Regulatory Acceptance of Optical Imaging

Article excerpt

In October 1995, this column addressed the question of admissibility of imaged documents in court proceedings. That article expressly omitted discussion of regulatory requirements for imaged documents. This article takes up that discussion in the context of requirements for media other than paper.

REGULATORY AGENCIES

While legislatures (Congress on the federal level, and state assemblies and legislatures on the state level) are the supreme lawmaking bodies in any American jurisdiction, these bodies often enact legislation which requires detailed, ongoing oversight, as well as a considerable degree of subject matter expertise, for its implementation. Thus, a common adjunct to the enactment of tax, environmental and other similarly complicated legislation is the creation of a regulatory agency to oversee it, or assignment of that oversight to a preexisting agency. The Internal Revenue Service, Environmental Protection Agency, and Occupational Health and Safety Administration are examples of such agencies.

Because of the need for subject matter expertise, and the agencies' presumed expertise, regulatory bodies are commonly granted considerable latitude in the administration of the laws they are charged with enforcing. An agency is usually granted the power to promulgate rules, which have the force of law, to hold hearings, and to sanction violators. Often, the enabling legislation merely sets forth broad goals - the determination of exactly what is needed, and the details of how to get there, including all the substantive requirements imposed upon regulated parties, are left to the administrative agency. Even in those cases where the substantive requirements are in the statute, the agency is still charged with enforcing the terms of that statute.

The deference accorded regulatory agencies extends to the area of judicial review of agency actions. Although courts are not bound by the statutory and regulatory interpretations of administrative agencies, they, like legislatures, often take the position that the agency is the expert. One court stated it thus: "Although we are not bound by an administrative construction of a statute, such a construction will not be lightly disregarded."[1]

Agencies are, however, subject to constraints on their discretion. In most jurisdictions, they are subject to the provisions of an Administrative Procedure Act (A.P.A.), which sets forth a series of rules which agencies must obey in the administration of the law and in enactment of rules. Important provisions commonly include requirements that:

* Proposed rules be published in order to enable the public to read, comment and submit evidence upon the proposed rule;

* The agency receive, consider and respond to any comment;

* The agency publish its responses, and republish any parts of the rule modified as a result of the comments;

* The agency have a hearing process for persons aggrieved by its rules, or charged with violating them;

* There is judicial review available of agency rules and decisions.

AGENCIES AND RECORDKEEPING

An administrative agency's power with respect to information collection and recordkeeping is generally very broad. Although detailed recordkeeping provisions are sometimes set forth in a statute, language such as the following is typical:

Each employing unit shall keep true and accurate work records containing such information as the division of job service may prescribe. Such records shall be open to inspection and be subject to being copied by the division or its authorized representatives at any reasonable time and as often as necessary. The commissioner or a duly authorized representative of the division may require from any employing unit any sworn or unsworn reports, with respect to persons employed by the employing unit, which the director deems necessary for the effective administration of this chapter.[2]

When operating under the mandate of a statute such as this, an agency promulgates rules wherein it specifies those records to be kept by regulated parties, and the conditions for maintaining those records. …