Lawmakers debate merits of publishing the state’s legal materials electronically

By | 2017-09-07T14:45:05+00:00 Thursday, September 7, 2017|

State lawmakers this week discussed the pros and cons of publishing the state’s official legal materials electronically.

The discussion centered on Senate Bill 139, which got a second hearing by members of the Ohio Senate seated on the Government Oversight and Reform Committee.

The bill, also known as Ohio’s Electronic Legal Material Act, is a bipartisan effort to meet at least three crucial objectives: Authentication, preservation and accessibility of electronically published state records.

“Currently, Ohio has no mechanism for authentication of electronic legal materials published in the state,” Sen. Michael Skindell, D-Lakewood, told committee members. “Increasingly, state governments are publishing primary legal material such as state statutes, regulations, and court opinions online.”

The lawmaker said that often online publication is often accompanied by the decision to cease production of print copies of the legal material.

“Although online publication has facilitated greater public access, it has also raised various concerns about ensuring that the electronic material will be preserved in unaltered form and will be available permanently,” Skindell continued. “This legislation offers a mechanism for providing the state’s official legal material online with the same level of trustworthiness traditionally given by print publication.”

SB 139 is based on the Uniform Electronic Legal Material Act, which has been adopted by 15 states in various forms, testimony provided.

UELMA requires that a state publishing official authenticate electronic legal material in a manner so that the official publisher must provide a method for the user to determine that the material received from the publisher is unaltered from the officially published version.

The legal material to be authenticated in this legislation is the state constitution, state session laws, the Ohio Revised Code, adopted state agency rules and final decisions of state administrative agencies.

The secretary of state would become the official publisher of the constitution and session laws, while the Legislative Service Commission would become the official publisher of the Ohio Revised Code and the Ohio Administrative Code and state agencies adopting a particular rule not published in the Ohio Administrative Code would become the official publisher for such rules.

“To be sure, electronic publication of these materials has gone a long way toward facilitating public access to state laws, but it has also raised a few key issues that UELMA addresses,” said Uniform Law Commissioner Jeff Ferriell. “First, is concern about the authenticity of online material, when only limited efforts are taken to ensure that they have not been altered.

“Fortunately, I don’t think we’ve had problems with our websites being hacked, but others are in a better position to know about this. A second issue, which is particularly acute in Ohio, is how long official versions of official state laws, statutes, and regulations will be preserved and continue to be made available to the public in the short-term and long-term future.”

Ferriell said SB 139 would not interfere with any contractual relationships between the state and a commercial publisher with which the state contracts for the production of its printed legal materials.

“Nor does it require the use of any specific technologies,” he continued. “Instead, it leaves choice of technology for authentication and preservation up to the state, and probably to the publisher of each type of electronic legal material within its scope.

“This will give Ohio the flexibility to choose any technology that meets the required outcomes allows the state to choose what it determines is the best and most cost-effective method to comply with the act’s requirements. This flexible, outcomes-based approach anticipates that technologies will change over time and thus does not tie Ohio, or other states that adopt UELMA, to any specific technology at any time.”

Ohio State Bar Association’s Director of Policy and Government Affairs Todd Book said the issues addressed in the bill are worthy of consideration as more member attorneys receive information electronically.

“Just like the move from stone to papyrus, the move from print to electronic publications will not be stopped,” Book said. “Given the inevitable, the procedures and guidelines outlined in Senate Bill 139 are needed.”

Sen. John Eklund, R-Chardon, is joint sponsor of the bill, which has garnered cosponsor support of an additional senator.

A third hearing for SB 139 had not been scheduled at time of publication.

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