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Affordable Digital Preservation for Libraries and Museums

Ensuring your digital content and collections are safe and accessible for future generations

Essential GuideEssential Guide

Safeguarding Long-Term and Permanent Electronic State Court Records Exploring the importance of building digital preservation into state court information governance to ensure vital long-term and permanent electronic records remain accessible, usable and trustworthy into the future

Authored by Charles Dollar and Lori Ashley

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Executive Summary

State courts are the workhorse of the U.S. judicial system in the 21st century, and play a pivotal role in shaping American politics and society. They face major pressures amidst growing caseloads and constrained budgets to keep pace with rapid societal changes and technology cycles, and to manage complex interdependencies between the stakeholders, business processes, and information management infrastructure that make up each state’s unique judicial system.

One area of current focus is the need for systematic, compliant retention and disposal of court case and administration electronic records.1 Records are essential to efficient court operations but also to the practice of law and judicial proceedings. In particular, consideration is urgently needed by court leaders to mitigate risk to long-term2 and permanent court records which are endangered by technology obsolescence, media fragility, bit rot and other forms of corruption.

Recognizing challenges associated with exponentially increasing digital content and potential exposures related to security and privacy, many private organizations and governments have begun to retool long- standing approaches to the management of information. Records managers, analysts, and vendors3 are advocating Information Governance (IG) as a coordinated decision- making and accountability framework for maximizing the value of information while minimizing its costs and risk.

The Sedona Conference®, a nonprofit research and educational institute dedicated to advanced study of law and policy, and to building consensus on tipping point issues among leaders of the bench and bar, recognized the risk to long- term digital information in their 2013 Commentary on Information Governance. The Commentary identifies 11 principles that organizations should take into account when developing and operating an Information Governance program. Principle 9 calls for organizations to take measures for “the on- going integrity and availability of long- term digital information for its useful life.” Even a cursory review of judicial branch records retention schedules reveals that “useful life” for many court records extends well beyond 25 years.

This Essential Guide explores how state courts can take steps to mitigate and protect their long- term and permanent electronic records by integrating standards- based digital preservation requirements into their records management programs. It is a call to action for state court leaders to recognize the criticality of proactively ensuring digital content and records can still be read and used far into the future.

The Guide identifies the recognized standards and best practice for the preservation and safekeeping of long- term digital information and records. It offers recommendations for how to “future- proof” long- term digital content and integrate these capabilities with existing court document management and case management systems.

1 Linhares, Gregory J., and Nial Raaen. To Protect and Preserve: Standards for Maintaining and Managing 21st Century Court Records. Conference of State Court Administrators,2012- 2013 Web. 10 Nov. 2014. 2 Long- term is a period of time long enough for there to be concern about the impacts of changing technologies, including support for new media and data formats, or with a changing user community. This can be as short as five to seven years and extends indefinitely. In this Essential Guide long- term is assumed to be 10 years or greater (10+ years). 3 See generally, Information Governance Initiative, www.iginitiative.com.

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Contents 1. Trends in State Court Records and Information Management

2. Threats to Long-Term and Permanent Electronic Records

3. Digital Preservation Standards and Best Practices

4. Assessing the Capabilities of Content and Preservation Systems

5. Integrated State Court Records Lifecycle Management

6. Conclusions and Call to Action

7. Useful Resources

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1. Trends in State Court Information and Records Management

Over the past few decades, U.S. federal, state, and local judicial systems have increasingly come to depend on digital technologies and specialized software to manage E-filings4 and court cases, deliver operational support services, and provide ready access for litigants and other stakeholders to judicial records and information. Courts at all levels are actively converting paper record filings to digital images and implementing robust document management repositories. Notable progress has been made in the development and adoption of judicial system interoperability5 and case management file standards6 over the past decade by courts and software system vendors.

Despite significant differences in laws, culture, infrastructure, resources and processes, state court systems share a common threat: essential long-term and permanent electronic records are at risk of not being findable, readable or usable, and trustworthy when required. Some born-digital or converted electronic court records must be retained for decades to meet operational and legal requirements but can eventually be destroyed. Other records will be retained permanently and must remain available and trustworthy across successive generations of technology and custodians. Although some of these electronic records may be transferred to the State Archives or another certifiable digital repository, many more long-term and permanent electronic records will remain the sole responsibility of the courts.

Recent informal surveys and anecdotal evidence suggest there are burgeoning “ice bergs” of digital content held by state courts that have yet to be brought under defensible life cycle records management controls. This digital content includes capital felony case files, estate and adoption records, trust proceedings, custody cases, complex civil litigation, and precedent-setting cases of historical value. As the 2014 Joint Technology Committee (JTC) Resource Bulletin notes, “Whether a centralized or decentralized court system, there are good arguments that records management policies be consistent throughout the statewide judicial system.”7

4 E- filing is the electronic creation and transmission of legal documents from an attorney, party or self- represented litigant or to another court, and from an attorney or other user to another attorney or other user of legal documents. 5 National Information Exchange Model (NIEM) and specifications of the Electronic Case File standard (ECF) mandate the use of OASIS Legal XML Format. 6 Some state courts have adopted the federal court Case Management Electronic Case File (CM/ECF) standard that mandates use of PDF/A. 7 JTC Resource Bulletin, Developing an Electronic Records Preservation and Disposition Plan, Version 1.0 (2014), pg. 3

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2. Threats to Long-Term and Permanent Records

Permanent paper records stored in an office or Records Center require little attention while they are waiting for transfer to a long- term repository. The paper- based model of transferring records to a trusted repository for safeguarding late in the lifecycle, however, is wholly insufficient for addressing the threats to long- term and permanent electronic state court records.

Reasons why digital records will become unusable if left unattended for only a few short cycles include hardware, software, and file format obsolescence as well as threats from malicious and accidental human actions:

Fragile Storage Media Long- term and permanent electronic state court records will have to survive across multiple generations of technologies and court custodians. These records are encoded as bit steams (representations of 1s and 0s) onto magnetic and optical storage media. Bit streams can be corrupted and succumb to catastrophic failure if they are not stored properly and periodically transferred to newer storage media. Renewal through transfer to new storage media is the only known way to mitigate the fragility of digital records. Keeping bit streams alive is a threshold requirement for ensuring that long- term and permanent digital records are available over time.

File Format Obsolescence All electronic records rely on computer software to interpret the bits on storage devices/media and render the bits into usable human readable content. This is an absolute dependency for which there is no solution. Many commonly used computer applications use proprietary native file formats to create, save, store, manage and retrieve digital content. Many digital records can only be retrieved, displayed, and printed using the original software application that created the records. If a software application becomes obsolete after only a few years, the likelihood increases that the records will not be accessible or usable in the future when needed. The generally accepted best practice to address file format obsolescence is by the capture of electronic records in open standard technology neutral formats, which can be easily updated as technologies change over time.

Vulnerability to Unauthorized Changes Unlike paper records, electronic records are vulnerable to accidental or intentional changes that leave no visible evidence of the modifications and therefore undermine their evidential weight. Accidental changes can occur during routine processing or result from human error. Intentional changes occur when unauthorized changes are made, system security is breached, or when an external third party maliciously tampers with the records. An equally insidious challenge occurs when deliberate changes are made to content published to the World Wide Web purporting to be true and authentic copies when in fact they are counterfeit. Given the skills and resources of hackers, establishing and sustaining the trustworthiness of digital records and repositories, therefore, is likely to be an on- going challenge for state courts. Ensuring the security and preservation of digital information requires a holistic approach that incorporates an electronic chain of custody consisting of integrity validation checks and audit trails of preservation actions over the life of the assets.

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Organizations tasked with safeguarding long- term, permanent, and historical records (e.g. archives, libraries, museums, science and academic research & data centers) have long recognized that digital content is fragile and under threat so they have developed preservation strategies, standards, systems and best practice to ensure valuable digital records remain accessible and useable over the long- term.

Adoption of these resources by state courts to support planning and implementation of digital preservation systems would enable different facets of judicial systems to share a common language and common tools to address their common obligations regarding protection and long- term access to court records.

Prevailing Standards In 2003 the International Standards Organization8 issued the ISO 14721 Open archival information system — Reference model, popularly known as “OAIS”. Revised in 2012, the standard identifies a high level framework of functions and actions that an Archive9 must undertake to preserve permanent and manage indefinite long- term digital information for its Designated Community.10 This figure identifies the primary functions of a trustworthy digital preservation environment that conforms to ISO 14721:2012 specifications including:

Ingest: Required actions to ingest records and digital content from a variety of sources into the archives in a managed manner.

Archival Storage: Safe and secure storage based on standard data management tools and practices, mitigation of format obsolescence, and integrity protection.

8 ISO (the International Organization for Standardization) is a worldwide federation of national standards bodies who prepare international standards through the work of technical committees. Copies of international standards may be obtained for a fee at www.iso.org 9 The standard defines OAIS as an Archive, which may be part of a larger organization, of people and systems that has accepted the responsibility to preserve information and make it available for a Designated Community. It meets a set of responsibiities described in ISO 14721 that distinguishes it from other uses of the term ‘archive.” 10 A Designated Community is an identified set of potential consumers (users) who should be able to understand a particular set of information. The Designated Community may change over time.

3. Digital Preservation Standards and Best Practices

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Administration: Role and access right controls to administer the system including security down to the digital object level.

Data Management: Tools and workflows to initiate and track preservation actions and control metadata.

Preservation Planning: Reporting and monitoring activities that ensure digital content in Archival Storage remains accessible and understandable by Consumers.

Access: Tools that supports dissemination of and appropriate levels of access to digital content for internal and external Consumers.

In 2005 the Research Library Group and the National Archives and Records Administration (RLG- NARA) issued Trustworthy Repositories Audit and Certification: Criteria and Checklist (TRAC) to support certification of a range of repositories and archives. TRAC evolved into ISO 16363:2012, Audit and Certification of Trustworthy Digital Repositories, a recommended practice for assessing the trustworthiness of ISO 14721 conforming repositories. A number of world class institutions (US Government Publishing Office and the Library and Archives Canada) have stated their intention to seek ISO 16363 certification.11 At least one Italian jurisdiction has passed into law12 a requirement for government digital repositories to become certified. It seems reasonable to expect that additional sectors and industries will follow suit in the coming years.

Combined, the ISO 14721 and ISO 16363 standards identify requirements for the establishment and sustainability of a trustworthy digital records repository.

11 Audit and Certification of Trustworthy Digital Repositories, ISO, http://www.iso16363.org/. 12 Accreditamento e conservatori, AGENZIA PER L’ITALIA DIGITALE (July 2, 2015), http://www.agid.gov.it/agenda- digitale/pubblica- amministrazione/conservazione/accreditamento- conservatori.

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4. Assessing Capabilities of Content and Preservation Systems

As a reference model, the Open Archival Information System standard (ISO 4721:2012) describes preservation functions and associated actions at a very high level, not as an implementation model. Accordingly, these functions and associated actions must be deconstructed into terms readily understood by practitioners and that can be implemented in a variety of operational environments.

E- Filing and state court case management systems are rapidly becoming major digital content repositories, containing both active and inactive records. Some content and storage systems used by state courts are able to purge records when they become eligible for destruction. They may also support conversion of records to alternative file formats such as PDF, PDF/A, and XML at designated cutoffs.

But these represent only a fraction of the controls needed to comply with state court records retention requirements and international standards for keeping long- term and permanent digital assets viable and trustworthy over time. These systems also do not address state court requirements for preservation of more complex digital objects such as audio, video, webpages, database files, and emails.

This table compares features of records management systems, e- filing and case management systems, standard industry storage and backup with functionality in an ISO 14721 conforming digital preservation system. A critical area is the clear delineation of roles and responsibilities among users and system custodians, especially with regard to the role of Information Technology Services and third parties.

Table 1. Comparison of roles and functions of recordkeeping and digital preservation systems

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4. Assessing  Capabilities  of  Content  and  Preservation  Systems

As  a  reference  model,  the  Open  Archival  Information  System  standard  (ISO  4721:2012)  describes  preservation  functions  and  associated  actions  at  a  very  high  level,  not  as  an  implementation  model.  Accordingly,  these  functions  and  associated  actions  must  be  deconstructed  into  terms  readily  understood  by  practitioners  and  that  can  be  implemented  in  a  variety  of  operational  environments.  

E-­‐Filing  and  state  court  case  management  systems  are  rapidly  becoming  major  digital  content  repositories,  containing  both  active  and  inactive  records.  Some  content  and  storage  systems  used  by  state  courts  are  able  to  purge  records  when  they  become  eligible  for  destruction.  They  may  also  support  conversion  of  records  to  alternative  file  formats  such  as  PDF,  PDF/A,  and  XML  at  designated  cutoffs.    

But  these  represent  only  a  fraction  of  the  controls  needed  to  comply  with  state  court  records  retention  requirements  and  international  standards  for  keeping  long-­‐term  and  permanent  digital  assets  viable  and  trustworthy  over  time.  These  systems  also  do  not  address  state  court  requirements  for  preservation  of  more  complex  digital  objects  such  as  audio,  video,  webpages,  database  files,  and  emails.        

This  table  compares  features  of  records  management  systems,  e-­‐filing  and  case  management  systems,  standard  industry  storage  and  backup  with  functionality  in  an  ISO  14721  conforming  digital  preservation  system.  A  critical  area  is  the  clear  delineation  of  roles  and  responsibilities  among  users  and  system  custodians,  especially  with  regard  to  the  role  of  Information  Technology  Services  and  third  parties.  

Enterprise  Content  and  Records  Management  

E-­‐Filing  and  Case  Management  

System  Storage  and  Backup  

Digital  Preservation  System  

Accepted  Industry  Practices  or  DoD  5015.2  

Compliant  Accepted  Industry  Practice   Accepted  Industry  Practice   Conforms  to  ISO  14721  

Content  collaboration  (retrieval),  governance,  policy,  version  control,  self-­‐healing,  retention  

and  disposition  

Content  collaboration  (retrieval),  version  control,  

and  self-­‐healing  

Storage  using  accepted  industry  tools,  including  

tiered  storage  management,  multiple  copies,  and  self-­‐

healing  

Long-­‐term  availability,  usability,  and  trustworthiness  of  digital  

content  

Bit  level  storage   Bit  level  storage   Bit  level  storage  Bit  level  storage,  protection  

against  file  format  obsolescence,  integrity  protection,  preservation  

metadata  

Short-­‐term  retention  (<  10  years)  

Short-­‐term  retention  (<  10  years)  

Long-­‐term  retention    (>  10  years)  

Long-­‐term  and  permanent  retention    (>  10  years)  

Table  1.  Comparison  of  roles  and  functions  of  recordkeeping  and  digital  preservation  systems  

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For state courts an adequate understanding of the requirements associated with ensuring the long- term readability and usability of electronic records will have a significant bearing on their ability to secure sufficient financial and technical resources to establish digital preservation systems, and prepare for the deluge of scanned and born- digital content which they are increasingly expected to manage, store, and make available to the public.

In 2007, the authors developed a Digital Preservation Capability Maturity Model (DPCMM)13 to provide practitioners and digital repository operators with a structured framework to assess “processes and operations involved in ensuring the technical and intellectual survival of authentic records through time.”14 Based on this assessment an organization can design a prioritized incremental digital preservation improvement road map that takes into available human and financial resources and the level of risk exposure with which it is comfortable.

Strategies for improving digital preservation capabilities include creation of “preservation- ready” digital objects at or near the time of capture or receipt wherever practical, and providing sufficient metadata as evidence of trustworthiness at the point of transfer to the digital repository. DPCMM also provides a way for executive leadership and funding authorities to assess risk and measure the impact of investments in lifecycle management and digital preservation capability improvements.

13 Charles Dollar and Lori Ashley, Digital Preservation Capability Maturity Model© (DPCMM) Background and Performance Metrics (2015). http://www.securelyrooted.com/dpcmm 14 ISO 15489- 1:2001, 3.14 preservation.

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5. Integrated State Courts Records Lifecycle Management

Ensuring the availability, reliability, usability and authenticity of electronic records over time is a shared responsibility whether the records are transferred to a special purpose repository or remain in the hands of the producer for extended periods. This applies to born- digital content as well as physical records converted to digital format.

Digital preservation systems specially designed to migrate records as file formats become obsolete and ensure persistent linkages between records and their essential metadata are now commercially available. The need for digital preservation capabilities with the core infrastructure is increasingly recognized and promoted by leading industry analysts like Forrester’s Cheryl McKinnon who stated “Hardware, software and file format obsolescence risks will haunt us if not taken seriously.” 15 Digital preservation systems can be integrated with existing state court document repositories and storage systems using automated workflows and standards- based processes and policies.

The figure below depicts how a digital preservation system can complement existing content repositories by accepting records transfers as soon as practical and providing continued access across the lifecycle. Ensuring the integrity and availability of long- term and permanent assets is no longer the exclusive domain of archivists and librarians; it has become an enterprise information governance domain with many stakeholders and responsible parties.

Figure: Digital Preservation in the context of State Court enterprise contentand records management

15 Adopting a Digital-First Perspective: Records Management Shifts to Information Governance, Cheryl McKinnon, Principal Analysts at Forrester Research, Presentation at GTec 2013. http://my.presentations.techweb.com/events/gtec/ottawa/2013/concurrent- sessions- - - sance- simultane

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Ensuring the availability and integrity of digital records through their useful life will require state court administrators, records creators/custodians, and business process owners to work in tandem with a broad spectrum of technology specialists to mitigate risks associated with digital information while it is managed within production environments. Protection from loss or corruption must go beyond the “bit level” and incorporate mechanisms to ensure integrity, usability and trustworthiness over long periods of time. Additionally, it is important to address how long- term digital preservation systems and repositories can be protected through business continuity and disaster recovery plans and protocols.

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6. Conclusion and Call to Action

State courts have a solemn duty to preserve, protect and provide access to records of court proceedings and to administer the law regardless of political, organizational or fiscal barriers. Failure to plan for the preservation of electronic records across successive generations of technologies and custodians means that the risks and requirements will be more difficult and costly to address in the future. Left unaddressed, technology obsolescence and doubts about the trustworthiness of digital information may erode the efficacy of judicial processes as well as undermine the authority and accountability of state courts as protectors of the rights and privileges of citizens.

As courts upgrade their records management programs and transition from traditional paper- based processes to increased reliance on digital information systems to administer justice and deliver court services, an unprecedented opportunity is at hand to proactively integrate lifecycle controls and enforce retention and defensible disposition rules. Given the extended periods that many court records remain active, and the fact that many types of case files must be retained for fifty years or longer, digital preservation systems and strategies are essential to core judicial information governance and records management capabilities.

This call to action urges state court administrators and other court leaders to:

• Analyze their record retention schedules and map long- term and permanent records managed exclusively in digitally encoded formats to their respective system of record (application or database, internal or external system)

• Integrate risks and requirements associated with governance of electronic records into policies and procedures, technology resource planning, and funding cycles

• Assess the state court system’s current capability to protect and preserve electronic records and develop an improvement plan to address gaps where it matters most

• Engage court technical experts, court staff, and the software/ solutions vendor community to assess current record keeping systems and repositories for disposition and standards- based digital preservation functionality

• Establish a standards- based digital preservation repository

An organizational commitment to active lifecycle management of digital information must involve state court judges, clerks, administrative staff of the court, information technology specialists, attorneys, and other stakeholders who share the challenges and responsibility to ensure that electronic state court records will be available, usable, and trustworthy as far into the future as required. Robust, systematic capabilities to “future- proof” electronic state court records must become essential hallmarks of the American justice system.

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7. Useful resources

International Standards Organization, ISO 14721:2012, Open archival information system Reference Model. Available free from http://public.ccsds.org/publications/archive/650x0m2.pdf

ISO 16363:2012, Audit and Certification of Trustworthy Digital Repositories. Available free from http://public.ccsds.org/publications/archive/652x0m1.pdf

Gregory J. Linhares and Nial Raaen, “2012- 2013 Policy Paper, To Protect and Preserve: Standards for Maintaining and Managing 21st Century Records” (Conference of State Court Administrators) http://cosca.ncsc.org/~/media/Microsites/Files/COSCA/Policy%20Papers/12012013- Standards- Maintaining- Managing- 21st- Century- Court- Records.ashx

Joint Technology Committee Resource Bulletin, “Developing an Electronic Records Preservation and Disposition Plan” (Version 1.0, Adopted December 5, 2014) http://www.ncsc.org/~/media/Files/PDF/About%20Us/Committees/JTC/JTC%20Resource%20Bulletins/6 JTC%20E%20Records%2010%20FINAL.ashx

Philip G. Espinosa, A Word from the Future: The Virtually Paperless Court of Appeals, http://ncsc.contentdm.oclc.org/cdm/singleitem/collection/tech/id/715/rec/1

Nial Raaen, Archive in the Sky, or a Collaborative Approach for Long- Term Records Retention, http://ncsc.contentdm.oclc.org/cdm/ref/collection/tech/id/813

The Sedona Conference Commentary on Information Governance (2013). https://thesedonaconference.org/publications

Essential Guide, Achieving a Step Change in Digital Preservation Capability, An Assessment of Preservica using the Digital Preservation Capability Maturity Model (DPCMM)© http://preservica.com/files/2015/02/Preservica- Essential- Guide- Achieving- a- Step- Change- in- Digital- Preservation- Capability- Feb- 2015.pdf

Preservica White Paper, The Active Preservation of Digital Information, http://preservica.com/active- preservation/

Copyright 2014. All rights reserved. Preservica is a registered trademark. Presrvica is part of Tessella group.

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About Authors Lori J. AshleyLori Ashley, Tournesol Consulting, is a Wisconsin-based consultant dedicated to helping public- and private-sector clients improve the performance of their record management and information governance practices and systems. Project engagements include strategic planning, classification and taxonomy development, gap analysis and capability modelling, and retention schedule aggregation and modernization. She has co-developed four continuous improvement methodologies, including the recent capability maturity model developed with Charles Dollar for long-term digital preservation and access. She teaches Records Management at the graduate and introductory level and is an active member of AIIM, ARMA International, and the Society of American Archivists.

Charles M. DollarCharles Dollar, Dollar Consulting, is an internationally recognized consultant and writer who collaborates with public and private organizations to develop strategies and approaches to optimize the use of information technologies in the creation, use, and preservation of trustworthy digital information assets to satisfy legal, regulatory, business, and corporate memory record-keeping requirements. He draws upon more than three decades of knowledge and experience in managing electronic records in a wide variety of organizations and technology environments. Mr. Dollar is a Fellow of the Society of American Archivists and the Association of Information and Image Management. He received the Emmett Leahy Award for Outstanding Contributions to the Records and Information Management Profession.

About PreservicaPreservica is a world-leader in digital preservation technology, consulting and research. Their cloud-hosted and on premise active preservation solutions are used by leading archives, libraries, state, government and business organizations across four continents to safeguard and share valuable digital content, collections and electronic records for decades into the future.

Recently named a “Cool Vendor” in Content Management by Gartner, an American information technology research and advisory firm, Preservica’s award-winning active preservation and access solution is a standards-based (OAIS ISO 14721) trusted repository that includes connectors to leading Enterprise Content and Records Management systems to provide long-term usability, trustworthiness and preservation of vital electronic records, emails and other digital content.