Since 1998 the OhioERC has been developing and providing guidance for the management of Ohio’s state and local electronic records. These have been established in a series of guidelines and corresponding tip sheets. Currently, the OhioERC is in an extended period of updating and transitioning of the guidelines into singular web publication to exist on this new rendition of the OhioERC.org website.
The foundation for consolidation “Legal Obligation to Properly Manage Electronic Public Records” and “Electronic Records Management“ are found below, while the other existing guidelines are on the following linked pages:
- Databases as Public Records
- Document Imaging
- General Schedules for Administrative Electronic Records (PDF)
- Hybrid Microfilm
- Information Governance
- Social Media
- Trustworthy Information System Handbook
- Web Content
Legal Obligation to Properly Manage Electronic Public Records
This statement of legal obligation was adopted by the OhioERC at the June 19, 2008 meeting and subsequently revised at the January 25, 2012 meeting.
Section 149.43(B) of the Ohio revised Code requires every state and local public office to organize, maintain, and understand its public records. The law states that the office must “organize and maintain public records in a manner that they can be made available for inspection or copying” within a reasonable amount of time. The law also states that the public office must “have available a copy of its current records retention schedule” and must post its public record policy in all locations where the public office has branch offices. If a request is denied in part or whole, the office must provide “an explanation, including legal authority, setting forth why the request was denied.” Last, if a requester makes an ambiguous or overly broad request or has difficulty in making a request for copies or inspection of public records, the office must inform the requester “of the manner in which records are maintained by the public office and accessed in the ordinary course of business .”
If a public office fails to satisfy its recordkeeping obligation under state law, the Ohio Public Records Act allows an aggrieved party to sue the public office in court. The party may request an order directing the public office to manage its records, explain its system or process of management or provide access to public records. In addition to obtaining the court order, an aggrieved party may be awarded fines, attorney fees and court costs, and statutory damages. O.R.C. 149.43(C)(1)
On the other hand, if a public office has control of its records and recordkeeping practices, not only will it be in compliance with the Public Records Act, it will be better equipped to locate and retrieve records. Thus, the office will become more productive and efficient and will reduce risk of future non-compliance with the law.
Federal and State Rules of Civil Procedure
Federal and state rules of governing litigation are another source of a public office’s obligation to organize, maintain and understand its records and recordkeeping processes. The Federal Rules of Civil Procedure is law governing litigation filed in the federal courts. Similarly, the Ohio Rules of Civil Procedure is law governing litigation files in state courts. Each time your public office sues or is sued in court, it is subject to these rules.
The rules of civil procedure dictate how the parties obtain information from each other during lawsuits. In the past these court rules were behind in addressing technology. However, in 2006 the U.S. Supreme Court adopted changes in the federal rules specifically to address management and disclosure of electronic records. In 2008, The Ohio Supreme Court followed suit by updating the state rule to be consistent with the federal rules.
Both the federal and Ohio rules specifically address electronic records. Under Federal Rule 26(f), shortly after a lawsuit is filed, counsel for both parties must “meet & confer” on electronic records. Parties have an obligation to disclose to each other, prior to any requests for records from each other, a copy or description by category of all documents and electronically stored information that the disclosing party may use to support its claims or defenses. In addition, both parties have an obligation to evaluate their capacity to comply with document or information demands from the other party.
The amended rules also provide two protections for public offices in litigation for those public offices who already appropriately manage their records. First, , under Federal Rule 26(b)(2)(B) and Ohio Rule 26(B)(4), a producing party does not have an obligation to produce electronically stored information identified as not reasonably accessible due to undue burden or cost. As a result, by identifying the electronic records early in the process and identifying those that are inaccessible, the responding party can avoid unnecessary expenses and delays in providing records in difficult forms and formats. Second, Federal Rule 37(e) and Ohio Rule 37(F) provide that absent exceptional circumstances, the court may not impose sanctions for failing to provide electronically stored information lost as a result of the routine, good-faith operation electronic information system.
Unlike the Ohio Public records Act, the federal and state rules of civil procedures are enforced fairly quickly by the judge overseeing the case. If a party is unprepared to explain its management of records, cannot identify the form or formats in which the information is available, or cannot suspend the destruction of relevant information in a timely good faith manner, then the judge has the discretion to impose additional obligations, adverse references, or other sanctions against the unprepared party.
For more information regarding the Federal Rules of Civil Procedures visit: Federal Rules of Civil Procedures
- Legal Obligation to Properly Manage Electronic Public Records as of January 25, 2012 (PDF)
- Superseded June 19, 2008 version with minor link revisions as of August 4, 2011(PDF)
- Download Tip Sheet⇒ Records Management’s Role in E-Discovery (2012 – PDF)
Electronic Records Management
This publication is about maintaining accountability and preserving important historical records in the electronic age. It is designed to provide guidance to users and managers of computer systems in Ohio government about:
- the problems associated with managing electronic records, special recordkeeping and accountability concerns that arise in the context of electronic government,
- archival strategies for the identification, management and preservation of electronic records with enduring value,
- identification and appropriate disposition of electronic records with short-term value, and
- improving access to state government records.
These guidelines may be utilized by Ohio state government agencies. These guidelines apply and extend the policies and practices for records management to problems resulting from the transition from paper-based to electronic recordkeeping.
- Download⇒ Electronic Records Management Guidelines (2013 – PDF)
- Download⇒ Electronic Records Management Guidelines (2000 – PDF)
- Download Tip Sheet⇒ The Case for Managing Electronic Records (2012 – PDF)
- Download Tip Sheet⇒ Unique Characteristics of Electronic Records (2012 – PDF)
- Download Tip Sheet⇒ Who Should be at the Table? (2011 – PDF)
- Download ⇒ Electronic Recordkeeping System Checklist (2014 – xlsx)
- Download ⇒ Electronic Recordkeeping System Decision Matrix (2014 – PDF)
- Download ⇒ Electronic Recordkeeping System Decision Matrix (2014 – docx)