credit card processing fees as an additional “cost” when we shop, we forget that the merchant has to “eat” those costs. With eFiling, the court is the merchant.

Up front and on-going user support can be easily overlooked or, worse, vastly underestimated. Pro-se litigants (not to mention out of town attorneys, occasional users, and so on) will need support; and a court underestimates the amount and cost at its peril.

Depending on the implementation and strategy, there are any number of cost and expenses that are not obvious. Absent rigorous due diligence, many of the costs may be overlooked until too late.

Two key points to remember about filer payment systems, be they credit card, escrow accounts, billings, or other system: 1) Every payment collection system has a cost; and 2) Someone is going to pay that cost. A related point is that avoidance by the court of the costs (say, for example, by arranging for “face amount” payment by a credit card processor) may very well result in substantially higher costs to the filer than if the court simply figured the credit card processing fee into the amount it sets as the charge.

eFiling entails costs for both implementation and ongoing operation. Some costs are direct and obvious; others are indirect and/or not easy to spot. A number of different strategies exist for funding these costs. Determination of both the nature of the costs and the funding model, as well as the nature and type of ongoing responsibilities the court and its partners must assume requires rigorous due diligence to develop and execute a solid, cost-effective, sufficiently funded eFiling system.

The good news is that an experienced eFiling vendor can help identify analyze the court’s situation, the available opportunities, the true costs, and the realistic choices, enabling the court to build its eFiling solution using a solid financial model.

Coming up next: Blog 4  of 10: eFiling Blog Series – CMS Integration

Armor Up: Electronic Court Tools for Judges

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Recently I saw an exhibit of a fully equipped Roman Legionnaire from the early Roman Empire. All that stuff – armor, sword, shield, spear – sure looked heavy. Interesting enough in itself; but later that day, I happened to see a picture of a fully outfitted American soldier in battle gear.

And I thought, “Hmmm…”

So I did some Googling and came up with an interesting little factoid. The average weight a Roman Legionnaire carried two thousand years ago was about 80 pounds.   A modern day American soldier carries — you guessed it — about 80 pounds.

A pessimist might say, gee, all the advances we’ve made; but the poor foot soldier is still carrying the same load. What a surprise.

But what matters is that the 80 pounds should be the best equipment for the mission. And what is the best available equipment for the mission has changed plenty in two millennia.

Which brings me to an observation concerning the current move toward Enterprise Content Management (ECM)-enabled judicial workbenches. Judges need tools and supplies in the form of information to accomplish their mission. They need access to information about the matters before them and to related matters; they need access to the applicable legal authorities and so on.

What is true with judges, just as with foot soldiers, is that there is a limit to how much they can carry and still operate. The advent of judicial workbenches powered by ECM with configurable workflow is fundamentally changing how much and what kind of work judges can accomplish during their limited available time. Because what has NOT expanded is the amount of time available to a judge.

Judges have always needed access to information. In paper-based systems, either the judge or someone on behalf of the judge had to locate the information in paper documents and files. Their instructions and decisions had to be committed to paper documents, which had to be routed and physically transported. To be signed, documents had to be physically available to the judge.

When legal authorities were cited, the judge had to access the appropriate volumes of statutes, case law or other authority, so physical proximity to these (often voluminous) sources was a real advantage, but it came with great overhead. Likewise, access to related files and documents, often necessary, required physically tracking down, pulling and delivering the appropriate paper files.

Today, a judge can use an electronic or paper-on-demand judicial workbench that uses ECM with configurable workflow to streamline and integrate all these activities and more. Such a workbench can integrate the court’s documents and files, case management systems and related agency systems, such as inmate tracking and warrant tracking, into a single, easy-to-use tool for the judge. Such a tool can provide, for example,

  • Intuitive, multi-touch interface with gesture-based commands
  • A docket-based system that is both judge-driven and clerk-driven in the courtroom
  • The ability to view relevant documents specific to a hearing
  • Easy-to-use electronic case files with colored-coded folder tabs
  • The capability to securely sign documents quickly and easily
  • Include judge’s notes, permanent markups, under advisement

and much more.

Just as with the foot soldier, none of this should be expected to make a judge’s life easier in the sense of working less hard. Eighty pounds is eighty pounds. However, with tools such as these at their disposal, judges can accomplish far more than in the olden days, with the same amount of effort; generally, everything they’ve got.

A Brief Memo from the Future

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Like Billy Pilgrim, in Kurt Vonnegutt’s Slaughterhouse Five, I sometimes become “unstuck in time.” So it was that I recently came across an article I wrote in early 2019. Oops, that’s five years from now. I really need to clean up my filing system… Still, it did catch my attention, and since it deals with courts of the future, which is also the theme of this week’s NACM conference, I thought it would be a timely blog topic.

In the 2019 piece, I was looking back, reflecting on the time when just about everyone involved in court document and record management assumed that there was no way court documents and records would ever be stored largely “in the Cloud”:

Back in those days [2014], it went without saying that there was no level of security that could be high enough to justify putting critical, sensitive court documents and records “at risk” in some virtual, remote “place.” In fact, a lot of courts didn’t even have to consider it because their statutes and regulations required physical storage within the geographical jurisdiction.

In 2019, it’s as hard for people to understand how anyone could have ever considered “local” storage and management of court documents and records to be more secure as it had been in 2014 to believe that anyone ever thought that courts were the only viable source of court systems software development.   Both, of course, were making the same mistake.

Those involved in court technology management in 2014 sometimes failed to appreciate that the technologies and products then available and required for state-of-the-art court systems software HAD NOT BEEN AVAILABLE 20 or even 10 years earlier. For that reason, in the 1980s and 1990s, in-house court software development was, in many cases, the best practice. By 2014, though, it had become technically, financially and politically difficult and risky for courts to attempt in-house software development and maintenance.

Likewise, in 2019, people often forget what the security landscape looked like in the first decade of the millennium. The Internet often resembled the 19th century Wild West. The safest place to keep your data was completely separate.

Of course, over the not-so-long haul, that method worked about as well as keeping your money safe by stuffing it in the mattress. In order for the information to actually be useful, it couldn’t be kept totally separate. So much for security based on isolation.

In 2019, of course, everyone understands that the ONLY real security for court data is in the Cloud. Nowhere else are the tools, infrastructure and oversight either sophisticated enough or cost-effective enough to adequately protect critical, sensitive information. Five to 10 years ago, those tools and that infrastructure were still in development, which is why court record managers of the time could be forgiven for trying variations of mattress-stuffing. Today, in 2019, we are thankfully past all that and our court records are all the more secure for it.

Now, the reason this little piece caught my eye (even though I shouldn’t have seen it for another five or six years) is  the part about statutes and regulations requiring local storage of court records. Technology and security aside, there are some pretty compelling arguments (and certainly a lot of emotional desire) for requiring records and data to be locally stored. Fortunately, even today, that is no barrier to cloud storage. Robust Enterprise Content Management (ECM) systems already provide the capability to specify storage in close geographical proximity to courts anywhere in the country.

As courts implement their ECM solutions in good ol’ 2014, they probably ought to pay attention to whether their solution could, one day in the future, be migrated to the Cloud. Not that anyone’s suggesting it, mind you! Just sayin’.

 

The Fact Is, It’s a Better Record

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You know the monkeys are winning when even the dinosaurs start betting on and rooting for them.

An interesting debate between those involved in the medical field and those involved in the legal field is over who is more technologically change-averse — doctors or judges? It’s one of those neck-and-neck races in which it’s difficult to tell who’s “winning”. Fact is, both professions — particularly with those in the gray-of-hair demographic — are, as a group, pretty tough to sell on the desirability of moving away from paper-based records. Both have been clinging to paper a lot longer than much of their surrounding worlds.

As part of my ongoing crusade to support the medical services community, I recently visited a doctor — a specialist with whom I have had a long and heavily documented history. The doc is about my age, which is to say, certified dinosaur.

Now, my history with this physician goes back over 20 years. The last time I saw my “hard file”, it was in fact two files, each of which was about four inches thick. Since, if the doctor and I get our way, we’re less than halfway through dealing with my condition, I figure I’ll eventually have my own shelf in the file room.

Over the past several years, he and I have discussed the paper versus electronic record question. He’s an outstanding physician, tops in his specialty, and works very hard to stay current on the explosion of progress in his field. But, when it comes to dealing with records, he admits to being a true dinosaur — the paper is just easier for him to use, he claims.

Thus, when I had my most recent appointment, it did not escape my notice that when he entered the room, he did NOT have my file with him. Instead, he accessed my record on the computer, and as the exam progressed, he entered information into it.

I, being not exactly the shy, quiet type, said to him, “I have to tell you that I’m impressed with the fact that you’re accessing and entering my information on the computer.”

He stopped, looked at me over his reading glasses and said in a somewhat sheepish tone, “Well, the fact is, it’s a better record.” [emphasis added]

Kaboom. There you have it. This from a guy for whom the quality of the record is, quite literally, life and death. I didn’t even have to say, “Told you so.” He got there on his own.

I asked how the Electronic Content Management system worked for him. He said it had taken him awhile to get used to; but now that he’s been using it, he actually can’t imagine going back to paper files. He also said that, while doctors in “our” age group are still somewhat resistant and slow to get on board, younger physicians universally want nothing to do with hard files and paper. He added that, in fairly short order, they (the younger, more tech-savvy doctors) are going to succeed in moving everyone away from the paper files. And, he said, that was a GOOD thing.

So we two dinosaurs agreed that the smart money is on the monkeys. And that we’re rooting for them.

 

 

Missing the Starting Gun

“And then one day you find
Ten years have got behind you.
No one told you when to run;
You missed the starting gun.”

Time, Pink Floyd, from Dark Side of the Moon

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On hearing the other day of a jurisdiction that is still insisting on “wet signatures” for court documents, I wondered, “What are they going to do when the really new technology gets here?” Almost immediately, I realized that, in the timeframe in which statutory, rule and policy change exist (months and years), “new” technology is really here already; or it might as well be.

For years now, acceptance of electronic signature for court documents has advanced, albeit sometimes at an almost excruciatingly slow pace. Yet even as, one by one, the justifications for avoiding, postponing or, even worse, “backing up” e-signatures with wet signatures have been shown to lack validity, resistance persists in a shrinking, but still unfortunately significant, number of jurisdictions.

Even ignoring the money that is being left on the table (or, put another way, leeched from the judicial budget), as well as the inherent loss of efficiency and introduction of opportunity for error, there are forces at work today that present another major downside to leaving laws, rules and policies in place that inhibit full adoption and use of e-signatures. New technologies include fingerprint identification, facial recognition, retinal verification and even DNA matching (without blood). Some of these are already in use or approaching readiness for prime time. New smart phones have fingerprint identification (which is rapidly improving). Apple is reportedly working on a facial recognition interface to unlock iPads and iPhones. Within the next few years, such biometric authentication will not only be mainstream, it will be required for most security.

Admittedly, wholesale adoption of universal biometric verification is still a ways down the road. One might argue (and, in private, I might be that one) that it’s closer than you think; but it isn’t here yet. But that doesn’t mean that there’s any time left before jurisdictions can comfortably start exorcising references to and requirements for wet signatures on court documents in their laws, rules and policies.

Courts and jurisdictions that have gone through the process and due diligence of tracking down, identifying, examining the reasons for and removing (without compromising security or integrity) the almost infinite hiding places of requirements for wet signatures will find transition to the next phase of authentication much less painful. They will, in fact, be able to make the transition. Those that fail to purge those anachronistic requirements and continue to operate full or partial wet-signature processes will have a much more difficult time of it.

This fact represents one of the often overlooked risks of trying to skip or sit out a change cycle. On the one hand, you might think that you can save the trouble and expense by only changing once. Ha, ha — look at those poor courts that spent all that time, money and effort converting to newer technology, only to later have that technology be replaced by something else.

Again, even ignoring the financial and operational benefits the adopting courts enjoyed, such thinking ignores one critical reality: Usually the next cycle can only be reached when starting from a firm foundation in the previous cycle. Furthermore, obvious as it sounds, people and organizations — including courts — that have experienced change more readily embrace the need for and adapt to more change later.

Over the past several years, the financial situation of the justice system had, among its many unfortunate consequences, the effect of stifling change in many places. Now the time has come to try to get back in position to catch the next wave or risk being swamped.

Yes, that WAS the Starting Gun.

In Praise of Signatures

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To paraphrase Winston Churchill, I have been a vocal advocate of electronic signatures for a long time; and I will not now unsay a word of my advocacy.  Most statutes, rules and orders are silent or very broad as to HOW an electronic signature must be appended and represented on court documents; and many, if not all, enabling statutes, rules and orders authorizing the use of electronic signatures for courts allow for use of ” /s/ ” followed by the typed name of the signatory.  For some very good reasons, many of which I have previously noted, this approach offers flexibility while still providing the requisite level of authentication.

 That said, I think it’s important to note two aspects of signatures that are definite plusses when they can be provided with no loss of efficiency.

First, while legally a ” /s/ ” and typed name may suffice, there is something more emotionally compelling about a signature that looks like a signature. Of course, “looks like a signature” is somewhat subjective.  My signature, for example, is notoriously illegible. But it IS distinctive. There’s a reason that all U.S. paper currency bears the signature of the Secretary of the Treasury instead of just the printed name. Some documents, particularly court documents, have solemn effects.  Signatures that are clearly hand-drawn contribute to the solemnity of the document.

(At a court conference, a probate judge told me that many of the people who appear before her actually frame their judgments in cases like adoption, change of name, and sometimes estates. She expressed her belief that the hand-drawn signature constituted an important element of the emotional power of the document.)

Second, and related to the first, is the question of permanent inextricability.  If a mason leaves a plaque beside his work, the work will be identified as his as long as the plaque remains in place.  But if he writes his signature into the cement, as long as the cement is there, so is the attribution.  A lad can post a note on a tree declaring his affections, but carving a pair of initials inside a heart into the tree will be seen as a much more enduring statement.

In the same vein, there is a definite benefit to not only electronically signing a document, but permanently and inextricably binding the hand-drawn signature to the document itself. That is, rather than simply overlaying an image of a signature, which could later be removed or substituted, “burning” the hand-drawn signature into the document itself. That way, as your mother used to tell you about tattoos, it will be there forever.

It’s an easy trap to fall into to focus strictly on the mechanistic and legalistic requirements for documents when implementing paper on demand.  Indeed, in the efforts to craft the most efficient technical solutions, many implementers — with the best of intent — overlook the emotional and psychological factors that have been implicitly and explicitly utilized to assure and reinforce the impact of court documents.  The very foundation of the legal system rests on the beliefs of the public over which it asserts authority.  For that reason, it is both legitimate and valuable to continue to utilize hand-drawn signatures, permanently attached to court documents, even as the court moves to a paper on demand module.[1]

[1] TrueSign®, from ImageSoft, provides the capability to burn hand-drawn signature images into documents.

 

Court Document Retention

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In the interest of full disclosure, let me say, up front, that I believe both ends of the Court Document Retention discussion will be laid to rest and ultimately forgotten over the next five to 10 years, if not sooner. By “both ends” I mean, first, the question of “In what medium (paper, microfiche, or digital) should court records keep particular documents?” and second, “What to do with court documents (regardless of medium) once the retention period expires?”

My reasoning is that societal and governmental trends vis-a-vis public records (and I think, particularly, court records), are rapidly and inexorably moving toward requiring perpetual retention of all documents, particularly as storage costs continue to shrink.

Notwithstanding my (admittedly rosy) prediction though, that is not the world courts live in today. Consequently, there is a lot of effort being expended to remove the paper/michrofiche requirement barrier. As previously discussed, that can’t happen too soon .

Beyond the anachronistic medium requirement, under current laws and policies, courts are going to have to continue to manage which documents to keep and for how long. And rarely considered, but extremely costly, is the flip side of document retention: document purging and disposal once the retention period expires.

Every court knows the pain, expense and conflict involved in purging documents. With paper documents, even the best systems are highly labor-intensive, and usually involve multiple checks, verifications and quality controls to assure that nothing is inadvertently purged that should be kept. First, there is the management to keep track of when files and documents should be purged. It’s not as simple as a one-time calendaring at the case’s conclusion: What if something else happens in the case later to extend the time?

Once identified, in some instances, some documents must be physically removed from the case file while others are left in. In others (if not all for some case types), someone must go through the entire physical file to make sure there is not some “keeper” filed inside by mistake.

Then there’s the question of what to do with all that paper. (By the way, microfiche, being also physical, has corresponding problems). You can’t just toss it in the recycle bin — there are confidentiality considerations. If you outsource (a common solution), the service provider usually has to be bonded, provide security assurances, etc. And, ahem, they charge…

A dirty little secret among many courts is that they don’t actually purge until they have run out of storage space, because the cost of storage space, while not insignificant, is a lot less that the cost of purging in a legally and procedurally acceptable manner.

Given these factors, consider this: Every paper document a court receives or keeps — even if the court does absolutely nothing with it — is creating a downstream expense. Think you’ll move to an Enterprise Content Management (ECM) system and then just go digital “Day Forward”, leaving as many old, sleeping paper dogs (I mean documents) to lie? You might want to take into account what those documents are going to cost to get rid of.

One of the major benefits of ECM, and one that I think gets far too little credit in up-front financial business case development, is that it massively cuts the cost of compliance with the current requirements for document purging and destruction. From the time of receipt or creation, the document can be managed for retention, and ultimately, purging. If the policies change, no problem; the workflow process will be changed and the document correctly managed under the new rules. When the time comes to purge, varying levels of review can be selected and administered. Destruction itself can be securely accomplished, monitored, documented and later audited.

While courts are permitted/required to purge and destroy old documents (and no one but me is predicting that won’t be forever), that fact in itself provides huge, if not independently sufficient, incentive to move as expeditiously as possible to ECM.

Bye, Bye, Blankie

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I recently had the privilege of co-presenting a session on Court Document Retention in Michigan with Kevin Bowling, Court Administrator for Ottawa County Circuit Court in Michigan.  I played Sancho Panza to Kevin’s Don Quixote.  The windmill against which Kevin has led the charge for years is Michigan’s requirement that court documents with a retention period greater than ten years must be retained in either paper or microfilm form.  Currently pending legislation and rules changes would remove this hurdle and replace it with requirements that would actually ensure the long-term, safe, secure preservation of documents in electronic format.

As with virtually all long-standing rules, the so-called “Human-Readable Format” requirement sprang from a very real concern.  Anyone who still has a shelf full of old phonograph records understands immediately:  The record can be in pristine condition; but who still has a turntable to play it on?  Likewise, with “electronic” documents, the concern was that advances and changes in platforms would render the originals essentially inaccessible.

True – insofar as it goes.  However, it turns out people are still listening to Bing Crosby crooning “White Christmas; this despite the fact that Bing expired shortly after sinking his last putt decades ago, long before cd’s and iPods.  The music has been migrated through generations of technology so it can still be played twice an hour every day between Halloween and New Year’s Day.

In his quest to enlist support and make his case for changing the Human Readable requirement, Kevin points out the expense of compliance.  Moreover, he highlights the enormous lost opportunities for efficiencies and savings from ECM when the electronic records must be transferred to and managed as microfilm.  Furthermore, microfilm itself is far from permanent.  Over time, it degrades.  Replacement parts for microfilm readers are becoming difficult, if not impossible, to find.

In addition to these compelling arguments, there is one more very powerful reason to let loose of the Human Readable security blanket.  In a nutshell, storing a document as paper or microfilm is increasingly indistinguishable from destroying it altogether.

Note that, despite the retention requirements, the “official” document of record is the electronic instance – for very good reason.  The Human Readable version is close to unusable in today’s world.  It can’t be searched.  It can only be in one place at a time– a problem for paper and a show-stopper for microfilm–which has to be viewed on-site.

Worst of all, it is terribly insecure, although not in the way most people think.   Electronic documents, even if inaccurately indexed, can be located in numerous ways, across multiple keys or with search capabilities across both metadata and content.  With paper or microfilm, if the index is lost, corrupted, or inaccurate — the document is GONE!  It may last forever (doubtful); but it can never be found.  In fact, in some cases, no one will know if it ever existed in the first place.

Can’t happen?  What about all the cross references, Registers of Action, etc., etc.?  Well, the entire assumption of the Human Readable requirement is that ALL of those are gone/inaccessible due to the march of technology (or the complete return to a pre-electricity Stone Age).  Right?  We’re not talking about next week.  We’re talking about a hundred or more years from now.

Thus, ironically, the very concern that gave rise to the Human Readable requirement — guaranteed long-term accessibility — is the fundamental reason why Human Readable documents are no longer acceptable: they are essentially inaccessible by modern world standards.

The solution, as Kevin observes, is that the rules must REQUIRE permanent, periodic, structured review of the ongoing efficacy of the storage media.  The rules must mandate that as the technology changes, content will be migrated to newer media.  Arizona, for example, has adopted this approach.  Just as Bing never heard of MP3s, we have no idea what will be state-of-the-art for long-term document retention in thirty years, much less in two hundred.  But I’m betting it won’t be either paper or microfilm