D R A F T

FOR DISCUSSION ONLY

AUTHENTICATION AND PRESERVATION OF STATE ELECTRONIC LEGAL MATERIALS ACT

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NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

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April 2010 Interim Draft

Without Prefatory Note or Comments

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

The ideas and conclusions set forth in this draft, including the proposed statutory language and any comments or reporter=s notes, have not been passed upon by the National Conference of Commissioners on Uniform State Laws or the Drafting Committee. They do not necessarily reflect the views of the Conference and its Commissioners and the Drafting Committee and its Members and Reporter. Proposed statutory language may not be used to ascertain the intent or meaning of any promulgated final statutory proposal.

April 15, 2010

DRAFTING COMMITTEE FOR AUTHENTICATION AND PRESERVATION OF STATE ELECTRONIC LEGAL MATERIALS ACT

The Committee appointed by and representing the National Conference of Commissioners on Uniform State Laws in drafting this Act consists of the following individuals:

MICHELE L. TIMMONS, 700 State Office Bldg. 100 Rev. Dr. Martin Luther King Jr. Blvd.,

St. Paul, MN 55155, Chair

JERRY L. BASSETT, 613 Alabama State House, 11S. Union St., Montgomery, AL 36130

DAVID D. BIKLEN, 153 N. Beacon St., Hartford, CT 06105

DIANE F. BOYER-VINE, State Capitol, Room 3021, Sacramento, CA 95814-4996

STEPHEN Y. CHOW, 125 Summer St., Boston, MA 02110-1624

VINCENT C. DeLIBERATO, Jr., Main Capitol Bldg., Room 641, Harrisburg, PA 17120-0033

GENE H. HENNIG, 500 IDS Center, 80 South Eighth St., Minneapolis, MN 55402-3796

STEVEN L.WILLBORN, University of Nebraska College of Law, Ross McCollum Hall, 42 & Fair St., P.O. Box 830902, Lincoln, NE 68583-0902

BARBARA A. BINTLIFF, University of Colorado at Boulder, 424 Wolf Law Bldg., 401 UCB, Boulder, CO 80309-0401, Reporter

EX OFFICIO

ROBERT A. STEIN, University of Minnesota Law School, 229 19th Avenue South, Minneapolis, MN 55455, President

JACK DAVIES, 1201 Yale Pl., Unit 2004, Minneapolis, MN 55403-1961, Division Chair

AMERICAN BAR ASSOCIATION ADVISOR

LUCY THOMSON, 915 N. Quaker Dr., Alexandria, VA 22302, ABA Advisor

PHYLLIS B. PICKETT, 401 Legislative Office Bldg., 300 N. Salisbury St., Raleigh, NC 27603, ABA Section Advisor

EXECUTIVE DIRECTOR

JOHN A. SEBERT, 111 N. Wabash Ave., Suite 1010, Chicago, IL 60602, Executive Director

Copies of this Act may be obtained from:

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

111 N. Wabash Ave., Suite 1010

Chicago, Illinois 60602

312/450-6600

www.nccusl.org

AUTHENTICATION AND PRESERVATION OF STATE ELECTRONIC LEGAL MATERIALS ACT

TABLE OF CONTENTS

SECTION 1. SHORT TITLE. 1

SECTION 2. DEFINITIONS. 1

SECTION 3. OFFICIAL ELECTRONIC LEGAL MATERIAL. 2

SECTION 4. AUTHENTICATION OF ELECTRONIC LEGAL MATERIAL. 2

SECTION 5. EFFECT OF AUTHENTICATION.. 3

SECTION 6. PRESERVATION OF ELECTRONIC LEGAL MATERIAL. 3

SECTION 7. PUBLIC ACCESS TO ELECTRONIC LEGAL MATERIAL. 3

SECTION 8. STANDARDS. 4

SECTION 9. UNIFORMITY OF APPLICATION AND CONSTRUCTION. 4

SECTION 10. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. 4

SECTION 11. EFFECTIVE DATE. 4

AUTHENTICATION AND PRESERVATION

OF STATE ELECTRONIC LEGAL MATERIALS ACT

SECTION 1. SHORT TITLE. This [act] may be cited as the Authentication and

Preservation of State Electronic Legal Materials Act.

SECTION 2. DEFINITIONS. For the purposes of this [act]:

(1) “Electronic” means relating to technology having electrical, digital, magnetic,

wireless, optical, electromagnetic, or similar capabilities.

(2) “Legal material” means:

(A) a law or statute enacted by the [state legislature];

(B) a codified law or statute; [and]

[(D) any other state administrative rule][;] [and]

[(E) a decision of a state administrative agency that has precedential effect][;] [and]

[(F) an appellate judicial decision or other judicial decision that has precedential effect][;] [and]

[(G) any other record, as specified]].

(3) “Official publisher” means:

(A) for a law or statute enacted by the [state legislature], the [agency or official]; (B) for a codified law or statute, the [agency or official]; [and]

[(D) for any other state administrative rule, the [agency or official][; ] [and]

[(E) for a decision of a state administrative agency that has precedential effect, the [agency or official][;] [and]

[(F) for an appellate judicial decision or other judicial decision that has precedential effect, the [agency or official][;] [and]

[(G) for any other record specified, the [agency or official][;] [and]

[(H) for any legal material for which no official publisher is designated, the [secretary of state or other agency or official]].

(4) “Publish” means to produce, display, present, or release to the public.

(5) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(6) “State” means a state of the United States, the District of Columbia, Puerto

Rico, the United States Virgin Islands, or any territory or insular possession subject to the

jurisdiction of the United States.

(7) [Other definitions to be added?]

SECTION 3. OFFICIAL ELECTRONIC LEGAL MATERIAL.

(a) If the official publisher of legal material publishes a print version of the legal material, the official publisher may designate an electronic version as official if the requirements of Sections 4, 6, and 7 are met.

(b) If the official publisher of legal material publishes the legal material only in an electronic version, the official publisher shall:

(1) designate the electronic version as official; and

(2) meet the requirements of Sections 4, 6,and 7.

SECTION 4. AUTHENTICATION OF ELECTRONIC LEGAL MATERIAL. The official publisher of legal material in an electronic record that is designated official under Section 3 shall authenticate the record. To authenticate the record, the official publisher shall certify that the electronic record is a true and correct copy of the legal material it purports to be by providing:

(1) a method for users to determine that the electronic record is unaltered from the one published by the official publisher; and

(2) sufficient information to determine that the certification is valid.

SECTION 5. EFFECT OF AUTHENTICATION.

(1) Electronic legal material authenticated under Section 4 is presumed to be a true and correct copy of the legal material it purports to be.

(2) Electronic legal material from another state that is authenticated in a manner that complies with Section 4 is presumed to be a true and correct copy of the legal material it purports to be.

SECTION 6. PRESERVATION OF ELECTRONIC LEGAL MATERIAL. The official publisher of legal material in an electronic record shall preserve all published legal material. To preserve legal material, the official publisher shall establish procedures to:

(1) protect the electronic record, which includes retention of formatting with legal significance; and

(2) provide for back-up and disaster recovery; and

(3) ensure the continuing usability of the legal material, which may include periodic

updating into new electronic formats if necessary.

SECTION 7. PUBLIC ACCESS TO ELECTRONIC LEGAL MATERIAL. The official publisher of legal material shall ensure that the legal material preserved under Section 6 is reasonably available on a permanent basis for use by the general public. If the legal material is published only in an electronic record, the official publisher shall continue to publish it in an electronic record.

SECTION 8. STANDARDS. In implementing the requirements of this [act], the official publisher shall consider:

(1) standards and practices of other jurisdictions;

(2) any standards on authentication and preservation of records adopted by national standard-setting bodies; and

(3) the needs of electronic record users.

SECTION 9. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.

SECTION 10. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. This [act] modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).

SECTION 11. EFFECTIVE DATE. This [act] takes effect [date]…