Legal issues and conclusions

This part of the report considers legal requirements for the procedures being automated by DOT, NRC and other agencies. In some instances, as with the Administrative Procedure Act, few issues arise because automation is consistent with widely accepted legal propositions. In other cases, as with judicial review on records developed by agencies, the legal issues are not difficult, but the concerns are significant, and the report works though the relationship between new computer-aided practices and traditional legal requirements. In a few cases, as with the Federal Advisory Committee Act, and with dissemination of submissions that include private copyrighted works, the issues may not be resolved easily.

The legality of automating agency procedures does not depend on a judicial opinion explicitly authorizing a particular technology application. Agencies enjoy broad authority under the APA and other statutes to define the details of their administrative procedure. The question is not whether a procedural detail has received explicit sanction in some earlier case, but whether the relatively general requirements of administrative agency law have been satisfied, and, as important, whether the goals expressed by the Congress for the program and expressed in the Constitution for legal procedure are advanced.

APA

The Administrative Procedure Act 98 provides default rules for rulemaking and adjudication. These default rules may be supplemented or overridden by specific procedural provisions in the statutes granting authority to covered agencies. Rulemaking is covered by the notice-and-comment procedures of the "informal rulemaking" section, § 553, except "when rules are required by statute to be made on the record after opportunity for an agency hearing . . . ." 99 . Under section 553, agencies must publish a notice of proposed rulemaking ("NPRM") in the Federal Register, giving a statement of the time, place, and nature of any public rulemaking proceedings, reference to the legal authority under which the rule is proposed, and the substance of the proposed rule or a description of the subjects and issues involved. 100 "After notice required by this section, the agency shall give interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation." 101 These requirements are general and flexibly applied.

On their face and based on their application and interpretation by the courts, there is no reason that electronic formats may not be used for all aspects of an informal rulemaking proceeding, as long as an appropriate NPRM is published in the Federal Register, which currently exists officially only in paper format.

Adjudication proceedings are covered by the APA's formal adjudication provisions, 102 but only when the adjudication is "required by statute to be determined on the record after opportunity for agency hearing . . . ." 103 This condition precedent to the application of the adjudication provisions of the APA is interpreted flexibly, sweeping most agency adjudication within the APA procedures, because otherwise there might be no statutory procedures applicable. 104 When the provisions apply, notice of an agency hearing must be timely and inform persons entitled to notice of the time, place, and nature of the hearing, the legal authority and jurisdiction under which the hearing is to be held, and the matters of fact and law asserted. 105 The time and place for hearings must be set with "due regard" for the convenience and necessity of the parties and their representatives. 106 The hearing must give all interested parties an opportunity for the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when "time, the nature of the proceeding, and the public interest permit . . . ." 107 "A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts." 108 Nevertheless, in rulemaking, 109 or in determining claims for money or benefits or applications for initial licensing, "an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form." 110 Persons are entitled to counsel and to "appear before an agency or its responsible employees for the presentation, adjustment, or determination of an issue, request, or controversy . . . ." 111

Only certain persons or entities may "preside at the taking of evidence:" 112 the agency; one or more members of the body which comprises the agency; or one or more administrative law judges. 113 In addition, if another statute provides, other types of employees may preside over hearings, such as administrative judges assigned to a Nuclear Regulatory Commission licensing panel. 114

The transcript of testimony and exhibits and all papers and requests filed in the proceeding constitute the exclusive record for decision and "on payment of lawfully prescribed costs, shall be made available to the parties." 115 The record must show the ruling of the presiding officer on each proposed finding, conclusion, or exception, presented with respect to a recommended, initial, or tentative decision or a decision on agency review of the decision of subordinate employees. 116 In addition, all initial, recommended, and tentative decisions are part of the record. These interlocutory decisions must include a statement of findings and conclusions, and the reasons or basis therefore on all material issues of fact, law, or discretion presented in the record. 117

There is nothing in the language of the APA's adjudicatory provisions that prevents submission of information in electronic form or the memorialization of agency decisions in electronic form. Nor is there any reason in the statutory language that the record may not be maintained entirely in electronic form. The only aspects of formal adjudication that might be inconsistent with a purely electronic proceeding are the live hearing requirements, and even those requirements might be met to a considerable degree by presentation of prerecorded video materials, 118 or participation through videoconferencing technology. 119

Federal Register notice of proposed rulemaking

The Federal Register Act and § 553 of the Administrative Procedure Act require the publication of proposed rulemaking in the Federal Register. To some extent, such a publication would be inconsistent with the purpose of electronic initiatives such as the NRC forms-based rulemaking demonstration program. The most conservative way of handling this question would be to publish parallel paper versions of the major agency contributions -- the list of issues, the set of alternatives, and the comprehensive proposal. Another approach, more faithful to the theme of demonstration, would be simply to publish Federal Register notices directing interested parties to the electronic space, providing them with enough information for them to find it electronically and to participate. The paper Federal Register notice would notify the public that an electronic "hearing" is planned and provide sufficient information to allow people to find the hearing and to participate. Legally, this should raise no more questions about compliance with section 553 than a Federal Register notice containing information about a live, face to face hearing. A Federal Register notice leading members of the public to an electronic hearing in which documents are available electronically provides wider public access to the substance of matters considered by an agency than a Federal Register notice that refers to paper documents that must be obtained through a separate request and, perhaps, payment. 120

Accommodating persons who claim an inability to participate electronically

For the foreseeable future, there will be some interested persons who lack the ability to participate electronically. The agency could respond to this potential problem by directing such persons to public reference rooms, where personnel could assist them to retrieve information pertinent to their proceeding and to input their comments on public-use workstations, as in the NRC LSS initiative, which provides public- access PCs in local public docket rooms near the facility. In addition, agencies can publish in the Federal Register a list of entities and members of the Bar who would provide assistance to such persons, and thus serve as intermediaries between the electronic rulemaking activity and the participants.

Intervenor financing

There are concerns about whether support for public participation in electronic proceedings might exceed the NRC's authority to fund intervenors. 121 The appropriation acts for fiscal years 1990 through 1993 contained language prohibiting intervenor financing. 122 When such restrictions are in place, directly financial support of electronic participation is impermissible.

Alternative dispute resolution

The Negotiated Rulemaking Act 123 and Alternative Dispute Resolution Act 124 are but two examples of a legal environment that has become significantly more hospitable to a variety of alternative dispute resolution techniques in both rulemaking and adjudication.

The NRC rulemaking initiative resembles negotiated rulemaking in some respects, because of its interactive character. There may not be a bright line separating notice-and-comment rulemaking using information technology and negotiated rulemaking using information technology because the technology facilitates the kind of interactive exchange that is a hallmark of negotiation and less obvious in the more static exchange of notices and comments. When negotiated rulemaking is involved, requirements of the Federal Advisory Committee Act must be satisfied; when it is not, FACA requirements may be avoidable, as considered in § VIII(E)(4). The distinction should be based on whether the process is intended to produce a consensus of the participants, which is communicated to the agency, or whether the process is intended to communicate the views of individual participants directly to the agency. Consensus is the central goal of negotiated rulemaking. Direct communication of views is the central goal of notice-and- comment rulemaking.

Some agencies, in implementing arbitration programs, have recognized that information technology can also be useful in making arbitration more efficient or more accessible or both. 125

The record for judicial review

The APA provides for judicial review 126 of final agency decisions. 127 With rare exceptions, such review is based on the record developed before the agency. 128 Federal Rules of Appellate Procedure 16 and 17 specify what constitutes the record of an agency decision 129 on a petition for a review of that decision in the United States Court of Appeals.

Rule 16 defines the composition of the record: "the order sought to be reviewed or enforced, the findings or report on which it is based, and the pleadings, evidence and proceedings before the agencies shall constitute the record on review in proceedings to review or enforce the order of an agency." 130 Rule 17 allows the agency to file the entire record, to file parts of it that the parties designate by stipulation filed with the agency or to file a "certified list of all documents, transcripts of testimony, exhibits and other material comprising the record . . . adequately describing each, and the filing of the certified list shall constitute filing of the record." 131 When a certified list is filed in lieu of the record itself, the agency must retain the record and make it available on request of the court or a party. 132 "The original papers in the agency proceeding or certified copies thereof may be filed." 133

Literally, this means that an agency with an electronic docket system could file lists of material considered by the agency in conjunction with its decision, retaining the full electronic records for possible transmission to the reviewing court on request. In the event that the full contents of the electronic record are filed either initially as the record or upon request after filing of a list of entries, agency certification of the electronic contents should suffice to authenticate the record even in circumstances in which paper submissions are the "originals." The courts of appeals have been flexible in applying the agency-record concept in review proceedings.

Black's Law Dictionary defines "record" as (among other things): 134

"[1] A written memorial of all the acts and proceedings in an action or suit, in a court of record. The official and authentic history of the cause, consisting in entries of each successive step in the proceedings, chronicling the various acts of the parties and of the court, couched in the formal language established by usage, terminating with the judgment rendered in the cause, and intended to remain as a perpetual and unimpeachable memorial of the proceedings and judgment. . . .

"[2] In the practice of appellate tribunals, the history of the proceedings on the trial of the action below, (with the pleadings, offers, objections to evidence, rulings of the court, exceptions, charge, etc.) in so far as the same appears in the record furnished to the appellate court in the paperbooks or other transcripts. Hence, derivatively, it means the aggregate of the various judicial steps taken on the trial below, in so far as they were taken, presented, or allowed in the formal and proper manner necessary to put them upon the record of the court. . . ." 135

This definition is a useful starting point to understand what is sufficient as a "record."

In Gearan v. Department of Health and Human Services 136 the United States Court of Appeals for the Federal Circuit found that an audio tape recording of an administrative hearing was sufficient to satisfy the record requirements of Fed.R.App.P. 6 and 7. 137 The court qualified its holding by stating that "if the court finds the tapes unsatisfactory and specifically requests a written transcript, the Board will then arrange for the transcription at its own expense." 138

Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc., 139 suggests that agencies should have considerable discretion in working out the details of administrative process, as long as they satisfy the requirements of the APA. 140 It is a "basic tenet of administrative law that agencies should be free to fashion their own rules of procedure." 141 This basic proposition reinforces the conclusion that agencies have considerable discretion in deciding what constitutes their record for a judicial review proceeding.

It is also helpful to look at the states' approach to administrative procedure. In this regard the Model State Administrative Procedure Act ("MSAPA") is instructive. The MSAPA sets forth the record keeping procedure to be applied for rulemaking proceedings, 142 formal adjudicative hearings, 143 emergency adjudicative proceedings, 144 and summary adjudicative proceedings. 145

The MSAPA also sets forth, within its appellate procedure provisions, the information that must be presented for review. Section 5-109(b)(3) requires only "identification of the agency action at issue, together with a duplicate copy, summary, or brief description of the agency action." Surely a verbatim digital representation of all documents and testimony presented to the agency would satisfy this requirement. Section 5-115 provides for transcription of the record if not so done already, 146 thus contemplating the existence of some form of electronic recording. Of course the parties also could stipulate to presentation of the administrative record in digital form.

Even if electronic forms of agency record are allowed, however, judicial burdens must be considered. One of the biggest problems, for example, with videotape transcripts of trial court proceedings was that appellate courts find it cumbersome to locate particular parts of the record. 147

Exclusions from the rulemaking "record"

With the NRC's electronic bulletin board, there is room for argument about what constitutes the record. The practice has been for the agency to consider only comments denominated as such to constitute the record, together with agency-written materials. But one also could conclude that the collection of messages on the bulletin board also are a part of the record, although many of the comments are extraneous and seek information not pertaining to the rulemaking activity. In the Mosaic forms-based initiative, the intended conversational character makes it less appropriate to exclude the interactive messages. Arguably, all of the communications taking place in a space identified with a particular rulemaking proceeding would constitute the record.

Admissibility

Some personnel involved with DOT's DMS have concerns about the admissibility of electronic formats as evidence. Admissibility questions could arise at two levels, in an agency hearing, and in a judicial proceeding reviewing an agency decision. In evaluating the admissibility of electronic formats at either level, it is helpful to speculate on the arguments that would be made against admitting such formats. The opponent of such evidence could argue that the electronic formats are disqualified under the original documents (sometimes called "best evidence") rule that prefers originals to copies of documentary evidence; that the electronic record constitutes inadmissible hearsay; 148 or that the electronic formats cannot be authenticated because they cannot be shown to be the same thing as the records material to the case. The most plausible challenge is the third: a challenge to authentication. 149

Under all three types of challenge to admissibility, proof of reliability is important. 150 Records from DMS or any of the NRC systems would be admissible under the rules of evidence as long as the agency has witnesses who can explain how DMS (or another system) works, explain why DMS can be trusted to record the information presented to the department accurately, and explain why DMS does not alter information once it is entered into the system. 151 The persuasiveness of such evidence will be increased significantly if the agency is able to offer not only evidence about system design and documentation, but also evidence of the results of post-hoc audits showing that design features and policies and procedures actually are followed by personnel using the system. The change management process initiated by the DOT's Office of the Secretary in conjunction with DMS is a good approach to reinforce the integrity of the system. The audit evidence should include an appropriate sampling of records from the system, comparing them with original submissions to check for the absence of errors.

But it is not necessary in all cases to meet requirements for evidence admissibility in federal court. In the vast majority of controversies reaching federal court the question for the court would be whether an agency decision is supported by the record generated before the agency. 152 Few federal court proceedings involve the introduction of evidence in a de novo proceeding. 153 In such a federal court proceeding, the evidentiary issue is not whether the evidence would be admitted in federal court, but whether it was in fact admitted and became part of the record in the agency proceeding. 154 Agencies have considerable latitude to make their own rules of evidence, and these rules can admit material that would not be admitted in federal court. Most of the DOT evidence rules, for example, do not require strict adherence to the Federal Rules of Evidence, 155 although there are two exceptions. 156 NRC's rules likewise do not apply the federal rules strictly. 157

To the extent that an agency anticipates uncertainty with respect to the admissibility of electronic records, it can largely reduce the uncertainty by amending its own rules of procedure to make it clear that electronic records are admissible in administrative proceedings before ALJs and otherwise, giving attention to its original documents, hearsay, and authentication rules.

Certification of records

Closely related to authentication of electronic records, is the question whether agencies can expect difficulties certifying records of agency proceedings for appellate review when the record has been maintained in electronic form. The answer is no. The logic is this:

The validity of agency certification of the content of a record on appeal is judged by the same standards as for judging the admissibility of a public record under the Federal Rules of Evidence.

Under the Federal Rules of Evidence, certification by the custodian of a public record of the authenticity of a copy of the public record is prima facie evidence of its authenticity. 158 Certification is a flexible concept. For example, arbitrators have been allowed to certify records, 159 and affidavits have been accepted in lieu of verbatim transcripts. 160 The arbitration cases suggest that certification of copies of materials before the agencies is not a highly formal step, and indeed may be satisfied simply by filing material and stating that it is accurate. 161 The purpose of certification is to obtain the agency's representation that the copies are genuine. 162

Further inquiry into the accuracy of the record occurs only if the challenger can make a sufficient factual showing to support an inference of doubt about the reliability of the method used to produce the reported public record. In such a case, the burden then shifts to the agency to show reliability. It is only in this last step that an agency might be called upon to review risk assessment data as to errors or alterations in the contents of the docket. Even in those instances, increasingly well known standards and techniques for authenticating the output of electronic records systems would be available to federal agencies just like any other proponent of documentary evidence.

In certifying the record for judicial review, attention must be paid to what the decisionmaker actually had before him. What is the official record, the collection of paper submissions, or the electronic docket? The official version will govern in the event of a discrepancy between paper and electronic versions. In many rulemaking proceedings, virtually all of the documentary material is submitted in advance, and converted to electronic form when it comes in the building. The docket then is electronic from the beginning. In other instances, particularly including adjudicatory hearings and some rulemaking hearings, counsel may submit evidence in paper form at the hearing. The proffer of evidence and its acceptance or rejection occurs with respect to the paper artifact. It is that paper document that then constitutes the official record. The later conversion of those exhibits into electronic form, just like the later substitution of a photocopy for an original offered and accepted into evidence, theoretically opens up the possibility of challenges to the authenticity of the record in later proceedings, either before an administrative review or before a reviewing court, except that the Federal Rules of Appellate Procedure allow for submission of copies in lieu of originals. On the other hand, if the electronic record is the official record, and the decisionmaker worked from that electronic record, what a related paper document says is irrelevant.

Proving reliability

It may be useful for agency counsel to develop a set of forms and checklists for litigation counsel to make it easier for them to perform this authentication task, 163 along with identifying in advance appropriate witnesses with knowledge of the electronic docket systems. In the near term, any such authentication controversy likely would involve authenticating the paper output of an electronic system; in the longer term electronic access to the system might be offered directly as more appellate courts have access to PC-level video displays and network connections. The record on appeal might be mostly or entirely electronic and submitted to the clerk of the appellate court in the form of a magnetic diskette, a high capacity optical diskette, or a link to a collection of files on an Internet node.

The Texas Court of Criminal Appeals enumerated the following requirements for authentication of audio recordings, which serve as useful guides for authentication for all kinds of electronic records:

"(1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the equipment was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement." 164 The first two tests relate to the accuracy of the input process. The fourth and fifth relate to security and storage. The sixth test is appropriate only for representations of individual statements, and the seventh is material only to admissions.

More generally, electronic docket systems must be designed to permit the proponent of electronic evidence to establish the following propositions if the other party challenges admissibility of the evidence.

1. The evidence came from computer X.

2. It accurately represents what is in computer X 165 now. 166

3. What is in computer X now is what was in computer X at the time of the transaction.

4. What was in computer X at the time of the transaction is what was submitted and considered by the decisionmaker. 167

All four propositions can be established by testimony as to how information is written to and from telecommunications channels, processors, primary storage, and secondary storage.

Those propositions may be supported with non-technical evidence, presented by non-programmers. A witness can lay a foundation for admission of computer records simply by testifying that the records are generated automatically and routinely in the ordinary course of business. The more inflexible the routine, and the less human intervention in the details of the computer's management of the database, the better the evidence. 168

The ultimate question is trustworthiness, and if the computer methods are apparently reliable, the information should be admitted unless the opponent of admissibility can raise some reasonable factual question undercutting trustworthiness. 169

Handling real evidence

In most adjudicatory and some rulemaking proceedings real evidence is offered, which cannot be included in an electronic system -- although descriptions and images of the real evidence can be included. In other instances, a party will offer into evidence a paper document which has not been reduced to electronic form. There are three basic ways to deal with these evidentiary proffers. The first is to require all documentary submissions to be made in advance, before the hearing, so that the actual proffer of evidence would occur with respect to the electronic version. Counsel would say, "Your Honor I offer Exhibit R-15, now shown on your screen and the screen of opposing counsel, and ask that it be admitted into evidence." The ALJ or other presiding officer then would admit or exclude the exhibit, viewing the electronic image rather than the paper document. 170 The NRC LSS rules are a good example of this alternative. "Absent good cause, all exhibits tendered during the hearing must have been entered into the Licensing Support System before the commencement of that portion of the hearing in which the exhibit will be offered." 171 The pretrial process in federal district court is another useful example of how the advance submission of paper exhibits can be handled. Just as some district court litigants must submit copies of exhibits in advance and have them covered by the final pretrial order, so also must agency hearing participants submit certain materials in advance. Another example is the increasingly frequent requirement for agency hearing participants to submit testimony of witnesses in advance, with cross examination to occur based on the prepared statement.

A second approach is to allow ALJs and other hearing officers to admit paper evidence, and rely on post hearing quality assurance techniques to establish the reliability of the subsequent electronic copy of the record. Then, the proponent of the electronic system in subsequent review proceedings would be in essentially the same position as the proponent of a photocopy of the original record.

The third possibility is to treat the nonelectronic formats as the official record. While this exigency may be necessary for a transition period, and will remain necessary for real evidence, it is the least desirable of the three alternatives, because treating the nonelectronic formats as the official record almost certainly would cause the electronic versions to be legally irrelevant in judicial review, mitigating many of the advantages of automating in the first place. Moreover, when the paper version constitutes the "real" record, parallel electronic systems almost certainly will receive less scrutiny and care, resulting in reduced integrity of the electronic system.

Authentication

In evidence law, authentication is the step of showing that a piece of evidence is what it purports to be, for example, showing that an electronic file presented as the filing of a particular party actually is that filing. 172 Much of the analysis in section VIII(C) related to authentication. Two additional authentication issues, signatures and notarization, should be considered.

Signature requirements facilitate authentication of paper documents because expert testimony about the signature on a piece of evidence can assist lay fact finders determine whether the document was signed by a particular person. Once documents are kept in an electronic form, other means of authentication are available, which are in many ways superior to handwritten signatures. For example, evidence about computer system design and operation can show that the output of a printer necessarily is the same as the characters and shapes input to the printer. 173 As another example, the screen display or printed representation of a document maintained in an image- based docket management system could be shown necessarily to contain the same contents filed on paper and scanned. Proof of this proposition would include proof that storage techniques and document numbers are such that the bitmap image could not be altered once received and stored and proof that the document number could not be unlinked from that image and associated with another.

More generally, the concept central to the business records exception to the hearsay rule 174 allows authentication of records relied on for the regular operation of a business without getting into the details of system design and operation. The same proof necessary to establish the applicability of this exception also serves an authentication function.

Notarization is a form of third-party attestation that reinforces signature validity.

Signatures

Documents intended to have legal effect frequently must be signed. 175 A signature, which may be made by an agent or broker as well as the principal, 176 serves an authentication or evidentiary purpose. "'Signed' [is] a word which includes any authentication which identifies the party to be charged." 177 Writings and signatures serve somewhat different purposes, although their purposes also overlap to a considerable degree. A signature protects against forgeries and against outright disavowal of a document by a party who denies authorship of a writing. A writing memorializes the contents of a document.

The authentication purpose of the signature has two conceptual parts, pertinent to enforceability of legal penalties for false statement. First, the signature, rather like the seal of earlier times, adds a degree of formality, increasing the likelihood of actual assent to the terms contained in the signed document. Second, the signature serves to identify the signed document with the signer, because signatures tend to be unique. These two purposes are the appropriate focus for designers of any electronic filing system; not the existence of a handwritten signature on a piece of paper. 178 As NRC's associate general counsel William Olmstead has noted, one possible goal of the signature is to show the identity of the filer: "I am who I say I am." Another possible goal is to show a connection between the signer and the content of the signed document: "This is my work." A third possible goal is to establish an appropriate archive either for evidentiary or purely historical research purposes: "I want history to know." The legal literature identifies other goals, such as impressing the signer with the legal consequences of the act of signing. 179 There are a variety of ways to satisfy these goals.

There are four basic approaches for dealing with the signature issue in electronic filing systems. The first is to follow the pattern set by the SEC, and to allow purely electronic submissions backed up by identification numbers, passwords 180 and a manually signed signature page retained by the filer. 181 The second is to require adherence to the National Institute of Standards and Technology ("NIST") Digital Signature Standard. 182 The third is to follow the pattern set by the Food & Drug Administration in its proposed digital signature requirement for electronic filings. 183 The FDA imposes functional tests. The fourth is to use the public key encryption Privacy Enhanced Messaging standard adopted by the Internet Engineering Task Force 184 and rapidly growing in popular acceptance in various commercial and public domain products. 185

From a legal standpoint, the FDA approach is the most attractive, because it does not tie filers to any particular technology. That approach allows use of the SEC approach for many filings, while suggesting use of stronger digital signature technologies identical or similar to the NIST DSS or the public key encryption approaches to guarantee authenticity of a filing when the likelihood or the consequences of forger, alteration or repudiation are greater.

FDA Digital Signature Rule

The Food and Drug Administration ("FDA") has developed a proposal for digital signatures. While the proposed FDA rule would directly affect only FDA filings, it is a model that can be considered by other agencies. The proposal permits the agency to accept electronic records, electronic signatures, and handwritten signatures executed to electronic records as generally equivalent to paper records and handwritten signatures executed on paper. Under the rule, the use of electronic forms of record keeping and electronic submissions to FDA would remain voluntary. 186 The proposed rule recognizes the differing requirements of closed systems, "where access is limited to people who are part of the organization that operates the system," 187 and open systems, "where access extends to people outside of the operating organization." 188 Open systems generally have potentially greater exposure to outsiders, involve communication among multiple parties frequently through modem, and extend system access to people who are not legally obligated to system managers. 189 Closed systems generally have controlled physical access, have professionally written and approved procedures with employees and supervisors trained to follow them, have record systems designed to facilitate quality assurance investigations when abnormalities occur, and are limited to those participants having a legal obligation to the organization responsible for operating the system. 190

The agency noted in its preamble that near-term development and implementation of appropriate controls for open systems . . . will facilitate secure, authoritative electronic communication between FDA and the regulated industries." 191 Committing itself not to prescribe specific applications, such as biometric/behavioral based signature systems, the agency believed "it is important to allow firms to take advantage of a variety of new technologies." 192 It identified several specific purposes of signatures:

1. To identify the actor and show his/her authority to act.

2. To document the action in a way that is legal binding and cannot be repudiated.

3. To create a record that would be admissible in court." 193

To serve these functions, FDA concluded that a fundamental two-tier stratification based upon open and closed systems is warranted, with somewhat different electronic signature requirements applicable to each type of system. 194

The FDA agreed that broad regulations were appropriate that would define handwritten and electronic signature in a manner that would afford industry the greatest latitude in adopting appropriate technology, and set conditions under which the agency would accept alternatives to handwritten signatures, applicable to all FDA program areas. 195 It noted that most comments asserted that use of signature alternatives should not adversely affect the agency's enforcement integrity because laws against falsification of paper records apply equally to falsification of electronic records "and that FDA should have no difficulty in affixing individual responsibility when working with electronic records." 196 "The agency recognizes that the ability to collect electronic records that are admissible as evidence depends in large measure on whether or not the systems used to generate those records have been designed for reliable storage and retrieval. Accordingly, the proposed regulations . . . require the systems that generate and maintain electronic records be designed so that the records can be reliably stored and retrieved." 197

For closed systems, electronic signatures based on user identification codes combined with passwords can be adequately secured but the two elements must be executed for each signing. 198 Because open systems are inherently more vulnerable to message compromise, additional security measures may be appropriate, including such techniques as electronic document encryption and use of digital signatures. The FDA believed, however, that because such technological measures "are still evolving, it would be premature to specifically require their use in documents submitted electronically to the agency. Instead, the proposed rule requires additional security measures, stated in general terms, that are designed to ensure document integrity, confidentiality, and authentication from point of creation to point of receipt." 199 While identifying the NIST digital signature standard, and the RSA as the two primary digital signature standards, the agency concluded that use to specific standards need not be codified because "adequate levels of security may be achieved by adherence to the controls contained in the proposed rules." 200

For closed systems, the proposed 21 C.F.R. § 11.10 requires procedures and controls designed to "ensure the authenticity, integrity and confidentiality of electronic records, and to ensure that the signer cannot readily repudiate the signed record as not genuine, and also proposed eleven specific controls. 201 For open systems, the proposed 21 C.F.R. § 1130 requires all of the controls identified for closed systems plus "such additional measures as document encryption and use of digital signature standards acceptable to FDA as necessary to maintain record confidentiality and integrity under the circumstances." 202

Subsequently, the FDA announced its pharmacology/toxicology electronic submissions pilot project, allowing sponsors of new drug applications to submit preclinical pharmacology and toxicology study reports in electronic formats. 203

Notarization

Some agencies have a de facto requirement that certain submissions to the agency be notarized by a notary public. For example, one significant legal issue for the NRC's adjudication initiative relates to the statutory requirement imposed on license applicants by 42 U.S.C. § 2232 that an application be accompanied by an "oath and affirmation." Agency custom and practice has required that applications within the scope of § 2232 be notarized by notaries functioning under state law, although there is no explicit agency rule requiring notarization.

Requirements for conventional notarization can impede electronic filing arrangements because it is difficult to adapt typical state notary laws to situations in which a "signed" document is not embodied on paper. 204 The presumed purpose of the NRC requirement is to subject persons to criminal penalties for submitting false information to the government. 205 If that is the purpose, the focus should be on how an oath or affirmation may be taken or submitted rather than on an attestation requirement, which is what notarization constitutes. A wide variety of agencies require that statements intended to be covered by 18 U.S.C. § 1001 simply be accompanied by a signed statement reciting that the statement is intended to be made under the penalties of perjury under 28 U.S.C. § 1746, 206 or under § 1001. There is no reason that such a statement is not equally efficacious if it is made electronically as for a statement printed on a piece of paper. Then, the question becomes a narrower one: what constitutes a legally effective signature?

Later stages of the electronic docket project place somewhat different demands on the solution adopted for the oath and affirmation requirement. For example, if the NRC's staff's intention is realized to insert electronic "fingers" into the licensee's database to check required documentation and data, one must determine if and when a § 1001 violation occurs if the "fingered" data is false. A similar issue arises whenever an agency requires the maintenance of certain records in lieu of requiring the submission of reports. 207

Adapting requirements for notarization to newer information technologies is not entirely distinct from developing appropriate digital signature methods. Third parties performing functions that overlap with the traditional functions of a notary public are used in most public key encryption systems. Utah recently became the first state to enact legislation governing digital signatures. 208 The legislation provides for certification of third-party services that manage public keys for encryption systems and time stamp electronic documents. Such legislation, along with proposals likely to emerge from an American Bar Association task force on electronic notary concepts, 209 should facilitate adaptation of traditional notary concepts to electronic filing requirements.

Even if the agency decides to require attestation as a means of reinforcing the § 2232 requirement, there is no reason that the third party attestation necessitates formal involvement by a state notary using conventional notary methods. For example, the agency could encourage as a part of its demonstration project the use of electronic notaries, either under the emerging standard being developed by the Science and Technology Section of the ABA, or more simply by an existing state notary who simply provides services electronically. State statutes prescribing the duties of notaries public vary in terms of their flexibility of methods. For example, the Pennsylvania statute refers to "a certificate endorsed upon or attached to the instrument or documents . . . ." 210 which might be difficult to adapt to electronic methods, but then goes on to refer to the certificate "which states in substance that the person appearing before the officer acknowledges the instrument as his act, or made or signed the instrument or document under oath, shall be sufficient for all intents and purposes." 211 The requirement for the contents of the statement is consistent either with paper or electronic methods. The requirement "that the person appearing before the officer" would have to be interpreted to include virtual presence with indicia of identity at least as good as those used in a personal face to face appearance before a notary.

The Maryland statute requires the notary to keep "a fair register of all . . . official acts by him done in virtue of his office," and to give a certified copy of any record to a person paying the usual fees. 212 This register requirement should be relatively easy to satisfy with electronic methods. The authorization under Maryland law for a notary to give "a certificate under the notarial seal of a notary public" as sufficient evidence of having administered an oath 213 similarly is easily adaptable to electronic methods. The California statute is problematic, not only referring to "instruments of writing" 214 and providing that the notary's certificate will be "endorsed on or attached to the instrument," 215 but also providing, "such certificates shall be signed by the notary public in the notary public's own handwriting." 216

Certainly, the Utah digital signature act 217 provides an appropriate umbrella for demonstrating such new electronic notary techniques. That act provides a safe harbor for "certificate authorities," who link public keys with their owners and vouch for the owners' identities, thus facilitating the use of public key encryption among strangers.

Public access

Use of newer information technologies to automate rulemaking and adjudication mostly facilitates compliance with the mandates of public access statutes, although in the case of the Federal Advisory Committee Act, there may be difficulties in harmonizing electronic practices with literal interpretations of statutory scope.

FOIA

The most general requirements for public access to agency information are imposed by the Freedom of Information Act ("FOIA"). 218 This act requires agencies to publish procedural and substantive rules in the Federal Register, 219 and to make available for public inspection and copying final opinions and orders, statements of policy and interpretations not published in the Federal Register, and administrative staff manuals and instructions to staff that affect the public. 220 Agencies also must also maintain for public inspection and copying indexes containing information on matters issued, adopted, or promulgated after 1967 at costs not to exceed "the direct costs of duplication". 221 In addition, agencies must make records promptly available to any person on request which reasonably describes such records and follows agency rules regarding the procedures to be followed for FOIA requests. 222 There is broad agreement that the Freedom of Information Act applies to agency records in electronic formats as well as paper ones. 223 Moreover, there is broad agreement that FOIA requires the disclosure of any value added features necessary for a requester to make meaningful use of the information content retrievable and perceivable with the aid of those features. 224 On the other hand, transferring information excepted from disclosure from FOIA subsection (b) 225 to electronic formats or systems does not eliminate or reduce the exemption of such information from disclosure under FOIA.

Under recommendations adopted by the American Bar Association and the Administrative Conference, 226 agencies should consider that the FOIA applies to material in electronic format. The ABA recommends that requesters be allowed to choose between or among formats actually maintained by an agency. 227

Paperwork Reduction Act of 1995

Under the Paperwork Reduction Act of 1995, 228 agencies must:

"(1) ensure that the public has timely and equitable access to the agency's public information, including ensuring such access through--

"(A) encouraging a diversity of public and private sources for information based on government public information;

"(B) in cases in which the agency provides public information maintained in electronic format, providing timely and equitable access to the underlying data (in whole or in part); and

"(C) agency dissemination of public information in an efficient, effective, and economical manner;

"(2) regularly solicit and consider public input on the agency's information dissemination activities;

"(3) provide adequate notice when initiating, substantially modifying, or terminating significant information dissemination products; and

"(4) not, except where specifically authorized by statute--

"(A) establish an exclusive, restricted, or other distribution arrangement that interferes with timely and equitable availability of public information to the public;

"(B) restrict or regulate the use, resale, or redissemination of public information by the public;

"(C) charge fees or royalties for resale or redissemination of public information; or

"(D) establish user fees for public information that exceed the cost of dissemination. 229

These provisions significantly limit agency discretion to set up proprietary arrangements for disseminating material associated with its rulemaking and adjudicatory proceedings, and to restrict dissemination by others.

Public access philosophies

Agencies have a wide range of legally permissible choices regarding public access to information contained in electronic docket management systems. They can plan on providing access to paper copies created by the automated system in public reference rooms or in response to requests submitted by mail, and deal with possible FOIA requests for material in electronic formats if and when they are submitted. On the other hand, agencies can embrace the spirit of ACUS Recommendation 88-10, OMB Circular A130, the 1995 Paperwork Reduction Act, the American Bar Association recommendations, and this author's report to OMB and GSA, 230 and recognize that remote electronic access to public records benefits the public, enables private and public sector dissemination intermediaries to play their roles more effectively, and can reduce agency costs. For example, the FDA preliminarily concluded that a publicly accessible on-line electronic database of FOIA released documents may be in the public interest. 231

The low priority that DOT's systems managers and contractors apparently give to electronic dissemination and remote access to DMS information by members of the public is troubling and contrasts with NRC's active exploration of diverse dissemination technologies. It is broadly agreed by ACUS, in Recommendation 88-10, by the Clinton Administration's NPR effort, by OMB circulars, and by the organized bar that electronic dissemination is desirable. As ABA Recommendation 109C says,

"1. Agencies should adopt affirmative programs of electronic public information dissemination in order best to carry out their responsibilities to inform persons affected by their activities and generally to promote access to public information." 232

To be sure, the present DMS phase-in makes retrieval terminals available to the public in the new docket management facility, and this probably satisfies the minimum requirements of FOIA for public access to documents in the electronic docket. Nevertheless, as ABA Recommendation 109C further says,

"4. Agencies should anticipate public requests for electronic information and should build features into their electronic information systems so that information most likely to be requested by the public may be actively released, thereby reducing the cost to agencies and requesters."

It is understandable that DOT wishes to avoid high costs of converting data into character-based representation only to serve public access needs. As § IX(A)(2) suggests, the Internet provides a way of responding to technical challenges that otherwise might present dilemmas.

Federal Advisory Committee Act

The Federal Advisory Committee Act, ("FACA") defines advisory committee to include "any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof . . . which is . . . established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for . . . one or more agencies or officers of the federal government." 233

The Act requires advisory committee meetings to be open to the public, and that interested persons be allowed to attend or file statements with advisory committees. 234 Under the act, agency heads establish uniform administrative guidelines and management controls for advisory committees, which must be consistent with directives of the administrator of GSA. 235 Advisory committees within the Act's scope may not meet or take any action until an advisory committee charter has been filed with the head of the agency to whom the advisory committee reports. 236

FACA open meeting requirements are interpreted to be consistent with the Sunshine Act, 237 That act requires meetings of agencies headed by collegial bodies to be open to the public. 238 Interactions not involving meetings need not be performed in public. 239

The literal language of the FACA is so broad as to sweep under its requirements all kinds of agency activities, those that use information technology as well as those that do not, including agency adjudication and rulemaking. Virtually no one actually applies the Act in that way, however. The Supreme Court recognized the inappropriateness of reading FACA literally. "Although [FACA's] reach is extensive, we cannot believe that it was intended to cover every formal and informal consultation between the President or an Executive agency and a group rendering advice." 240 "Where the literal reading of a statutory term would compel an odd result, we must search for other evidence of congressional intent to lend the term its proper scope." 241

The notational voting exception to Sunshine Act requirements can be imported into FACA, which could ease restrictions on electronic interaction, although the other FACA requirements still would be troublesome if applied to an electronic notice and comment process.

The GSA guidelines offer a limitation more general in nature:

"A meeting initiated by a Federal official(s) with more than one individual for the purpose of obtaining the advice of individual attendees and not for the purpose of utilizing the group to obtain consensus advice or recommendations. However, such a group would be covered by the Act when an agency accepts the group's deliberations as a source of consensus advice or recommendations;" 243

Those guidelines also say that advisory committees include only groups, 244 which would not encompass the collection of persons who happen to participate in a particular rulemaking proceeding. The purpose of FACA is to protect against abuses of advisory committees that represent a preferred or exclusive channel for advice to agencies. When information technology is used to permit anyone to participate in an electronic notice- and-comment process or dialogue with an agency, the potential for abuse is eliminated, and the open- government goal of FACA is satisfied from the inherent nature of the electronic process.

Perhaps the best argument against application of FACA is that it never has been applied to conventional adjudication or rulemaking proceedings, and the degree to interactivity permitted by newer information technologies, while greater than that available under written notice-and-comment procedures or conventional adjudication procedures, is not the same as that which occurs in a face to face meeting.

The intended interactive character of the NRC rulemaking initiative makes it more likely that it would be covered by the FACA, for many of the same reasons that negotiated rulemaking committee activities are covered by that Act. 245 Nevertheless, if the NRC establishes that it seeks, not development of a consensus position by the private participants, but only a series of many interactions as the agency revises its proposal, the participants constitute neither a group, nor are they utilized in the same way as an advisory committee.

It is not necessarily unacceptable to handle electronic negotiated rulemaking initiatives within the framework of FACA, except for FACA's requirement that the membership of the negotiating committee (all of the participants) be identified in advance. This problem could be handled by identifying members of the "negotiation committee" by defining a class rather than by name. This is consistent with the spirit of FACA and with the spirit of the electronic rulemaking demonstration programs. The spirit of the Negotiated Rulemaking Act should be satisfied by these measures, but there are specific requirements in that act for publication of "a list of the persons proposed to represent . . ." interests in the negotiation, 246 so merely identifying the class intended to participate may not meet the requirement. It is not apparent, however, that any harm to any recognized interest would come from such an accommodation between the act's requirements and the reality of the electronic proceeding.

Confidentiality

Certain types of information are exempted from the disclosure obligations of the Freedom of Information Act. Those exemptions are set forth in § 552(b) 247 and they are construed narrowly. They do not, however, directly impose obligations of nondisclosure on the agency; they simply give the agency a privilege not to disclose. 248 On the other hand, the Privacy Act creates obligations not to disclose certain information pertaining to personal privacy, 249 and a criminal statute imposes penalties on employees who disclose trade secrets or confidential information. 250 There has been much controversy about the scope of FOIA exemption 4, protecting trade secrets and proprietary information. 251 President Reagan issued Executive Order 12,600 requiring predisclosure notification for confidential commercial information. 252

Privacy Act

FOIA excepts from its disclosure obligation information the disclosure of which would invade personal privacy, linking the exception with the Privacy Act. The scope of the privacy exemption depends on whether the invasion of privacy is "unreasonable" or "unwarranted." 253 The Privacy Act 254 covers "any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as finger- or voice print or a photograph." 255

Because records are covered only if they contain a specific identifying element, a mere aggregation of information about transactions or environmental conditions is not covered even though it may substantially identify an individual. 256 Moreover, the Privacy Act applies only to "systems of records," 257 and most adjudicatory and rulemaking documents are outside the scope of that term.

The Privacy Act forbids disclosure of any record without the written consent of an individual to whom the record pertains 258 unless the disclosure is for a purpose which is compatible with the purpose for which the data was collected. 259 It mandates disclosure to the subject of a record upon his request. 260 It mandates an accurate accounting of all disclosures and corrections, 261 and requires the agency to accept "statements of disagreement" from subjects challenging a refusal to amend a record to correct an alleged inaccuracy. 262 The statute also prohibits agencies from maintaining records other than those "relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the president." 263 It obligates agencies to maintain records with "such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual" 264 in determinations made based on the records. 265 Agencies must make reasonable efforts to notify subjects when records about them are disclosed under compulsory process. 266

Finally, agencies must establish appropriate administrative, technical, and physical safeguards to ensure security and confidentiality and to protect records against anticipated threats to their integrity. 267

The Privacy Act limits disclosure of information obtained or developed in connection with agency rulemaking or adjudicatory proceedings in relatively few instances because dockets for such proceedings may not constitute systems of records covered by the Privacy Act and/or because disclosures of information in such proceedings is "compatible with the purpose for which the data were collected." 268

Trade secrets and confidential commercial information

The Freedom of Information Act excepts from its disclosure obligations "trade secrets and commercial and financial information obtained from a person and privileged or confidential." 269 Another statute 270 makes it a criminal offense for an officer or employee of the United States to publish or disclose information filed with an agency or otherwise coming to the officer or employee in the course of employment when the information "concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association . . . ." 271 The interaction of FOIA exception (b)(4) and the prohibition on disclosure causes most agencies to allow filers to designate certain information as covered by these provisions. 272 Moreover, Executive Order 12,600 273 requires agencies to notify submitters of proposed disclosure of material designated as arguably containing material exempt from release and entitles submitters to designate covered information at the time of submission under agency regulations. 274

Trade secrets are reasonably well defined by case law and model statutes. 275 Other categories of protected information generally are determined by the need to encourage cooperation by those not obligated to provide information to the public and to protect against substantial harm to the competitive position of persons from whom information is required. 276

Typical agency procedures for confidential filings obligate the filer to designate those portions that the filer believes warrant confidential treatment. 277 DOT agencies and the NRC already have rules specifying how submitters of information request confidential treatment. Most DOT agency rules allow a filer to request confidential treatment of a filing 278 or obligate the agency to treat certain information as confidential without a request. 279 Other information is required to be handled confidentially by those who obtain it from or file it with DOT. 280 NRC LSS rules allow the content of confidential documents to stay outside the electronic system. 281 The typical practice at DOT is for confidentiality motions to be determined in a proceeding collateral to a decision on the merits in the proceeding in which the information was filed.

Some DOT confidentiality rules refer to paper formats that may be difficult to accommodate to DMS unless the rules are amended, 282 but most accommodate electronic formats as well as paper ones. There is no reason why these rules are inadequate for the initial implementation of DMS and similar electronic docketing systems. When electronic filing is introduced, however, it may be appropriate to go beyond the approaches followed by the SEC 283 or FERC, 284 because there needs to be some specific flag in the electronic submission that indicates the inclusion of confidential information.

Once agency rules have been revised to allow submitters to designate confidential information in their electronic submissions, the questions of protecting confidential information become ones of policy, technology, and management. The policy question is whether all requests for confidential treatment should be routinely honored. If the answer is affirmative, the DMS and similar systems should be designed to withhold from public disclosure all records with their confidential flags set. If the answer is no, then a procedure must be established to make determinations with respect to each request for confidential treatment before the record is placed in the system. Because of the desirability of minimizing delay in entering submissions, and the desirability of a simplified automated procedure for handling records flagged as confidential, the best approach is to design systems like DMS routinely to withhold from public disclosure all records designated by the submitter as confidential. The system also should be able to prepare and output a "Vaughn index" 285 thus reducing the cost of handling a user request for confidential records under FOIA. When a user insists upon access to a record flagged by the submitter as confidential, exception processing is appropriate. At that point, human intervention should occur by personnel who have the capability and authority to decide whether a request for confidential treatment should be honored.

There are a number of federal government systems of equal or greater sophistication, compared with DMS, 286 that contain confidential information, increasing confidence that appropriate precautions can be designed into DMS to permit it to contain confidential information without the risk of inadvertent or otherwise inappropriate disclosure. Indeed, a properly designed electronic record system is less likely to disclose a document inappropriately then a paper system relying on human beings accurately to apply screening criteria. Once a document or record is tagged as confidential in a correctly programmed automated system, the system is incapable of disclosing it. In a system depending on human beings, a confidential stamp or tag may be overlooked, or a clerk may send out the "sealed" material rather than the "unsealed" ones in response to a request.

Copyright material in submissions

Unlike FOIA's treatment of trade secrets, which as a legal matter is reasonably clear, FOIA's treatment of copyrighted information 287 is potentially confusing. Especially when new information technologies put the government in the position of facilitating access to copyrighted materials for which the copyright owner has not received compensation, the purposes of FOIA potentially conflict with the purposes of the copyright statute.

How material becomes copyrighted is a question much misunderstood. A work becomes copyrighted as soon as it is fixed in a reasonably permanent form, in other words as soon as it is written down on paper or on a computer keyboard. No copyright notice need be affixed to the work; nor must the work be registered with the copyright office in order to obtain a copyright, although there may be advantages in remedies for infringement if such steps are taken. Thus, virtually every document submitted to DOT by a private person or by a state or local government entity may be copyrighted. Problems are more likely however when the copyright holder is not the submitter but someone else.

Sound analysis requires focusing precisely on the potentially infringing conduct. 288 Suppose a filer submits a copyrighted document, such as a standards document, on which the copyright is held by a third party. The filer may have committed copyright infringement unless she had permission from the copyright holder to make any copies submitted as a part of the filing. 289 In this situation the filer probably does not have the power to authorize any particular government uses of the copyrighted work, and thus any government reproduction, distribution or public display or performance of the copyrighted work also is an infringement unless privileged. 290 When the government allows public access to the electronic records of its proceedings, the resulting reproduction, distribution and potential public display and performance of the copyrighted work also may constitute prima facie infringement by the government or by the member of the public obtaining access.

Any government privilege to make internal copies or to allow public access must depend on the nature of the work or on general principles of copyright law, administrative law, public records law, and sovereign immunity.

There are three possible sources of a governmental privilege to use copyrighted information submitted by a filer other than the copyright holder. 291 The broadest possibility is sovereign immunity: the federal government is immune from suit for copyright infringement. This argument is unlikely to succeed because of the explicit grant of jurisdiction to the Court of Federal Claims to hear copyright infringement claims against the United States. 292

A second possibility is fair use under the copyright act, a flexible privilege 293 that avoids liability for copyright infringement for conduct that is supported by overriding policy considerations. Fair use is very much a common law doctrine, and its recognition in § 107 of the Copyright Act 294 did a little more than codify the factors already used by courts in applying the doctrine. Several of the fair use factors militate in favor of a governmental privilege, and none strongly militate against it. The purpose of the use is one that public policy should promote. 295 That factor almost always would militate in favor of fair use by the government. The effect on the market for the original work -- the most important factor 296 -- is de minimis, at least it is de minimis if broad dissemination outside the government does not occur. The second factor, nature of the copyrighted work, 297 may militate in favor of fair use, if it is the type of utilitarian work, such as a technical standard or a map, likely to be used in regulatory proceedings. 298

The third theory is that the Copyright Act, the Administrative Procedure Act, and the Freedom of Information Act must be construed together, yielding the conclusion that copyright protection must give way to the extent necessary to permit copyrighted information to be used in the ordinary course of deciding agency proceedings. This may be a different label for a privilege, but it is really just a different way of describing the fair use possibility. Policies derived from other statutes and potential conflict between the requirements of other statutes and the Copyright Act are appropriate considerations in the fair use analysis.

Under this theory, the fact that a document is copyrighted does not change the way the receiving agency is entitled to handle it as a part of its proceedings. Nor does the copyright alter agency obligations under the Freedom of Information Act. An agency record not otherwise exempt from disclosure under FOIA must be disclosed upon request, reasonably describing the record. 299 This is true of copyrighted as well as uncopyrighted records. There is a privilege for an agency to make such copies as are necessary to comply with the duty to disclose information under FOIA.

A governmental privilege would not extend beyond the routine use of copyrighted material in its internal records management and hearing processes and its responsibilities to allow public access to agency records. For example, the government should enjoy no privilege to take a copyrighted work submitted as a part of a regulatory filing and publish it through the Government Printing Office and offer it for sale. The interesting question is whether allowing public access through wide area networks like the Internet would qualify as routine agency use, or conversely would constitute publishing as through the GPO.

Regardless of the existence and scope of such governmental privileges, a private requester of the copyrighted work, whether a request is made under the Freedom of Information Act or simply through routine agency public access procedures, does not enjoy any governmental privilege. A member of the public would be entitled to access under FOIA, but would be subject to liability for copyright infringement if he duplicated or distributed the material received from the government without permission of the copyright holder. 300 Merely because a copyrighted work is disclosed under FOIA does not change the obligation of the recipient to honor the copyright.

There are several ways to deal with copyright infringement concerns arising from use of new information technologies to facilitate dissemination. 301

One approach is to respond to the problem on an ad-hoc basis. Few copyright controversies have arisen in the past over submissions to agencies containing copyrighted information, probably because inclusion of third-party works in such magnitude as to threaten third-party markets is relatively rare. When such material is submitted, the filer could be obligated to identify it and the agency could limit the means used to disseminate the copyrighted portions, while not withholding it from FOIA requesters.

A second way to deal with concerns about governmental liability for copyright infringement is to shift the responsibility to the filer, making it clear through procedural regulations that filers must obtain any necessary copyright permission for materials they file and that filing constitutes an agreement to indemnify the government for any subsequent copyright liability. This is not a particularly desirable approach because it discourages filers from including the full text of documents pertinent to the complete understanding of the regulatory proceeding, 302 and increases the frequency with which the agency and members of the public will be given only a citation and will have to take the time and trouble of obtaining the full text of the cited document from another source.

A third approach is to take the position that the agency's privilege extends to reasonable means of providing public access using current dissemination technology. In any event, if information is made available through dialup bulletin boards, Internet ftp, gopher or World Wide Web methods, any reproduction, distribution or display occurs at the behest of the requester, not of the agency, and thus responsibility for infringement, if any, rests with requesters and not agencies.

A fourth approach would anticipate that a filer may attempt explicitly to limit any implied license for agency use when the material is copyrighted, following the model of submitting trade secrets on a restricted basis. An agency's first response to this possibility is to recognize that trade secrets are excluded from FOIA and covered by non-disclosure obligations not applicable to copyrighted works. A second response is to provide by rule that any such limitation will be construed as a withdrawal of the submission of that part of a submission as to which limitations are imposed.

Footnotes

98 Codified primarily at 5 U.S.C. §§ 551-706 (Supp.1995).

99 5 U.S.C. § 553(c). This condition subsequent, which causes § 553 not to apply and the formal adjudication procedures of §§ 556-557 to apply instead is found to exist only when the language in the other statute is clear and unmistakable. See United States v. Florida East Coast Railway, 410 U.S. 224 (1973) (no entitlement to adjudicatory hearing on rule fixing per diem rates; written submissions adequate).

100 Id., § 553(b).

101 5 U.S.C. § 553(c).

102 5 U.S.C. §§ 554-557.

103 Id., § 554(a).

104 See generally Dr Pepper/Seven-Up Companies v. FTC, 991 F.2d 859 (D.C. Cir. 1993) (prior approval determination not subject to adjudicatory requirements); Hercules, Inc. v. Environmental Protection Agency, 598 F.2d 91, 117 (D.C. Cir. 1978) (finding decision to be rule rather than order and thus outside requirements of § 554(a)).

105 Id, § 554(b).

106 Id. § 554(b).

107 5 U.S.C. § 554(c)(1).

108 5 U.S.C. § 556(d).

109 Rulemaking conducted under the adjudicatory procedures of 5 U.S.C. §§ 554-557 is referred to as "formal rulemaking," and is the exception rather than the rule. See United States v. Florida East Coast Railway, 410 U.S. 224 (1973).

110 5 U.S.C. § 556(d).

111 5 U.S.C. § 555(b).

112 5 U.S.C. § 556(b).

113 5 U.S.C. § 556(b).

114 See 42 U.S.C. § 2241 (1994); 10 C.F.R. § 1.15 (1995) (describing organization of Atomic Safety and Licensing Board Panel).

115 5 U.S.C. § 556(e).

116 5 U.S.C. § 557(c).

117 5 U.S.C. § 557(c).

118 See generally Henry H. Perritt, Jr., Video Depositions, Transcripts, and Trials, 43 Emory L.J. 1071(1994) (explaining use and evaluating video technology to simplify civil and criminal trials in the judicial system).

119 See 5 C.F.R. § 185.119(b)(13) (authority for ALJ to conduct hearing on motions by telephone); 7 C.F.R. §1.141 (detailing factors to determine whether certain Agriculture Department hearings shall be conducted by telephone or other audio-visual means); 10 C.F.R. § 13.18(b)(13) (authority for NRC ALJ to conduct hearing on motions by telephone, in proceedings that involve program fraud civil penalties); 33 C.F.R. § 20.707(a) (allowing testimony of witness in Coast Guard civil penalty proceedings to be taken by conference telephone call); 49 C.F.R. § 31.18(b)(13) (authorizing hearings on motions to be conducted by telephone, in DOT program fraud civil penalty proceedings).

120 If the choice were between paper notices that include everything in the docket and notices that refer users to an electronic proceeding, the complete paper notice would be better. That is almost never the choice, however. The usual choice is between a paper notice that refers a participant to a docket room and between a notice that refers a participant to an electronic space which potentially can have the entire docket available remotely.

121 See generally Reorganization Plan No. 1 of 1980, 45 Fed.Reg. 40561, 94 Stat. 3505 (May 5, 1980) (expressing support for intervenor financing by NRC, but acknowledging that it requires Congressional authorization).

122 "None of the funds in this Act shall be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceedings funded in this Act." Energy and Water Development Appropriations Act, 1990, Pub.L. 101-101 (Sept. 29, 1989); "None of the funds in this Act shall be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceedings funded in this Act." § 502, Energy and Water Development Appropriations Act, 1991, Pub.L. 101-514 (Nov. 5, 1990); "None of the funds in this Act shall be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceedings funded in this Act." § 502, Energy and Water Development Appropriations Act, 1992, Pub.L. 102-104 (Aug. 17, 1991); "None of the funds in this Act or subsequent Energy and Water Development Appropriations Acts shall be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceedings funded in such Acts." § 502, Energy and Water Development Appropriations Act, 1993, Pub.L. 102-377 (Oct. 2, 1992).

123 5 U.S.C. §§ 561-570.

124 5 U.S.C. §§ 581-591, 9 U.S.C. § 10.

125 See 18 C.F.R. § 343.5(j)(3)(ii) (allowing arbitral hearings to be conducted by "computer or other electronic means, if each participant has an opportunity to participate.").

126 The venue for review is determined by the statute giving authority to the agency, but commonly is the United States Court of Appeals.

127 5 U.S.C. §§ 702, 704, 706 (1988).

128 See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415 (1971) (rejecting argument that reviewing court should take evidence and determine matter de novo under 5 U.S.C. § 706(2)(F)).

129 Also, as § VIII(A) explains, the APA defines the record of formal agency adjudication.

130 Fed.R.App.P. 16(a).

131 Fed.R.App.P. 17(b).

132 Fed.R.App.P. 17(b).

133 Fed.R.App.P. 17(b).

134 Sean P. Lugg, Villanova Law School Class of 1996, law clerk to the author, provided helpful research in connection with this section.

135 Black's Law Dictionary 1437-1438 (Henry C. Black, ed. rev. 4th ed. 1968).

136 838 F.2d 1190 (Fed. Cir. 1988).

137 Id. at 1192- 1193.

138 Id. at 1193. The court was called upon to determine the sufficiency of the tape recordings based on appellant's contention that the recordings were insufficient and that the Board had the responsibility of transcribing the tapes for appellate review.

139 435 U.S. 519 (1978),

140 Vermont Yankee, 435 U.S. at 525 (quoting Federal Communications Commission v. Schreiber, 381 U.S. 279, 290 (1965).

141 Vermont Yankee, 435 U.S. at 544. The Court's underlying concern was that appellate courts would usurp the role of the administrative agency if permitted broad latitude on review. See Id. at 545.

142 Model State Administrative Procedure Act ("MSAPA") § 3-112.

143 MSAPA §4-221 [Agency Record] -- {for formal adjudicative hearings }

(a) An agency shall maintain an official record of each adjudicative proceeding under this Chapter.

"(b) The agency record consists of: (1) notices of all proceedings; (2) any pre-hearing order; (3) any motions, pleadings, briefs, petitions, requests, and intermediate rulings; (4) evidence received or considered; (5) a statement of matters officially noticed; (6) proffers of proof and objections and rulings thereon; (7) proposed findings, requested orders, and exceptions; (8) the record prepared for the presiding officer at the hearing, together with any transcript of all or part of the hearing considered before final disposition of the proceeding; (9) any final order, initial order; or order on reconsideration; (10) staff memoranda or data submitted to the presiding officer, unless prepared and submitted by personal assistants and not inconsistent with Section 4-213(b); and (11) matters placed on the record after an ex parte communication. (c) Except to the extent that this Act or another statute provides otherwise; the agency record constitutes the exclusive basis for agency action in adjudicative proceedings under this Chapter and for judicial review thereof.

144 MSAPA §4- 501(f) [Emergency Adjudicative Proceedings] {record}

. . .

(f) The agency record consists of any documents regarding the matter that were considered or prepared by the agency. The agency shall maintain these documents as its official record.

145 MSAPA §4-506 [Agency Record of Summary Adjudicative Proceedings and Administrative Review].

(a) The agency record consists of any documents regarding the matter that were considered or prepared by the presiding officer for the summary adjudicative proceeding or by the reviewing officer for any review. The agency shall maintain these documents as its official record.

(b) Unless otherwise required by a provision of law, the agency record need not constitute the exclusive basis for agency action in summary adjudicative proceedings or for judicial review thereof.

146 MSAPA sec 5- 115(b).

147 See Perritt, 43 Emory L.Rev. at 1080-81, 1087-88 (problems with videotape transcripts).

148 "In contrast to records directly generated by the computer itself (e.g., telephone trap results), printouts of computer-stored data constitute statements placed into the computer by out-of-court declarants and cannot be tested by cross-examination. . . . Such information should therefore not be admitted absent some exception to the hearsay rule." People v. Rushton, 626 N.E.2d 1378, 1389 (Ill. Ct. App. 1993) (affirming conviction based on computerized blood test result printout).

149 Even if a challenger could induce a reviewing court to question the authenticity of a DOT DMS or NRC electronic record, it is not clear exactly how she would benefit from establishing the usual kinds of errors in translating between paper submissions and electronic images. What inference should be drawn from a missing page? What is the plausibility of substitution of different content for that actually received into evidence?

150 Federal Rules of Evidence 1002-1003, the original documents rules, allow duplicates to be admitted on the same footing as originals unless there is some reason to question the reliability of the duplicate. See also F.R.E. 1001(3) (defining original to include printout or other output readable by sight known to reflect data stored in the computer or similar device accurately); F.R.E. 1001(4) (providing for admissibility of duplicate which includes counterpart produced by mechanical or electronic rerecording which accurately reproduces the original); F.R.E. 1005 (permitting introduction of copy of official records certified by a witness who has compared it with the original).

Hearsay is excluded because the inability to cross examine frustrates the traditional test of reliability. F.R.E. 803(6) nevertheless allows certain routinely- maintained records to be admitted, "unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness."

Authentication implicates proof of reliability, as explained further in the text.

151 Hughes v. United States, 933 F.2d 531, 540 (9th Cir. 1992) (official IRS documents, even if generated by computer, were admissible as public records; foundation as business records unnecessary); United States v. Ryan, 969 F.2d 238 (7th Cir. 1992) (certified computer records were self authenticating documents; no need for showing of accuracy of computer system); compare Capital Marine Supply, Inc. v. M/V Roland Thomas, II, 719 F.2d 104, 106 (5th Cir. 1983) (affirming admission of computer generated billing records under business records exception to hearsay rule) and United States v. Miller, 771 F.2d 1219, 1237 (9th Cir. 1985) (adequate foundation laid for admission of computer-generated telephone billing records under F.R.E. 803(6); affirming conviction for price fixing) and Zayre Corp. v. S. M. & R. Co., 882 F.2d 1145, 1149 (7th Cir. 1989) (although testimony by controller to authenticate computer records of vacation payments was cursory, records were properly admitted under F.R.E. 803(6) and 901 because challenger failed to identify specific problems with records) with First National Bank v. M/V Lightning Power, 851 F.2d 1543, 1548 (5th Cir. 1988) (inadequate foundation laid for admitting computer evidence of wages paid; no testimony as to how printout produced); Stafford v. Stafford, 641 A.2d 348, 349 (Vt. 1993) (wife's testimony that list of sexual encounters came from family computer sufficient authentication to establish prima facie identity as defendant husband's document); State v. Ford, 501 N.W.2d 318, 321-22 (Neb. Ct. App. 1993) (affirming conviction for unlawful taking, based on hotel computer records of entry into rooms by defendant; business records foundation adequately established by testimony of general manager as to how system operated).

152 The requirements for the record presented to a reviewing court are considered earlier in § VIII(C).

153 See generally Overton Park, 401 U.S. at 415 (noting infrequency of 5 U.S.C. § 706(2)(f) proceedings).

154 Of course a challenger could also argue that the agency impermissibly admitted a piece of evidence, in which case the reviewing court would first determine if the hearing officer followed pertinent agency rules of evidence, and then scrutinize the agency rules of evidence for conformity with the organic statute, the APA, and Constitutional procedural due process.

155 14 C.F.R. § 13.59 (FAA investigative and enforcement procedures; presentation of evidence; no mention of Federal Rules of Evidence); id. § 13.222 (FAA rules of practice in civil penalty actions; admissibility of evidence; no mention of Federal Rules of Evidence, and hearsay explicitly admissible); 14 C.F.R. § 379.8 (Office Of The Secretary Title VI nondiscrimination hearings; technical rules of evidence inapplicable); ; 33 C.F.R. § 1.07-55 (Coast Guard hearing procedures; not bound by strict rules of evidence).; 33 C.F.R. § 125.43(g) (Coast Guard hearings on access to waterfront facilities or vessels; rules of evidence not binding on hearing board); 33 C.F.R. § 51.9 (Coast Guard Discharge Review Board; Federal Rules of Evidence not applicable); 33 C.F.R. § 52.51 (Coast Guard, Board For Correction Of Military Records; hearing not limited by legal rules of evidence); 46 C.F.R. § 221.85 (Maritime Administration civil penalty hearings on transactions involving documented vessels; not bound by strict rules of evidence); 46 C.F.R. § 4.19-5 (Coast Guard hearings on marine casualties and investigations; strict adherence to rules of evidence not imperative, but should be observed as closely as possible); 46 C.F.R. § 5.537 (Coast Guard personnel action hearings; strict adherence not required but Federal Rules of Evidence shall be primary guide); 48 C.F.R. § 6302.23 (Board of Contract Appeals; suggesting that offers of evidence governed by Federal Rules of Evidence, but "admissibility is governed by relevancy and materiality"); 49 C.F.R. § 21.15 (Office of Secretary Title VI nondiscrimination hearings; technical rules of evidence do not apply); 49 C.F.R. § 190.211 (Research and Special Programs Administration pipeline safety enforcement hearings conducted informally without strict adherence to rules of evidence); 49 C.F.R. § 190.233(c)(3) (Research and Special Programs Administration hearings on pipeline safety hazardous facility orders; conducted without strict adherence to rules of evidence); 49 C.F.R. § 200.9(f) (FRA passenger service hearings; panel shall apply rules of evidence as it finds necessary); 49 C.F.R. § 209.15 (FRA railroad safety enforcement procedures; Federal Rules of Evidence shall be employed as general guidelines but "all relevant and material evidence shall be received into the record"); 49 C.F.R. § 211.75 (FRA review of emergency orders; Federal Rules of Evidence shall be employed as general guidelines but "all relevant and probative evidence offered by a party shall be received in evidence"); 49 C.F.R. § 240.409 (FRA hearings to review locomotive engineer qualification petitions; Federal Rules of Evidence shall be used as general guidelines, but all relevant and probative evidence shall be received unless repetitive or lacking in relevancy); 49 C.F.R. § 265.23(d) (FRA hearings on enforcement of nondiscrimination obligations; formal rules of evidence inapplicable); 49 C.F.R. § 511.43 (NHTSA adjudicative procedures; Federal Rules of Evidence applicable only as general guide; presiding officer may admit any relevant and probative evidence).

156 49 C.F.R. § 107.321 (Research and Special Programs Administration; hearings conducted in accordance with Federal Rules of Evidence, but ALJ may modify to assure full development of facts); 49 C.F.R. § 386.56 (Federal Highway Administration Motor Carrier Safety hearing; Federal Rules of Evidence shall be followed except as otherwise provided "in these rules" and in the APA).;

157 See 10 C.F.R. § 2.1233(e) (informal adjudicatory hearings for operating and materials licensing); 10 C.F.R. §2.1235 (same); 10 C.F.R. Pt. 2, App.A § V(d)(7) (hearings on construction permits and operating licensing); 10 C.F.R. § 4.63 (non- discrimination hearings); 10 C.F.R. § 10.28 (security clearance hearings); 10 C.F.R. § 13.34 (program fraud hearings; application of Federal Rules of Evidence discretionary with ALJ).

158 F.R.E. 902(1) and (2) (certification eliminates need for extrinsic evidence to authenticate public records).

159 See Devine v. Goodstein, 669 F.2d 736, 737 (D.C. Cir. 1981)(per curiam order; arbitrator knows what is in record and therefor can provide certified copies of material before him when he decided; his delivery constitutes certification of its genuineness).

160 See Sloane v. Defense Logistics Agency, 834 F.2d 1006, 1008 (Fed. Cir. 1987) (accepting affidavits on contents of oral stipulation before arbitrator; adopting common sense approach for determining contents of record on review when no verbatim transcripts are kept.)

161 F.R.E. 902(1)- (2) impose more formal requirements, however.

162 United States v. Wexler, 657 F. Supp. 966, 971 (E.D.Pa.1987) (stamped signature accompanied by initials satisfying requirements of F.R.E. 902(1) for certifying public records); see generally 28 U.S.C. § 1739 (1988) ("All nonjudicial records or books kept in any public office of any State, Territory, or Possession of the United States, or copies thereof, shall be proved or admitted in any court or office in any other State, Territory, or Possession by the attestation of the custodian of such records or books, and the seal of his office annexed, if there be a seal, together with a certificate of a judge of a court of record of the county, parish, or district in which such office may be kept, or of the Governor, or secretary of state, the chancellor or keeper of the great seal, of the State, Territory, or Possession that the said attestation is in due form and by the proper officers."); Van Cedarfield v. Laroche, 252 F.2d 817 (1st Cir. 1958) (failure to recite who had custody of records failed to meet requirements of § 1739; photostatic copy of motor vehicle records property excluded); Reed v. State, 811 S.W.2d 582, 586 (Tex. Crim. App. 1991) (certification of genuineness and accuracy of copy by clerk who had custody of records, accompanied by certificate by judge that clerk had custody and that signature of clerk was genuine met requirements for certification of public records of F.R.E. 902 and Texas counterpart of rule); Town of Falls Church v. Myers, 46 S.E.2d 31, 36 (Va. 1948) (affirming judgment because parts of record not properly certified by trial judge instead of clerk; certification contemplates annexing, reference or earmarking and authenticating by trial judge)

163 The following is an initial checklist of questions that could be asked a witness authenticating a DMS record:

Please state your name.

What is your technical background?

What responsibilities did you have for the establishment and implementation of the DMS, which produced Exhibit X?

What responsibilities do you have in supervising the ongoing operations of the DMS?

How is Exhibit X typical or atypical of the outputs produced by this system?

What other outputs are produced?

How are these outputs used by DOT?

What measures if any do you follow to ensure the accuracy of data in the system?

Are audits performed to determine whether employees are following procedures?

Are audits performed to determine whether the data in the system accurately reflect reality?

Are you familiar with the practices in the information systems management profession generally to assure accuracy and reliability of data processing systems?

How do the practices used by DOT with respect to DMS compare with the industry practices?

If an intruder were to access the system without authorization would any trail be left?

What is it?

Have you checked that log file to determine if any intruders accessed the system?

If someone altered a record, would any trail be left? What is it?

Have you checked the log file that would record any alterations? With what result?

164 Leos v. State, 883 S.W.2d 209, 211 (Tex. Crim. App. 1994) (reversing harmless error finding of intermediate court with respect to admissibility of eavesdropping tape).

165 Or, more likely, what is on the computer medium read by computer X, such as an optical or magneto-optical disk used for archival records. Further references in the textual discussion to "what is in computer X now" should be understood to include such computer-readable media.

166 Cf. R. Peritz, Computer Data and Reliability: A Call for Authentication of Business Records Under the Federal Rules of Evidence, 80 Nw.U.L.Rev. 956, 980 (1986) (proof that a printout accurately reflects what is in the computer is too limited a basis for authentication of computer records).

167 See generally Peritz, 80 Nw.U.L.Rev. at 979 (citing as examples of authentication Ford Motor Credit Co. v. Swarens, 447 S.W.2d 53 (Ky. 1969) (authentication by establishing relationship between computer-generated monthly summary of account activity and the customer reported on); Ed Guth Realty, Inc. v. Gingold, 34 N.Y.2d 440, 315 N.E.2d 441, 358 N.Y.S.2d 367 (1974) (authentication of summary of taxpayer liability and the taxpayer)).

168 United States v. Linn, 880 F.2d 209, 216 (9th Cir. 1989) (computer printout showing time of hotel room telephone call admissible in narcotics prosecution). See also United States v. Miller, 771 F.2d 1219, 1237 (9th Cir. 1985) (computer-generated toll and billing records in price-fixing prosecution based on testimony by billing supervisor although he had no technical knowledge of system which operated from another office; no need for programmer to testify; sufficient because witness testified that he was familiar with the methods by which the computer system records information).

169 See United States v. Hutson, 821 F.2d 1015, 1020 (5th Cir. 1987) (remanding embezzlement conviction, although computer records were admissible under business records exception, despite trustworthiness challenged based on fact that defendant embezzled by altering computer files; access to files offered in evidence was restricted by special code).

170 Existing approaches for binding the parts of an electronic document together electronically would ensure the same level of document integrity as exists with stapled or manually bound documents and paper exhibits.

171 Id. § 2.1013(b).

172 F.R.E. 901 (general authentication requirement).

173 F.R.E. 901 (9) (showing that process or system produces accurate result).

174 F.R.E. 803(6).

175 Pleadings in agency proceedings sometimes must be signed. See e.g. 46 C.F.R. 67.209 (1995) (Coast Guard rule for documentation of vessels, requiring that "at least one copy" of filing "must bear original signature"); 14 C.F.R. § 221. 240 (1995) (letter transmitting tariff must be signed); 14 C.F.R. § 221.260 (electronic tariffs may be filed only if carrier or filing agent has signed agreement for maintenance and security of online tariff database). Comments in informal rulemaking proceedings rarely need to be signed.

176 See UCC § 2- 201(1).

177 See UCC § 2-201 comment 1. See generally Michael S. Baum & Henry H. Perritt, Jr., ELECTRONIC CONTRACTING, PUBLISHING AND EDI LAW ch. 6 (1991) (analyzing signature and writing requirements in electronic messaging context).

178 Henry H. Perritt, Jr., The Electronic Agency and the Traditional Paradigms of Administrative Law 44 ADMIN.L.REV. 79, 94 (1992) ("The concern with electronic signatures on adjudicatory pleadings is a red herring. A variety of techniques for authenticating electronic documents exist that are as good or better than traditional handwritten signatures.")

179 Lon Fuller postulated that signatures in contract law perform three distinct functions: an evidentiary function, a cautionary function, and a channeling function. Swerhun v. General Motors Corp., 812 F. Supp. 1218, 1222 (M.D. Fla. 1993) (standard for enforcing promise on promissory estoppel theory depends in part on the extent to which "the evidentiary, cautionary, deterrent and channeling functions of form are met"); Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale L.J. 87, 123-24 (1989) (characterizing Lon Fuller as justifying legal formalities by their evidentiary, cautionary, and channeling functions, citing Lon L. Fuller, Consideration and Form, 41 Colum. L. Rev. 799 (1941)).

180 58 Fed.Reg. 14628, 14632 (Mar. 18, 1993) (interim rules and requests for comment, explaining how filers obtain software, identification numbers and passwords).

181 See 59 Fed.Reg. 36264, 36266, 36273 (July 15, 1994) (proposing new rule 302(c) of Regulation S-T to eliminate requirement for manual signatures on paper copies of electronic filings, but providing for paper to be retained by filer adopting typed signature in filing); 58 Fed.Reg. 14628, 14630 (Mar. 18, 1993) (explaining why retention of manually signed signature page was substituted for personal identification numbers ("PINs") used in the EDGAR pilot).

182 59 Fed.Reg. 26208 (May 19, 1994) (approval of FIPS 186, Digital Signature Standard); 59 Fed.Reg. 35317 (July 11, 1994) (request for comments on FIPS 180 secure hash standard). Regrettably, NIST does not make the full text of its official standards available in its federal register notices.

183 59 Fed.Reg. 45160 (Aug. 31, 1994) (proposed rule on electronic signatures and electronic records).

184 RFC 1421 (Privacy Enhancement for Internet Electronic Mail: Part I: Message Encryption and Authentication Procedures); RFC 1422 (Privacy Enhancement for Internet Electronic Mail: Part II: Certificate-Based Key Management); RFC 1423 (Privacy Enhancement for Internet Electronic Mail: Part III: Algorithms, Modes, and Identifiers); RFC 1424 (Privacy Enhancement for Internet Electronic Mail: Part IV: Key Certification and Related Services).

185 The controversial restriction on export of strong encryption technology does not apply to technology used only for digital signature purposes. ITAR 121.1. Category XIII, paragraph (b)(1), of ITAR 121.1 excludes from the export restrictions "(vi) Limited to data authentication which calculates a Message Authentication Code (MAC) or similar result to ensure no alteration of text has taken place, or to authenticate users, but does not allow for encryption of data, text or other media other than that needed for the authentication." 22 C.F.R. § 121.1 Category XIII (b)(1) (1994).

186 59 Fed. Reg. 45160 (Aug. 31, 1994) (summary of proposed rule).

187 Id. at 45161.

188 Id. at 45161.

189 Id. at 45164 (synthesizing comments).

190 Id. at 45164 (synthesizing comments).

191 Id. at 45161.

192 Id. at 45163.

193 Id. at 45163- 64.

194 Id. at 45165.

195 Id. at 45167.

196 Id. at 45167.

197 Id. at 45167.

198 Id. at 45168.

199 Id. at 45168.

200 Id. at 45170.

201 Id. at 45172 (description in preamble), id. at 45175-76 (text of proposed rule for closed systems).

202 Id. at 45173 (preamble description), id. at 45176 (text of § 1130).

203 60 Fed. Reg. 45163 (Aug. 30, 1995).

204 A page image of a notary's attestation would not work because there would be no paper artifact for the notary to attest.

205 18 U.S.C. § 1001; see generally Hubbard v. United States, 115 S.Ct. 1754 (1995) (18 U.S.C. §1001 does not apply to statements made in judicial proceedings).

206 28 U.S.C. §1746 (allowing unsworn statements to be made under penalty of perjury).

207 The language of 18 U.S.C. § 1001, referring to "false . . . entry," applies to records keeping as well as reporting requirements.

208 Utah Digital Signatures Act, 1995 Utah Laws Ch. 61 (S.B. 82) (approved March 9, 1995).

209 See Theodore Sedgwick Barassi, The CyberNotary: A New U.S. Legal Specialization for Facilitating Electronic Commerce, American Bar Association, Bulletin of Law, Science and Technology, April, 1995, at p.5.

210 57 Pa. Stat. Ann. § 54e.

211 57 Pa. Stat. Ann. § 54e.

212 Md. Cod. Art. 68 Notaries Public § 5.

213 Md. Code Art. 68, Notaries Public § 3.

214 Cal. Gov't Code § 8205(2).

215 Id § 8205(2).

216 Id § 8205(2).

217 Utah recently became the first state to enact legislation governing digital signatures. Utah Digital Signatures Act, 1995 Utah Laws Ch. 61 (S.B. 82) (approved March 9, 1995).

218 5 U.S.C. § 552(1988).

219 5 U.S.C. § 552(a)(1)(C)(rules of procedure, descriptions of forms, and instructions as to the scope and contents of papers and reports); Id. at subsection (a)(1)(D)(substantive rules and statements of general policy or interpretations of general applicability).

220 5 U.S.C. § 552(a)(2).

221 5 U.S.C. § 552(a)(2).

222 5 U.S.C. § 552(a)(3).

223 See Part VII, explaining ACUS and ABA recommendations.

224 See id.

225 5 U.S.C. § 522(b)

226 See § VII(A) of this report, summarizing ACUS Recommendation 88-10.

227 ABA Recommendation No. 102, adopted by the American Bar Association House of Delegates, August, 1990 (guidelines for applying Freedom of Information Act to electronic formats); ABA Recommendation No. 109C, adopted by the House of Delegates of the American Bar Association, August 12-13 (1991) (guidelines for federal and state agency dissemination of public information in electronic form). Both ABA recommendations are available in full text for viewing or downloading from the World Wide Web at http://www.vcilp.org/Aba/adminlaw.html.

228 Pub.L. 104- 13, 109 Stat. 163 May 22, 1995) codified at 44 U.S.C. §§ 3501-3520.

229 44 U.S.C. § 3506(d), as amended by Pub.L. 104-13, 109 Stat. 163 (May 22, 1995).

230 See § ___.

231 Id. at 45171.

232 ABA Recommendation 109C.

233 FACA § 3, 5 U.S.C. App. 2 (1994).

234 FACA § 10, 5 U.S.C. App. 2.

235 FACA § 8, 5 U.S.C. App. 2 (1994).

236 FACA § 9, 5 U.S.C. App. 2.

237 5 U.S.C. § 552b (1994).

238 5 U.S.C. § 552b(b).

239 See Communications Systems, Inc. v. FCC, 595 F.2d 797 (D.C. Cir. 1979) (voting on items appearing on written agenda without meeting not subject to act); Common Cause v. Nuclear Regulatory Commission, 674 F.2d 921 (D.C. Cir. 1982) (statute does not prevent agencies from making decisions by sequential, notational voting rather than by gathering in meeting for deliberation and decision).

240 Public Citizen v. United States Department of Justice, 491 U. S 440, 453 (1989) (holding that FACA did not cover American Bar Association group that provided advice on judicial appointments).

241 Id. at 454 [internal quotation marks and citations omitted]. See also Gaus v. Department of Health and Human Services, ___ F.3d ___, No. 94-5356 (D.C. Cir. Aug. 4, 1995) (panel that developed clinical practice guideline for agency was not advisory committee under FACA; group usually is not utilized by agency and thus under FACA unless agency actually controls and manages group).

243 41 C.F.R. § 105-54.101(h).

244 41 C.F.R. § 105-54.102(a).

245 See Henry H. Perritt, Jr., Negotiated Rulemaking and Administrative Law, 38 Ad.L.Rev. 471 (1986); Henry H. Perritt, Jr., Negotiated Rulemaking before Federal Agencies: Evaluation of Recommendations by the Administrative Conference of the United States, 74 Geo.L.J. 1625 (1986).

246 5 U.S.C. § 564(a)(4).

247 5 U.S.C. § 552(b)(1988).

248 Chrysler Corp. v. Brown, 441 U.S. 281, 291 (1979).

249 5 U.S.C. §552a(e) (imposing affirmative duties on agencies with respect to Privacy Act- covered records).

250 18 U.S.C. § 1905. See Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979) (finding no private right of action under § 1905, but allowing judicial review of agency decision to disclose alleged trade secrets under Administrative Procedure Act, based on decisional authority under FOIA and § 1905).

251 See generally National Parks and Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974) [add to parenthetical]; Public Citizen Health Research Group v. FDA, 704 F.2d 1280 (D.C. Cir. 1983) [add parenthetical showing more restrictive interpretation]; Anderson v. Department of Health and Human Services, 907 F.2d 936 (10th Cir. 1990) [add parenthetical showing restrictive interpretation].

252 52 Fed. Reg. 23,781 (date).

253 United States Department of Defense v. Federal Labor Relations Authority, 114 S.Ct. 1006, 1012 (1994) (to decide whether a record is exempt from FOIA disclosure under Exemption 6, court must "balance the public interest in disclosure against the interest Congress intended the exemption to protect" in order to decide whether the invasion of privacy would be "unwarranted"); United States Department of State v. Ray, 502 U.S. 164, 177 (1991) (balancing privacy against basic policy of FOIA; official information that sheds light on an agency's performance of its statutory duties falls squarely within FOIA's purpose); United States Department of Justice v. Reporters' Committee for Freedom of the Press, 489 U.S. 749, 771- 72 (1989) (whether invasion of privacy is warranted cannot turn on purposes for which the request for information is made, but whether disclosure of private document under Exemption 7(C) is warranted must turn on nature of requested document and its relationship to "basic purpose of FOIA; basic purpose not served by disclosure of information about private citizens accumulated in various government files that reveals little or nothing about agency's own conduct).

254 5 U.S.C. § 552a (1988).

255 5 U.S.C. § 552a(a)(4).

256 In theory, one could establish a record with detailed geographic, and temporal information that would identify an individual because she was the only one standing in a particular place at a particular time.

257 See 5 U.S.C. § 552a(b) (limiting non-disclosure duty to record contained in system of records); id. § 552(b)(8) (defining accounting duties in terms of disclosures from systems of records); id. § 552a(d) (defining access rights to systems of records); id. [foll: check 2.1007(___) re FOIA req't, per p104 of Cotter comments][foll: check 2.1007(___) re FOIA req't, per p104 of Cotter comments][foll: check 2.1007(___) re FOIA req't, per p104 of Cotter commen[foll: check 2.1007(___) re FOIA req't, per p104 of Cotter comme§552a(a)(5) (defining "system of records").

258 5 U.S.C. § 552a(b).

259 Subsection (b)(3) is an exception to the general prohibition against disclosure without written permission and is linked to the definition of routine use in subsection (a)(7), which is defined with respect to the purpose for which the record data was collected.

260 5 U.S.C. § 552a(d).

261 5 U.S.C. § 552a(c). The accounting must be made available to subjects upon their request. 5 U.S.C. § 552a(c)(3)

262 5 U.S.C. § 552a(d)(2)-(4).

263 5 U.S.C. § 552a(e)(1).

264 Compare Sellers v. Bureau of Prisons, 959 F.2d 307, 312 (D.C. Cir. 1992) (adverse determinations supported by unchecked information results in civil liability if agency could have verified accuracy; reversing district court) with Johnston v. Horne, 875 F.2d 1415, 1422 (9th Cir. 1989) (inaccurate background briefing supporting involuntary retirement was grossly negligent but did not violate Privacy Act, which imposes liability only for willful or intentional conduct).

265 5 U.S.C. § 552a(e)(5).

266 5 U.S.C. § 552a(e)(8).

267 5 U.S.C. § 552a(e)(10).

268 5 U.S.C. § 552a(b)(3)(referring to subsection (a)(7) defined with respect to the purpose for which data was collected).

269 5 U.S.C. § 552(b)(4).

270 18 U.S.C. § 1905 (1988).

271 18 U.S.C. § 1905.

272 See generally Chrysler Corp. v. Brown, 441 U.S. 281 (1979)(allowing for limited judicial review of agency decisions to disclose information at the behest of a person asserting coverage by § 1905).

273 52 Fed. Reg. 23,781 (June 23, 1987).

274 Ex. Ord. 12,600 § 8(e)(providing for designation at time of submission)].

275 See Henry H. Perritt, Jr. TRADE SECRETS: A PRACTITIONER'S GUIDE (1994). But see Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1288 (D.C. Cir. 1983)(suggesting that trade secret under exception b(4) has a narrower meaning than at common law)

276 See National Parks and Conservation Association v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).

277 See 18 C.F.R. § 388.112 (FERC regulation prescribing procedure for request for confidential treatment of material filed electronically); 17 C.F.R. § 200.83 (procedures for requesting confidential treatment of material by electronic filers before SEC); [confidential treatment] 17 C.F.R. § 230.406 (providing for objections to public disclosure).

278 See 14 C.F.R. § 413.7 (filings with Office of Commercial Space Transportation may be designated for confidential treatment by clearly marking with appropriate legend, or attaching cover sheet); 14 C.F.R. § 13.220 (FAA discovery rules; providing for motion for confidential treatment and protective orders); 14 C.F.R. § 302.39 (DOT Office of the Secretary (Aviation Proceedings) rule providing that confidential information shall be filed in a separate "paper" in a sealed envelope); 14 C.F.R. § 385.22(f) (authorizing Deputy General Counsel to provide for confidential treatment of information supplied to Office of Aviation Enforcement and Proceedings when information would qualify for exemption under FOIA); 14 C.F.R. § 385.27(i) (authorizing decision on motions for confidential treatment of aviation economic information, subject to petition for reconsideration). [add additional examples]

279 Compare 14 C.F.R. Pt. 310, App. A (Office of the Secretary Description and Location of Records Generally Available in connection with aviation proceedings) and 14 C.F.R. §§ 310.2-310.3 (records pertaining to aviation proceedings in Office of the Secretary open to the public except those enumerated and qualifying for nondisclosure under § 302.39 procedural regulations) with 14 C.F.R. Pt. 310, App. B (Office of the Secretary; Types of Records Generally Excluded From Availability in connection with aviation proceedings) and 14 C.F.R. § 91.23(d) (all filings of leases and contracts with FAA will be treated as privileged commercial or financial information unless recorded with FAA under Part 49) and 14 C.F.R. § 61.167 (information collected by FAA incidental to FAA airline transport pilot test shall be treated "as a confidential matter") and 33 C.F.R. § 1.07-30 (Coast Guard rule for civil and criminal penalty proceedings providing for disclosure to alleged violator of all written evidence in case file except material that could lead to disclosure of identity of confidential informant) and 14 C.F.R. § 399.51 (unaudited preliminary year-end reports filed in aviation proceedings with Office of Secretary entitled to confidential treatment until final report filed); 14 C.F.R. § 191.5 (disclosure of certain information prohibited, based on determination of FAA Director of Aviation Security); 14 C.F.R. § 379.6 (Office of the Secretary; providing for confidentiality of identity of persons complaining of discrimination).

280 14 C.F.R. § 302.314 (requiring confidential treatment of information obtained by participants in mail rate conferences); 14 C.F.R. § 300.19 (Office of the Secretary regulations prohibiting use of confidential information by former employees without clearance from ethics counselor); 14 C.F.R. § 109.3(b) (FAA rules requiring air carrier to maintain confidentiality of contents of security program)

281 See 10 C.F.R. § 2.1003(d) (requiring the entry only of bibliographic headers for material claimed to be privileged or confidential).

282 See 14 C.F.R. § 14.11(c) (FAA equal access to justice rules, providing for submission of net worth exhibit in "sealed envelope" by filer who requests confidential handling); 14 C.F.R. § 302.39 (Office of Secretary rule providing that objection to public disclosure of any information filed under Federal Aviation Act must begin with segregation of purportedly confidential information into a "separate paper" in a sealed envelope).;

283 The EDGAR rules require that confidential information be filed on paper. 59 Fed.Reg. 36264, 36265 (July 15, 1994).

284 53 Fed.Reg. 15023, 15026 (Apr. 27, 1988) (revising FERC rule § 388.112) (confidential information in electronic filing to be on media with special label).

285 A Vaughn index is a detailed listing of records an agency seeks to withhold from disclosure in response to a FOIA request. See John Doe Agency v. John Doe Corp., 493 U.S. 146, 149 n. 2 1989) (explaining Vaughn index)

286 Systems containing census information, social security information and income tax information are examples.

287 Disclosure of patented information or information associated with a trademark, the two other forms of intellectual property, present few difficulties.

288 Copyright encompasses only certain enumerated rights, including the right:

"(1) to reproduce the copyrighted work and copies or phono records;

(2) to prepare derivative works based on the copyrighted works;

(3) to distribute copies or phono records of the copyrighted work to public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic and choreographic works, pantomimes and motion pictures and other audio visual works, to perform the copyrighted work publicly; and

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio visual work, to display the copyrighted work publicly." 17 U.S.C. § 106.

289 It also may be appropriate to identify a privilege available to a submitter who needs to submit part or all of a copyrighted work in order to substantiate his case. Fair use would seem appropriate for such use of a copyrighted work, with analogies to the reproduction of copyrighted works for purposes of literary criticism. See Sony Corp. v. University City Studios, Inc., 464 U.S. 417, 476 (1984) (explaining fair use privilege); Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164 (1994) (commercial song parody not excluded from fair use privilege).

290 See generally 17 U.S.C. § 106 (defining conduct within copyright holder's exclusive rights).

291 If the copyright holder submits a copyrighted work as a part of a filing there is an implied grant of permission to the government to make use of the submitted work in conjunction with the proceeding for which it is submitted. If the submitter explicitly negates this implication, the copyrighted part of the submission arguably is withdraw, because the agency cannot process it in the usual manner.

292 See 28 U.S.C. § 1498(b)(1993 Supp.). Compare Zimmerman v. United States, 422 F.2d 326, (3d Cir. 1970) (exclusive remedy for infringement action (patent) against government is under Tucker Act in Court of Claims) and Serra v. U. S. General Services Administration, 667 F. Supp. 1042, (S.D.N.Y. 1987) (exclusive remedy against federal government agency for copyright infringement lies in the Court of Claims, under explicit authority of 28 U.S.C. §1498(b)) with Schnapper v. Foley, 667 F.2d 102, 108 (D.C. Cir. 1981) (finding no sovereign immunity with respect to suit for injunction to void copyright asserted by government contractor; suggesting sovereign immunity does not exist with respect to any claim for an injunction authorized by 5 U.S.C. § 702 providing for judicial review of agency decisions); Inslaw, Inc. v. United States, 76 B.R. 224, 238 (Bankr. D.D.C. 1987) (no sovereign immunity with respect to monetary claims for disclosure of trade secrets and other intellectual property). The question of federal sovereign immunity is distinct from the question of state sovereign immunity in copyright infringement actions. See generally Mills Music, Inc. v. State of Arizona, 591 F.2d 1278, (9th Cir. 1979) (state not immune under Eleventh Amendment from copyright infringement action, because of operation of Patents and Copyright Clause).

293 Indeed the privilege is so flexible that one Supreme Court Justice called the doctrine "the most troublesome in the whole law of copyright." Sony Corp. v. Universal City Studios, Inc., 464 U.S. 457, 475 1984) (Blackmun, J., dissenting).

294 17 U.S.C. § 107 (codifying fair use privilege).

295 17 U.S.C. § 107(1) (identifying purpose of use as one factor to consider in assessing fair use claim).

296 17 U.S.C. § 107(4) (identifying effect on market as one factor to consider in assessing fair use claim). The Supreme Court in Sony Corp. v. University City Studios, Inc., 464 U.S. 417 (1984) and Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164 (1994) (commercial song parody not excluded from fair use privilege) cases noted that the last factor -- the market effect of the purported fair use -- is the most important.

297 17 U.S.C. § 107(2) (identifying nature of work as one factor to consider in assessing fair use claim).

298 In Rand McNally & Co. v. Fleet Management Systems, Inc., 519 F. Supp. 726, 734 (N.D. Ill. 1983), the district court held that use of otherwise copyrightable roadway mileage charts in statutorily mandated tariffs did not deprive the charts from eligibility for copyright. The court explicitly rejected the idea that a private filing could move copyrighted material into the public domain. 519 F. Supp. at 736.

299 5 U.S.C. § 552(a).

300 See generally Weisberg v. U. S. Department of Justice, 745 F.2d 1476, 1481 n.7 (D.C. Cir. 1984) (detailing history of litigation over whether copyrighted photograph qualified as FOIA record); Weisberg v. U. S. Department of Justice, 631 F.2d 824, 828 (D.C. Cir. 1980) (earlier appeal in same case, concluding that photographs were agency records because related to agency functions; unlike library material).

301 There also may be instances in which participants in agency proceedings seek access to computer databases to which agencies subscribe. The appropriate resolution of such requests would be to allow access to any portions of such a database that the agency relied on for its decisions, while stopping considerably short of allowing access to the entire database merely because the agency used a small part of it.

302 On the other hand, it would encourage filers to include only excerpts pertinent to their filing.

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