Trusting Online Law – UELMA Has a Way to Go

Reported by Walter Baumann:

In a recent posting on the blog of the Canadian legal news web site, Slaw, Judith Gaskell, former Director of the Law Library of Congress and former Director of the DePaul Rinn Law library, wrote about the present status of UELMA (Uniform Electronic Legal Material Act) .

UELMA was drafted in response to a request from the American Association of Law Libraries (AALL), following the AALL’s 2007 National Summit on Authentication of Digital Legal Information. She reports on it’s introduction into the legislatures of several states and it’s adpotion by two of these. She also briefly describes the basic requirements under the act.

Working through the National Conference of Commissioners on Uniform State laws ( Uniform Law Commission), advocates develop uniform state laws that can eventually be introduced to states for their adoption. Much work and discussion goes into the creation of such an act. And much publicizing and lobbying is required to gain adoption. UELMA is only five  pages long. But the fact that the Commission has designated UELMA as  a “uniform law”, attests to the importance it attaches to the issue.

“The Uniform Electronic Legal Material Act establishes an outcomes-based, technology-neutral framework for providing online legal material with the same level of trustworthiness traditionally provided by publication in a law book.” The Act itself covers three critical areas: authentication, preservation and public access.”

Sections 5 and 6 of the Act cover authentication. Section 5 requires the state to insure that  the record received by the user is unaltered from the official published record . Section 6 creates a presumption that the authenticated record is accurate and can only be challenged by a preponderance of the evidence. Section 8 deals with public access.

The need for legislation like UELMA became clear as more and more states began publishing legal information electronically and also beginning to discontinue their print publications containing this information. For the purposes of public information and for use in litigation, questions arose regarding the status of such electronically-published materials. Could they be relied upon as accurate and official versions of the former hard copy sources ?

The application of UELMA in several states, that have introduced it, covers several main sources of legal information : the state constitution, statutes & codes, session laws, agency rules. But intermediate documents in the law-making process, such as bills, amendments and proposed rules are not included. Judicial opinions may also not be included , usually in deference to the judicial branch, on separation of powers considerations.

Section 8 of the uniform act provides for permanent public access. However, given some of the language of this section there is room for  discretion in implementation by the states. The standards state that legal materials should be ” reasonably available” and  would allow for the removal of such material under “reasonable conditions”.

Under these standards the format and interface used to distribute the information online, could actually impede public access. Materials that are suppose to be retained permanently, could still be removed. Even fees for public access could be implemented under this wording.

There is another aspect of “public access” that was not meant to be part of UELMA but that is worth mentioning since it may become of increasing importance in the future. The federal government has been providing freely accessible data sets from many of its agencies for use by non-profit and for-profit entities, to use to create new applications and information products for the public and the marketplace.

UELMA was not written to address this secondary form of “public access” in the context of the states. Advocates of greater public access would hope that the  state agency or official named as the “official publisher”, according to the law, would be aware of and amenable to providing access to this type of data for reuse, as well as the traditional versions of the text of laws and regulations.

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