Official, Authentic, Permanent? -- Not Online
Written by Katie Jones*
Primary online legal resources in Wyoming are not official. Nor have they been authenticated. And which state agencies that provide the online legal information have addressed the issue of permanent public access[1]? So, what does this mean? Can we still use them? Are they reliable? What happens if you refer to a statute that was printed from the Legislative Service Office web site instead of providing a certified copy of that statute from LSO itself?
The American Association of Law Libraries (AALL) completed a survey that resulted in the State-by-State Report on Authentication of Online Legal Resources[2] and answers, as of March 2007, the question, “How trustworthy are state-level primary legal resources on the Web?” AALL also held a national summit in April 2007. The summit, Authentic Legal Information in the Digital Age (http://www.aallnet.org/summit/), brought together national leaders to explore legal and technological solutions to ensure that state online legal information can be authenticated and will be preserved. In addition to members of the AALL Executive Board and leaders, outside delegates included representatives from the American Bar Association, National Conference of State Legislators, National Conference of Commissioners on Uniform State Laws, and officials from state courts, state legislatures, state archives and the Federal government.
The Summit addressed the concepts of what is official[3] and authentic[4] legal information, especially as reported in the survey by each individual state's online legal information. The survey targeted six sources of law: state administrative codes and registers, state statutes and session laws, and state high and intermediate appellate court opinions. Survey results showed that a significant number of state online resources are official but none are authenticated or afford ready authentication by standard methods. State online primary legal resources are, therefore, not sufficiently trustworthy. These are the key findings supporting the need to address at the very least authentication and permanent access of our state online legal resources[5]:
- States have begun to discontinue print official legal resources and substitute online official legal sources. [Alaska, Indiana, Tennessee, Utah, District of Columbia]
- Ten states & D.C. have deemed as official one or more of their online primary legal resources. [Alaska, Indiana, Maryland, Michigan, Minnesota, New Mexico, New York, Tennessee, Utah, Virginia]
- One or more of the online primary legal sources of eight states have “official traits,” where evidence as to the actual status of the resources is conflicting. [Alaska, California, New Jersey, Ohio, Texas, Utah, Vermont, Virginia, District of Columbia]
- States have not acknowledged important needs of citizens and law researchers seeking government information; they have not been sufficiently deliberate in their policies and practices.
- No state’s online primary legal resources are authenticated or afford ready authentication by standard methods.
- Eight states have provided for permanent public access (PPA) to one or more of their online primary legal resources. [Alaska, California, Indiana, Minnesota, Ohio, Pennsylvania, Texas and Utah]
Amber Green, in the Secretary of State's Compliance Division, verified that the online Wyoming Rules Database (http://soswy.state.wy.us/AdminServices/RulesOverview.aspx) is not considered official and they have not addressed or plan to address authentication procedures. Procedurally, rules are submitted to the legislature through the Legislative Service Office, then reviewed by the Attorney General, signed by the Governor and published by the Secretary of State. An official, certified print copy may be obtained from the Secretary of State. While the online rules may not be official, you can be certain that they will be permanently accessible, as per the Secretary of State Rules on Rules, Chapter 1, Section 8, Copies of Rules.
Wyoming's online legislative resources (session laws and statutes specifically) are also not considered official. Dan Pauli, Legislative Services Office Director, confirmed that LSO is the official custodian of the code database (W.S. 28-8-105(a)(v)) and authorized to contract with a publisher to provide a print version of the statutes (W.S. 28-8-105(c)). Pauli noted that he often provides a notarized affidavit with a copy of a statute from their official code database. There are currently no designs to implement authentication or make the online session laws (http://legisweb.state.wy.us/sessions/legsess.htm) or statutes (http://legisweb.state.wy.us/titles/statutes.htm) official. And while a published print form is statutorily mandated where the online version is not, Pauli said that free online access is planned as long as enough server space is available. Beginning with the 2008 Budget Session, LSO has placed online the published version of the 2008 Session Laws.
There are two online options for Wyoming Supreme Court opinions, provided by the Supreme Court (http://www.courts.state.wy.us/Opinions.aspx) and the Law Library (http://wyomcases.courts.state.wy.us/). Again, these online versions are not considered official and are not authenticated. The Supreme Court has recently implemented an online docketing system, though, that places a watermark much like a date stamp on filings. Judy Pacheco, Clerk of the Supreme Court, and John Capron, Supreme Court Software Developer, both were intrigued by the possibility of authenticating Supreme Court opinions in the future. The Law Library cooperates with the Oklahoma State Court Network (OSCN) to provide online Wyoming Supreme Court opinions back to 1990. Authentication has not been discussed with OSCN as yet, though the I hope to work with them soon to discuss possible implementation. Permanent public access has also not been discussed or made policy for the Supreme Court online decisions. However, the intention is to continue making this legal resource freely accessible online.
One of the sessions during the AALL National Summit focused on suggestions for amending state laws to include authentication. Tim Coggins, Associate Dean for Library & Information Services at University of Richmond School of Law, used the example of Washington State legislation, H.B. 1859, which requires that if the Washington State Register is published exclusively by electronic means, that electronic copy is the official copy. A proposed legal solution would be to add, “and shall be authenticated by a certificate or mark that conveys information as to its certification, and shall be preserved for permanent public access.”[6] Since the Summit, the National Conference of Commissioners on Uniform State Laws has approved the creation of a new Study Committee on Online Authentication of Legal Materials to investigate the issues and discuss the feasibility of a uniform law or model act on digital authentication.
With this background information, can we answer the questions at the beginning of this article? In reality, since Wyoming continues to rely on print legal information as official, should we be concerned that the online versions are not authenticated and may or may not be accessible in five, ten or fifty years? Has experience in Wyoming courts shown that most judges accept an online version of a legal resource? Aren't attorneys trusted as officers of the court to provide a correct copy of the statute, rule, or case? But then, how can you really know if it's correct? Can we expect to maintain the recognition that these resources are authoritative and reliable statements of law now and in the future without certainty that they are uncorrupted and complete?
[1]Richard J. Matthews et al., State-by-State Report on Permanent Public Access to Electronic Government Information 2 (Chicago: IL: American Association of Law Libraries, 2003). Also available online at: http://www.aallnet.org/aallwash/State_report.pdf. Matthews et al., define permanent public access [PPA] as a “policy and practice that ensures applicable government information is preserved for current, continuous and future public access.”
[2]Richard J. Matthews and Mary Alice Baish, State-by-State Report on Authentication of Online Legal Resources (Chicago, IL: American Association of Law Libraries, 2007). Also available online at: http://www.aallnet.org/aallwash/authen_rprt/AuthenFinalReport.pdf.
[3]Id. at 8. Matthews and Baish define official as a “version of regulatory materials, statutes, session laws, or court opinions is one that has been governmentally mandated or approved by statute or rule. It might be produced by the government, but does not have to be. … This definition is firmly rooted in the print world. … The fixed nature of the print medium, coupled with the paper publication’s multiple copies and wide distribution, ensures that the print official legal resource, as “governmentally mandated or approved by statute or rule,” is an authentic resource. An online official legal resource offers no such automatic assurance.”
[4]Id. at 8. Matthews and Baish define authentic as a text “whose content has been verified by a government entity to be complete and unaltered when compared to the version approved or published by the content originator. Typically, an authentic text will bear a certificate or mark that conveys information as to its certification, the process associated with ensuring that the text is complete and unaltered when compared with that of the content originator.”
[5]Id. At 10-13.
[6]Baish, Mary Alice, AALL Reaches the Tipping Point in National Leadership on Digital Authentication, AALL Spectrum, July 2007, at 7. Also available online at http://www.aallnet.org/products/pub_sp0707/pub_sp0707_Wash.pdf.
*A much shortened version of this article was published in the Information Connection column (provided by law librarians at the Wyoming State Law Library and University of Wyoming Law Library) of the Wyoming Lawyer, October 2008, Volume 31, No. 5 (the article is available only in print).
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