Archiving, Your Website and the Law

Although I will be discussing this issue, this discussion is not intended to serve as legal advice and should not be taken as such. You should consult with your own legal counsel for assistance in determining legal requirements, liability exposure, appropriate practices, policies and procedures.

Is Archiving for You?

Should you archive everything that has been published on your website? Are you required to do so? When considering these questions remember that legal requirements take two forms; explicit and implicit.

Explicit requirements spring from legislation which specifically mandates archiving websites. These laws are usually at the state level, vary widely from among states and may not apply to your organization. Your State Archivist will be able to tell you quickly if there is specific legal guidance regarding archiving your site.

Implicit requirements arise due to out-dated general record retention requirements which do not address websites. These requirements generally outline the retention and disposal guidance for all sorts of records, but don’t specifically address websites. Thus websites fall into the “all other records” category, which commonly doesn’t allow for disposal -- ever. Fortunately, state archivists are actively pushing for updated legislation which addresses new electronic media.

If you are not required by law to archive, you may still be required to archive by supervisory directives or legal advice. City councils, county commissions, school boards and other supervisors may direct the website to be archived, and your own legal council may recommend archiving your website.

Archiving Parameters

If you are archiving your website, you need to ask yourself questions and make some decisions.

What is my retention period? If there isn’t controlling legislation mandating how long to keep your archives, you’ll need to decide how long to keep information. Storage space may be a concern if you have large files. It may be tempting at this time to think you can simply accumulate cabinets of back-up tapes, but wait! There are more factors to come…

What will be my archiving format? How often will I save what’s on the site? The choices are usually one of two: Periodic Snapshot Archiving or Dynamic Archiving.

Snapshot Archiving is making a record of what was on your site at a regular point in time. It’s very similar to backing up computer files. You choose a time (e.g. every Tuesday at midnight) and make a record of what’s there. The drawback, of course, is you don’t have record of what happened between Tuesdays.

Dynamic Archiving tracks every change to your website, so you can do point-in-time retrieval. Pick a date and time, and you can deliver exactly what was on your site at that time.  When compared to Snapshot Archiving, Dynamic Archiving is a more comprehensive solution.

For Dynamic Archiving to be ideal, it needs to be a feature of your content management system. Attempts to manually create Dynamic Archiving become cumbersome, bordering on the ridiculous. Consider the incredible work load in this scenario: “Every content manager must send updated versions of every page to the Archiving Clerk every time a page is modified. The Archiving Clerk will track all changes and respond to records requests.”

Perhaps the key retention parameter to consider when putting together an archiving system is Recovery Timeframe. Here’s a fly for your archiving ointment: State Sunshine Laws usually require any request for a public record to be made available within a specified period – often as quickly as three business days!

The challenges of complying with the records request parameters through a manual archiving system or a third-party vendor are significant! The simplest solution is an automatic archiving feature within your CMS from which you can call a record for any point in time, whenever you want.

Just a point about Sunshine Laws (Freedom of Information Act (FOIA):  Sunshine laws mandate retrieval, but not retention of records. In other words, they don’t make you archive records, but they do make you produce copies of anything you archive. They also usually provide a mechanism for the records request process, which often allow you to charge your true costs in producing a record. Be sure to become familiar with your state’s requirements, as you may be able to recapture staff time as well as any other associated costs to you.