NEW JERSEY LAW REVISION COMMISSION
Revised Draft Tentative Report
Relating to
New Jersey Uniform Electronic Legal Material Act
June 10, 2013
The New Jersey Law Revision Commission is required to “[c]onduct a continuous examination
of the general and permanent statutory law of this State and the judicial decisions construing it”
and to propose to the Legislature revisions to the statutes to “remedy defects, reconcile
conflicting provisions, clarify confusing language and eliminate redundant provisions.” N.J.S.
1:12A-8.
This Revised Draft Tentative Report is distributed to advise interested persons of the
Commission's tentative recommendations and the opportunity to submit comments. Underlined
language was prepared before 5/31/13 and information shown with underlining and italics was
included in the draft after 6/1/13. Comments should be submitted no later than August 20, 2013.
The Commission will consider these comments before making its final recommendations to the
Legislature. The Commission often substantially revises tentative recommendations as a result
of the comments it receives. If you approve of the report, please inform the Commission so that
your approval can be considered along with other comments. Please send comments concerning
this tentative report or direct any related inquiries, to:
Laura Tharney, Esq., Executive Director
New Jersey Law Revision Commission
153 Halsey Street, 7th Fl., Box 47016
Newark, New Jersey 07102
973-648-4575
(Fax) 973-648-3123
Email: lct@njlrc.org
Web site: http://www.njlrc.org
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 1
Introduction
One of the projects approved and recommended for enactment in all states by the
Uniform Law Commission (ULC) is the Uniform Electronic Legal Material Act (UELMA). The
UELMA was released by the ULC in July 2011.
Consideration of the UELMA is promoted by the American Association of Law Libraries
and the New Jersey Law Librarians Association. Liaisons from the Seton Hall Law School
library and the Rutgers School of Law library asked that the Commission review the Act for
possible introduction in New Jersey and enactment by the Legislature.
The ULC explains, in its summary of the Act, that the availability of government
information online facilitates transparency and accountability, provides widespread access to
essential information, and encourages citizen participation. The UELMA was designed to
address the need to provide and manage electronic government information in a manner that
guarantees trustworthiness and continued access.
Prior to the drafting of the UELMA, a March 2007 State-by-State Report on
Authentication of Online Legal Resources prepared by the American Association of Law
Libraries analyzed the trustworthiness of state online legal resources. The Report determined that
a significant number of state online legal resources are official, none are authenticated or easily
authenticated by standard methods.1 The State-by-State Report said that state online legal
resources are “therefore not sufficiently trustworthy” and that “citizens and law researchers may
reasonably doubt their authority and should approach such resources critically”.2
The UELMA is designed to provide for the authentication, preservation, and accessibility
of official electronic state legal material, and to assist state governments in guaranteeing the free
flow of trustworthy legal information. It gives states discretion in determining what categories of
“legal material” will be covered and does not affect any relationships between an official state
publisher and a commercial publisher, copyright laws, or the rules of evidence.
The choice of technologies for authentication and preservation is left to the states, but
adoption of the UELMA will harmonize standards for acceptance of electronic legal material
across jurisdictional boundaries. The Act is intended to complement the Uniform Commercial
Code (UCC, which covers sales and many commercial transactions), the Uniform Real Property
Electronic Recording Act (URPERA, which provides for electronic recording of real property
instruments), and the Uniform Electronic Transactions Act (UETA, which deals with electronic
commerce).
The UELMA, in the Prefatory Note, says that “[p]roviding information online is integral
to the conduct of state government in the 21st century” and that “[t]he ease and speed with which
information can be created, updated and distributed electronically, especially in contrast to the
time required for the production of print materials, enables governments to meet their obligations
1
American Association of Law Libraries, State-by-State Report on Authentication of Online Legal Resources
(March 2007), p. 7.
2
Id.
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 2
to provide legal information to the public in a timely and cost-effective manner.”3 Electronic
information, the Prefatory Note cautions, is susceptible to being altered, accidentally or
maliciously, at each point where it is stored, transferred or accessed and these alterations may be
undetectable by the consumer. In addition, the ease with which electronic material may be
altered raises the issue of how legal information with long-term historical value will be preserved
for future use. With regard to the issue of preservation, the benefits associated electronic
materials are described as “severely limited” if the information becomes unusable because of
technological changes.
The UELMA is designed to be an outcomes-based approach to the authentication and
preservation of legal materials. The goals of the Act are to “enable end-users to verify the
trustworthiness of the legal materials” and to “provide a framework for states to preserve legal
material in perpetuity in a manner that allows for permanent access”.4
Background
The State-by-State Report on Authentication of Online Legal Resources, to which the
UELMA makes reference, describes an “official” version of legal materials as one that possesses
the same status as a print “official” legal resource – one that is “governmentally mandated or
approved”.5 An “authentic” legal material is described as “one 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”.6 The findings of an authentication survey set forth in the
State-by-State Report include the following: (1) states have begun to discontinue print official
legal resources and substitute online official legal resources; (2) states have not acknowledged
the important needs of citizens and law researchers seeking trustworthy government information
– even with regard to “official” legal resources; and (3) only eight states have provided for
permanent public access to one or more of their primary legal resources.7
A representative contributed to the Report on behalf of each state. A. Hays Butler, of the
Rutgers Law School – Camden, indicated on behalf of New Jersey that New Jersey does not
certify as official and authentic the online versions of the state session laws, statutes or court
opinions.8
The State of New Jersey, largely through the websites of various State entities, provides
online access to an increasing amount of legal materials of different types. Greater availability of
governmental materials on the web, at both the state and federal levels, suggests that this trend
will continue. Bills introduced in the current New Jersey legislative session call for even more
material to be made available to the public electronically. A3490, for example, requires State
agencies to submit required reports by posting the information to be reported on the agency’s
website. The Statement to the bill explains that the
3
Uniform Law Commission, Uniform Electronic Legal Material Act, Prefatory Note, July 2011.
Id.
5
American Association of Law Libraries, State-by-State Report on Authentication of Online Legal Resources
(March 2007), p. 7-8.
6
Id. at 8.
7
Id. at 10-13.
8
Id. at 142.
4
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 3
bill would require each State agency, to the extent practicable, and in lieu of preparing or
submitting a written report as required by law, to post on its Internet website the
information required to be reported, in accordance with the timeframes established by
law for the submission or publication of such report.
The posting of information to be reported on a State agency’s Internet website, in
accordance with the bill’s provisions, would obviate the necessity for the State agency to
produce and submit a written report. However, if the State agency is unable to post the
information to be reported on its Internet website, it would be required to produce or
submit a written report in accordance with existing statutory requirements…
Whenever a State agency posts information to be reported on its Internet website,
in accordance with the bill’s provisions, it would be required to: (1) provide…a notice of
the availability of the information to the President of the Senate, the Speaker of the
General Assembly, and the Director of Public Information in the Office of Legislative
Services in accordance with the provisions of existing law; and (2) provide any person,
upon request, with directions on how to access the information online…
Assembly Regulatory Oversight and Gaming Committee, Statement to Assembly Bill 3490,
March 7, 2013.
Not all State legal materials are available through State entities, however, and the extent
to which the online material is authenticated is not clear. The manner in which the materials are
preserved is also not clear. Although some of the legal materials have been available
electronically for more than a decade, it is not clear if older versions of these materials are
accessible to the public (prior versions of statutes, for example).
The following pages do not discuss all material disseminated by the State in New Jersey.
Instead, the information provided below focuses on information proposed or considered for
inclusion in the UELMA definition of “legal material”. The following pages also do not
represent an exhaustive listing of every location at which New Jersey legal material may be
found online, but only a collection of information based on a preliminary examination of the
website associated with the source or originator of the legal material discussed.
1.
Legislative Materials
In addition to making information regarding proposed and pending bills available to the
public, the New Jersey Legislature’s website provides access to the complete text of the New
Jersey Constitution and a searchable version of the New Jersey Constitution.9 The website also
provides a link to the New Jersey State Library, which offers the New Jersey Constitutional
Convention Proceedings – 1947.10
9
New Jersey Legislature, New Jersey State Constitution, http://www.njleg.state.nj.us/lawsconstitution/
consearch.asp, (last visited April 10, 2013).
10
New Jersey State Library, New Jersey Constitutional Convention Proceedings – 1947, http://slic.njstatelib.org/
NJ_Information/Digital_Collections/Digidox21.php, (last visited April 10, 2013).
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 4
The New Jersey Legislature’s website also provides access to an electronic database
containing New Jersey statutes11 which states: “This statutory database is unannotated and as
such may include laws that have not become operable due to unmet conditions, have expired,
have been ruled inoperable by a court, or have otherwise become inoperable. Effective dates are
not typically included. Users should diligently read applicable statute source law and case law.”12
N.J.S. 52:11-78, which requires that the “most current available compilation of the official text of
the statutes” be made available to the public and maintained in electronic form, does not indicate
that the database is intended to be an authoritative source of the statutes. The State-by-State
Report suggests that since the “online statutory database leaves the user unsure whether it is
official or not, it appears reasonable to conclude that the database, in fact, is not official”.13 The
Report concludes that the session laws found on the same site are likewise not official and notes
that the statute requiring the session laws to be included in the database does not refer to the
“official” session laws.14 The Legislature, on its website, also provides access to Chapter Laws
beginning in 1996 and continuing through the present.15
The Legislature’s website is not the only source of legislative materials available to the
public at no charge. The Rutgers School of Law – Camden offers, online, the Acts of the New
Jersey Colonial Assembly and Session Laws of the New Jersey Legislature 16 and a full-text
archive of selected documents of the proceedings, acts, and texts of the Constitutions of the State
of New Jersey, from the original Convention of 1776 to the most recent17. In addition, the
Rutgers School of Law – Newark offers access to the New Jersey statutes on a page that explains
that the
copy of the N.J. Statutes was obtained from the N.J. Legislature website, and contains no
edits or alterations of that text.
Currency: Latest Download: Tue Apr 9 16:16:37 EDT 2013
UPDATED THROUGH P.L. 2013, ch. 37 and JR 3 of 2013)
We do not warrant the accuracy of this database beyond our representation of its source
and the date of download.18
2.
Judicial Materials
With regard to New Jersey case law, the New Jersey Judiciary19 makes available for 10
business days opinions issued by the New Jersey Supreme Court, the Appellate Division of the
11
New Jersey Legislature, http://lis.njleg.state.nj.us/cgi-bin/om_isapi.dll?clientID=271817&depth=2&
expandheadings=off&headingswithhits=on&infobase=statutes.nfo&softpage=TOC_Frame_Pg42, (last visited April
10, 2013).
12
Id.
13
American Association of Law Libraries, State-by-State Report on Authentication of Online Legal Resources
(March 2007), p. 143.
14
Id.
15
New Jersey Legislature, New Jersey Chapter Laws, http://www.njleg.state.nj.us/lawsconstitution/chapter.asp, (last
visited April 10, 2013).
16
Rutgers School of Law – Camden, New Jersey Session Laws Online, http://camlaw.rutgers.edu/new-jerseysession-laws-online (last visited April 10, 2013).
17
Rutgers School of Law – Camden, New Jersey Constitutional Documents, http://camlaw.rutgers.edu/new-jerseyconstitutional-documents (last visited April 10, 2013).
18
Rutgers School of Law – Newark, Collections, http://njlaw.rutgers.edu/collections/njstats/, (last visited April 12,
2013).
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 5
Superior Court, and the Tax Court20. Unpublished appellate court opinions are likewise available
for 10 business days21 and, beginning June 9, 2008, Trial Court opinions approved for
publication by the Judiciary Committee on Opinions are made available for two weeks22.
Unpublished Trial Court opinions are “made available for six weeks from the date posted for the
convenience of attorneys and litigants”, but the Court’s website cautions that they “have not been
approved for publication by the Committee on Opinions, and thus may not be cited as legal
precedent pursuant to R.1:36-3.”23
Also available on the Court’s website – and not limited to 10 days – are opinions the
website describes as “business related opinions” “issued by the New Jersey Supreme Court,
Appellate and Superior Courts” “which are maintained by the New Jersey Administrative Office
of the Courts”. These opinions are divided into categories: “Business Disputes”, “Contract
Disputes”, “Business Governance”, “Miscellaneous Actions”, “Employment Disputes”, and
“Intellectual Property and Technology”. The number of opinions in a category varies. The
Court’s website explains that these
opinions have been made available in order to provide attorneys and litigants access to
select published and unpublished opinions addressing business related issues.
Please note that this collection is not all-inclusive and contains only those businessrelated opinions issued by New Jersey courts that offer insight into selected business law
categories including leading and more recent cases.
Opinions will be updated on an as needed basis and will remain available indefinitely on
the njcourts website. Rutgers Camden Law School will also maintain a searchable
database of these business related opinions.
In accordance with Rule 1:34-6, no unpublished opinion shall constitute precedent or be
binding upon a court. No unpublished opinion shall be cited by any court. No
unpublished opinion shall be cited to the court by counsel unless the court and all other
parties are served with a copy of the opinion. The availability of these opinions on this
website does not constitute publication under New Jersey Rules of Court.24
Disciplinary Review Board decisions for which the Supreme Court has issued orders
within the last 10 days are available on the Court’s website and, after 10 days, are “archived on
the website” of the Rutgers Law Library – Newark.25 26 The Court’s website explains that “DRB
19
New Jersey Courts, Supreme and Appellate Opinions, http://www.judiciary.state.nj.us/opinions/index.htm (last
visited April 10, 2013).
20
New Jersey Courts, Tax Court Opinions, http://www.judiciary.state.nj.us/taxcourt/taxcrtopinion.htm, (last visited
April 10, 2013).
21
New Jersey Courts, Unpublished Appellate Court Opinions, http://www.judiciary.state. nj.us/opinions/
unappopin/unappopindex.htm, (last visited April 10, 2013). The Court’s website advises that “[u]npublished
opinions filed prior to September 20, 2005 are available from the Appellate Division at 609-984-5761, or by e-mail
at AppellateCopy.Mailbox@judiciary.state.nj.us.”
22
New Jersey Courts, Trial Court Published Opinions – Approved for Publication, http://www.judiciary.state.nj.us/
trial_court_opinions/index.htm, (last visited April 10, 2013).
23
New Jersey Courts, Trial Court Unpublished Decisions, http://www.judiciary.state.nj.us/decisions/index.htm, (last
visited April 10, 2013).
24
New Jersey Courts, Business Related Opinions, http://www.judiciary.state.nj.us/opinions/ business/index.html,
(last visited April 10, 2013).
25
New Jersey Courts, DRB Recent Decisions with Supreme Court Order, http://www.judiciary.state.nj.us/opinions/
business/index.html, (last visited April 10, 2013).
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 6
decisions pending with the Supreme Court are available from the DRB.” Ethics Committee
opinions are not directly available on the Court’s website, but the Court’s site does provide a link
to the website of the Rutgers Law Library – Newark27, which offers a “full-text archive of the
Opinions of the Advisory Committee on Professional Ethics, Committee on the Unauthorized
Practice of Law, and the Committee on Attorney Advertising.”28
Decisions available on the Court’s website for only 10 days may thereafter be found on
the website of the Rutgers Law Library – Newark. That site offers a “full-text archive of the
decisions of the United States District Court for the District of New Jersey including opinions
dating from October 1998” and “a full-text archive of the opinions of the New Jersey Courts,
including the Supreme Court, from March, 1994 to date, the Superior Court Appellate Division
and the Tax Court from September, 1995 to date.”29 The site also notes that “in 2005, the New
Jersey Administrative Office of Courts changed its publication policy and began to release all
Appellate Division decisions for inclusion in this database. Before that date, decisions marked
‘Unpublished’ were not released, and are available only from the court directly.” These cases are
made available by an agreement between the New Jersey Administrative Office of Courts and
Rutgers University School of Law. The relevant Rules of Court state that the only official and
authoritative source for appellate decisions are the official print reporters.30
3.
Executive Branch Materials
The Official Website for the State of New Jersey, maintained by the New Jersey Office of
Information Technology, makes available electronically Executive Orders issued by the current
Governor and former Governors beginning with Richard J. Hughes. 31 The website provides an
index of Executive Orders with clickable links for the orders. For some of the earlier
administrations, the collection of electronically available Executive Orders does not represent all
of the Executive Orders issued.
The New Jersey Digital Legal Library, maintained by Rutgers, the State University,
provides access to Executive Orders from the years 1941 through 1990.32
The State of New Jersey, Department of Law & Public Safety, Office of the Attorney
General, makes available electronically formal Opinions of the Attorney General beginning with
Rutgers School of Law – Newark, Decisions of the New Jersey Supreme Court Disciplinary Review Board,
http://njlaw.rutgers.edu/collections/drb/, (last visited April 10, 2013).
27
Rutgers School of Law – Newark, Opinions of the New Jersey Supreme Court's Ethics Committees ,
http://njlaw.rutgers.edu/collections/ethics/search.php, (last visited April 10, 2013).
28
Id.
29
Rutgers School of Law – Newark, Decisions of the United States District Court for the District of New Jersey,
http://njlaw.rutgers.edu/collections/fed/, (last visited April 10, 2013) and Rutgers School of Law – Newark, New
Jersey Courts Search Page, http://njlaw.rutgers.edu/collections/courts/, (last visited April 10, 2013).
30
American Association of Law Libraries, State-by-State Report on Authentication of Online Legal Resources
(March 2007), p. 143-144.
31
State of New Jersey, http://nj.gov/infobank/circular/eoindex.htm (last visited April 12, 2013).
32
Rutgers, The State University of New Jersey, The New Jersey Digital Legal Library,
http://njlegallib.rutgers.edu/eo/, (last visited April 12, 2013).
26
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 7
those issued in 1949.33 Attorney General Opinions that pertain specifically to a department
within the State may sometimes be found on the website of that department (the Department of
Community Affairs, for example).34
The New Jersey Digital Legal Library, maintained by Rutgers, the State University,
provides access to Attorney General Opinions from the years 1949 through 1998.35
The New Jersey Office of Administrative Law does not make documents directly
available on its website.36 Instead, links are provided to other websites on which documents are
available. Free public access to the New Jersey Administrative Code and the New Jersey
Register are currently provided by Lexis-Nexis.37 With regard to the Administrative Code, the
Lexis-Nexis website explains that it
is maintained by LexisNexis®, the publisher of the New Jersey Administrative Code, to
provide free public access to the law. It is not intended to replace professional legal
consultation or advanced legal research tools. Please note that this online version of the
Code is not the official Code and may not include the most recent changes to a rule.
Adopted and published through information is available at the top of each rule document.
Changes made since the last update can be found through a search of the free online
version of the New Jersey Register.38
With regard to the New Jersey Register, the Lexis-Nexis website explains that it “is maintained
by LexisNexis®, the publisher of the New Jersey Administrative Code and Register, to provide
free public access to the law. It is not intended to replace professional legal consultation or
advanced legal research tools.”39
Unlike other types of legal material accessible as described above, the free online
versions of the Administrative Code and the New Jersey Register require acceptance of Terms
and Conditions of Use which include a provision regarding intellectual property that says:
Except as expressly provided in these Terms of Use, nothing contained herein shall be
construed as conferring on you or any third party any license or right, by implication,
estoppel or otherwise, under any law (whether common law or statutory law), rule or
regulation including, without limitation those related to copyright or other intellectual
property rights. You agree that the Content and Web Site are protected by copyrights,
trademarks, service marks, patents or other proprietary rights and laws. For further
information see Copyright.40 41
33
State of New Jersey, Department of Law & Public Safety, Office of the Attorney General, http://www.nj.gov/
lps/ag-opinions.htm, (last visited April 12, 2013).
34
State of New Jersey, Department of Community Affairs, http://www.nj.gov/dca/
divisions/dlgs/resources/attorney_opinions.html, (last visited April 12, 2013).
35
Rutgers, The State University of New Jersey, The New Jersey Digital Legal Library, http://njlegallib.rutgers.edu/
ag/yrandno.php, (last visited April 12, 2013).
36
State of New Jersey, Office of Administrative Law, http://www.nj.gov/oal/, (last visited April 10, 2013).
37
Lexis-Nexis, New Jersey Administrative Code – Free Public Access, http://www.lexisnexis.com/
hottopics/njcode/, (last visited April 10, 2013) and Lexis-Nexis, New Jersey Register – Free Public Access,
http://www.lexisnexis.com/njoal/, (last visited April 10, 2013).
38
Lexis-Nexis, New Jersey Administrative Code – Free Public Access, http://www.lexisnexis.com/
hottopics/njcode/, (last visited April 10, 2013).
39
New Jersey Register – Free Public Access, http://www.lexisnexis.com/njoal/, (last visited April 10, 2013).
40
Lexis-Nexis, Terms & Conditions, http://www.lexisnexis.com/terms/, (last visited April 10, 2013).
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 8
The website of the Rutgers Law Library – Newark offers a “a full-text archive of
Administrative Law decisions in the state of New Jersey” which “contains opinions issued by the
New Jersey Office of Administrative Law, and from individual departments and
commissions dating from October, 1997.”42 Earlier decisions, those dating from “1982 to 1991
(The New Jersey Administrative Reports, 1st Series)” are also available from through Rutgers by
using a link to The New Jersey Digital Legal Library. 43 The Rutgers Law Library – Newark also
offers a “[f]ull-text archive of the School Law decisions issued by the Commissioner and School
Board of the New Jersey Department of Education, and the New Jersey Office of Administrative
Law”44, although the site currently includes a disclaimer which states that it “is not yet officially
active, so if you are here, please feel free to look around, but please do not expect full
functionality, or for much material to be available at this time.”45
Status of the UELMA in Other States
So far, according to the ULC, the UELMA has been enacted in eight states and has been
introduced in five other states and the District of Columbia. Generally, states have adopted, or
proposed adoption of, many of the provisions of UELMA without modification. The area in
which the states have made changes is in the definitions section with regard to the identification
of the legal materials to which the UELMA will apply. The following is a summary of the
manner in which states have dealt with the issue of identifying the legal material to which the
UELMA will apply.
1.
States in which the UELMA has been enacted:
California: The “Uniform Electronic Legal Material Act”, Cal Gov Code § 10290 et seq.,
contains the most limited definition of legal material of the states in this list. It includes, in its
definition of legal material: the California Constitution; the statutes; the California Codes.
Colorado: The “Uniform Electronic Legal Material Act", C.R.S. 24:71.5-101 et seq.,
includes, in its definition of legal materials: the constitution of the state; the session laws of
41
The copyright provision states:
Permitted Uses; Restrictions on Use
Materials available in this network of Web sites are protected by copyright law and are operated by
LexisNexis or its affiliated companies ("LexisNexis"). Copyright © 2013 LexisNexis. All rights reserved.
No part of the materials including graphics or logos, available in this Web site may be copied, photocopied,
reproduced, translated or reduced to any electronic medium or machine-readable form, in whole or in part,
without specific permission (to request permission to use materials, continue to our Permission Request
Form). Distribution for commercial purposes is prohibited.
For more information, please read our statement concerning copying, downloading and distribution of
materials available in the LexisNexis services.
Lexis-Nexis, Copyright, http://www.lexisnexis.com/terms/copyright.aspx, (last visited April 10, 2013).
42
Rutgers School of Law – Newark, New Jersey Administrative Law Decisions, http://njlaw.rutgers.edu/
collections/oal/, (last visited April 10, 2013).
43
Rutgers, The State University of New Jersey, The New Jersey Digital Legal Library, http://njlegallib.rutgers.edu/
njar/njarhome.htm , (last visited April 10, 2013).
44
Rutgers School of Law – Newark, New Jersey School Law Decisions, http://njlaw.rutgers.edu/collections/sld/,
(last visited April 10, 2013).
45
Id.
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 9
Colorado; the Colorado Revised Statutes; and a state agency rule promulgated in accordance
with article 4 of this title.
Connecticut: The definition of “legal material” in S235 includes only the Constitution,
the general statutes, the regulations of state agencies, and the reported decisions of the Supreme
Court, the Appellate Court and the Superior Court. The bill’s fiscal note indicated that enactment
would not result in a fiscal impact since the bill did not require the State to publish legal material
electronically, but sets requirements if the State chooses to do so.
Hawaii: The definition of “legal material” includes: the Constitution; the session laws;
the revised statutes; a state agency rule that has or had the effect of law; the reported decisions of
the supreme court and the intermediate appellate court; and the state court rules.
Minnesota: The “Uniform Electronic Legal Material Act”, Minn. Stat. § 3E.02 et seq.,
includes, in its definition of legal material: the Minnesota Constitution; laws of Minnesota;
Minnesota Statutes; or Minnesota Rules.
Nevada: The definition of “legal material” in SB105 includes: the Nevada Constitution;
the Statutes of Nevada; the Nevada Revised Statutes; and the Nevada Administrative Code. The
bill noted that it might have a fiscal impact.
North Dakota: The definition of “legal material” includes: the Constitution of North
Dakota; the North Dakota Century Code; the North Dakota Session Laws, also known as the
Laws of North Dakota; and the North Dakota Administrative Code.
Oregon: The definition of “legal material” in HB2944 includes: the Oregon Constitution;
session laws published by the Legislative Counsel under ORS 171.236; the Oregon Revised
Statutes; or Oregon Administrative Rules.
2.
States in which the UELMA has been introduced:
Illinois: The definition of “legal material” in SB1941 includes: the Illinois Constitution,
the Laws of Illinois; the Illinois Compiled Statutes; the Illinois Administrative Code; the
following categories of State administrative agency decisions: final administrative decisions; and
reported decisions of the following State courts: Illinois Supreme Court and Illinois Appellate
Court; Illinois Supreme Court Rules; or Illinois Court of Claims. The first page of the bill
indicates that the Fiscal Note Act may apply.
Massachusetts: The definition of “legal material” in HB38 includes: the Constitution of
the Commonwealth of Massachusetts; the Session Laws; the General Laws; a state agency rule
or decision that has or had the effect of law; other material published in the Massachusetts
Register or the Code of Massachusetts Regulations; or the reported decisions and rules of the
following state courts: the Supreme Judicial Court, the Appeals Court and the Trial Court.
Missouri: The definition of “legal material” in SB478 includes: The Constitution of the
State of Missouri; the revised statutes of Missouri; the Missouri session laws; a state agency rule
that has or had the effect of law; the Missouri code of state regulations; reported decisions from
the Missouri supreme, appellate, and circuit courts; and State court rules.
Pennsylvania: The definition of “legal material” in S601 includes: the Constitution of the
Commonwealth of Pennsylvania; the Laws of Pennsylvania under 1 Pa.C.S. § 1103 (relating to
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 10
preparation of statutes for printing); the Pennsylvania Code; a Commonwealth agency regulation
that has or had the effect of law; reported decisions of: the Supreme Court, Superior Court,
Commonwealth Court, or a court of common pleas; rules of court; and a “reserved” section. The
bill also contains amendments to other sections of the statutes as a result of the UELMA.
Rhode Island: The definition of “legal material” in H5850 includes: the constitution of
this state; the public laws, acts and resolves of this state; the general laws of this state; a state
agency rule that has or had the effect of law; state administrative agency decisions; reported
decisions of state courts; and state court rules.
Project Considerations
1.
The UELMA does not mandate electronic publishing.
The UELMA, as drafted, does not require that a State make legal material available to the
public electronically. The ULC Report indicates that “[a]ll states are transitioning from a printonly publishing environment” to one in which legal material is published in a number of
different formats, or one in which legal material is published only in an electronic format.46
According to the UELMA, a state may designate as official as many formats of its legal
material as the state chooses.47
If legal material in an electronic record is designated as official, the state must meet the
requirements of the act (even if the state publishes the same material in another format). 48 These
requirements may be summarized as: authenticating the material (enabling a user to determine
that the record accessed by the user is the same as the version released by the publisher);
providing for the preservation and security of the material (not just current material, but
historical material as well – including material no longer in effect); and providing permanent
public access (which means only that the material should be “reasonably available” on a
permanent basis).49 While the ULC Report discusses the need for preservation of both current
and historical material, the provisions of the act itself do not include such a requirement. As a
result, modifications were made to Section 7 of this draft to incorporate a default provision to
address that issue.
If the state publishes a particular type of legal material only in an electronic format, then
the state must designate the electronic format as official.50 If the state does not designate an
electronic version of legal material as official, the UELMA recommends that the state include
information how the public can obtain or access the official version of the material.51
46
Uniform Law Commission, Uniform Electronic Legal Material Act, Comment to Section 4, July 2011.
Id.
48
Id.
49
Uniform Law Commission, Uniform Electronic Legal Material Act, Sections 5, 6, 7 and 8, July 2011.
50
Ibid.
51
Ibid.
47
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 11
The UELMA only applies to legal material published by a state itself, not by a
commercial publisher.52
What should be included in the UELMA definition of “legal material”?
2.
A.
The Judicial Branch:
A question that must be addressed during the pendency of this project is whether the
inclusion of reported decisions and the Court Rules in this act runs afoul of the constitutionally
mandated separation of powers and the exclusive authority of the New Jersey Supreme Court
over court administration. References to the case law and the Court Rules are included in the
UELMA draft at this time for purposes of discussion.
Justice Zazzali, concurring in part and dissenting in part in Ferreira v. Rancocas
Orthopedic Associates, 178 N.J. 144, 161 (2003), clearly summarized some of the issues
presented by Winberry v. Salisbury and the subsequent line of cases. Quotes from Ferreira,
discussing the interaction between the legislative and judicial branches that may be of assistance
in considering the issue presented by the UELMA, follow.
Article VI, section 2, paragraph 3 of the New Jersey Constitution provides that
“the Supreme Court shall make rules governing the administration of all courts in the
State and, subject to the law, the practice and procedure in all such courts.” In Winberry
v. Salisbury, 5 N.J. 240, 247, 255…cert. denied, 340 U.S. 877…(1950), this Court
interpreted that provision as providing the judicial branch with exclusive authority over
court administration, including court practice and procedure. In reaching that
determination, we observed that “[r]ules of the court are made by experts who are
familiar with specific problems to be solved and the various ways of solving
them.”…Underlying our holding in Winberry was the doctrine of separation of powers
and its recognition that each branch of government is suited to make certain types of
decisions and should “exercise fully its own powers without transgressing upon the
powers rightfully belonging to a cognate branch.” [citations omitted]
Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144, 161 (2003) (Zazzali, concurring).
“Winberry and its progeny instruct that whether a legislative enactment impermissibly
overrides a court rule depends on the character of the enactment. If the statute in question
involves procedural as opposed to substantive rights, the court rule generally prevails.” Id. “In
Winberry, we distinguished between substantive and procedural laws by their primary effects on
the parties. Substantive law defines the parties' rights and duties, whereas procedural law
regulates the means through which those rights and duties are enforced…In other words, ‘[i]f it is
but one step in the ladder to final determination and can effectively aid a court function, it is
procedural in nature and within the Supreme Court's power of rule promulgation.’” Id. at 162.
It has been acknowledged, however, that
[a]lthough Winberry expressed the substantive/procedural divide in rather clear terms,
that distinction has been difficult to apply because statutes and rules can have both
procedural and substantive implications…“It occasionally happens that an underlying
matter defies exact placement or neat categorization…Adding to the complexity of the
52
Uniform Law Commission, Uniform Electronic Legal Material Act, Comment to Section 2, July 2011.
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 12
task is the fact that the separation between the legislative and judicial branches has “
‘never been watertight.’…Indeed, our precedent makes clear that, in the spirit of comity,
we at times have shared authority over administration of the judicial system with the
Legislature…In doing so, we have observed that “the doctrine of separation of powers
was never intended to create, and certainly never did create, utterly exclusive spheres of
competence.” [citations omitted]
Id. at 162-163. The “jurisprudence since Winberry demonstrates that the procedural
characteristics of a legislative enactment do not necessarily determine the enactment's fate.” Id.
at 163.
Rather, judicial toleration of legislative intrusion has pivoted on a two-prong analysis.
Initially, we have considered whether the judiciary has fully exercised its power with
respect to the matter at issue…In the absence of complete judicial action, we then have
inquired into whether the statute serves a legitimate legislative goal, and, “concomitantly,
does not interfere with judicial prerogatives or only indirectly or incidentally touches
upon the judicial domain”…In other words, we have accommodated legislative
enactments touching on integral areas of the judicial system only when those enactments
“have not in any way interfered with this Court's constitutional obligation” to “insure a
proper administration of the court system.”…[citations omitted]
Id.
B.
The Executive Branch:
The UELMA Report noted that
states may decide to expand the definition of legal material beyond that offered as
alternatives. For example, in some states, an initiative or referendum process may result
in the creation of statutory law outside of, or in addition to, the legislative process. An
enacting state may choose to include in the definition of legal material the various
documents created in an initiative or referendum process, including especially the final,
uncodified form (similar to a session law) as passed by popular vote. States may decide to
include enacted, but subsequently vetoed, legislation. Other states may decide to include
certain categories of municipal or county legal material in the act.
Many important sources of law, such as legislative journals and calendars, reports
of legislative confirmations and other hearings, versions of bills, gubernatorial orders and
proclamations, attorney general opinions, and many agency publications, might be
included in the act’s coverage…Whether a state legislature can include in the act the
records from certain executive branch officials (executive orders and proclamations, or
attorney general opinions, for example) raises a separation of powers issue similar to that
regarding judicial decisions.
As indicated above for judicial materials, Executive Branch materials have been included
in the UELMA draft at this time for purposes of discussion.
C.
Should materials other than those proposed in the draft below be included?
It may be appropriate to consider the inclusion of other legal materials, such as Executive
Orders of the Governor, unpublished opinions of the Superior Court, Appellate Division, or other
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 13
legislative materials. New Jersey does not have a traditional initiative and referendum process, so
the ULC recommendation to consider materials generated by such a process is not relevant here.
None of the states that has enacted or introduced the UELMA to this time has included
categories of county or municipal materials in the act, despite the statement in the Report
suggesting that some states may decide to do so.
The uniform act has been modified to include, in Section 3 of this draft, a procedure for
identifying, after enactment, additional legal materials that will be subject to the act.
3.
Are the requirements of authentication and preservation necessarily cost-prohibitive?
While New Jersey may not currently have a comprehensive treatment for the
authentication and preservation of electronic legal material, there are provisions in both the
statutes and the Administrative Code that address many of the relevant issues and may offer
guidance moving forward.
With regard to authentication, it may be worth considering the distinction between
authentication visible to the user of a database and authentication that takes place “behind the
scenes”. Concerns have been expressed about the potential costs associated with various methods
of authentication (which are discussed in the Comments to Section 5, below). As a result of
existing statutory and regulatory requirements, existing databases through which information is
made available to the public may already include a systemic method of determining whether the
database has been altered. For some databases, a method of authentication that requires only
limited expense may involve making the information already available to the administrator of the
database (an indication of whether there were any changes to the database since the previous day,
for example) available to the public user.
Similarly, the requirements already imposed by statute and by regulation with regard to
preservation, and the decreasing cost of storage of maintaining data in an electronic form, may
address some of the concerns raised in this area.
4. “Official” legal materials.
The UELMA refers to legal materials designated as “official”. The UELMA, in its
original version, applies only to legal material designated as “official” and first published in an
electronic record, by the state, on or after the act’s effective date. 53 For purposes of the act, the
content originator is considered the “official publisher”.54
If the UELMA is enacted, then items included in the act’s definition of “legal material”
that are published (“display, present, or release to the public, or cause to be…”) 55 in an electronic
53
Uniform Law Commission, Uniform Electronic Legal Material Act, Comment to Section 3, July 2011.
Uniform Law Commission, Uniform Electronic Legal Material Act, Prefatory Note, July 2011.
55
Uniform Law Commission, Uniform Electronic Legal Material Act, Section 2, July 2011.
54
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 14
record after its effective date, will have to be identified by the state entity originating the content
as “official” or not (if it is only published in an electronic record, it must be designated as
official, if it is published as an electronic record and in another format, the publisher has a choice
as to whether to designate the electronic format as “official”).56
The UELMA contains an optional provision (included in this draft) that makes the act
applicable to specified legal material in an electronic record published before the effective date
of the act. This provision was included in light of the amount of legal material already available
in New Jersey in an electronic format. Since the statutory database available through the
Legislature’s website predates the act, for example, it appears that the requirements of the act
would not apply to that material unless it is referenced in this section.
The concept of “official” legal materials was explained in the 2007 State-by-State Report
on Authentication of Online Legal Resources. In 2003, the American Association of Law
Libraries (AALL) published the State-by-State Report on Permanent Public Access to Electronic
Government Information “to research what, if anything, state governments were doing to meet
the enormous challenges of ensuring permanency and public accessibility of government
information on the Web. The report helped raise national awareness of the need to ensure
permanent public access (PPA) and much progress has been made since its publication.”57
The AALL’s “follow-up State-by-State Report on Authentication of Online Legal
Resources is essentially an answer to another timely question – How trustworthy are state-level
primary legal resources on the Web?”58 The Executive Summary of that Report explains the
concept of “official” legal materials as follows:
An online official legal resource is one that possesses the same status as a print official
legal resource. The concept of an official legal resource applied to print publications is
well established. Print official legal resources have generally served as a touchstone for
authoritative and reliable statements of the law.
The working definition of official legal resource, drawn from the latest editions of
Black’s Law Dictionary and Fundamentals of Legal Research and adopted as a guide to
survey participants, reads:
An official 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. Now, however, the survey results make
it evident that the very concept of an official legal resource fits print much more easily
than online sources of law. Insofar as courts and public officials turn to official legal
resources for authoritative and reliable statements of the law and require citation to such
sources in the documents that come before them, the operative element of authenticity is
implicit in the definition. The fixed nature of the print medium, coupled with the paper
publication’s multiple copies and wide distribution, ensures that the print official legal
56
Id.
American Association of Law Libraries, State-by-State Report on Authentication of Online Legal Resources,
(March 2007), page 3.
58
Id.
57
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 15
resource, as “governmentally mandated or approved by statute or rule,” is an authentic
resource. An online official legal resource offers no such automatic assurance.59
The State-by-State Report on Authentication of Online Legal Resources also states that
the
emergence of online official legal resources is a positive development, providing that the
publications are actually trustworthy. To be trustworthy, digital materials – vulnerable to
lapses in management and control, corruption, and tampering – must be equivalent to
print official legal resources. To be equivalent, they must be authentic. Some states cast
online legal resources in a facilitative role, intending citizens and law researchers to use
such materials as a means to identify law they must take steps to verify elsewhere. This is
a misleading and self-defeating role for government information. As fully demonstrated
in the detailed findings, some online sources now replace print official legal resources.
For the states to rely on an approximation of the law – even one “good enough” most of
the time – completely fails in its role where the online source is the sole official statement
of the law and is not authenticated.60
The concerns that underlie that Report are reflected in the UELMA, the draft of which is
included below.
Section 3 has been modified in this draft to create a default provision, resulting in the
application of the act to identified legal materials currently available electronically. That
Section also includes a proposed alternative to a State department or entity bearing the
responsibility for authentication, preservation and accessibility. In addition, subsection c. of this
Section is intended to permit the subsequent identification of other legal materials and the
application of the act to those materials.
Draft
Section 1. Short Title
This [act] may be cited as the Uniform New Jersey Electronic Legal Material Act.
Source: New.
COMMENT
This section was modified to reflect the changes to the UELMA that are proposed below.
Section 2. Definitions
In this [act]:
59
60
Id. at 7-8.
Id. at 7.
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 16
a. “Electronic” means relating to technology having electrical, digital, magnetic, wireless,
optical, electromagnetic, or similar capabilities.
b. “Legal material” means, whether or not in effect:
(1) the New Jersey Constitution of 1947, as amended;
(2) the New Jersey Chapter Laws, including both Advance Laws and Pamphlets;
(3) the New Jersey Permanent Statutes Database;
(4) a state agency rule that has or had the effect of law;
(5) the following categories of state administrative agency decisions:
(A) the recommended reports and decisions of administrative law judges
and the final decisions and order of State agencies issued in accordance with
section 10 of the “Administrative Procedure Act,” P.L.1968, c.410 (c.52:14B-10);
(B) any other state administrative agency decisions, opinions, orders, or
rulings with legal effect, including but not limited to decisions, opinions, orders,
or rulings of the Board of Public Utilities, the Civil Service Commission, the
Council on Local Mandates, the Department of Banking and Insurance, the
Division of Workers Compensation, the Government Records Council, and the
Public Employment Relations Commission
(6) reported decisions of the following state courts: the Supreme Court of New
Jersey, the Superior Court of New Jersey, and the Tax Court of New Jersey;
(7) the Rules Governing the Courts of the State of New Jersey; and
(8) Formal Opinions of the Attorney General of New Jersey; and
(9) such other legal material as may be identified by a New Jersey State
department or agency that is the source of the material pursuant to subsection c. of
Section 3.
c.
Except as otherwise provided in subsection d. of Section 3, “official publisher”
means:
(1) for the New Jersey State Constitution of 1947, the Office of Legislative
Services;
(2) for the New Jersey Chapter Laws, the Office of Legislative Services;
(3) for the New Jersey Permanent Statutes Database, the Office of Legislative
Services;
(4) for a rule:
(A) published in the New Jersey Administrative Code, the Office of
Administrative Law;
(B) not published in the New Jersey Administrative Code, the state agency
adopting the rule;
(5) for a state administrative agency decision:
(A) included under paragraph (b)(5)(i), the Office of Administrative Law;
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 17
(B) included under paragraph (b)(5)(ii), the state agency issuing the
decision;
(6) for a state court decision included under paragraph (b)(6), the Administrative
Office of the Courts;
(7) for the Rules Governing the Courts of the State of New Jersey, the
Administrative Office of the Courts;
(8) for the Formal Opinions of the Attorney General, the Office of the Attorney
General; and
(9) for such other material as may be identified pursuant to subsection c. of
Section 3, the New Jersey State department or agency that is the source of the material.
d. “Publish” means to display, present, or release to the public, or cause to be displayed,
presented, or released to the public, by the official publisher.
e. “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.
f. “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.
g. “State department or agency” means any department, public authority, public agency,
public commission, or other subdivision of the State.
Source: New.
COMMENT
As the ULC Report explains, in the Comment to Section 2, “[t]he definition of ‘legal material’ is
intentionally narrow. As drafted, it includes only the most basic state-level legal documents: the state constitution,
session laws, codified laws, and administrative rules with the effect of law. The act suggests as alternatives a range
of additional legal material.” Each enacting state is given discretion in identifying what types of legal documents
may also be covered by the act. The Report notes that in “some states, the publication of judicial decisions and court
rules is handled by the judicial branch, over which the state legislature may have no authority to mandate specific
procedures such as those created by this act. Because of this potential separation of powers issue, judicial decisions
and court rules are included in this act as an alternative in the definition of legal material.”
The Report explains that the “official publisher is the state actor charged with carrying out the provisions of
this act” and also that the
act only applies to legal material published by the official publisher designated in this Section. Many states
contract with commercial printers or publishers for the production of their legal material, and under this act
states can continue to contract out the production of their legal material as desired. The act does not
interfere with the contractual relationship between the state and the commercial publisher. However, a
commercial publisher cannot serve as official publisher of legal material for the purposes of this act.
With the exception of the reference to materials later identified by regulation, the legal materials identified
in this draft statutory section were recommended by the New Jersey Law Librarians Association.
Some states that have enacted or introduced the act have elected to define legal materials more narrowly
and use only the first three or four items shown in the definitions in this Section. The definition of legal material
recommended by the New Jersey Law Librarians Association is more inclusive and has been incorporated here for
the purposes of eliciting comment regarding the appropriate scope of the act.
Since it appears that providing legal materials to the public electronically will continue to become more
common, language was added to the act to permit departments, agencies or other State entities to designate
additional materials. Consideration was given to including a provision that would allow the designation of other
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 18
materials by regulation, but it does not appear that such an approach would most effectively accomplish the goals of
the act. Instead, it may be most appropriate to allow the State entity that is the source of a particular material to
designate that material for inclusion in the body of legal material available electronically, and, in doing so, to elect
to comply with the act. A definition of “State department or agency” was included in the draft for ease of reference
and in an effort to make clear that any State entity may identify the materials in question. The term was selected
after a review of the definitions used in other sections of the body of statutes.
Ordinarily, defining “state” within this act might be deemed unnecessary, but since the definition (as used
in the act) includes entities other than states, and since the term is significant for purposes of Section 6 (Effect of
Authentication), the term remains in this draft.
Section 3. Applicability
a. This [act] applies to all legal material in an electronic record that is designated as
official under pursuant to Section 4 and first published electronically on or after [the effective
date of this [act]] January 1, 2015.
b. This [act] applies to the following legal material in an official electronic record that
identified in subsection b. of section 2 and was first published before [the effective date of this
[act]]: [insert proper name or title here] January 1, 2015. The legal material in an electronic
record identified in subsection b. of section 2 is official, and the official publisher identified in
subsection c. of section 2 shall comply with sections 5, 7, 8 and 9 of this act unless, before
December 31, 2014, that publisher:
(1) enters an agreement pursuant to subsection d. of this section; or
(2) clearly identifies the legal material that it made available to the public in an
electronic record as an unofficial version of that legal material by stating, at the point of
public access to the electronic record, that the material contained in that electronic record
is not official and stating where the official legal material may be located by the public.
c. In addition to the legal material identified in subsections b.(1) – b. (8) of Section 2, this
act applies to:
(1) material that has or had the effect of law;
(2) contained in an electronic record;
(3) generated by a New Jersey State department or agency;
(4) designated as official pursuant to Section 4; and
(5) published electronically either before or after January 1, 2015.
The official publisher identified in subsection c. of section 2 shall comply with sections 5, 7, 8
and 9 of this act unless that publisher enters an agreement pursuant to subsection d. of this
section.
d. The official publisher identified in subsection c. of Section 2, may enter an agreement
with Rutgers, the State University, or the Rutgers School of Law, designating Rutgers, the State
University, or the Rutgers School of Law, as the official publisher for purposes of this act. If
Rutgers, the State University, or the Rutgers School of Law is designated as the official
publisher:
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 19
(1) the entity identified in subsection c.(1) of section 2 shall provide the legal
material identified in subsection b. of this section to Rutgers, the State University, or the
Rutgers School of Law in an electronic format;
(2) the legal material is official for purposes of this act; and
(3) Rutgers, the State University, or the Rutgers School of Law shall publish the
legal material and shall comply with sections 5, 7, 8 and 9 of this act.
Source: New.
COMMENT
As the ULC Report explains, in the Comment to Section 3, the act “is intended to complement, and not
affect, an enacting state’s existing public records or records management laws and practices, under which nonelectronic legal material is preserved. This act does not affect a state’s responsibility to preserve non-electronic legal
material.” Instead, it applies to
legal material designated as official and first published in an electronic record on or after the act’s effective
date in the enacting state. If, after the effective date, an enacting state republishes legal material in an
electronic record that was previously not published in an electronic record, and if the state designates as
official the newly republished legal material, the UELMA applies. This may occur, for example, when the
state is transitioning a category of legal material from print to electronic format. If legal material as defined
by the act is first published only in an electronic record subsequent to the effectiveness of the act, the state
must meet the requirements of the UELMA.
The optional provision (subsection b.) has been revised for use in New Jersey in light of the amount of
legal material already available in an electronic format. Unless the currently available legal materials are
specifically identified in the act, the act will not apply to any of them. If it does not, since the UELMA does not
compel the State to make materials available electronically, or (unless Sec. 3 b. is utilized) compel pre-existing
materials to be designated as official, then UELMA would not likely have much impact in New Jersey in the near
term. If the UELMA were enacted in New Jersey tomorrow, for example, it would not (without modification) apply
to the materials currently available electronically. Unless a State entity that already makes legal material available
electronically is provided with an incentive to create “new” online materials, which it would then designate as
official, the UELMA might have no practical impact in New Jersey for many years.
One of the goals of the proposed modifications to this Section is to create a default provision, resulting in
the application of the act to certain legal materials currently available electronically. It attempts to do so by
requiring a State entity that currently publishes legal material available electronically to take affirmative action
before December 31, 2014 if it does not want that material designated as official and it does not want to be required
to comply with the provisions of the act. If the State entity that publishes the material takes no action, the legal
material currently available electronically will be designated as official and the State entity must comply with this
act.
Alternatively, the State entity may: (1) clearly identify the legal material that it publishes electronically as
unofficial and indicate to the public where the official version of the material may be found; or (2) enter into an
agreement with Rutgers, the State University, or the Rutgers School of Law which already provides public access to
a considerable amount of legal material electronically, and then Rutgers the State University, or the Rutgers School
of Law will be required to comply with the act. The selection of Rutgers reflects the status quo, since Rutgers
maintains databases containing a substantial amount of legal information that it currently makes available to the
public. The goal of the provision is to allow a State department, agency or other entity to transfer by agreement to
Rutgers, with the consent of Rutgers, the responsibilities of an official publisher for purposes of the act. It is not
clear at this time whether Rutgers would want to formally accept this responsibility, or whether there are other
colleges, universities or law schools that might suggest that the statute should afford them the opportunity to do so.
According to the State Department of Education, there are three public research universities in New Jersey, nine
public colleges and universities, 19 community colleges, 14 independent 4-year colleges, and seven proprietary
institutions with degree-granting authority.
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 20
Subsection c. of this Section is intended to permit the subsequent identification of other legal materials and
the application of the act to those materials. The description of legal material in this subsection may benefit from
revision and Staff is seeking comment on this issue. The phrase “that has or had the effect of law” was selected
because that is the phrase used in Section 2b.(4).
Those are the goals of draft subsections b. and d. of Section 3. This material is being distributed for
comment regarding whether the language, as drafted, will actually accomplish those goals and for comment
regarding the issue of whether modifying the uniform act in that manner is appropriate for New Jersey.
Section 4. Legal Material in Official Electronic Record
a. If an official publisher publishes legal material only in an electronic record, the
electronic record is official and the publisher shall :
(1) designate the electronic record as official; and
(2) comply with Sections 5, 7, and 8, and 9.
b. An official publisher that publishes legal material in an electronic record and also
publishes the material in a record other than an electronic record may designate the electronic
record as official if the publisher complies with Sections 5, 7, and 8, and 9.
Source: New.
COMMENT
Since the Act is “outcomes based” it does not mandate electronic publishing. As the ULC Report explains,
in the Comment to Section 4, the act “does not direct a state to publish its legal material in any specific format or
formats. The act leaves policy decisions regarding format of its legal material to the state.” The Comment to Section
4 further explains that
There are no publication standards for legal information shared among the states at this time, and
within a single state there may be multiple publishing practices for legal material. For example, today in a
single state, the state’s code may be published in a yearly paperback edition and electronically, court
reports may be published in hardbound volumes, and the administrative regulations may be available in a
looseleaf format or only in an electronic format. All states are transitioning from a print-only publishing
environment to either an environment in which legal materials are published in a mix of formats or one in
which legal materials are published in electronic format only. Many states publish the same legal material
in both print and electronic formats. A state may designate as official as many formats of its legal material
as it wishes. If legal material in an electronic record is designated as official, the requirements of the act
must be met regardless of whether the state publishes the same legal material in another format.
As a matter of courtesy to the user of electronic legal material, if the electronic version is not
designated as official, the state should include information that displays with the legal material that
explains the source of or the procedure by which the public can obtain a copy of the official version of the
legal material.
Where the legal material is published only in an electronic format, the official publisher is required
to designate as official the electronic format. This is a common sense requirement; if legal material is
available from the state government in one version only, it follows that that version must be official.
Since the act intends that when legal material is published only in an electronic format, that format be
deemed official, the proposed statutory language was streamlined to state the requirement more plainly. This
Section was also modified to call for compliance with Section 9 of the act.
Section 5. Authentication of Official Electronic Record
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 21
a. An official publisher of legal material in an electronic record that is designated as
official under Section 4 shall authenticate the record.
b. To authenticate an electronic record, the official publisher shall provide a method for a
user to determine that the record received by the user from the official publisher is unaltered
from the official record published by the official publisher.
Source: New.
COMMENT
The publisher is required to provide a method by which the user can determine whether the record received
from the publisher is unaltered from the official record published by the publisher. Other states and other countries
have begun to adopt methods of authentication. The United States Government Printing Office provides official
authenticated legal materials using digital signatures, as do Arkansas and Delaware. Utah has a somewhat more
complicated system that requires more effort on the part of the user and, as such, might be considered less userfriendly. Regardless of the method used, the Act requires that the official publisher designate a “baseline” copy of
all published legal material that constitutes the definitive document against which all others are compared for
purposes of authentication. As the ULC Report explains, in the Comment to Section 5,
a state should make its official legal material available in a trustworthy form and citizens should be able to
ascertain the trustworthiness of electronic official legal material. Reliable and accurate government legal
material is necessary to allow those who use the information to make informed decisions based on it. The
UELMA supports governments in fulfilling their obligations to provide trustworthy legal information so
that citizens may participate knowledgeably in their own governance. The act also provides assurances to
the legal community that the legal material it needs are accurate and reliable.
This act guides a state in implementing both policies. The intent of this act is to be technologyneutral, leaving it to the enacting state to choose its preferred technology for authentication of legal
material in an electronic record from among the options available. The technology-neutral approach also
allows the state to change technologies when necessary or desirable.
Authentication of electronic legal documents is an issue of both national and worldwide concern.
Numerous governments and organizations are beginning to authenticate legal material and develop best
practices. As of March, 2011, there are several U.S. jurisdictions in which legal material in an electronic
record is being authenticated. Their practice offers guidance on specific technologies. For example, the
United States Government Printing office provides official, authenticated Public Laws and other legal
material using digital signatures (see http://www.gpoaccess.gov/authentication/faq.html#1)...
***
The Hague Conference on Private International Law, a 72-member inter-governmental
organization that develops multilateral legal instruments, has developed a best practices document requiring
authentication of its official electronic legal materials. The “Guiding Principles to be Considered in
Developing a Future Instrument,” begun in 2008, includes principles for Integrity and Authoritativeness
that state, in part:
4. State Parties are encouraged to make available authoritative versions of their legal
materials provided in electronic form.
5. State Parties are encouraged to take all reasonable measures available to them to
ensure that authoritative legal materials can be reproduced or re-used by other bodies with clear
indications of their origins and integrity (authoritativeness).
These Principles, when completed and adopted, will apply to the development of all instruments
coming from the Hague Conference, and the principles will become standards for organizations and
jurisdictions worldwide. This act adds to these emerging standards by approaching the issue from an
outcomes-based perspective…
California’s Office of Legislative Counsel, the Minnesota Historical Society and Minnesota’s Office of the
Revisor of Statutes, after working together, published a report in December in 2011 regarding the various types of
authentication methods as well as the estimated cost.
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 22
States have already begun to authenticate legal material, using different methods of authentication.
Arkansas publishes its Appellate Opinions in electronic format with Digital Signatures. Delaware provides an
electronic version of its Administrative Rules also using Digital Signatures. Indiana publishes its Administrative
Code in electronic format with a Certificate of Authenticity. Utah authenticates its Administrative Code using hash
value.
Secure websites, document hashes, digital signatures, proprietary solutions and visual signatures are some
of the current available technologies that can help authenticate as well as protect the legal material that is available
electronically.
Secure websites are websites that use security technology such as, HTTPS, TSL/SSL, and digital
certificates, to show that the website is what it claims to be. It provides the user with confidence that the
information displayed on the site is authentic. Document hashes are cryptographic functions that create a ‘hash
code’ for a specific selected document. Hash codes are similar to a fingerprint for an individual document. If a
document changes, so does the hash code. There are various Algorithms that can be used to verify document
integrity ranging from the most common, MD5, to the most currently used, SHA-1. Digital signatures add another
level of protection to the hashes that are created. These signatures add the signer’s identity is a way that is safe and
will authenticate the document. The identity is “encapsulated in an X.509 standard digital certificate, making the
process open and standard.” This type of authentication technology comes encrypted with a ‘private key’, in which
only the signer will have access to the key, should the signer chose to make changes to the document. The private
key is to be kept in a secure manner to ensure that no unauthorized changes will take place without the signer’s
consent. There is also a public key that can be used by the person viewing the file to verify that the document has
not been altered in any way. Visual signatures are scanned stamps, seals, or scanned signatures that can be placed
on PDF files. Unlike digital signatures, visual signatures are physically placed directly on the document by the
publisher before the documents are scanned into the specific electronic format chosen by the publisher. Virtually,
any document can be scanned to be made into a PDF making it easier to be able to authenticate legal material in an
electronic format.
Proprietary solutions can be purchased from vendors, including: AbsoluteProof from Surety, ProofMark by
ProofSpace, and TruSeal from Tru Data Integrity.
California’s Office of Legislative Services recommends that a legislative body choose a combination of
authentication technologies to create the best authentication method for their legal material. Reliance on a single
method can expose a governmental entity to weaknesses in that particular method and therefore compromise the
integrity of the document. Having a PDF file on a secure website perhaps may be the least expensive method, but
the legislative body may be compromising the security of the file. If a PDF is created with a visible or digital
signature in which it is posted on a secure website with extra methods of security, this combination may perhaps be
the most expensive. The NJLRC is sensitive to the need for the Legislature to consider security and cost factors
before making any determination regarding authentication solutions.
The proposed language was modified for consistency with other sections and the terminology used
throughout.
Section 6. Effect of Authentication
a. Legal material in an electronic record that is authenticated under pursuant to Section 5
is presumed to be an accurate copy of the legal material.
b. If another state has adopted a law substantially similar to this [act], legal material in an
electronic record that is designated as official and authenticated by the official publisher in that
state is presumed to be an accurate copy of the legal material.
c. A party contesting the authentication of legal material in an electronic record
authenticated under pursuant to Section 5 has the burden of proving by a preponderance of the
evidence that the record is not authentic.
Source: New.
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 23
COMMENT
An authenticated record is presumed to be an accurate copy in this state or in another state that adopts a
substantially similar law and that a party contesting the authentication of legal material has the burden of proving by
a preponderance of the evidence that the record is not authentic.
As the ULC Report explains, in the Comment to Section 6, the “intent of this act is to provide the end-user
of electronic legal material with a presumption that authenticated legal material is accurate. The act extends the
same presumption to authenticated electronic legal material that is provided to legal material published in a book,
and results in the same shift in the burden of proof as occurs when a party questions the accuracy of the print legal
material. This is the legal outcome of authentication.” The ULC Report also explains that the
act does not affect or supersede any rules of evidence, and leaves further evidentiary effect to existing state
law and court rules. The presumption that authenticated electronic legal material is an accurate copy is not
determinative of any criteria a court may wish to establish regarding admissibility and reliability of
electronic legal material…
Authentication provides only a presumption of accuracy, and a party disputing the accuracy of
legal material in an authenticated electronic record can offer proof as to its inaccuracy. Authentication of an
electronic record provides the same level of assurance of accuracy of the electronic record that publication
in a printed book provides…
This act does not affect the practice of certification, and courts retain discretion to require a
certified copy to meet a particular evidentiary standard. Certification is a long-standing practice in which an
official publisher reviews a printed document and adds a notarization or other verification that the
document is an accurate copy of the original.
The act does not require electronic legal material from another state to be authenticated for use in
the enacting state. However, if another state has adopted this act, the same presumption of accuracy applies
to its authenticated electronic legal material. Widespread adoption of this act will further the recognition
and use of electronic legal material.
Section 7. Preservation and Security of Legal Material in Official Electronic Record
a. An official publisher of legal material in an electronic record that is or was designated
as official under pursuant to Section 4 shall provide for the preservation and security of the
record in an electronic form or a form that is not electronic.
b. If legal material is preserved under pursuant to subsection a. of this section in an
electronic record, the official publisher shall:
(1) ensure the integrity of the record;
(2) provide for backup and disaster recovery of the record; and
(3) ensure the continuing usability of the material.
c. The official publisher shall preserve and secure the legal material currently in effect,
and historical legal material, including legal material that has been amended, overruled,
repealed, reversed, revised, or superseded.
d. A backup of a record must include the original record and all subsequent changes, and
the public must be able to identify when each change to the record was made.
e. Legally significant formatting must be preserved in electronic legal material.
Source: New.
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 24
COMMENT
The official publisher is required to provide for the preservation and security of the record in an electronic
form or in some other form. If the material is preserved in an electronic record, the official publisher has a
responsibility to ensure its integrity, provide for backup and disaster recovery and ensure the continuing usability of
the record.
As the ULC Report explains, in the Comment to Section 7, “[l]egal material retains its value regardless of
whether it is currently in effect. This includes legal material that is subsequently amended or repealed, as happens
with statutes, as well as legal material such as cases that may be reversed or overruled. Legal material does not cease
to be legal material with the passage of time. For example, the outcome of today’s lawsuit may depend on rights or
obligations created by yesterday’s statutes or regulations.” The Report explains that “[r]esearchers need historical as
well as current legal material to understand the development of legal doctrine and predict its future course. Legal
material must be saved and protected—preserved—to allow for future use.” The ULC Report states that
Enacting states are given discretion to decide what electronic legal material must be preserved.
This is done through the definition of legal material in Section 2. Section 7 requires that any legal material
included in the Section 2 definitions and designated as official under section 4 must be preserved. The
preservation requirement is intended to cover all materials typically published with the defined legal
material. For example, state session laws usually include lists of legislators and state officials, memorials,
proposed or final state constitutional amendments, and resolutions, all of which should be preserved along
with the legislative enactments.
The UELMA does not address the measures taken by states to secure their internal information,
prior to the point of official publication. This act applies only to legal material that has been officially
published and thereby made available to the public. Section 7 (a) requires that an official publisher provide
for the preservation and security of electronic legal material designated as official, in either electronic or
non-electronic form. This gives states the flexibility to preserve electronic legal material in a print format or
in an electronic format. Regardless of the method chosen for preserving legal material, the official
publisher’s practices should be carried out in accordance with existing public records and records
management laws.
If legal material is preserved in print form, procedures to do so securely are well-established and
are therefore not specified in the act. Traditionally, multiple copies of law books have been maintained by
several libraries in diverse geographic locations. This method of preservation and security can be replicated
for electronic legal material by printing multiple copies and distributing them in the same manner as books.
Many states have an official state archivist, whose duties include preserving copies of important documents
such as legal material and who may be able to provide assistance in preserving electronic legal material.
If legal material is preserved electronically, however, Section 7 (b) of the act requires certain
outcomes. Electronic records must be securely stored to ensure their integrity. In addition to other possible
security measures, best practices for secure storage of electronic records call for the maintenance of
multiple copies that are geographically and administratively separated. As with preservation in print form,
the existence of multiple electronic copies maximizes the possibility that at least one copy of important
records will remain available, even after a natural disaster or other emergency.
To maintain security over time, backup copies of electronic records must be made periodically. A
backup copy provides an identical version of an electronic record that is usable in case the original is lost or
unusable. The backup process may be incremental, essentially tracking all changes to the original, or a
continuous backing up of the entire system that saves the complete text of each version, among other
methods. Whatever method the state chooses must back-up the original material plus subsequent changes; a
changed record becomes a new record with content that must also be backed-up. Legal material is
continually updated; states must develop systems that recognize the dynamic nature of legal material and
provide for appropriate preservation.
Preservation requires that the electronic records be migrated to new storage media from time to
time. Just as cassette tapes were replaced by CD-ROMs which were then replaced by digital music formats,
storage media for electronic records has and will continue to change over time. While the nature of new
technologies is not known at the present time, the fact that new technologies will be developed is a
certainty. Costs of storage media are decreasing rapidly as the marketplace produces new products and
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 25
methods. The anticipation of the Drafting Committee is that preservation of electronic records will be cost
neutral when compared with the current system of storing tangible legal material.
In migrating to new storage media, the official publisher should preserve the legally significant
formatting of electronic legal material. Legal material is often complex in organization and presentation.
The formatting of the legal material, including italicization, indentation, numbering, bold face fonts, and
internal subdivisions and subsections, can be significant. Hierarchies are defined and priorities are
established, for example, by formatting, and legislative intent is made clear.
The act does not impose a duty to convert non-electronic legal material retrospectively to an
electronic format. Choice of format is entirely up to the state. If, however, the official publisher chooses to
digitize non-electronic legal material and designate that material as official, the requirements of the act
must be met once the legal material is published in an electronic format.
Because the act recognizes the significance of preserving not only the legal material currently in effect, but
historic material as well, subsection c. was added to briefly state this requirement and avoid confusion about the
need to preserve older versions of legal material. Subsections d. and e. are included to incorporate minimum
standards. It may be useful to incorporate other default minimum standards in the statute, and Staff is seeking
comment on this issue.
With regard to the measures to be taken to preserve legal material covered by the act, Title 47 of the New
Jersey statutes deals with public records and provides that any
public agency, the Secretary of State or the County Clerk, Register, or Surrogate of a county may copy,
record, index or transcribe public records by means of photography, data processing, image processing, or
other approved means, subject to compliance with the rules and regulations promulgated therefor by the
Division of Archives and Records Management in the Department of State. Any document which is a data
processed or image processed copy produced and stored in accordance with the rules and regulations
promulgated therefor by the division shall be considered a legal substitute for an original document.
N.J.S. 47:1-11. In addition, the Title explains that the “Division of Archives and Records Management in the
Department of State, with the approval of the State Records Committee established pursuant to section 6 of
P.L.1953, c. 410 (C. 47:3-20), shall promulgate such rules and regulations as may be necessary to effectuate the
purposes of this act and to safeguard the State's documentary heritage.” N.J.S.47:1-12 subsection a.
Whenever it shall be necessary to alter, correct or revise the record pertaining to any paper, document or
instrument, or the index pertaining to the same, which shall previously have been recorded, filed,
registered, or indexed, the officer responsible for maintaining such records or custodian thereof shall cause
a notation to be made of the date and nature of the alteration, correction or revision, which notation shall
become part of the record. The officer or custodian shall also preserve the record in its original form prior
to alteration, correction or revision, and the same shall be available to any citizen of this State, pursuant to
P.L.1963, c. 73 (C. 47:1A-1 et seq.).
N.J.S.47:1-13.
Title 15 of N.J. Administrative Code, in Chapter 3 Records and Retention, states that it “encompasses all
public entities at the State, county and local government levels, including subdivisions thereof, any department,
division, board, bureau, office, commission, district, or institution, or other instrumentality within or created by the
State or political subdivision or combination of political subdivisions; or any school, fire, or water district or other
special district or districts; and any independent authority, commission, district, institution, or instrumentality; or
special districts, and authorities.” N.J.A.C. 15:3-1.1. The Code further provides that the “Division of Archives and
Records Management, through its Director, or designee, shall, at its discretion, have unrestricted access, pursuant to
the provisions of P.L. 1920, c.46, § 3 (N.J.S.A. 47:2-4), to examine the condition of the records, books, documents,
manuscripts, archives, maps and papers kept, filed or recorded in any public agency.” N.J.A.C. 15:3-1.4. Also, the
“Division, pursuant to the provisions of P.L. 1920, c.46, § 6 (N.J.S.A. 47:2-8), shall acquire, preserve, classify and
collate official records, letters and other material, or transcripts of such records and papers, bearing upon the history
of the government and the people of New Jersey.” Id.
The New Jersey Statutes and the New Jersey Administrative Code contain provisions pertaining to
preserving public records. The Administrative Code, at 15:3-1.6 contains standards that are adopted and
incorporated into the chapter by reference and pertain to the preservation of electronic records. Subsequent sections
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 26
of the Administrative Code contain more detailed provisions regarding records maintained in non-paper formats.
N.J.A.C. 15:3-4.1 et seq., for example, concerns the image processing of public records. While it may not directly
pertain to records made available to the public and retained only in a database, it addresses some of the same kinds
of concerns that are relevant to electronic records generally and that were contemplated by UELMA, including the
following language, which is found in N.J.A.C. 15:3-4.8:
(a) A security subsystem and procedures for system administration and file access that cannot be
disabled or circumvented, except for properly authorized functions of a systems manager, shall be provided
for all image processing systems used for keeping public records.
(b) Imaging systems shall not be capable of altering a record as scanned and/or recorded, except
for standard computer-enhancement routines used to improve the legibility of scanned documents.
(c) Means of control shall be established and maintained to prevent unauthorized creation,
addition, alteration, deletion, or deterioration of any imaged record.
(d) Corrections or additions to records shall be recorded as new documents and maintained in the
recordkeeping system along with the original record.
(e) Court-ordered expungement of information recorded on a Write-Once-Read-Many (WORM)
optical disk system shall be implemented according to recommendations provided in Technical Report for
Information and Image Management--The Expungement of Information Recorded on Optical Write-OnceRead-Many (WORM) Systems (AIIM TR28-1991, as amended and supplemented, incorporated herein by
reference).
(f) Security subsystems and procedures for system administration and file access shall be
completely and thoroughly documented and auditable.
(1) To ensure the integrity, accuracy, and reliability of the public records contained in image
processing systems, such systems shall create and retain a record of the location, date, operator and
equipment involved in the production of all images it copies or produces.
(2) Imaging systems shall create and maintain logs of all system and file access and activities.
(3) Only authorized persons shall have access to logs and other documentation of security
subsystems and procedures.
In addition, subsection a. of N.J.A.C. 15:3-4.9 provides that the “implementation and use of image
processing systems shall not limit or hinder public access to public records. Image processing systems shall provide
access which is equivalent, or better than, that provided by previous recordkeeping systems.” Subchapter 5 of the
Records Retention chapter of the Administrative Code addresses the certification of image processing systems.
N.J.A.C. 15:3-6.5 provides guidance for the storage of “magnetic media and other electronic records”. N.J.A.C.
15:3-6.5 subsection (a) provides that subchapter 6 shall not be deemed to restrict any public agency from
promulgating, implementing or employing more restrictive standards, procedures or rules for the storage of records
in any media, type or format.
In 2001, the Uniform Electronics Transactions Act (UETA) was enacted in New Jersey (N.J.S. 12A:12-1).
The UETA deals with electronic transactions within the context of the Uniform Commercial Code and applies to
electronic records and electronic signatures relating to a transaction. N.J.S. 12A:12-3. UETA states, however, that
“[e]ach governmental agency shall determine whether, and the extent to which, it will create and retain electronic
records and convert written records to electronic records. Additionally, each executive agency shall comply with
standards adopted by the Secretary of State pursuant to section 19 of this act [12A:12-19].” N.J.S. 12A:12-17. The
UETA also establishes that a government agency “shall determine whether, and the extent to which, it will send and
accept electronic records and electronic signatures to and from other persons, and otherwise create, generate,
communicate, store, process, use and rely upon electronic records and electronic signatures” and shall “control
processes and procedures appropriate to ensure adequate preservation, disposition, integrity, security, confidentiality
and auditability of electronic records” N.J.S. 12A:12-18. The UETA states that except “as otherwise provided in
subsection f. of section 12 of this act [12A:12-12] or section 17 of this act [12A:12-17], this act does not require a
governmental agency to use or permit the use of electronic records or electronic signatures.” Id.
Other sources in New Jersey also deal with issues related to electronic records. New Jersey’s Office of
Management and Budget (OMB) within the Department of the Treasury explained in a circular (07-11-OMB, then
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 27
10-02-OMB) the procedures for the review and approval of all proposals for all “new automated records
management/storage systems and related services intended to supplement or replace paper-based records systems.”61
According to the circulars, the following agencies share responsibility for the reviewing/approving process of
automated record systems/services proposals: The Division of Archives and Records Management; The Strategic
Document Services Office in the Division of Revenue; Office of Information Technology; and Office of
Management and Budget.
Section 8. Public Access to Legal Material in Official Electronic Record
An official publisher of legal material in an electronic record that is required to be
preserved under pursuant to Section 7 shall ensure that the material is reasonably available for
use by the public on a permanent basis.
Source: New.
COMMENT
The publisher of legal material in an electronic record shall require that the material is reasonably available
to the public on a permanent basis. “Reasonably available” does not mean 24/7 access, and may be limited by the
state’s determination regarding reasonableness, but that access to the material must be offered permanently (in
perpetuity).
The ULC Report states, in the Comment to Section 8, “[o]ur democratic system of government depends on
an informed citizenry. Legal material includes information essential to all citizens in a democracy, whether the legal
material is effective currently, has been repealed or overruled, or is of historical value only. To exercise their rights
to participate in our democracy, citizens must have reasonable access to all legal material.”
The Report also says that “[p]ermanent public access to official electronic legal material allows citizens to
stay informed of legal developments and carry out their democratic responsibilities.” In addition, the Report
suggests that
Legal material preserved under this act must be “reasonably available” to the general public.
Reasonable availability does not necessarily mean that the information must be accessible around the clock,
every day of the year. An enacting state has discretion to decide what is reasonable, which should be
determined in a manner consistent with other state practice…Reasonable availability may mean that the
legal material can be used during business hours at publicly accessible locations, such as designated state
offices, public libraries, a state repository or archive, or similar location.
Access to preserved electronic legal material may be limited by the state’s determination of
reasonableness, but access must be offered permanently. That is, the preserved electronic legal material
must remain available in perpetuity. This requirement makes electronic legal material comparable to print
legal material, which is stored on a permanent basis in libraries, archives, and offices.
…In order to provide for maximum flexibility, and recognizing economic realities, however, the act does
not address the issue of cost for access to electronic legal material. The result is that providing free access
or charging reasonable fees for access to electronic legal material is a decision left up to the states.
Section 9. Standards
a. The Division of Revenue and Enterprise Services in the Department of the Treasury
may shall adopt such regulations as it deems necessary to establish format and technical
requirements for the authentication, preservation and security of legal materials in an electronic
record to implement effectuate the provisions of N.J.S. –[this act]--.
61
State of New Jersey, http://www.nj.gov/infobank/circular/circindx.htm, (last visited April 12, 2013).
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 28
b. In the absence of regulations adopted by The Division of Revenue and Enterprise
Services, In implementing this [act], and an official publisher of legal material in an electronic
record shall be responsible for the implementation of this act and shall consider:
(1) standards and practices of other jurisdictions;
(2) the most recent standards regarding authentication of, preservation and
security of, and public access to, legal material in an electronic record and other
electronic records, as promulgated by national standard-setting bodies;
(3) the needs of users of legal material in an electronic record;
(4) the views of governmental officials and entities and other interested persons;
and
(5) to the extent practicable, methods and technologies for the authentication of,
preservation and security of, and public access to, legal material which are compatible
with the methods and technologies used by other official publishers in this state and in
other states that have adopted a law substantially similar to this [act].
Source: New.
COMMENT
An official publisher of legal materials is required to consider standards and practices in use both inside and
outside of his or her jurisdiction.
The ULC Report states, in the Comment to Section 9, that as “private sector organizations, government
agencies, and international organizations tackle these issues, their work may offer guidance to states as this act is
implemented on an on-going basis. Like many other technology-related procedures, standards and best practices for
management of electronic records are in a state of development and refinement. For example, appropriate
information security is a key element of the authentication process, and security standards are currently being
developed.” The Report encourages each enacting state “to consider a single system for authentication of,
preservation and security of, and public access to its legal material. A single system will lead to financial and
personnel efficiencies in implementation and maintenance, and avoid confusion on the part of the users. While each
enacting state will determine its own practices, states are encouraged to communicate, coordinate, and collaborate in
the development of authentication, preservation, and permanent access standards.”
Presently, it does not appear that there are standards specifically directed toward the preservation of
electronic material with the exception of e-mail messages that meet the criteria for public records as mentioned in a
Circulating letter from DARM to all state and local government agencies. The Letter states that “retention or
disposition of e-mail messages must be related to the information they contain or the purpose they serve. The
content, transactional information, and any attachments associated with the message are considered records (if they
meet the criteria of a public record in N.J.S. 47:3-16). The content of e-mail messages may vary considerably, and
therefore, this content must be evaluated to determine the length of time the message must be retained.”
The language of subsection a. was based on language found in N.J.S. 46:26C-1 and was designed to clearly
authorize participation by DRES (formerly DARM) to the extent it deems regulation in this area necessary. In the
absence of regulations adopted by DRES, the onus is on the official publisher to take steps to address authentication,
preservation and security concerns.
Section 10. 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 states that enact it.
Source: New.
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 29
COMMENT
This language is identical to the ULC source language.
Section 11. Relation to Electronic Signatures in Global and National Commerce Act
This [act] modifies, limits, and supersedes the 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).
Source: New.
COMMENT
This language is identical to the ULC source language.
Section 12. Effective Date
This [act] takes effect . . . .
Source: New.
COMMENT
This language is identical to the ULC source language.
New Jersey Electronic Legal Material Act – Revised Draft Tentative Report – June 10, 2013 – Page 30