BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 1926 (Evans)
As Amended April 6, 2010
Hearing Date: June 29, 2010
Fiscal: Yes
Urgency: No
TW:jd
SUBJECT
Court Records: Preservation Guidelines
DESCRIPTION
This bill, sponsored by the Judicial Council, would provide that
trial courts could create, maintain, and preserve court records
in any form of communication, as specified, if the form
satisfies rules adopted by the Judicial Council, as specified.
This bill would require the Judicial Council to establish
standards and guidelines for the creation, maintenance,
reproduction, or preservation of court records. This bill also
would provide that documents electronically signed, subscribed,
or verified would have the same validity and legal force and
effect as paper documents.
BACKGROUND
The Judicial Council issued a report entitled Modernizing Trial
Courts Records Management (the Report), which detailed the need
to authorize trial courts to create, maintain, and preserve
court records in electronic forms. (See Judicial Council of
California, Administrative Office of the Courts. Modernizing
Trial Courts Records Management. 13 Nov. 2009.
http:www.courtinfo.ca.gov/jc/documents/reports/
121509item2.pdf.) The Report recommended allowing trial courts
to move away from paper files to electronic files which would
significantly decrease court storage costs.
The existing trial court records management program was enacted
under AB 1374 (Frazee, Ch. 1030, Stats. 1994), which was the
last overhaul of the court records management program. Under AB
(more)
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1374, trial courts were authorized to preserve court records
electronically but were not authorized to create or maintain
electronic court records. Thus, trial courts are still required
to create and maintain paper court records.
This bill would overhaul the current trial court records
management program and provide trial courts with the ability to
create, maintain, and preserve trial court records
electronically, as specified, under procedures and guidelines to
be provided by the Judicial Council.
CHANGES TO EXISTING LAW
Existing law authorizes trial courts to preserve records in any
form of communication or representation including optical,
electronic, magnetic, micrographic, or photographic media or
other technology capable of producing or reproducing the
original record according to standards or guidelines adopted by
the American National Standards Institute or the Association for
Information and Image Management; electronic records of
transcripts are governed by the California Rules of Court.
(Gov. Code Sec. 68150(a).)
Existing law prescribes that no additions, deletions, or changes
can be made to the content of the record and records must be
indexed for convenient access. (Gov. Code Sec. 68150(b).)
Existing law provides that a copy of the preserved or reproduced
court record will be deemed the original court record and can be
certified as a correct copy of the original record. (Gov. Code
Sec. 68150(c).)
Existing law provides that a court record preserved or
reproduced shall be stored in a manner and place that reasonably
assures its preservation against loss, theft, defacement, or
destruction for the prescribed retention period; electronic
records of transcripts do not require a backup copy unless
specified by the California Rules of Court. (Gov. Code Sec.
68150(d).)
Existing law provides that a reproduced court record can be
disposed of in a manner according to statute. (Gov. Code Sec.
68150(e).)
Existing law requires the following types of court records to be
preserved on paper, microfilm, or another form of communication
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or representation approved by the archival standards defined by
the American National Standards Institute for the duration of
the record's retention period: (1) comprehensive historical and
sample superior court records preserved for research under the
California Rules of Court; or (2) court records that are
preserved permanently. Court records that must be preserved
longer than ten years but not permanently can be reproduced
according to statute but must be reproduced before the
expiration of their estimated lifespan for the medium in which
they are stored pursuant to standards opted by the American
National Standards Institute or the Association for Information
and Image Management. (Gov. Code Sec. 68150(f).)
Existing law requires instructions for access to data stored on
any medium other than paper to be documented. (Gov. Code Sec.
68150(g).)
Existing law requires each court to conduct a periodic review of
the media in which court records are stored to assure the
storage medium is not obsolete and that current technology is
capable of accessing and reproducing the records. (Gov. Code
Sec. 68150(g).)
Existing law requires court records to be reproduced before the
expiration of their estimated lifespan for the medium in which
they are stored pursuant to standards opted by the American
National Standards Institute or the Association for Information
and Image Management. (Gov. Code Sec. 68150(g).)
Existing law requires public access and duplication of court
records preserved or reproduced as provided by statute. (Gov.
Code Sec. 68150(h).)
Existing law authorizes parties to redact social security
numbers from documents filed with court in connection with
marriage dissolutions, nullities, or legal separations. (Fam.
Code Sec. 2024.5(a).)
Existing law restricts electronic access to records in the
following types of proceedings:
(1) under the Family Code, including proceedings for
dissolution, legal separation, and nullity of marriage;
child and spousal support proceedings; child custody
proceedings; and domestic violence prevention proceedings;
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(2) juvenile court;
(3) guardianship or conservatorship;
(4) mental health;
(5) criminal;
(6) civil harassment proceeding under statute;
(7) workplace violence prevention proceeding under statute;
(8) elder or dependent adult abuse prevention proceeding
under statute; and
(9) proceedings to compromise the claims of a minor or a
person with a disability. (Rules of Ct. Sec. 2.503.)
Existing law defines "retain permanently" to mean original court
records must never be transferred or destroyed. (Gov. Code Sec.
68151(d).)
This bill would provide that trial courts could create,
maintain, and preserve court records in any form of
communication, including paper, optical, electronic, magnetic,
micrographic media, or other technology, if the form satisfies
rules adopted by the Judicial Council, as specified. Until such
rules are adopted, the court can continue to use the standards
and guidelines for preservation and reproduction adopted by the
American National Standards Institute or the Association for
Information and Image Management.
This bill would exclude court reporter's transcripts and
specifications for electronic recordings made as the official
record of oral proceedings from this section; such transcripts
and records of oral proceedings would be governed by the
California Rules of Court.
This bill would require the Judicial Council to establish
standards and guidelines for the creation, maintenance,
reproduction, or preservation of court records. These
guidelines would have to ensure that court records are created
and maintained in a manner that ensures accuracy and preserves
the integrity of the records, protects the records against loss,
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ensures preservation for the required period of time, and
ensures that electronic documents are publicly accessible and
reproducible.
This bill would specify that no additions, deletions, or changes
can be made to the content of court records, except as
authorized by statute or the California Rules of Court.
This bill would provide that any notice, order, judgment,
decree, decision, ruling, opinion, memorandum, warrant,
certificate of service, or similar document issued by a trial
court or trial court judicial officer can be signed, subscribed,
or verified, and have the same validity and legal force and
effect as paper documents, using a computer or other technology
in accordance with the procedures, standards, and guidelines
established by the Judicial Council.
This bill would require a court record that is created,
maintained, preserved, or reproduced under this section to be
stored in a manner and place that reasonably ensures its
preservation against loss, theft, defacement, or destruction for
the prescribed retention period prescribed by statute.
This bill would provide that a reproduced court record can be
disposed of in a manner according to statute unless the record
is: (1) a comprehensive historical and sample superior court
record preserved for research under the California Rules of
Court; or (2) a court record that is required to be preserved
permanently; these documents no longer would be required to be
preserved on paper, microfilm, or in another form of
communication or representation pursuant to archival standards
defined by the American National Standards Institute for the
duration of the record's retention period.
This bill would require instructions to be documented for access
to data stored on a medium other than paper.
This bill would remove the requirement for documents to be
reproduced before the expiration of their estimated lifespan for
the medium in which they are stored.
This bill would require, unless access is otherwise restricted
by law, court records created, maintained, preserved, or
reproduced under this bill to be made reasonably accessible to
all members of the public for viewing and duplication as the
paper records would have been accessible; court records
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maintained in electronic form shall be viewable at the court,
unless access is otherwise restricted by law, regardless of
whether they are also accessible remotely.
This bill would redefine "retain permanently" to mean that court
records must be maintained permanently according to the Judicial
Council's standards or guidelines established pursuant to the
provisions of this bill.
COMMENT
1. Stated need for the bill
The author writes:
Sponsored by the Judicial Council of California, this bill
seeks to bring California's nineteenth century system of court
record preservation into the twenty-first century. Under
existing statutes that require courts to preserve paper
records, California devotes nearly two million linear feet to
storing court records, many of which must be stored at
off-site facilities. With existing technology, however, the
courts could create and maintain less costly and more
efficient electronic versions of paper records. Although
courts are now permitted to maintain electronic records (e.g.
those that may be submitted electronically) under existing
law, they do not have any authority to create official
electronic records from the paper records. This bill will
give the court that authority, as well as require the Judicial
Council to develop standards that will protect the accuracy,
integrity, and accessibility of the electronic records.
Judicial Council, the sponsor of this bill, writes:
The current statute governing the storage and maintenance of
trial court records is technologically out-of-date, with the
result that courts cannot utilize any electronic storage
technology and must instead maintain court records in paper
form. In California, a vast amount of storage space is
currently devoted to paper files of court records. A survey
in 2007 indicated that court records are stored in 276
locations throughout the state (courthouse and off-site
facilities), totaling 1,854,992 linear feet. The only other
media approved for court records storage in current law is
microfilm, a technology which is antiquated and no longer
supported by commercial vendors. AB 1926 would amend
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Government Code sections 68150 and 68151 to enable courts to
modernize the methods of creating, maintaining, and preserving
records.
Court records in paper form are expensive to create, maintain,
access, and preserve. But with the increasing availability of
electronic document management systems, courts have an
opportunity to realize significant long-term savings if they
can convert from paper to electronic records. Authorizing
records to be created, maintained, and preserved in electronic
forms is practical and makes economic sense. Electronic
records can be made available remotely, and such remote access
will allow court users greater convenience in accessing
records. In addition, electronic records can be stored in
multiple locations, making them more robust and less
susceptible to loss than paper records.
2. Increased efficiency of trial courts and decreased storage
costs
This bill would authorize trial courts to create, maintain, and
preserve court records in any form of communication, including
paper and electronic forms, provided the form satisfies rules to
be adopted by the Judicial Council. Since 1994, the Legislature
has recognized the need for courts to efficiently preserve court
records. (See AB 1374 (Frazee, Ch. 1030, Stats. 1994).) At
that time, electronic technology had not reached its current
level of sophistication. Since then, the federal court system
has enacted its own electronic records management system because
of the efficiency of creating, maintaining, and preserving court
records through electronic means.
As the sponsor argues, it is time to update California's trial
court records managements systems as well. In the Report
prepared by the Judicial Council on the provisions of this bill,
49 of 58 courts responded to the survey which contributed to the
Judicial Council's findings. (Judicial Council of California,
Administrative Office of the Courts, Modernizing Trial Courts
Records Management, at pg. 2.) Overall, the courts favored
enacting the provisions of this bill because they provide
flexibility of records management, will streamline court
document processes, and improve overall productivity. (Judicial
Council of California, Administrative Office of the Courts,
Modernizing Trial Courts Records Management, at pgs. 26-32.)
Further, allowing courts to store trial court records
electronically frees up storage space which will reduce court
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costs.
3. Judicial Council's role in establishing trial court records
management standards
This bill would provide that the Judicial Council would be
responsible for establishing the rules and guidelines for the
creation, maintenance, and preservation of trial court records.
The Judicial Council is responsible for creating and maintaining
court forms and establishing guidelines for use of these forms.
Further, the Judicial Council researched the current trial court
records management system and found that it needs to be updated.
(See Judicial Council of California, Administrative Office of
the Courts, Modernizing Trial Courts Records Management.)
Under existing law, trial court record preservation is regulated
by the standards and guidelines adopted by the American National
Standards Institute or the Association for Information and Image
Management. As one court pointed out in the Report, by
authorizing the Judicial Council to establish the standards and
guidelines for trial court records management, the guidelines
can be tailored to fit California's court records needs rather
than a national organization which may not have a strong
understanding of California's needs. (Judicial Council of
California, Administrative Office of the Courts, Modernizing
Trial Courts Records Management, at pg. 27.)
4. Electronic signatures on trial court records
This bill would provide that any notice, order, judgment,
decree, decision, ruling, opinion, memorandum, warrant,
certificate of service, or similar document issued by a trial
court or trial court judicial officer can be signed, subscribed,
or verified, and have the same validity and legal force and
effect as paper documents. The federal e-file system has
established a procedure to electronically sign court filings.
Further, business in general is being conducted more and more
through the transmission of electronic documents containing
signatures. These procedures have been in effect for many years
and continue to work effectively. Providing for electronic
signatures furthers the efficiency of creating and maintaining
court records electronically.
5. Public access to court records
This bill would require, unless access is otherwise restricted
by law, court records created, maintained, preserved, or
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reproduced under this bill to be made reasonably accessible to
all members of the public for viewing and duplication as the
paper records would have been accessible. Paper files can be
lost within court departments and storage facilities. Creating
and maintaining trial court records electronically reduces the
risk that the public will lose access to court records.
Further, as demonstrated by the federal court record management
system, court documents may be made accessible remotely through
electronic access, which also promotes public access to court
records. It should be noted that the bill provides that
duplicate court records, made from paper or electronic forms,
will be provided to the public "at cost." This provision is
important to make certain that fees charged by courts for
obtaining these documents does not increase more the actual cost
of creating the duplicate records, which could otherwise create
a burden on public access to court records.
It should be noted that not all court documents are accessible
by the public. Family Code Section 2024.5(a) allows parties to
redact Social Security numbers from documents relating to
marriage dissolutions and nullities and legal separations.
Additionally, California Rules of Court 2.503(c) restricts
electronic access to certain documents (i.e., criminal,
juvenile, and family court). The Judicial Council provides
instruction on this provision that these documents often contain
sensitive personal information and should not be provided
electronically to the public, unless approved by a judge based
on extraordinary public interest. (See Rules of Court
2.503(e).) Judicial consideration for these types of cases
includes the privacy interests of the parties, the ability of
the court to redact sensitive personal information, the benefits
to and burdens on the parties in allowing remote electronic
access, including possible impacts on jury selection, and the
burdens on the court in responding to an extraordinarily high
number of requests for access to documents. For these
instances, nonconfidential court records, redacted where
necessary to protect the privacy of participants in the legal
action, may be electronically accessible.
Support : None Known
Opposition : None Known
HISTORY
AB 1926 (Evans)
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Source : Judicial Council of California
Related Pending Legislation : None Known
Prior Legislation : See Background and Comment 2.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Appropriations (Ayes 15, Noes 0)
Assembly Floor (Ayes 74, Noes 0)
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