Document imaging technology may offer effective solutions to pressing information management problems. Organizations in both the public and private sector continue to explore the feasibility of adopting this technology to meet their own needs.

Some believe that the legal questions regarding this technology may present obstacles to its widespread acceptance. Will records maintained by this technology be admissible in evidence? Can records required by state and federal regulatory agencies be maintained using this technology? Can government agencies use this technology for their own purposes? What legal principles will apply to this technology in countries outside the United States?

The legal questions regarding document imaging can be categorized in four distinct areas:

This article provides additional information in each of these four areas.

Admissibility in Evidence
In the United States, two uniform laws clearly establish the basis for admitting records maintained on document imaging systems into evidence: The Uniform Rules of Evidence [US 128-0060-00 to 0170-00] and The Uniform Photographic Copies of Business and Public Records as Evidence Act (UPA) [US 1128-0020-00]. Both laws would admit duplicate records into evidence if they accurately reproduce the original. [The laws are reproduced in part at the end of this article.]The document imaging technology is a duplication technology similar to photocopies, microfilm and facsimile. The four best-known reproduction techniques - photocopy, microfilm, facsimile and electronic image management or document imaging - exhibit the same three characteristics.

Image Capture. A photographic, scanning or other process to identify and capture the image of the original document.

Image Manipulation. A photographic, electronic, photostatic or other process that transforms the captured image into a format for storing and reproducing the image.

Visible Reproduction. A photographic, photostatic, printing, or other process that converts the manipulated image into visible form.

A document imaging system, for example, utilizes an electronic scanner for image recognition, computer software, memory and optical disk storage for image manipulation and graphic terminals and laser printers to make the image visible. An document imaging system is therefore similar to other reproduction technologies.

Like all other reproduction technologies, the image will be manipulated and converted from one form to another. As long as the final reproduced image "accurately reproduces the original," the law of evidence in the United States would allow the visible records produced by any technology to be admissible in evidence. Most organizations recognize that courts will require paper prints of duplicate records. Even though microfilm would be admissible in evidence in court, few judges will be willing to accept the film itself, even when they are provided with a reader/printer. Instead, they will insist that paper prints be prepared because they feel more comfortable with paper records.

Submission of Records to Regulatory Agencies
Those jurisdictions that have adopted the Uniform Photographic Copies of Business and Public Records as Evidence Act would permit scanned records to be submitted to regulatory agencies. The uniform law clearly states that a reproduction made under the law "is as admissible in evidence as the original itself in any judicial or administrative proceeding."

Normally, when state and federal regulatory agencies require that you keep records, they may be kept in any form unless the agency states a specific form. Some agencies have developed requirements regarding the size, layout and quality of microfilm records. Agencies have not yet adopted requirements related to document imaging systems.

In the absence of any specific regulatory requirements in this area, those states that have adopted the UPA would permit scanned records to be utilized for regulatory proceedings. Those states that have not adopted the UPA would also permit records to be maintained using this process unless the regulatory agencies prohibit or restrict this practice.

The UPA has been adopted in most states as a statute. Regulatory agencies therefore could not impose regulations that prohibit the use of optical disk technologies.

The UPA, however, does state that the original paper records may only be destroyed after reproduction "unless its preservation is required by law." Since state regulations are "law," a state regulatory agency could prohibit the destruction of the paper records after they have been scanned. They could not prohibit the use of a document imaging system. They could, however, require that the original paper records be maintained and could require that those original paper records be submitted to the agency.

United States law is quite specific related to your rights in the absence of law. You are permitted to perform any action and similarly maintain records in any form, unless these actions are prohibited or regulated. Unless a specific state or federal regulation exists that prohibits paper records from being destroyed after scanning into a document imaging system or regulates the method of reproduction, you are permitted to create scanned records and destroy the original records provided that the duplicates accurately reproduce the originals.

Use by government agencies
In the United States, visible records made from a document imaging system will be admissible in evidence to the same extent as the original record. Courts will rightly insist that the scanned records accurately reproduce the original. If that standard has been met, an organization can safely destroy the original records and rely on the scanned records for purposes of evidence.

Similarly, records required by government agencies can be maintained in electronic document management systems. Whenever the agency requests information, you would prepare duplicates from the document imaging system. An agency may require that original records be kept or that your document imaging system meet certain standards. To date, these types of regulations have not been developed.

Government agencies in the United States may also use document imaging systems to manage and retrieve information. Original short-term paper records could be destroyed after the images have accurately been preserved in a document imaging system. Since optical disk records are not archival, long-term (retention over 10 years) or permanent records must generally be maintained in either paper or archival microfilm form. It is not expected that state and federal archives will permit the destruction of long-term paper records after scanning into an optical disk system, even when optical disks are certified for archival purposes.

Law in countries outside the United States
In countries outside of the United States, scanned records can also be used to manage and retrieve information. These countries, however, will rarely permit the destruction of the original records after they have been scanned. It may take many years in some countries for scanned records to even be admitted into evidence.

The Uniform Rules of Evidence have been adopted by the United States federal government (Title 28 United States Code Appendix - Rules of Evidence for United States Courts and Magistrates) and approximately 30 states. The Uniform Photographic Copies of Business and Public Records as Evidence Act (UPA) has also been adopted by the United States Federal Government (28 United States Code 1732) and also approximately 30 states. As the Uniform Rules of Evidence gain popularity, some states will repeal the UPA to eliminate duplication.

The major provisions of the Uniform Rules of Evidence are as follows:

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

Rule 1001. Definitions

For purposes of this article the following definitions are applicable:

(4) Duplicate. - A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.

Rule 1003. Admissibility of Duplicates

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

The major provisions of the Uniform Photographic Copies of Business and Public Records as Evidence Act are as follows:

§1732. Record made in regular course of business; photographic copies

If any business, institution, member of a profession or calling, or any department or agency of government, in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence, or event, and in the regular course of business has caused any or all of the same to be recorded, copied, or reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is required by law. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement, or facsimile does not preclude admission of the original. This subsection shall not be construed to exclude from evidence any document or copy thereof which is otherwise admissible under the rules of evidence.