NEW JERSEY LAW REVISION COMMISSION

Revised Draft Tentative Report

Relating to

New Jersey Uniform Electronic Legal Material Act

June 10, 2013

The New Jersey Law Revision Commission is required to “[c]onduct a continuous examination of the general and permanent statutory law of this State and the judicial decisions construing it” and to propose to the Legislature revisions to the statutes to “remedy defects, reconcile conflicting provisions, clarify confusing language and eliminate redundant provisions.” N.J.S. 1:12A-8.

This Revised Draft Tentative Report is distributed to advise interested persons of the Commission's tentative recommendations and the opportunity to submit comments. Underlined language was prepared before 5/31/13 and information shown with underlining and italics was included in the draft after 6/1/13. Comments should be submitted no later than August 20, 2013.

The Commission will consider these comments before making its final recommendations to the Legislature. The Commission often substantially revises tentative recommendations as a result of the comments it receives. If you approve of the report, please inform the Commission so that your approval can be considered along with other comments. Please send comments concerning this tentative report or direct any related inquiries, to:

Laura Tharney, Esq., Executive Director

New Jersey Law Revision Commission

153 Halsey Street, 7th Fl., Box 47016

Newark, New Jersey 07102

973-648-4575

(Fax) 973-648-3123

Email:

Web site: http://www.njlrc.org


Introduction

One of the projects approved and recommended for enactment in all states by the Uniform Law Commission (ULC) is the Uniform Electronic Legal Material Act (UELMA). The UELMA was released by the ULC in July 2011.

Consideration of the UELMA is promoted by the American Association of Law Libraries and the New Jersey Law Librarians Association. Liaisons from the Seton Hall Law School library and the Rutgers School of Law library asked that the Commission review the Act for possible introduction in New Jersey and enactment by the Legislature.

The ULC explains, in its summary of the Act, that the availability of government information online facilitates transparency and accountability, provides widespread access to essential information, and encourages citizen participation. The UELMA was designed to address the need to provide and manage electronic government information in a manner that guarantees trustworthiness and continued access.

Prior to the drafting of the UELMA, a March 2007 State-by-State Report on Authentication of Online Legal Resources prepared by the American Association of Law Libraries analyzed the trustworthiness of state online legal resources. The Report determined that a significant number of state online legal resources are official, none are authenticated or easily authenticated by standard methods.[1] The State-by-State Report said that state online legal resources are “therefore not sufficiently trustworthy” and that “citizens and law researchers may reasonably doubt their authority and should approach such resources critically”.[2]

The UELMA is designed to provide for the authentication, preservation, and accessibility of official electronic state legal material, and to assist state governments in guaranteeing the free flow of trustworthy legal information. It gives states discretion in determining what categories of “legal material” will be covered and does not affect any relationships between an official state publisher and a commercial publisher, copyright laws, or the rules of evidence.

The choice of technologies for authentication and preservation is left to the states, but adoption of the UELMA will harmonize standards for acceptance of electronic legal material across jurisdictional boundaries. The Act is intended to complement the Uniform Commercial Code (UCC, which covers sales and many commercial transactions), the Uniform Real Property Electronic Recording Act (URPERA, which provides for electronic recording of real property instruments), and the Uniform Electronic Transactions Act (UETA, which deals with electronic commerce).

The UELMA, in the Prefatory Note, says that “[p]roviding information online is integral to the conduct of state government in the 21st century” and that “[t]he ease and speed with which information can be created, updated and distributed electronically, especially in contrast to the time required for the production of print materials, enables governments to meet their obligations to provide legal information to the public in a timely and cost-effective manner.”[3] Electronic information, the Prefatory Note cautions, is susceptible to being altered, accidentally or maliciously, at each point where it is stored, transferred or accessed and these alterations may be undetectable by the consumer. In addition, the ease with which electronic material may be altered raises the issue of how legal information with long-term historical value will be preserved for future use. With regard to the issue of preservation, the benefits associated electronic materials are described as “severely limited” if the information becomes unusable because of technological changes.

The UELMA is designed to be an outcomes-based approach to the authentication and preservation of legal materials. The goals of the Act are to “enable end-users to verify the trustworthiness of the legal materials” and to “provide a framework for states to preserve legal material in perpetuity in a manner that allows for permanent access”.[4]

Background

The State-by-State Report on Authentication of Online Legal Resources, to which the UELMA makes reference, describes an “official” version of legal materials as one that possesses the same status as a print “official” legal resource – one that is “governmentally mandated or approved”.[5] An “authentic” legal material is described as “one whose content has been verified by a government entity to be complete and unaltered when compared to the version approved or published by the content originator”.[6] The findings of an authentication survey set forth in the State-by-State Report include the following: (1) states have begun to discontinue print official legal resources and substitute online official legal resources; (2) states have not acknowledged the important needs of citizens and law researchers seeking trustworthy government information – even with regard to “official” legal resources; and (3) only eight states have provided for permanent public access to one or more of their primary legal resources.[7]

A representative contributed to the Report on behalf of each state. A. Hays Butler, of the Rutgers Law School – Camden, indicated on behalf of New Jersey that New Jersey does not certify as official and authentic the online versions of the state session laws, statutes or court opinions.[8]

The State of New Jersey, largely through the websites of various State entities, provides online access to an increasing amount of legal materials of different types. Greater availability of governmental materials on the web, at both the state and federal levels, suggests that this trend will continue. Bills introduced in the current New Jersey legislative session call for even more material to be made available to the public electronically. A3490, for example, requires State agencies to submit required reports by posting the information to be reported on the agency’s website. The Statement to the bill explains that the

bill would require each State agency, to the extent practicable, and in lieu of preparing or submitting a written report as required by law, to post on its Internet website the information required to be reported, in accordance with the timeframes established by law for the submission or publication of such report.

The posting of information to be reported on a State agency’s Internet website, in accordance with the bill’s provisions, would obviate the necessity for the State agency to produce and submit a written report. However, if the State agency is unable to post the information to be reported on its Internet website, it would be required to produce or submit a written report in accordance with existing statutory requirements…

Whenever a State agency posts information to be reported on its Internet website, in accordance with the bill’s provisions, it would be required to: (1) provide…a notice of the availability of the information to the President of the Senate, the Speaker of the General Assembly, and the Director of Public Information in the Office of Legislative Services in accordance with the provisions of existing law; and (2) provide any person, upon request, with directions on how to access the information online…

Assembly Regulatory Oversight and Gaming Committee, Statement to Assembly Bill 3490, March 7, 2013.

Not all State legal materials are available through State entities, however, and the extent to which the online material is authenticated is not clear. The manner in which the materials are preserved is also not clear. Although some of the legal materials have been available electronically for more than a decade, it is not clear if older versions of these materials are accessible to the public (prior versions of statutes, for example).

The following pages do not discuss all material disseminated by the State in New Jersey. Instead, the information provided below focuses on information proposed or considered for inclusion in the UELMA definition of “legal material”. The following pages also do not represent an exhaustive listing of every location at which New Jersey legal material may be found online, but only a collection of information based on a preliminary examination of the website associated with the source or originator of the legal material discussed.

1. Legislative Materials

In addition to making information regarding proposed and pending bills available to the public, the New Jersey Legislature’s website provides access to the complete text of the New Jersey Constitution and a searchable version of the New Jersey Constitution.[9] The website also provides a link to the New Jersey State Library, which offers the New Jersey Constitutional Convention Proceedings – 1947.[10]

The New Jersey Legislature’s website also provides access to an electronic database containing New Jersey statutes[11] which states: “This statutory database is unannotated and as such may include laws that have not become operable due to unmet conditions, have expired, have been ruled inoperable by a court, or have otherwise become inoperable. Effective dates are not typically included. Users should diligently read applicable statute source law and case law.”[12] N.J.S. 52:11-78, which requires that the “most current available compilation of the official text of the statutes” be made available to the public and maintained in electronic form, does not indicate that the database is intended to be an authoritative source of the statutes. The State-by-State Report suggests that since the “online statutory database leaves the user unsure whether it is official or not, it appears reasonable to conclude that the database, in fact, is not official”.[13] The Report concludes that the session laws found on the same site are likewise not official and notes that the statute requiring the session laws to be included in the database does not refer to the “official” session laws.[14] The Legislature, on its website, also provides access to Chapter Laws beginning in 1996 and continuing through the present.[15]

The Legislature’s website is not the only source of legislative materials available to the public at no charge. The Rutgers School of Law – Camden offers, online, the Acts of the New Jersey Colonial Assembly and Session Laws of the New Jersey Legislature[16] and a full-text archive of selected documents of the proceedings, acts, and texts of the Constitutions of the State of New Jersey, from the original Convention of 1776 to the most recent[17]. In addition, the Rutgers School of Law – Newark offers access to the New Jersey statutes on a page that explains that the

copy of the N.J. Statutes was obtained from the N.J. Legislature website, and contains no edits or alterations of that text.

Currency: Latest Download: Tue Apr 9 16:16:37 EDT 2013

UPDATED THROUGH P.L. 2013, ch. 37 and JR 3 of 2013)

We do not warrant the accuracy of this database beyond our representation of its source and the date of download.[18]

2. Judicial Materials

With regard to New Jersey case law, the New Jersey Judiciary[19] makes available for 10 business days opinions issued by the New Jersey Supreme Court, the Appellate Division of the Superior Court, and the Tax Court[20]. Unpublished appellate court opinions are likewise available for 10 business days[21] and, beginningJune 9, 2008, Trial Court opinions approved for publication by the Judiciary Committee on Opinions are made available for two weeks[22]. Unpublished Trial Court opinions are “made available for six weeks from the date posted for the convenience of attorneys and litigants”, but the Court’s website cautions that they “have not been approved for publication by the Committee on Opinions, and thus may not be cited as legal precedent pursuant to R.1:36-3.”[23]

Also available on the Court’s website – and not limited to 10 days – are opinions the website describes as “business related opinions” “issued by the New Jersey Supreme Court, Appellate and Superior Courts” “which are maintained by the New Jersey Administrative Office of the Courts”. These opinions are divided into categories: “Business Disputes”, “Contract Disputes”, “Business Governance”, “Miscellaneous Actions”, “Employment Disputes”, and “Intellectual Property and Technology”. The number of opinions in a category varies. The Court’s website explains that these

opinions have been made available in order to provide attorneys and litigants access to select published and unpublished opinions addressing business related issues.

Please note that this collection is not all-inclusive and contains only those business-related opinions issued by New Jersey courts that offer insight into selected business law categories including leading and more recent cases.

Opinions will be updated on an as needed basis and will remain available indefinitely on the njcourts website. Rutgers Camden Law School will also maintain a searchable database of these business related opinions.

In accordance with Rule 1:34-6, no unpublished opinion shall constitute precedent or be binding upon a court. No unpublished opinion shall be cited by any court. No unpublished opinion shall be cited to the court by counsel unless the court and all other parties are served with a copy of the opinion. The availability of these opinions on this website does not constitute publication under New Jersey Rules of Court.[24]

Disciplinary Review Board decisions for which the Supreme Court has issued orders within the last10 daysare available on the Court’s website and, after 10 days, are “archived on the website” of the Rutgers Law Library – Newark.[25] [26] The Court’s website explains that “DRB decisions pending with the Supreme Court are available from the DRB.” Ethics Committee opinions are not directly available on the Court’s website, but the Court’s site does provide a link to the website of the Rutgers Law Library – Newark[27], which offers a “full-text archive of the Opinions of the Advisory Committee on Professional Ethics, Committee on the Unauthorized Practice of Law, and the Committee on Attorney Advertising.”[28]