Electronic Evidence: Computer Produced Records in Court Proceedings 1994

APPENDIX D - Imaging and the Law

[166] Electronic imaging reproduces the exact images or pictures of documents onto optical or magnetic disk by means of a scanner.[56] This device electronically captures data from a paper document in a raster[57] pattern and creates a digital file of the document. That digital file can be stored in an optical or magnetic disk for display on a computer screen. In effect, it recreates a picture of the original document thus allowing that original to be destroyed, eliminating the cost of paper files.

[167] A number of mechanisms and variables affect the quality of imaging that require regulation by national standards and industry standards. They include whether erasable or non-erasable disks are used, indexing quality, preparation of documents for scanning, scanning resolution, image compression to reduce storage space and transmission times, image enhancement, encrypting, quality assurance that involves at a minimum visual inspection of digitized document images, scanner testing and verification of index data, backup and recovery procedures, care and handling of disks, storage conditions for security copies, hardware and software dependence, retrieval software and security measures.[58] Therefore, as recommended in this paper, evidence legislation should make reference to the national and industry standards concerning electronic and microfilm imaging.

[168] At present, optical storage is used because of its greater density of storage over magnetic storage and because its non-erasable character is intended to give it a status equal to that of microfilm storage. But because magnetic storage is faster, it is used as a temporary, intermediate step to permanent optical storage. Therefore, the typical imaging system involves first scanning documents into magnetic storage so as to create an exact picture or graphic representation of each document. After verification, the captured image is then transferred to optical storage. Imaging and optical storage may be combined with OCR (optical character reader) scanning. OCR capture into magnetic storage enables text manipulation such as word processing, indexing, and database management, because the optically stored image is not meant to be altered.

[169] Some of the newest systems planned for larger operations that want greater security, such as in banking systems, allow for a three-way capture to optical, OCR and microfilm storage. The microfilm image is meant to provide not only a permanent backup copy to the optical image, but also a backup copy during the transitional magnetic storage stage because a magnetically stored image is easily altered and therefore less secure than a non-erasable optically stored image. And microfilm can be an alternate record system that can be used during the many hours needed to make backups of many gigabytes of optically stored records.

[170] Also, microfilming is well accepted. Its "legality' is well established in the laws of evidence, and its physical durability and life expectancy are well known.[59] In comparison, the "legality" of electronic imaging into optical storage is uncertain, and the limits of its physical longevity are not nearly as certain because it has not been used as long. Therefore, perpetuating the use of microfilm storage by providing a system of parallel capture to optical capture could be an important strategy for introducing optical storage and establishing its dominance for mass storage systems.

[171] Information management, record-keeping, and data processing professionals are very interested in electronic imaging and optical disk storage. First, these new technologies provide all of the advantages of computerized, automated record-keeping and information handling. Second, they provide better solutions to the record-keeping, paper-handling, "paper burden", and archiving problems presented by paper records than do any previous technologies. Third, they truly allow an organization to create a "paperless office", i.e. business, management and clerical functions can be substantially re-designed because there can be a single electronic record-keeping system that provides instant access to information at all points served by an organization's information network.

[172] Of particular importance to imaging is Canada's new national standard, Microfilm and Electronic Images as Documentary Evidence, CAN/CGST-72.11-93,[60] which establishes important principles for imaging that should be considered in relation to issues of admissibility and weight. For example, it states:[61]


The following factors are necessary for the implementation of a credible image management program:

a. The written authority from senior management to establish the image management program.

b. The program's integration into the usual and ordinary course of business of the organization.

c. The written authority for the regular disposal of source records a reasonable period of time after the microfilming or image capture process.

d. The establishment and documentation of the program's systems and procedures

e. Provision for quality assurance.

f. Provision for appropriate storage and preservation of storage medium considering its desired retention period.

g. The program's conformity to all applicable micrographics and electronic image standards [cited in this standard].

[173] The standard raises the question whether imaged records will be treated as just another variety of computer-produced records, or instead subject to the rules applicable to microfilmed records, or subject to both the business record and microfilm provisions.

[174] Because electronic imaging is not a photographic process the microfilm provisions as they are presently worded cannot be applied directly. They could be applied indirectly by analogy. Because imaging and microfilming share the same purpose of displacing paper-original records with a new, equally authoritative electronic "original", proponents of admissibility have to be prepared for legal arguments that requirements comparable to those in the microfilm provisions should be read into the business document provisions when determining the admissibility of copies of business records produced with imaging technology. Those requirements, although similar from one Evidence Act to the next, can be cumulatively summarized (albeit imprecisely, and only for 10 of our 13 federal, provincial and territorial jurisdictions), as follows:

1. the photographing of original records as part of an established practice;

2. in order to keep a permanent record thereof;

3. the disposal of the original records, but subject to a six year period of preservation in regard to "executed or signed" documents.

[175] Such requirements would categorize imaging systems as more closely analogous to microfilm systems that produce new replacement copies of older original records, than to computer systems based upon original entry of original data. It is clear therefore, that our microfilm or business record provisions should be amended to incorporate the following improvements:

1. To accommodate computer-operated microfilm systems such as COM systems (computer output microfilm);

2. To refer the courts to national standards in relation to microfilm and electronic imaging;

3. To make clear that a copy from microfilm or electronic storage is as admissible and has the same status in law as the original document it came from;

4. To accommodate electronic imaging.

[176] Particularly obstructive to microfilm systems is the six year retention period for signed paper originals that is in most of the microfilm provisions.[62

34. (3) Where a bill of exchange, promissory note, cheque, receipt, instrument, agreement or other executed or signed document was so destroyed before the expiration of six years from,

(a) the date when in the ordinary course of business either the object or the matter to which it related ceased to be treated as current by the person having custody or control of the object; or

(b) the date of receipt by the person having custody or control of the object of notice in writing of a claim in respect of the object or matter prior to the destruction of the object,

whichever is the later date, the court may refuse to admit in evidence under this section a print from a photographic film of the object.] Such retention periods should be removed because they largely defeat the purposes for microfilming records, which include reducing storage space and cost, improving security of storage, improving mobility of stored records, and improving indexing and retrieval of records. The use of the national standard and of imaging technology could also be hindered by such retention periods.

[177] At present, it is more likely that electronic imaging will be treated as a variety of computer-produced records and therefore subject to the business record provisions rather than subject to the microfilm provisions by analogy. In compensation, the standard suggests the following list of points by which to judge the admissibility and weight to be given to computer-produced records so that an organization can be prepared to meet the standard's prime directive that all times an organization must be prepared to produce its imaged records as evidence:[63]

Sources of Data and Information -- Proof of the sources of data and information recorded in the databases upon which the record is based. One should be able to describe, at least in general terms, the sources of data and information in one's information or record-keeping system. Information management and record-keeping cannot be more reliable than the quality of the data and information that goes into it.

Contemporaneous Recording -- Proof that the data and information in those databases was recorded in some fashion contemporaneously with, or within a reasonable time after, the events to which such data and information relates (but contemporaneous recording within those databases themselves is not required). The fact that facts and events have not been recorded close to the time when they happened may give rise to an inference that they have been forgotten to some extent or misremembered. Contemporaneous recording removes the possibly of drawing that inference.

Routine Business Data and Information -- Proof that the data and information upon which the record is based is of a type that is regularly supplied to the computer during the regular activities of the organization from which the record comes. Courts look for data and information that cames from regular business transactions, as distinguished from data and information that is unusual to the business, or has been specially contrived for a court case.

Privileged Data and Information -- A certification that the use in court proceedings of the data and information upon which the statements in the record are based does not violate any legal principle of privileged or confidential data and information thereby preventing its disclosure. (This principle would require an assessment of the applicable law of privileged and confidential data and information in relation to a specific business record that is intended to be adduced as evidence.)

Data Entry -- Proof that the entries into the database(s) were made in the regular course of business. (This is another example of the court's use of the principle of "routine business procedure" or "business as usual" as a standard for verifying the reliability of data and information in business records.)

Industry Standards -- Proof that the input procedure to those databases conforms to standard practices in the industry involved. Although national standards for data processing in general do not yet exist, accepted practices within any part of the industry should be conformed to, so as to prevent the possibility that a court opponent might show that they are not being conformed to. As well, other professional organizations have published important treatises that supply standards.

Business Reliance -- Proof that there has been reliance upon those databases in making business decisions within a reasonably short time before or after producing the records sought to be admitted into evidence. The credibility of assurances and evidence of reliability of a database can be greatly enhanced by showing reliance upon that database in making business decisions, and showing that such reliance has led to the successful operation of the business that so relies upon that database.

Software Reliability -- Proof that the computer programs used to produce the output, accurately process the data and information in the databases involved. In other words, demonstrating a history of reliability will nullify arguments of speculative shortcomings and worst-case scenarios. If, however, a history of reliability does not yet exist because the system is too new, its vendor should provide that history from the experience of other customers or suppliers and programmers.

A Record of System Alterations -- Proof that from the time of the input of the data into the databases until the time of its production, records have been kept by a responsible person in charge of alterations to the system.

Security --Proof of the security features used to guarantee the integrity of the total information or record-keeping system upon which the output is based, and of the effectiveness of such features. Security varies with the type of information system and its use so as to produce the appropriate compromise between access and security, between ease of use and accuracy, and between efficiency and cost. Therefore, different systems will implement the following key points of security to differing degrees:

a. Protecting against unauthorized access to data and to permanent records

b. Processing verification of data and statements in records

c. Safeguarding communications lines

d. Maintaining copies of records on paper, microfilm, or other reliable physical or electronic forms for purposes of verification or replacement of falsified, lost or destroyed permanent and temporary records.

The factors cited in the above ten points should be able to be testified to by a single supervising officer of any well-run information or record-keeping facility, big or small. An additional witness may be required for software that is unique to the system unless that supervisor can testify to its history of reliability. If not, the programmer who wrote it should be available to certify its reliability until it does have a history of reliability. The proper choice of suppliers and programmers requires that consideration be given to their ability and experience in certifying the reliability of their products.

The evidence that these ten points will produce will vary with each information management or record-keeping system. Therefore, the records that each produces for court should be looked upon as creating its own unique evidentiary problems.

[178] If, as suggested above, imaging is held to be caught by both business records and photographic document (microfilm) rules, as a hybrid technology, it may be argued that the six year rule and the various destruction requirements for paper originals are appropriate for electronically imaged records if imaging is serving a similar purpose.

[179] Such arguments could be removed by amending the business record provisions to include imaging, or by amending the microfilm provisions so as to include imaging and removing the retention periods for the paper original records. If imaging could be said to use the computer as merely a storage device, just like microfilm, the computer functions would not have to involve the business record provisions. Regulating the special technology of electronic imaging could be dealt with in the microfilm provisions by reference to the new national standard. However because computer functions will be involved, not only by way of retrieval of records but also by way of data processing or other computer functions performed upon the same imaged records, the data and information so scanned into a computer should be subject to those business record provisions applicable to computer-produced records.

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