A critical need by government agencies for more efficient methods
for the creation, storage, and retrieval of public records has led
to the adoption of varied information technology systems for
managing records. These include optical disk and CD ROM systems as
well as more established media such as microform and magnetic disk
and tape. While the advantages of such systems are many, the
complexity of safeguarding the integrity of records has increased,
requiring greater attention to issues relating to security,
accuracy, reliability, and accountability.
This publication provides North Carolina state, county, and
municipal agencies, and other subdivisions of government suggested
guidelines for establishing methods and procedures in the
preparation of records produced by information technology systems.
Implementation of the guidelines should increase the reliability
and accuracy of records regardless of the type of storage media
employed, thereby enhancing their admissibility and acceptance by
the courts as being trustworthy. Admissibility of printouts of
optical disk or CD ROM files is yet to be widely tested, but it is
expected that they will be treated similarly to printouts from
magnetic disk or tape files, i.e., accepted as originals if it is
shown that they reflect the data accurately. Amendments to several
statutes in 1999, including the Photographic Reproductions of
Business and Public Records as Evidence Act (G.S. §8-45.1),
should work to foster this acceptance. Appendix A contains excerpts
of relevant North Carolina statutes. Appendix B describes an
electronic records production self-warranty process, and includes a
model warranty form.
The suggested guidelines and self-warranty are expected to serve
as a basis for establishing State standards in the future. While
not now required, it is suggested that agencies employing an
information technology system consider their implementation. The
model form in Appendix B may be reproduced by agencies choosing to
begin warranting the production of electronic records.
Regardless of the information technology system employed, public
records must be made accessible unless otherwise exempt from
inspection by statute. Requests for copies must be filled as
promptly as possible, and the person making the request may elect
to have the copies in any and all media that the agency is capable
of providing. While not addressed specifically in these guidelines,
the capability of an information technology system to permit
inspection and examination of records is critical. Such capability
should be planned for and built into the system, particularly if
confidential and nonconfidential information are commingled. For
specifics on this requirement see applicable provisions of the
public records law, G.S. §132.
Nothing in this publication or the appendixes changes current
records retention and disposition scheduling procedures nor
authorizes the destruction of records, originals or copies.
The North Carolina guidelines are based on those contained in the
Association for Information and Image Management (AIIM) technical
report series, Performance Guidelines for the Legal Acceptance
of Records Produced by Information Technology Systems (AIIM
Catalog No. TR31). The technical reports may be purchased from AIIM.
Association for Information and Image Management
1100 Wayne Avenue, Suite 1100
Silver Spring, MD 20910
Tel: 301/587-8202
Fax: 301/587-2711
The statutes reprinted or quoted verbatim in the following pages
are taken from the General Statutes of North Carolina,
Copyright 1999, by the Michie Company, a division of Matthew Bender
and Company, Inc. and are reprinted with permission. All rights reserved.
Applicability of Suggested Guidelines
and Self-Warranty
These suggested guidelines are designed to be applicable to public
records produced by any information technology system, as
the term is defined below, regardless of the physical
characteristics of the record media or technology employed. The
suggested self-warranty certification (Appendix B) is designed for
officials with responsibility for electronic records.
Electronic record also is defined below.
Information Technology System: Any
process or system that employs a mechanical, photo-optical,
magnetic, electronic, or other technological device for producing
or reproducing records.
Process or System: Any information technology system.
Record: Information preserved by any
technique in any medium, now known or later developed, that can be
recognized by ordinary human sensory capabilities either directly
or with the aid of technology.
Public Record: Chapter 132,
section 132-1(a), of the North Carolina General Statutes defines
public records as meaning ". . .all documents, papers, letters,
maps, books, photographs, films, sound recordings, magnetic or
other tapes, electronic data-processing records, artifacts, or
other documentary material, regardless of physical form or
characteristics, made or received pursuant to law or ordinance in
connection with the transaction of public business by any agency of
North Carolina government or its subdivisions. Agency of North
Carolina government or its subdivisions shall mean and include
every public office, public officer or official (State or local,
elected or appointed), institution, board, commission, bureau,
council, department, authority or other unit of government of the
State or of any county, unit, special district or other political
subdivision of government." (See Appendix A for excerpts of other
relevant North Carolina statutes.)
Electronic Record: A record
created or reproduced in any medium by means of any system
requiring the aid of electronic technology to make the record
readable or otherwise comprehensible by ordinary human sensory
capabilities. (This definition does not apply to microform records,
which can be read with the aid of a magnifying glass.)
Original Record: A record
prepared in the first instance or any counterpart intended to have
the same effect by a person executing or issuing it. If data are
stored in a computer or similar device, any printout or other
output readable by sight shown to reflect the data accurately is an
" original." Original records preserve information over time in the identical
or functionally equivalent form to the original information.
Original records may present information in a form different from
the original information without affecting its quality. For
example, information preserved in digital format may be printed on
paper using different print fonts at different times.
Duplicate Record: A record
that is produced by the same impression as the original, or from
the same matrix, or by any other technique that accurately
reproduces the original. Duplicate records accurately reproduce original records, except
that duplicates may contain production, control, indexing,
certification, or other data not related to informational content
of the records and which do not affect the content of the records.
Image enhancement techniques may be used provided that they do not
change the information content of the records.
Note: Classifying electronic records as either
originals or duplicates may have little practical value;
the reliability and accuracy of the process or system used to
produce the records will likely be a more important consideration
by the courts in determining whether or not to admit them into
evidence. (Many such records can be expected to have indexing or
other control data added for purposes of location and retrieval,
making them duplicates by definition.)
Rules of Evidence. Modern
rules of evidence are based on statutes and special rules
prescribed by the courts, rather than on individual court
decisions. The federal government follows the Federal Rules of
Evidence while most states have adopted one or more uniform laws
that establish the admissibility of records in evidence such as the
Uniform Business Records Act, the Uniform Photographic copies of
Business and Public Records as Evidence Act, and the Uniform Rules
of Evidence. North Carolina statutes have incorporated language
accomplishing a similar result.
Laying a Proper Foundation.
Now, rules of evidence permit original and duplicate records to be
admitted into evidence provided that a proper foundation is laid by
a showing that the records are authentic. Laying a foundation is "the practice or requirement of introducing
evidence of things necessary to make further evidence relevant,
material or competent. . ." (Black's Law Dictionary). For example,
visible records produced with a computer in the form of computer
printouts or computer output microfilm (COM) are considered
originals if an appropriate witness convinces the court that they
accurately reflect the information in the computer files.
Information processing methods commonly employed in the business
world are readily accepted as reliable, while new information
system technologies are subject to greater scrutiny.
Life Expectancy of Media and
Admissibility of Records. The life expectancy of the media per
se has no bearing on the admissibility of the records maintained on
the media. This means that for some technologies it may be
necessary to periodically convert, regenerate, copy, or transfer
the records from one medium or technology to another in order to
preserve them.
Admissibility of Records
Transferred or Converted to Another Medium. The transfer or
conversion of records from one medium or technology to another
should not affect their admissibility as evidence provided that
quality and accuracy do not functionally change. Procedures
followed during the transfer or conversion should be carefully
documented.
The following features of a record should appear with sufficient clarity
so that each can be recognized.
Individual letters, numbers, and symbols
Combination of letters, numbers, and symbols forming words or sentences
Graphics such as signatures, logos, pictures, etc.
Sounds
Other features of records such as color, shape, texture, etc., that relate
to the content of the information
In other words, a record should be legible, accurate, and complete in that all
features essential to an accurate reading or comprehension of the record should
be present.
Characteristics of the Process or System Used to Prepare Records
Certain characteristics of an information technology system used to prepare
records ensure the accuracy of the information. The presence of these
characteristics demonstrates that the process or system is reliable and accurate, hence capable of producing
trustworthy records.
Records Produced As Part of a
Regularly Conducted Activity. Records produced in the regular
course of business are admissible if it can be established that the
process or system used to produce them is reliable and accurate. A
regularly conducted activity may include a regular pattern of
activity to produce the records on a daily, weekly, monthly, yearly,
or other cyclical schedule.A regularly conducted activity may also include records created as
part of a regular program of the organization, but at irregular
times. For example, when a planned program results in the one time
reproduction of records created prior to a specific year, this will
be viewed as a program proceeding in the regular course of
business, even though the reproduction only occurred once.
Accuracy. Records produced by methods to
ensure or enhance accuracy will be more readily admissible in evidence. This
process may include systematic quality control and audit procedures, as well
as operational oversight by someone with detailed knowledge of the process or
system used to produce the records.
Timeliness. Records produced
within a short period after the event or activity occurs tend to be
more readily acceptable as accurate than records produced long
after the event or activity. However, a challenge to admissibility
of a later-produced record can be overcome by a showing that the
time lapse had no effect on the record's contents. For example, a
computer printout of a statistical report produced annually in the
regular course of business can be shown to accurately consolidate
data compiled over the course of a year.
Separation of Confidential and
Nonconfidential Information. The characteristics of the
information technology system must include the ability to separate
confidential and nonconfidential information. A system's inability
to carry out this function cannot be used to deny inspection or
examination of public records. Because the agency must bear the
costs associated with separating such information, it is
recommended that the system have this function built in to save
time and expense when requests for inspection or copies are filled.
Components of the Process or System Used to Prepare Records
The components of a process or system can be reviewed to determine
how well the preparation of records is controlled. The
admissibility of records can successfully be defended from
challenge to the trustworthiness of the process if the process or
system includes adequate procedures, training programs, audit
trails, and audits.
Procedures. The establishment of
procedures through the use of detailed steps to be followed when
creating, modifying, duplicating, destroying, or otherwise managing
records provide for consistent quality control, problem resolution,
and other activities that might otherwise be subject to
inconsistent action, multiple interpretation, or misinterpretation.
Established procedures demonstrate what an organization plans to
do in managing and controlling the process or system–as opposed to
what it actually does. The trustworthiness of an organization's
records offered in evidence might well be judged by the established
procedures and how closely they are followed. Deviations can be
expected to be closely scrutinized, especially if the deviations
are from legally required procedures.
Training Programs. Formal training
programs for staff on details of the system procedures raise a
strong presumption that the procedures were correctly followed. If
an organization can show the court that staff knew what procedures
they were supposed to follow, it can also show that there is a high
likelihood that the procedures were in fact followed.
Audit Trails. Audit trails
document how the records were created, modified, stored, and
reported, who used the system, when they used it, what they did
while using the system, and what were the results. Properly
implemented audit trails can automatically detect who had access to
the system, whether staff followed standard procedures or whether
fraud or other unauthorized acts occurred or might be suspected.
They provide independent confirmation that proper procedures were in fact
followed.
Audits. Audits performed periodically
confirm that the process or system produces accurate results.
Audits must compare the procedures stated in the procedure's
documentation with procedures actually followed. They confirm that
the process or system adheres to this guideline. The term audits as
used here is different from quality control specified in most system procedures.
Quality control can be performed by individuals creating the records to verify
the accuracy at the time of creation. This ensures the accuracy of the
system for operational purposes. Audits may be used to confirm the accuracy of the process or
system for purposes of admissibility of records in evidence. When
ruling on the admissibility of the records, courts may require that
audits be performed by an independent source (i.e., persons other
than those who created the records or persons without an interest
in the content of the records, such as a trained auditor having
organization-wide audit responsibilities).
No particular method of auditing is required for a record,
original or duplicate, to be admitted as evidence. Audits should be
designed to evaluate the process or system's accuracy, timeliness,
adequacy of procedures, training provided, and the existence of
audit trails.For purposes of original records, audits also should focus on
whether the records incorporate the information of the acts, events, or
activities leading to the record. For duplicates, audits also should confirm that the duplicates accurately reproduce the originals. This normally involves
comparing statistically valid samplings of originals to their
corresponding reproductions prior to any destruction of the
originals.
Documentation of the process or system provides an enduring
verification of the process or system followed to produce or
reproduce the records. Without documentation, witnesses must rely
solely on memory–a form of evidence that, over time, becomes less
trustworthy and susceptible to contradiction. Documentation
preserves the information about the process or system independent
of the individuals involved and can be used to prepare exhibits to
guide witness testimony. Generally speaking, the documentation can
be introduced into evidence for the jury to scrutinize during their
deliberations.
Content. A knowledgeable person
should prepare and maintain documentation for the process or system
used to produce the records. Documentation should be complete and
up-to-date. This enables staff to be aware of and follow the most
current procedures. It also ensures that reliable system
documentation is immediately available if needed for court
proceedings. Documentation should be sufficient to demonstrate the
steps required to get from the beginning to the end of the process
and should describe the system hardware and software. In some
proceedings, a general, non-technical description of the process or
system will be sufficient. In others, more detailed documentation
may be required by the courts, including verification that any
equipment or software involved operated properly at the time the
records were produced.
Training documentation should include documentation of distribution of the
written procedures, course materials, attendance of individuals at training
sessions, remedial or refresher training programs, certifications of training
completion, and other relevant information, including dates.
Actual audit trail records demonstrate what activities actually
took place as part of the process or system. The actual audit
reports indicate whether the statistically valid sampling of
records produced accurate results and what remedial procedures were
followed if the expected level of accuracy was not achieved.
For purposes of laying a foundation for admissibility of records
in evidence, actual system procedures followed during the period
that the records in question were produced should be maintained in
sufficient detail to enable a qualified witness (e.g., the records
custodian) to rely on the documentation in describing the process
or system to the court. The documentation should explain what
should have been done, and what was actually done, and explain any
deviations from standard procedures. The training, audit trail, and
audit documentation should also be presented to confirm the
accuracy of the process or system.
Retention. At least one set of
documentation should be maintained during the period for which the
records produced by the process or system could likely be subject
to court review. When the documentation changes, the old versions
should continue to be maintained for the requisite period. The
court will determine the admissibility of the records in evidence
based on the accuracy of the process or system in effect at the
time the records were produced.
Availability of Process or System for Outside Inspection
The courts encourage pretrial discovery of computer programs and
related materials, recognizing that such information facilitates
effective cross-examination. The guideline applies this principle
to records produced by any information systems technology. The process or
system used to produce or reproduce records introduced into evidence is subject
to outside inspection by opposing parties and the court. Outside inspection
may include:
Review of procedures documentation
Review of system operation
Independent inspection and quality control tests
Independent audit
Testing of process or system operation
Review of equipment design and software documentation
Review of training programs
Any other matter related to the operation of the process or system
If the records were produced on the current or substantially
similar system, access to the system may be required to be provided
to outside parties upon request to process their own test data. If
the system used to produce the records no longer exits, any
existing documentation described above must be made available.
Failure to produce pertinent documentation because it no longer
exists may jeopardize admissibility of the records if their
trustworthiness cannot otherwise be established.
In sum, the hardware and software used and any relevant step of
the process or system can be reviewed by the outside party.
When determining the admissibility of records into evidence, the
court will consider the reliability and accuracy of the process or
system used to produce or reproduce the records. The particular
form or format of the records shall have no bearing on their legal
status regarding admissibility. Likewise, the destruction of
original records after reproduction shall not affect the legal
status of duplicate records regarding their admissibility.
All that is required for records to be deemed admissible is a
prima facie showing that the process or system is trustworthy
in terms of producing an accurate result. Once the records are
admitted, the trustworthiness of their content will remain subject
to challenge. For example, a computer printout of a record is
admissible if it is shown to be an accurate reflection of the
source data used to create the record, but this does not mean the
source data is necessarily correct.
The use of an information technology system should be carefully
planned. A thorough examination of an agency's entire records
keeping system should precede the purchase of any system, and
deficiencies corrected prior to implementation. System
documentation, metadata, and information maintained by that system
must be listed in an approved records retention and disposition
schedule prior to their destruction or other disposition. The
Division of Archives and History is able to assist agencies with
this process, and with the review of planning documentation
previously mentioned.
When planning system use, it also is recommended that records or
information retention be considered before implementation. Records
or information with relatively short retention requirements may
best be suited to traditional paper media or electronic systems.
Microfilm should be used as an alternative to computer readable
media if long-term or permanent retention is necessary. Its
stability, ease of duplication, and immunity from obsolescence make
it more suitable as a preservation duplicate.
Following the identification of retention requirements, the agency
should make provisions for routine upgrades to the proposed
information technology system if it is determined that the system
provides the best storage method. Upgrades or migrations to new
hardware and software, particularly on an enterprise-wide scale,
can be expensive. Agencies therefore should consider future
budgetary implications prior to purchasing an information
technology system. Because it is difficult at best to predict those
costs, it is recommended that a certain percentage of the startup
cost be built into initial budgets to accomplish future
conversions.
Other records management factors that commonly are thought only to
apply to paper-based systems also should be addressed. These
include security, access to and examination of data, duplication
procedures to meet public requests, and rendition and revision
control of inactive or archived records. Other considerations, such
as identifying and cataloging metadata, are unique to information
technology systems. It is thought that these guidelines will serve
as a basis for future recommendations concerning such unique
characteristics.
To further the goals of G.S. §132-6.1, a separate set of
guidelines are available that outline requirements for electronic
database indexing. Copies of those guidelines can be obtained free
of charge.
North Carolina Department of Cultural Resources
Division of Archives and History
4610 Mail Service Center
Raleigh, NC 27699-4610
G.S. 121-4 Powers and duties of the
Department of Cultural Resources.
(2) To conduct a records management program, including the
operation of a records center or centers and a centralized
microfilming program, for the benefit of all State agencies, and to
give advice and assistance to the public officials and agencies in
matters pertaining to the economical and efficient maintenance and
preservation of public records.
(a) State Archival Agency
Designated. - The Department of Cultural Resources shall be the
official archival agency of the State of North Carolina with
authority as provided throughout this Chapter and Chapter 132 of
the General Statutes of North Carolina in relation to the public
records of the State, counties, municipalities, and other
subdivisions of government.
(b) (Effective October 1, 1994)
Destruction of Records Regulated. - No person may destroy,
sell, loan, or otherwise dispose of any public record without the
consent of the Department of Cultural Resources. Whoever unlawfully
removes a public record from the office where it is usually kept,
or alters, mutilates, or destroys it shall be guilty of a Class 3
misdemeanor and upon conviction only fined at the discretion of the
court.
G.S. 132-3 (Effective January 1, 1995)
Destruction of records regulated.
G.S. 132-8.1 Records management
program administered by Department of Cultural Resources;
establishment of standards, procedures, etc.; surveys.
G.S. 132-8.2 Selection and
preservation of records considered essential; making or designation
of preservation duplicates; force and effect of duplicates or
copies thereof.
G.S. 132-1. "Public records" defined.
(a) "Public record" or "public records" shall mean all documents,
papers, letters, maps, books, photographs, films, sound recordings,
magnetic or other tapes, electronic data-processing records,
artifacts, or other documentary material, regardless of physical
form or characteristics, made or received pursuant to law or
ordinance in connection with the transaction of public business by
any agency of North Carolina government or its subdivisions. Agency
of North Carolina government or its subdivisions shall mean and
include every public office, public officer or official (State or
local, elected or appointed), institution, board, commission,
bureau, council, department, authority or other unit of government
of the State or of any county, unit, special district or other
political subdivision of government.
(b) The public records and public information compiled by the
agencies of North Carolina government or its subdivisions are the
property of the people. Therefore, it is the policy of this State
that the people may obtain copies of their public records and
public information free or at minimal cost unless otherwise
specifically provided by law. As used herein, 'minimal cost' shall
mean the actual cost of reproducing the public record or public
information.
G.S. 132-3. (Effective January 1, 1995)
Destruction of records regulated.
(a) Prohibition. - No public
official may destroy, sell, loan, or otherwise dispose of any
public record, except in accordance with G.S.
121-5, without the consent of the Department of Cultural
Resources. Whoever unlawfully removes a public record from the
office where it is usually kept, or alters, defaces, mutilates or
destroys it shall be guilty of a Class 3 misdemeanor and upon
conviction only fined not less than ten dollars ($10.00) nor more
than five hundred dollars ($500.00).
G.S. 132-8.1. Records management
program administered by Department of Cultural Resources;
establishment of standards, procedures, etc.; surveys.
A records management program for the application of efficient and
economical management methods to the creation, utilization,
maintenance, retention, preservation, and disposal of official
records shall be administered by the Department of Cultural
Resources. It shall be the duty of that Department, in cooperation
with and with the approval of the Department of Administration, to
establish standards, procedures, and techniques for effective
management of public records, to make continuing surveys of paper
work operations, and to recommend improvements in current records
management practices including the use of space, equipment, and
supplies employed in creating, maintaining, and servicing records.
It shall be the duty of the head of each State agency and the
governing body of each county, municipality and other subdivision
of government to cooperate with the Department of Cultural
Resources in conducting surveys and to establish and maintain an
active, continuing program for the economical and efficient
management of the records of said agency, county, municipality, or
other subdivision of government.
G.S. 132-8.2. Selection and
preservation of records considered essential; making or designation
of preservation duplicates; force and effect of duplicates or
copies thereof.
In cooperation with the head of each State agency and the
governing body of each county, municipality, and other subdivision
of government, the Department of Cultural Resources shall establish
and maintain a program for the selection and preservation of public
records considered essential to the operation of government and to
the protection of the rights and interests of persons, and, within
the limitations of funds available for the purpose, shall make or
cause to be made preservation duplicates or designate as
preservation duplicates existing copies of such essential public
records. Preservation duplicates shall be durable, accurate,
complete and clear, and such duplicates made by a photographic,
photostatic, microfilm, micro card, miniature photographic, or
other process which accurately reproduces and forms a durable
medium for so reproducing the original shall have the same force
and effect for all purposes as the original record whether the
original record is in existence or not. A transcript,
exemplification, or certified copy of such preservation duplicate
shall be deemed for all purposes to be a transcript,
exemplification, or certified copy of the original record. Such
preservation duplicates shall be preserved in the place and manner
of safekeeping prescribed by the Department of Cultural Resources.
(a) Copies of all official bonds, writings, papers, or documents,
recorded or filed as records in any court, or public office, or
lodged in the office of the Governor, Treasurer, Auditor, Secretary
of State, Attorney General, Adjutant General, or the State
Department of Cultural Resources, shall be as competent evidence as
the originals, when certified by the keeper of such records or
writings under the seal of his office when there is such seal, or
under his hand when there is no such seal, unless the court shall
order the production of the original. Copies of the records of the
board of county commissioners shall be evidence when certified by
the clerk of the board under his hand and seal of the county.
(b) The provisions of subsection (a) of this section shall apply
to records stored on any form of permanent, computer-readable
media, such as a CD-ROM, if the medium is not subject to erasure or
alteration. Nonerasable computer-readable storage media shall not
be used for preservation duplicates, as defined in G.S. 132-8.2, or for the preservation of
permanently valuable records as provided in
G.S. 121-5(b), except to the extent expressly approved by the
Department of Cultural Resources pursuant to standards and
conditions established by the Department.
"Copy" Defined. - A copy, within
the meaning of this section, is a transcript of the original, i.e.,
a writing exactly like another writing. State v. Champion, 116 N.C.
987, 21 S.E. 700 (1895); Wiggins v. Rogers, 175 N.C. 67, 94 S.E.
685 (1917).
Certification of Copy. -
The power of an officer, who is the keeper of certain public
records, to certify copies is confined to a certification of their
contents as they appear by the records themselves, and the records
must, therefore, be so certified, for he has no authority to
certify to the substance of them, nor that any particular fact, as
a date, appears on them. Wiggins v. Rogers, 175 N.C. 67, 94 S.E.
685 (1917).
Original Record Is
Admissible. - This section does not prevent the admission in
evidence of the original record itself. State v. Voight, 90 N.C.
741 (1884); State ex rel. Carolina Iron Co. v. Abernathy, 94 N.C.
545 (1886). See State v. Hunter, 94 N.C. 829 (1886); Charles S.
Riley & Co. v. Carter, 165 N.C. 334, 81 S.E. 414 (1914);
Blalock v. Whisnant, 216 N.C. 417, 5 S.E.2d 130 (1939).
While certified copies of records are admitted in evidence, the
originals are not thereby made incompetent. State v. Joyner, 295
N.C. 55, 243 S.E.2d 367 (1978).
G.S. 8-45.1. Photographic reproductions
admissible; destruction of originals.
(a) If any business, institution, member of a profession or
calling, or any department or agency of government, in the regular
course of business or activity has kept or recorded any memorandum,
writing, entry, print, representation, X ray or combination
thereof, of any act, transaction, occurrence or event, and in the
regular course of business has caused any or all of the same to be
recorded, copied or reproduced by any photographic, photostatic,
microfilm, microcard, miniature photographic, or other process
which accurately reproduces or forms a durable medium for so
reproducing the original, the original may be destroyed in the
regular course of business unless held in a custodial or fiduciary
capacity or unless its preservation is required by law. Such
reproduction, when satisfactorily identified, is as admissible in
evidence as the original itself in any judicial or administrative
proceeding whether the original is in existence or not and an
enlargement or facsimile of such reproduction is likewise
admissible in evidence if the original reproduction is in existence
and available for inspection under direction of court. The
introduction of a reproduced record, enlargement or facsimile, does
not preclude admission of the original.
(b) The provisions of subsection (a) of this section shall apply
to records stored on any form of permanent, computer-readable
media, such as a CD-ROM, if the medium is not subject to erasure or
alteration. Nonerasable computer-readable storage media shall not
be used for preservation duplicates, as defined in G.S. 132-8.2, or for the preservation of
permanently valuable records as provided in
G.S. 121-5(b), except to the extent expressly approved by the
Department of Cultural Resources pursuant to standards and
conditions established by the Department.
Editor's Note. - Notwithstanding the above citation, G.S.
G.S. 121-5(b) and G.S.
132-3 (a) require the consent of the Department of Cultural
Resources before any public record, original or copy, may be
destroyed.
Admissibility of
"Written Hearsay". - North Carolina countenances the
introduction of test results, certified copies of official
documents and records, as well as other writings, which, but for
statute or decisional authority, would be written hearsay. In re
Arthur, 27 N.C. App. 227, 218 S.E.2d 869 (1975), rev'd on other
grounds, 291 N.C. 640, 231 S.E.2d 614 (1977).
Evidence
Reproductions Are Primary. - Reproductions are made and kept
among the records of many banks in due course of business. Their
accuracy is not questioned. As proof of payment they constitute not
secondary but primary evidence. State v. Shumaker, 251 N.C. 678,
111 S.E.2d 878 (1960).
Photostatic copies of deposit slips and checks made by an employee
of a bank in the usual course of business and identified by such
employee are competent as primary evidence without proof of the
loss or destruction of the originals. Jones v. Metropolitan Life
Ins. Co., 5 N.C. App. 570, 169 S.E.2d 6 (1969).
Photocopies are
admissible as originals. - Pinner v. Southern Bell Tel. &
Tel. Co., 60 N.C. App. 257, 298 S.E.2d 749, cert. denied, 308 N.C.
387, 302 S.E.2d 253 (1983).
Business records are admissible as an exception to the hearsay
rule when they (1) are made in the regular course of business, at
or near the time of the events recorded; (2) are original entries;
(3) are based on the personal knowledge of the individual making
the entries; and (4) are authenticated by a witness familiar with
the system by which they were made. Pinner v. Southern Bell Tel.
& Tel. Co., 60 N.C. App. 257, 298 S.E.2d 749, cert. denied, 308
N.C. 387, 302 S.E.2d 253 (1983).
Failure to Show That
Copy Was Made in Regular Course of Business or by Whom It Was
Made. - A photostatic copy of a purported written designation
of plaintiff by deceased as the beneficiary of deceased's
governmental life insurance benefits should not be admitted as
evidence where plaintiff failed to show that the copy was made in
the regular course of business or activity of any federal agency or
by whom it was made. Jones v. Metropolitan Life Ins. Co., 5 N.C.
App. 570, 169 S.E.2d 6 (1969).
G.S. 153A-436. Photographic
reproduction of county records.
(a) A county may provide for the reproduction, by photocopy,
photograph, microphotograph, or any other method of reproduction
that gives legible and permanent copies, of instruments, documents,
and other papers filed with the register of deeds and of any other
county records. The county shall keep each reproduction of an
instrument, document, paper, or other record in a fire-resistant
file, vault, or similar container. If a duplicate reproduction is
made to provide a security copy, the county shall keep the
duplicate in a fire-resistant file, vault, or similar container
separate from that housing the principal reproduction.
If a county has provided for reproducing records, any custodian of
public records of the county may cause to be reproduced any of the
records under, or coming under, his custody.
(e) A reproduction, made pursuant to this Article, of an
instrument, document, paper, or other record is as admissible in
evidence in any judicial or administrative proceeding as the
original itself, whether the original is extant or not. An
enlargement or other facsimile of the reproduction is also
admissible in evidence if the original reproduction is extant and
available for inspection under the direction of the court or
administrative agency.
(f) The provisions of subsection (a) of this section shall apply
to records stored on any form of permanent, computer-readable
media, such as a CD-ROM, if the medium is not subject to erasure or
alteration. Nonerasable computer-readable storage media shall not
be used for preservation duplicates, as defined in G.S. 132-8.2, or for the preservation of
permanently valuable records as provided in
G.S. 121-5(b), except to the extent expressly approved by the
Department of Cultural Resources pursuant to standards and
conditions established by the Department.
G.S. 160A-490. Photographic
reproduction of records.
(a) General Statutes 153A-436 shall apply to cities. When a county
officer is designated by title in that Article, the designation
shall be construed to mean the appropriate city officer, and the
city council shall perform powers and duties conferred and imposed
on the board of county commissioners.
(b) The provisions of subsection (a) of this section shall apply
to records stored on any form of permanent, computer-readable
media, such as a CD-ROM, if the medium is not subject to erasure or
alteration. Nonerasable computer-readable storage media shall not
be used for preservation duplicates, as defined in G.S. 132-8.2, or for the preservation of
permanently valuable records as provided in
G.S. 121-5(b), except to the extent expressly approved by the
Department of Cultural Resources pursuant to standards and
conditions established by the Department.
The increased complexity of safeguarding the integrity of
public records produced by means of information technology requires
greater attention to issues relating to security, accuracy,
reliability, and accountability. The Electronic Records Production
Control Self-Warranty is designed to be used as a self-evaluation
tool in an effort to ensure that electronic records produced by
state, county, and municipal agencies, and other subdivisions of
government are created, reproduced, and otherwise managed in
accordance with guidelines that will enhance their reliability and
accuracy.
Implementation Suggested but
Not Required
While the warranting of electronic records, as the term
is defined below and in section II of the guidelines, is suggested,
it is not now required. Agencies choosing to begin the process may
reproduce the model self-warranty form. It should be signed by the
agency records officer or other responsible official and retained
by the originating agency. The warranties should be made available
to records analysts and auditors.
Limitation of
Self-Warranty
The self-warranting of records in itself does not
authorize the destruction of records, originals or copies,
nor does it change current records retention and disposition
scheduling procedures.
Self-Warranty
Based on Guidelines Publication
The self-warranty form is based on the suggested guidelines
set forth in this publication. A copy of the guidelines can be
obtained by contacting the Division of Archives and History of the
North Carolina Department of Cultural Resources, 4610 Mail Service
Center, Raleigh, North Carolina 27699-4610, telephone no.
(919) 807-7350, fax no. (919) 715-3627.
Authority
Chapters 121 and 132 of the North Carolina General Statutes (See Appendix A) define public records and
assign responsibility for regulating their preservation and
destruction to the Department of Cultural Resources. This
responsibility is carried out through the Division of Archives and Records. Under this
program, the section analyzes the records created by state
agencies, counties, municipalities, and other subdivisions of
government, prepares records retention and disposition schedules,
maintains the State Archives, and provides services related to
records retention and disposal. It is contemplated that at some
time in the future the Division will use the suggested guidelines
and self-warranty in creating rules which would be applicable to
electronic records with regard to the Division's duties under
Chapters 121 and 132.
Electronic Record Defined
Electronic Record is defined as a record created or
reproduced in any medium by means of any system requiring the aid
of electronic technology to make the record readable or otherwise
comprehensible by ordinary human sensory capabilities. (This
definition does not apply to microform records, which can be read
with the aid of a magnifying glass.)
Responsibility for Ensuring Integrity of Electronic Records
The government agency producing electronic records and/or
reproductions is responsible for ensuring their authenticity and
accuracy. The Division of Archives and Records is in no position
to certify the authenticity and accuracy of any records, whether
originals or reproductions, produced by the originating agency.
Model Form
A Model Form that you can use as is or modify is available here as an HTML document.