b'Admissibility in Federal Court of\nElectronic Copies of Personnel Records\nFederal official personnel and civil service retirement records that have been converted from paper to\nelectronic format should be admissible in evidence in federal court under the Business Records Act,\n28 U.S.C. \xc2\xa7 1732, and should also qualify as \xe2\x80\x9cpublic records\xe2\x80\x9d admissible under Rule 1005 of the\nFederal Rules of Evidence.\nElectronic versions of particular personnel records that, pursuant to statute or regulation, must be\nnotarized, certified, signed, or witnessed may be authenticated under Rules 901 and 902 of the\nFederal Rules of Evidence. Converting such documents to electronic format should not affect their\nadmissibility under hearsay rules.\n\nMay 30, 2008\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nOFFICE OF PERSONNEL MANAGEMENT\nThe Office of Personnel Management (\xe2\x80\x9cOPM\xe2\x80\x9d) intends to convert its personnel\nrecords, consisting of employees\xe2\x80\x99 \xe2\x80\x9cOfficial Personnel Folders\xe2\x80\x9d (\xe2\x80\x9cOPFs\xe2\x80\x9d) and civil\nservice retirement records (collectively, \xe2\x80\x9cPersonnel Records\xe2\x80\x9d), from paper to\nelectronic format. After verifying the accuracy of the electronic versions of the\ndocuments (\xe2\x80\x9cElectronic Personnel Records\xe2\x80\x9d), OPM intends to destroy the paper\nrecords. You have sought our opinion on whether the resulting Electronic Personnel Records will be admissible in federal court under the \xe2\x80\x9cbest evidence\xe2\x80\x9d requirements of Article X (Rules 1001\xe2\x80\x931008) of the Federal Rules of Evidence (\xe2\x80\x9cRules\xe2\x80\x9d).\nYou also have asked us to analyze the admissibility of electronic versions of\nparticular personnel records, which, pursuant to statute or regulation, must be\nnotarized, certified, signed, or witnessed. 1\nThe Business Records Act, 28 U.S.C. \xc2\xa7 1732 (2000), resolves this issue. It\nprovides, in relevant part, that a reproduction made \xe2\x80\x9cin the regular course of\nbusiness\xe2\x80\x9d of a record made \xe2\x80\x9cin the regular course of business\xe2\x80\x9d by \xe2\x80\x9cany department\n\n1\nLetter for Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, from\nKerry B. McTigue, General Counsel, Office of Personnel Management at 1 (Apr. 19, 2007) (\xe2\x80\x9cMcTigue\nLetter\xe2\x80\x9d). We sought, and received, the written views of the Merit Systems Protection Board, the Equal\nEmployment Opportunity Commission, the Office of Special Counsel, and the Criminal Division. See\nLetter for John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, from B. Chad\nBungard, General Counsel, Merit Systems Protection Board (July 2, 2007); Letter for John P. Elwood,\nDeputy Assistant Attorney General, Office of Legal Counsel, from Peggy R. Mastroianni, Associate\nLegal Counsel, Equal Employment Opportunity Commission (May 25, 2007); Letter for John P.\nElwood, Deputy Assistant Attorney General, Office of Legal Counsel, from Scott J. Bloch, Special\nCounsel, Office of Special Counsel (May 25, 2007); Memorandum for Alice S. Fisher, Assistant\nAttorney General, Criminal Division, from Patty Merkamp Stemler and Claire J. Evans, Appellate\nSection, Criminal Division, Re: Admissibility of Electronic Official Personnel Folders and Electronic\nRetirement Records (undated draft). In addition, we received the informal views of the Civil Division.\nThis opinion memorializes informal advice we provided you in August 2007.\n\n87\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nor agency of government\xe2\x80\x9d is \xe2\x80\x9cas admissible in evidence as the original itself in any\njudicial or administrative proceeding whether the original is in existence or not.\xe2\x80\x9d\nId. The Business Records Act expressly permits the destruction of the paper\noriginals in the regular course of business unless their preservation is required by\nlaw. Id. The Electronic Personnel Records that OPM intends to create also should\nqualify as \xe2\x80\x9cpublic records\xe2\x80\x9d admissible under Rule 1005. We also discuss the\napplication of authenticity and hearsay standards to printouts of electronic records\nunder the Federal Rules of Evidence. While we cannot conclude in advance of\nlitigation that Electronic Personnel Records will be admissible in every case,\nOPM\xe2\x80\x99s plan to convert its paper files to electronic format should not appreciably\nincrease the risk that a personnel record will be deemed inadmissible in a particular case.\nI.\nThe head of each \xe2\x80\x9cFederal agency\xe2\x80\x9d is required to \xe2\x80\x9cmake and preserve records\ncontaining adequate and proper documentation of the organization, functions,\npolicies, decisions, procedures and essential transactions of the agency.\xe2\x80\x9d 44 U.S.C.\n\xc2\xa7 3101 (2000); see also id. \xc2\xa7 2901(14) (defining \xe2\x80\x9cFederal agency\xe2\x80\x9d). In cooperation\nwith the National Archives and Records Administration (\xe2\x80\x9cNARA\xe2\x80\x9d) and the\nGeneral Services Administration (\xe2\x80\x9cGSA\xe2\x80\x9d), the head of each agency is required to\ndevelop standards that will improve records management, ensure preservation of\nessential records, and \xe2\x80\x9cfacilitate the segregation and disposal of records of\ntemporary value.\xe2\x80\x9d Id. \xc2\xa7 3102; see also id. \xc2\xa7 2904 (charging NARA and GSA with\n\xe2\x80\x9cprovid[ing] guidance and assistance to Federal agencies\xe2\x80\x9d regarding records\nmanagement and disposition). In addition, NARA has promulgated regulations\nsetting forth \xe2\x80\x9c(1) procedures for the compiling and submitting . . . of lists and\nschedules of records proposed for disposal, (2) procedures for the disposal of\nrecords authorized for disposal, and (3) standards for the reproduction of records\nby photographic or microphotographic processes with a view to the disposal of the\noriginal records,\xe2\x80\x9d 44 U.S.C. \xc2\xa7 3302 (2000). See generally 36 C.F.R. pt. 1228\n(2007\xe2\x80\x932008) (regarding the disposition of federal records).\nIn recent years, there has been increasing interest within the federal government\nin converting existing paper records to electronic format (and in permitting submission of required documents in electronic form), which promises to reduce storage\ncosts while offering easier search and retrieval, thereby improving functionality and\nefficiency. See U.S. Dep\xe2\x80\x99t of Justice, Legal Considerations in Designing and\nImplementing Electronic Processes: A Guide for Federal Agencies at 2, 5 (Nov.\n2000) (\xe2\x80\x9cLegal Considerations\xe2\x80\x9d), available at www.cybercrime.gov/process.pdf; cf.\nMary Moreland & Steward Nazzaro, Admitting Scanned Reproductions into\nEvidence, 18 Rev. Litig. 261, 262, 270 (1999) (\xe2\x80\x9cAdmitting Scanned Reproductions\xe2\x80\x9d)\n(discussing trend in private sector). In 1998, Congress enacted the Government\nPaperwork Elimination Act, Pub. L. No. 105-277, tit. XVII, 112 Stat. 2681\xe2\x80\x932749,\n\n88\n\n\x0cAdmissibility in Federal Court of Electronic Copies of Personnel Records\n\nreprinted in 44 U.S.C. \xc2\xa7 3504 note (2000) (\xe2\x80\x9cGPEA\xe2\x80\x9d), which requires, among other\nthings, that federal agencies provide \xe2\x80\x9cfor the option of the electronic maintenance,\nsubmission, or disclosure of information, when practicable as a substitute for paper.\xe2\x80\x9d\nGPEA \xc2\xa7 1704(1). \xe2\x80\x9cElectronic records submitted or maintained in accordance with\nprocedures developed under [the GPEA] shall not be denied legal effect, validity, or\nenforceability because such records are in electronic form.\xe2\x80\x9d Id. \xc2\xa7 1707. Although the\nGPEA does not appear directly relevant to the questions you posed, 2 it has spurred\nefforts to convert to electronic recordkeeping and reflects Congress\xe2\x80\x99s judgment that\nmaintenance of records in electronic format is in the interests of the federal government and its employees. Similarly, the expansion of \xe2\x80\x9celectronic government\xe2\x80\x9d was\none of the components of the President\xe2\x80\x99s Management Agenda announced during\nsummer 2001. See Office of Management and Budget, The President\xe2\x80\x99s Management\nAgenda, Fiscal Year 2002, at 23\xe2\x80\x9325 (available at http://www.whitehouse.gov/omb/\nbudget/fy2002/mgmt.pdf, last visited ca. 2008). NARA has issued regulations and\nguidance on the conversion of paper records to electronic format and for the\nsubmission of electronic records to NARA for retention as permanent records. See\n36 C.F.R. \xc2\xa7 1228.31 (2008); Expanding Acceptable Transfer Requirements:\nTransfer Instructions for Existing Permanent Electronic Records Scanned Images of\nTextual Records (Dec. 23, 2002) (available at http://www.archives.gov/recordsmgmt/initiatives/scanned-textual.html, last visited Aug. 13, 2014); General Records\nSchedule 20, Electronic Records, item 2 (Feb. 2008) (available at http://www.\narchives.gov/records-mgmt/ardor/grs20.html, last visited ca. 2008).\nAs one initiative designed to support the President\xe2\x80\x99s Management Agenda, see\nOffice of Personnel Management, E-Gov, Enterprise Human Resources Integration: Overview (available at http://fehb.opm.gov/egov/e-gov/EHRI/overview/, last\nvisited Aug. 13, 2014). OPM has announced plans to convert Official Personnel\nRecords and civil service retirement records to electronic format. Under this\n2\nSection 1707 of the GPEA addresses only the \xe2\x80\x9clegal effect, validity, or enforceability\xe2\x80\x9d of electronic records, that is, whether they have the legal effect of paper documents in effectuating a transaction\nand enforcing legal obligations. While the prohibition on \xe2\x80\x9cden[ying] legal effect\xe2\x80\x9d to appropriately\nmaintained electronic records suggests that they may serve as evidence in court, section 1707 does not\nsuggest that electronic records are admissible notwithstanding the \xe2\x80\x9cbest evidence\xe2\x80\x9d requirements of\nArticle X or the authenticity requirements of Article IX. Cf. 144 Cong. Rec. 27,170, 27,171 (Oct. 20,\n1998) (joint statement of intent by Senators Abraham, Wyden, and McCain) (stating that predecessor of\nsection 1707 \xe2\x80\x9cis intended to preclude agencies or courts from systematically treating electronic\ndocuments and signatures less favorably than their paper counterparts\xe2\x80\x9d). What guidance exists on the\nGPEA does not suggest that section 1707 affects admissibility under the Federal Rules of Evidence.\nSee Legal Considerations; Office of Management and Budget, Notices: Procedures and Guidance;\nImplementation of the Government Paperwork Elimination Act, 65 Fed. Reg. 25,508 (May 2, 2000). No\npublished court decisions have addressed the effect of the GPEA, and scholarly commentary does not\ndiscuss whether the GPEA affects admissibility. Given the clear authority supporting admissibility of\nelectronic agency records discussed in the text, and the absence of relevant case law construing section\n1707, it is not necessary or advisable for us definitively to resolve whether the GPEA provides\nadditional authority supporting admissibility. In any event, it is not clear that OPM maintains\nElectronic Personnel Records \xe2\x80\x9cin accordance with procedures developed under\xe2\x80\x9d the GPEA.\n\n89\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\ninitiative, OPM proposes to scan paper records into digital electronic format. It\nwill retain the paper originals for one year, during which time OPM will verify\nthat the electronic versions are accurate reproductions. After one year, OPM will\ndestroy the paper originals. McTigue Letter at 1. This program is expected to\nincrease employee access to their records, improve security from destruction or\nloss, and increase efficiency and responsiveness.\nThe OPF is a file containing records reflecting a federal employee\xe2\x80\x99s appointment, employment history, and benefits information. Office of Personnel Management, Operating Manual: The Guide to Personnel Recordkeeping at 1-7 (2006)\n(available at http://archive.opm.gov/feddata/recguide2006.pdf, last visited Aug.\n13, 2014). See generally 5 C.F.R. \xc2\xa7 293.304 (2007) (specifying contents of folder).\nFederal regulations require each agency to establish an OPF for most employees.\nSee id. \xc2\xa7 293.302. An OPF typically includes such records as the Appointment\nAffidavit, Declaration for Federal Employment, forms verifying military service,\nperformance assessments, federal benefits forms, and Thrift Savings Plan forms.\nSee Personnel Documentation: Frequently Asked Questions, (available at http://\nwww.opm.gov/feddata/html/pd-faqs.asp, last visited ca. 2008); Guide to Personnel\nRecordkeeping at 3-2 to 3-40. The civil service retirement records that OPM plans\nto convert to electronic format consist of various forms related to retirement from\nfederal service and retirement-related benefits, 3 as well as various court orders,\ncorrespondence, and miscellaneous notes.\nExecutive Order 12107, as amended, grants OPM authority to regulate the\nmanagement of OPFs. It provides, in relevant part, that \xe2\x80\x9cthe authority of the\nPresident, pursuant to the Civil Service Act of January 16, 1883, to designate\nofficial personnel folders in government agencies as records of the Office of\nPersonnel Management and to prescribe regulations relating to the establishment,\nmaintenance and transfer of official personnel folders, is delegated to the Director\nof the Office of Personnel Management.\xe2\x80\x9d Id., reprinted in 5 U.S.C. \xc2\xa7 1101 note\n(2007). 4 OPM regulations specify that \xe2\x80\x9c[t]he OPF of each employee in a position\n3\nThese forms may include, for example, the Individual Retirement Record (SF2806), Request for\nRecovery of Debt Due the United States (SF2805), Request for Offset for Health Benefits Premiums\nfrom Monies Payable Under the Civil Service Retirement System or the Federal Employees Retirement\nSystem (OPM1522), Application for Refund of Retirement Deductions (SF2802/SF3106), Application\nto Make Deposit or Redeposit (SF2803), Report of Separation from Active Duty (DD214), Military\nDeposit Worksheet (OPM1514), Application to Make Voluntary Contributions (SF2804), Application\nfor Return of Excess Retirement (OPM1562), Health Benefits Registration Form (SF2809), Election of\nCoverage (SF3109), Assignment of Federal Employee\xe2\x80\x99s Group Life Insurance (RI76-10), Designation\nof Beneficiary, CSRS (SF2808/SF3102), and Designation of Beneficiary, Federal Employee\xe2\x80\x99s Group\nLife Insurance Program (SF2823) (available at http://www.opm.gov/forms, http://www.archives.gov/\nveterans/military-service-records, last visited ca. 2008).\n4\nSee generally Civil Service Act of Jan. 16, 1883, ch. 27, 22 Stat. 403, 404 (providing that the Civil\nService Commission \xe2\x80\x9cshall, subject to the rules that may be made by the President, make regulations\nfor, and have control of, such examinations and, through its members or the examiners, it shall\nsupervise and preserve the records of the same\xe2\x80\x9d); 5 U.S.C. \xc2\xa7 1301 (2000) (\xe2\x80\x9cThe Office of Personnel\n\n90\n\n\x0cAdmissibility in Federal Court of Electronic Copies of Personnel Records\n\nsubject to civil service rules and regulations is under the jurisdiction and control\nof, and is part of the records of, the Office of Personnel Management.\xe2\x80\x9d 5 C.F.R.\n\xc2\xa7 293.303 (2007); see also id. \xc2\xa7 293.304 (\xe2\x80\x9cThe folder shall contain long-term\nrecords affecting the employee\xe2\x80\x99s status and service as required by OPM\xe2\x80\x99s\ninstructions . . . .\xe2\x80\x9d).\nII.\nYou have asked us, first, to address whether electronic Official Personnel Folders and electronic retirement records will be admissible under the \xe2\x80\x9cbest evidence\xe2\x80\x9d\nprovisions of Article X of the Federal Rules of Evidence in litigation where those\nrecords are at issue. McTigue Letter at 1. Before turning to the Rules of Evidence,\nhowever, we will address the Business Records Act, 28 U.S.C. \xc2\xa7 1732, which\nprovides that Electronic Personnel Records are admissible to the same extent as\npaper Personnel Records (see Part II.A, infra). We conclude that this statute\nprovides for the admissibility of the electronic records in question. Even if the\nBusiness Records Act were inapplicable, such Electronic Personnel Records (or\ncertified paper printouts of them) should generally be admissible as \xe2\x80\x9cpublic\nrecords\xe2\x80\x9d under Rule 1005 (see Part II.B, infra). Although an electronic record\nmight also meet the conditions for admissibility as a \xe2\x80\x9cduplicate\xe2\x80\x9d under Rule 1003\nor as \xe2\x80\x9cother evidence\xe2\x80\x9d under Rule 1004, it is unlikely it would be admitted under\nthose Rules because of the preclusive effect of Rule 1005 (see Part II.C, infra).\nA.\nThe Business Records Act provides:\nIf any business, institution, member of a profession or calling, or any\ndepartment 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\ncaused any or all of the same to be recorded, copied, or reproduced\nby any photographic, photostatic, microfilm, microcard, miniature\nphotographic, or other process which accurately reproduces or forms\na durable medium for so reproducing the original, the original may\nbe destroyed in the regular course of business unless its preservation\nis required by law. Such reproduction, when satisfactorily identified,\nManagement shall aid the President, as he may request, in preparing the rules he prescribes under this\ntitle for the administration of the competitive service.\xe2\x80\x9d); id. \xc2\xa7 1302; id. \xc2\xa7 3301(1) (\xe2\x80\x9cThe President\nmay . . . prescribe such regulations for the admission of individuals into the civil service in the\nexecutive branch as will best promote the efficiency of that service\xe2\x80\x9d); id. \xc2\xa7 7301 (\xe2\x80\x9cThe President may\nprescribe regulations for the conduct of employees in the executive branch.\xe2\x80\x9d).\n\n91\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nis as admissible in evidence as the original itself in any judicial or\nadministrative proceeding whether the original is in existence or\nnot . . . .\n28 U.S.C. \xc2\xa7 1732 (emphasis added).\nSection 1732 \xe2\x80\x9cgives [electronic] scanned copies the same status as originals\xe2\x80\x9d if\nthree conditions are met. 2 Kenneth S. Broun et al., McCormick on Evidence\n\xc2\xa7 236, at 98 n.10 (6th ed. 2006) (\xe2\x80\x9cMcCormick\xe2\x80\x9d). 5 There is little question that the\nElectronic Personnel Records will satisfy each of those conditions. First, the\ndocuments will consist of \xe2\x80\x9cwriting[s]\xe2\x80\x9d that a \xe2\x80\x9cdepartment or agency of government[] in the regular course of business or activity has kept or recorded.\xe2\x80\x9d Second,\nthe agency will cause those writings to be scanned and converted to electronic\nformat \xe2\x80\x9cin the regular course of business.\xe2\x80\x9d 6 OPM may wish to issue regulations\nprescribing the procedure for creating these records to avoid any question about\nwhether the electronic conversion is performed \xe2\x80\x9cin the regular course of business.\xe2\x80\x9d\nThird, we believe it evident that the Electronic Personnel Records will be \xe2\x80\x9csatisfactorily identified.\xe2\x80\x9d Although there is little case law addressing what it means for\na record to be \xe2\x80\x9csatisfactorily identified\xe2\x80\x9d for purposes of section 1732, this\ncondition should be met by a showing that the reproduction was made and kept in\nthe ordinary course of business. 7\n5\nAccord R. David Whitaker, Admission into Evidence of Paper Records Converted to Electronic\nForm, 60 Consumer Fin. L.Q. Rep. 325, 327 (2006) (\xe2\x80\x9cPaper Records Converted\xe2\x80\x9d) (\xe2\x80\x9cThe Business\nRecords Act permits business records scanned into electronic form to serve as originals, so long as the\nelectronic record can be satisfactorily identified, the image is accurate, and its storage is durable.\xe2\x80\x9d);\nAdmitting Scanned Reproductions, 18 Rev. Litig. at 266 (\xe2\x80\x9cAs long as the company designs its program\nto meet the prerequisites of Section 1732, a scanning procedure should qualify as an \xe2\x80\x98other process\nwhich accurately reproduces or forms a durable medium.\xe2\x80\x99\xe2\x80\x9d); see also 5 Stephen A. Saltzburg et al.,\nFederal Rules of Evidence Manual \xc2\xa7 1002.02[2], at 1002-5 (9th ed. 2006) (\xe2\x80\x9cSaltzburg\xe2\x80\x9d) (suggesting\nthat \xe2\x80\x9cphotographic reproductions\xe2\x80\x9d can be treated as originals under section 1732); 6 Joseph M.\nMcLaughlin, Weinstein\xe2\x80\x99s Federal Evidence \xc2\xa7 1001.11[3], at 1001-51 & n.5 (2d ed. 2007) (\xe2\x80\x9cWeinstein\xe2\x80\x9d) (\xe2\x80\x9ccomputer evidence is admissible if produced in the ordinary course of business, even if the\nunderlying documents are routinely destroyed for business reasons\xe2\x80\x9d) (citing section 1732).\n6\nSee, e.g., United States v. Fendley, 522 F.2d 181, 187 (5th Cir. 1975) (computer printout of\nfinancial records admissible under section 1732); United States v. Teague, 445 F.2d 114, 119 (7th Cir.\n1971) (photocopies of documents, shown to have been kept in regular course of business, admissible\nunder section 1732(b)); Williams v. United States, 404 F.2d 1372, 1373 (5th Cir. 1968) (per curiam)\n(microfilm copy of check and reproduction therefrom admissible under section 1732(b)); Myrick v.\nUnited States, 332 F.2d 279, 282 (5th Cir. 1963) (photostatic copy of check admissible under section\n1732(b)).\n7\nSee United States v. Kitzman, 520 F.2d 1400, 1403 (8th Cir. 1975) (suggesting that \xe2\x80\x9creproduction\nwas not identified\xe2\x80\x9d where \xe2\x80\x9c[t]here was no showing that the title certificate was kept, recorded or copied\nin the regular course of business\xe2\x80\x9d); Williams, 404 F.2d at 1373 (\xe2\x80\x9cThe reproductions [of records] were\nsatisfactorily identified by bank officials and employees, as required by the Business Records Act\xe2\x80\x9d\nwhere \xe2\x80\x9c[i]t was shown that each microfilm was made in the regular course of the business of the\nbank . . . and that it was the regular course of that bank\xe2\x80\x99s business to make and keep such a record.\xe2\x80\x9d);\nUnited States v. Miller, 500 F.2d 751, 754\xe2\x80\x9355 (5th Cir. 1974) (records properly admitted under section\n1732 where \xe2\x80\x9ccompany employees testified that the government exhibits in question were copies of\n\n92\n\n\x0cAdmissibility in Federal Court of Electronic Copies of Personnel Records\n\nFor nearly twenty-five years before the adoption of the Federal Rules of Evidence, section 1732 (and analogous state provisions implementing the Uniform\nPhotographic Copies of Business and Public Records as Evidence Act, see\nMcCormick\xe2\x80\x99s Handbook on the Law of Evidence \xc2\xa7 236, at 568 & nn. 68\xe2\x80\x9369 (2d\ned. 1972)) figured prominently in the admissibility of reproductions of records.\nBut section 1732 has been cited only rarely since adoption of the Federal Rules;\ncourts typically analyze the question of admissibility only under Rules 1001\xe2\x80\x93\n1005. 8 Section 1732 may be overlooked because of the preeminence of the Federal\nRules of Evidence, or perhaps because courts believe it has been superseded by the\nRules. Congress plainly intended, however, that section 1732 would have continuing applicability after adoption of the Federal Rules. At the time Congress enacted\nthe Rules, it amended section 1732 to delete a statutory hearsay exception then set\nforth in subsection (a) of that provision because it was largely redundant with new\nRule 803(6). See Pub. L. No. 93-595, \xc2\xa7 2(b), 88 Stat. 1949 (1975); see also S. Rep.\nNo. 93-1277, at 24 (1974). Congress retained the former subsection (b), which\nnow constitutes the entirety of section 1732. Congress\xe2\x80\x99s decision to preserve the\ncurrent provision at the time it transferred the substance of section 1732(a) to the\nnew Rule 803(6) is a compelling indication that it intended the provision to have\ncontinuing effect after adoption of the Rules. Scholarly commentary confirms that\nsection 1732 remains in force. 9\ncustomer bills and company records, were kept in the ordinary course of business, and were made at or\nnear the time of the transactions reflected on them,\xe2\x80\x9d and emphasizing that \xe2\x80\x9c[t]he person who actually\nkeeps the books and records and makes the entries need not testify if a person does testify who is in a\nposition to attest to the authenticity of the records\xe2\x80\x9d); see also United States v. Carroll, 860 F.2d 500,\n507 (1st Cir. 1988) (concluding that standards established under Williams and section 1732 are proper\nunder Federal Rule of Evidence 1003, such that \xe2\x80\x9cwhen a print of a microfilm copy of bank checks, kept\nby the bank in the regular course of business, is properly identified by a custodian of records as a\ncomplete and accurate reproduction thereof,\xe2\x80\x9d it is admissible as a \xe2\x80\x9cduplicate\xe2\x80\x9d); Turk v. Florida, 403\nSo. 2d 1077, 1078\xe2\x80\x9379 (Fla. App. 1981) (in applying analogous state provision, holding that \xe2\x80\x9ctestimony\nby the custodian of the document as to how it came to be, who it came from, who reproduced it,\xe2\x80\x9d\namong other information, might \xe2\x80\x9csatisfactorily identif[y]\xe2\x80\x9d document); Admitting Scanned Reproductions, 18 Rev. Litig. at 265 (condition met where record is \xe2\x80\x9csatisfactorily identified as a duplicate\xe2\x80\x9d)\n(emphasis added).\n8\nWe have found only four references to section 1732 in federal court decisions since the adoption\nof the Federal Rules of Evidence; in two of those decisions, the courts also discussed Rules 1001\xe2\x80\x931005\nand appeared to consider the statute and the Rules to be coextensive. See United States v. Carroll, 860\nF.2d 500, 506\xe2\x80\x9308 (1st Cir. 1988) (holding microfilm copies of checks admissible under section 1732\nand Rules 1003 and 1004 to prove contents of missing originals); United States v. Kitzman, 520 F.2d\n1400, 1402 (8th Cir. 1975); All Seasons Constr., Inc. v. United States, 55 Fed. Cl. 175, 181 (2003)\n(noting section 1732 in passing); Amoco Prod. Co. v. United States, 455 F. Supp. 46 (D. Utah 1977)\n(holding photocopy of conformed copy of quitclaim deed inadmissible under section 1732 and Rule\n1003 to prove contents of missing original deed), rev\xe2\x80\x99d, 619 F.2d 1383, 1391 (10th Cir. 1980)\n(remanding for consideration whether photocopy might be admissible for other purposes under Rule\n1003; not mentioning section 1732).\n9\nSee 31 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure \xc2\xa7 7185, at\n396 & n.7 (2000) (\xe2\x80\x9cWright & Gold\xe2\x80\x9d); id. \xc2\xa7 7166, at 332\xe2\x80\x9334; 6 Weinstein \xc2\xa7 1001.11[3], at 1001-51 &\nn.5; id. \xc2\xa7 1002.04[5][a], at 1002-12 to -13 & n.51; 2 McCormick \xc2\xa7 236, at 98 n.10; Paper Records\n\n93\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nSection 1732 provides that the reproduction kept by the government is as admissible in evidence as the original itself \xe2\x80\x9cin any judicial or administrative\nproceeding.\xe2\x80\x9d It thus applies to administrative hearings where the Federal Rules do\nnot apply. See Fed. R. Evid. 1101(d), (e). Moreover, it authorizes \xe2\x80\x9cany department\nor agency of government\xe2\x80\x9d to destroy an original after duplicating it, so long as\nreproductions are made \xe2\x80\x9cin the regular course of business\xe2\x80\x9d and preservation of the\noriginal document is not \xe2\x80\x9crequired by law.\xe2\x80\x9d It thus furnishes additional statutory\nauthority for OPM to undertake this document conversion program. 10\nB.\nEven if the Business Records Act were deemed inapplicable, Electronic Personnel Records should be admissible under Rule 1005 of the Federal Rules of\nEvidence. That rule, entitled \xe2\x80\x9cPublic Records,\xe2\x80\x9d provides:\nThe contents of an official record, or of a document authorized to be\nrecorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by\ncopy, certified as correct in accordance with Rule 902 or testified to\nbe correct by a witness who has compared it with the original.\nFed. R. Evid. 1005. Rule 1005 treats the record lawfully on file with the government as the official or public \xe2\x80\x9crecord\xe2\x80\x9d for purposes of admissibility, rather than an\nearlier version that may have been copied or destroyed. It also permits the contents\nof that record to be proven by \xe2\x80\x9ccopy,\xe2\x80\x9d such that the government need not produce\nthe official record in court.\n\nConverted, 60 Consumer Fin. L.Q. Rep. at 327; Admitting Scanned Reproductions, 18 Rev. Litig. at\n266; 5 Saltzburg \xc2\xa7 1002.02[2], at 1002-5.\n10\nSimilarly, 44 U.S.C. \xc2\xa7 3312 (2000), provides that \xe2\x80\x9c[p]hotographs or microphotographs of records\nmade in compliance with regulations under section 3302 of this title shall have the same effect as the\noriginals and shall be treated as originals for the purpose of their admissibility in evidence.\xe2\x80\x9d As noted\nabove, NARA has issued regulations and guidance under section 3302 concerning the conversion of\npaper records to electronic format through digital imaging technology. If OPM complies with NARA\xe2\x80\x99s\nregulations in its creation of Electronic Personnel Records, those records should qualify for treatment\nas \xe2\x80\x9coriginals for the purpose of their admissibility in evidence\xe2\x80\x9d under section 3312.\nSection 1733(b) of title 28 likewise provides that \xe2\x80\x9c[p]roperly authenticated copies or transcripts of\nany books, records, papers or documents of any department or agency of the United States shall be\nadmitted in evidence equally with the originals thereof.\xe2\x80\x9d That provision, however, \xe2\x80\x9cdoes not apply to\ncases, actions, and proceedings to which the Federal Rules of Evidence apply.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 1733(c)\n(2000). Although section 1733(b) may still apply to administrative, arbitral, and state court proceedings\nwhere the Federal Rules of Evidence do not, we have found no reported case indicating that the statute\nhas been applied since the enactment of the Federal Rules of Evidence. As with section 1732, the\nprovision\xe2\x80\x99s disuse most likely reflects the availability of alternative mechanisms for admissibility under\nother applicable rules, including analogues to Federal Rule of Evidence 1005, discussed below.\n\n94\n\n\x0cAdmissibility in Federal Court of Electronic Copies of Personnel Records\n\nPersonnel Records should qualify as \xe2\x80\x9cofficial record[s]\xe2\x80\x9d or as \xe2\x80\x9cdocument[s]\nauthorized to be recorded or filed and actually recorded or filed\xe2\x80\x9d under Rule 1005.\nThe Rule has been construed to apply to any \xe2\x80\x9cwriting . . . held in a public office\nthat was either created by a public official or, regardless of public or private\nauthorship, was authorized by law to be recorded or filed in that office and was in\nfact recorded or filed there.\xe2\x80\x9d 31 Wright & Gold \xc2\xa7 8033, at 506. A host of official\ndocuments have been held to be \xe2\x80\x9cpublic records\xe2\x80\x9d under similar rules, including\njudicial records, weather records, geology records, census records, marriage\nrecords, and selective service records. See 6 Weinstein \xc2\xa7 1005.03[2], at 1005-7 to\n1005-8 & nn. 7\xe2\x80\x9313. The Personnel Records consist of documents lawfully filed\nwith agencies and created by government employees, former government employees, and private citizens with an interest in federal employees\xe2\x80\x99 benefits, all of\nwhich fall squarely within the scope of Rule 1005.\nIt follows that Electronic Personnel Records, which OPM plans to keep and use\nfor official purposes, should likewise qualify as \xe2\x80\x9cofficial records\xe2\x80\x9d or as \xe2\x80\x9cdocument[s] authorized to be recorded or filed and actually recorded or filed\xe2\x80\x9d under\nRule 1005. This interpretation is bolstered by the Rule\xe2\x80\x99s inclusion of \xe2\x80\x9cdata\ncompilations in any form,\xe2\x80\x9d Fed. R. Evid. 1005 (emphasis added), and by treatises\nand case law concluding that the copy of a document filed in a records office, not\nthe original retained by a private citizen, is the \xe2\x80\x9cpublic record\xe2\x80\x9d for purposes of\nRule 1005. 11 Because the content of these official electronic records may be\nproven by a \xe2\x80\x9ccopy,\xe2\x80\x9d it follows that a certified paper printout of the electronic\npersonnel record will be admissible under Rule 1005. 12\n\n11\nSee 6 Weinstein \xc2\xa7 1005.06[1], at 1005-12; 29A Am. Jur. 2d Evidence \xc2\xa7 1091 (\xe2\x80\x9cWhile the language of Rule 1005 encompasses deeds, mortgages, and other documents filed in a county recorder\xe2\x80\x99s\noffice, it is the actual record maintained by the public office which is the object of the Rule, not the\noriginal deed from which the record is made; if the original deed is returned to the parties after it is\nrecorded, it is not a public record as contemplated by Rule 1005.\xe2\x80\x9d) (footnotes omitted); Amoco Prod.\nCo. v United States, 619 F.2d 1383, 1390 (10th Cir. 1980) (same); cf. State v. Blackmon, No. 85 C.A.\n70, 1987 WL 7423, at *4 (Ohio App. Mar. 5) (holding that while \xe2\x80\x9ca microfilm copy of the formal\njournal entry . . . was not the original of appellant\xe2\x80\x99s plea of guilty to armed robbery,\xe2\x80\x9d \xe2\x80\x9cthe journal entry\nis properly certified by the Clerk of Courts and described by the witness . . . as part of the record\nregularly kept by that office in the manner prescribed by law\xe2\x80\x9d; \xe2\x80\x9c[t]he record can be properly admitted\nunder Ohio Evid. Rule 803(8), public records and reports\xe2\x80\x9d).\n12\nAlthough Article X does not define the term \xe2\x80\x9ccopy,\xe2\x80\x9d it defines \xe2\x80\x9cduplicate\xe2\x80\x9d as a \xe2\x80\x9ccounterpart\nproduced by the same impression as the original, or from the same matrix, or by means of photography, . . . or by mechanical or electronic re-recording, or by chemical reproduction, or by other\nequivalent techniques which accurately reproduces the original.\xe2\x80\x9d Fed. R. Evid. 1001(4). That definition\nappears broad enough to include a paper printout of an electronic document. Cf. Fed. R. Evid. 1001(3)\n(\xe2\x80\x9cIf data are stored in a computer . . . , any printout or other output readable by sight, shown to reflect\nthe data accurately, is an \xe2\x80\x98original.\xe2\x80\x99\xe2\x80\x9d). In the absence of a similarly limited definition, the term \xe2\x80\x9ccopy\xe2\x80\x9d\nshould be construed in accordance with its plain meaning, cf. Pavelic & LeFlore v. Marvel Entm\xe2\x80\x99t\nGroup, 493 U.S. 120, 123 (1989) (\xe2\x80\x9cWe give the Federal Rules of Civil Procedure their plain meaning . . . .\xe2\x80\x9d), as a \xe2\x80\x9creproduction of an original work.\xe2\x80\x9d Webster\xe2\x80\x99s Third New International Dictionary 504\n(1993). Thus, \xe2\x80\x9cit makes sense to conclude that \xe2\x80\x98copy\xe2\x80\x99 is a broader term\xe2\x80\x9d than \xe2\x80\x9cduplicate,\xe2\x80\x9d 31 Wright &\n\n95\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nEven if the destroyed paper personnel record were deemed to be the \xe2\x80\x9cofficial\nrecord\xe2\x80\x9d for purposes of Rule 1005, a printout of \xe2\x80\x9ca digital copy\xe2\x80\x9d maintained by an\nagency should be admissible as a second-generation copy (i.e., a copy of a copy),\nbecause \xe2\x80\x9cif each generation of a copy is prepared by a public office using a\nreliable reproduction method, certified copies should be sufficiently reliable to be\nadmitted under Rule 1005.\xe2\x80\x9d 31 Wright & Gold \xc2\xa7 8033, at 506\xe2\x80\x9307; see also id. at\n506 (\xe2\x80\x9cThe courts assume that a \xe2\x80\x98duplicate\xe2\x80\x99 under Rule 1003 can be a copy of a\ncopy.\xe2\x80\x9d); 2 McCormick \xc2\xa7 236, at 100 & n.13 (\xe2\x80\x9ca duplicate of a duplicate may be\nfound admissible\xe2\x80\x9d) (collecting authorities). The process of converting paper\noriginals to digital format, if conducted conscientiously according to regular\nprocedures, should be sufficiently reliable that resulting electronic versions of\ndocuments would be admissible under Rule 1005 as a copy. \xe2\x80\x9c[I]f data is scanned\ninto a computer or copied to the computer by some other device, the resulting\nstored data or printout probably is a duplicate of the source material,\xe2\x80\x9d even for\npurposes of the more exacting standard of Rule 1003. 31 Wright & Gold \xc2\xa7 7167, at\n20 (Supp. 2007). 13 Similarly, courts routinely accept as \xe2\x80\x9cduplicates\xe2\x80\x9d under Rule\n1003 records that have been converted from paper originals into other formats\n(such as microfilm or photographs) through comparable processes. 14 See generally\n2 McCormick \xc2\xa7 236, at 98 (\xe2\x80\x9cany form of copying which generally produces an\naccurate duplicate of an original should be viewed as sufficient to fulfill this policy\n[of requiring original documents]\xe2\x80\x9d). A properly certified printout of an electronic\nrecord that is itself a copy should therefore also be admissible under Rule 1005 as\na \xe2\x80\x9ccopy.\xe2\x80\x9d 31 Wright & Gold \xc2\xa7 8033, at 506 (a printout of a \xe2\x80\x9cdigital \xe2\x80\x98copy\xe2\x80\x99 . . . in\n\nGold \xc2\xa7 8033, at 506, and that a paper printout of an Electronic Personnel Record will be admissible to\nprove the content of that record.\n13\nAccord Paper Records Converted, 60 Consumer Fin. L.Q. Rep. at 326 (suggesting that printouts\nof electronically scanned originals should be admissible under best evidence rule as duplicates);\nAdmitting Scanned Reproductions, 18 Rev. Litig. at 281 (\xe2\x80\x9c[I]f the proper steps are taken, there is no\nreason why [an] imaged reproduction should not be just as admissible as an original.\xe2\x80\x9d); James E.\nCarbine & Lynn McLain, Proposed Model Rules Governing the Admissibility of Computer-Generated\nEvidence, 15 Santa Clara Computer & High Tech. L.J. 1, 24 (Jan. 1999) (\xe2\x80\x9cComputer-Generated\nEvidence\xe2\x80\x9d) (concluding that, under present law, \xe2\x80\x9c[e]lectronically imaged documents would be \xe2\x80\x98duplicates,\xe2\x80\x99 and . . . [s]uch electronically imaged \xe2\x80\x98duplicates,\xe2\x80\x99 if they are of public records, are as equally\nadmissible as the originals\xe2\x80\x9d); cf. United States v. Stewart, 420 F.3d 1007, 1021 n.13 (9th Cir. 2005)\n(holding that trial court did not err in admitting audio recording although government did not preserve\nthe original digital recording but instead downloaded the data to disk and offered a duplicate recording\nat trial).\n14\nSee United States v. Mulinelli-Navas, 111 F.3d 983, 989\xe2\x80\x9390 (1st Cir. 1997) (microform copy of\ncheck admissible because defendant failed to offer testimony that original had been tampered with or\naltered in any way so that copy was not what it purported to be); FDIC v. Wheat, 970 F.2d 124, 131\xe2\x80\x9332\n(5th Cir. 1992) (upholding admission of copies of loan records made from microfilms of originals);\nUnited States v. Carroll, 860 F.2d 500, 506\xe2\x80\x9308 (1st Cir. 1988) (construing Rules 1003 and 1004 to\nsupport admissibility of microfilms of checks); see also United States v. Stockton, 968 F.2d 715, 719\n(8th Cir. 1992) (photographs of seized documents were admissible as \xe2\x80\x9cduplicates\xe2\x80\x9d under Rule 1003).\n\n96\n\n\x0cAdmissibility in Federal Court of Electronic Copies of Personnel Records\n\nthe official records can be a \xe2\x80\x98copy\xe2\x80\x99 for purposes of Rule 1005 even though it is not\nmade from the original\xe2\x80\x9d). 15\nC.\nThe Electronic Personnel Records that OPM intends to create likely would also\nbe admissible as \xe2\x80\x9cduplicates\xe2\x80\x9d under Rule 1003, 16 or as \xe2\x80\x9cother evidence\xe2\x80\x9d under\nRule 1004, 17 but for the fact that Rule 1005 appears to preempt Rules 1003 and\n1004 with respect to the admissibility of public records. Although Article X\ngenerally rejects the notion that some forms of secondary evidence are to be\npreferred over others, see generally Fed. R. Evid. 1004, Rule 1005 \xe2\x80\x9ccreates a clear\npreference for certified or compared copies over other forms of secondary\nevidence\xe2\x80\x9d of a public record. 6 Weinstein \xc2\xa7 1005.04, at 1005-9. Because of\nconcerns that Rule 1005\xe2\x80\x99s \xe2\x80\x9cblanket dispensation from producing or accounting for\nthe original would open the door to the introduction of every kind of secondary\nevidence of contents of public records,\xe2\x80\x9d Fed. R. Evid. 1005, 1972 advisory\ncommittee\xe2\x80\x99s note, the Rule provides that other types of secondary evidence of\n15\nUnder Rule 1005, an otherwise admissible copy may be proved in two ways: by certification in\naccordance with Rule 902, and by comparison with the original by a witness who attests to its faithful\nreproduction. Rule 902(4) permits authentication of \xe2\x80\x9c[a] copy of an official record or report or entry\ntherein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a\npublic office, including data compilations in any form, certified as correct by the custodian or other\nperson authorized to make the certification.\xe2\x80\x9d\n16\n\xe2\x80\x9cA duplicate is admissible to the same extent as an original,\xe2\x80\x9d except when \xe2\x80\x9ca genuine question is\nraised as to the authenticity of the original\xe2\x80\x9d or when \xe2\x80\x9cin the circumstances it would be unfair to admit\nthe duplicate in lieu of the original.\xe2\x80\x9d Fed. R. Evid. 1003. A \xe2\x80\x9cduplicate\xe2\x80\x9d is \xe2\x80\x9ca counterpart produced by\nthe same impression as the original, or from the same matrix, or by means of photography, including\nenlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.\xe2\x80\x9d Fed. R. Evid. 1001(4)\n(emphasis added). Ordinarily, \xe2\x80\x9c[e]lectronically imaged documents,\xe2\x80\x9d such as the Electronic Personnel\nRecords, \xe2\x80\x9cwould be \xe2\x80\x98duplicates\xe2\x80\x99\xe2\x80\x9d of the paper original under Rule 1003. Computer-Generated\nEvidence, 15 Santa Clara Computer & High Tech. L.J. at 24.\n17\n\xe2\x80\x9c[O]ther evidence of the contents of a writing . . . is admissible,\xe2\x80\x9d if the originals have been lost or\ndestroyed (other than in bad faith), are unobtainable, are in possession of an opponent (who does not\nproduce them), or the documents are \xe2\x80\x9cnot closely related to a controlling issue.\xe2\x80\x9d Fed. R. Evid. 1004.\nBecause Rule 1004 \xe2\x80\x9crecognizes no \xe2\x80\x98degrees\xe2\x80\x99 of secondary evidence,\xe2\x80\x9d Fed. R. Evid. 1004, 1972\nadvisory committee\xe2\x80\x99s note, once one of those prerequisites is satisfied, \xe2\x80\x9cthe party seeking to prove the\ncontents of the [document] . . . may do so by any kind of secondary evidence,\xe2\x80\x9d United States v. Ross,\n33 F.3d 1507, 1513 (11th Cir. 1994), ranging from reproductions that may also qualify as \xe2\x80\x9cduplicates\xe2\x80\x9d\nunder Rule 1003, e.g., United States v. Gerhart, 538 F.2d 807, 810 n.4 (8th Cir. 1976), to the testimony\nof a witness about his recollection of the contents of a document, e.g., Neville Constr. Co. v. Cook\nPaint & Varnish Co., 671 F.2d 1107, 1109 (8th Cir. 1982). See generally 2 McCormick \xc2\xa7 238, at 109.\n\xe2\x80\x9cOther evidence\xe2\x80\x9d thus should include electronic reproductions like those OPM intends to create. It\ntherefore seems likely that scanned electronic versions of paper records that were destroyed in good\nfaith in the ordinary course of business ordinarily would be admissible as \xe2\x80\x9cother evidence\xe2\x80\x9d under Rule\n1004(1). Cf. Wright v. Farmers Co-op of Ark. & Okla., 681 F.2d 549, 553 (8th Cir. 1982) (photocopy\nof interview transcript admissible where employee who took statement testified that recording had been\ndestroyed in regular course of business).\n\n97\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nrecords\xe2\x80\x99 contents are admissible only if a properly certified copy of the official\nrecord is not available. See generally id. (\xe2\x80\x9cRecognition of degrees of secondary\nevidence in this situation is an appropriate quid pro quo for not applying the\nrequirement of producing the original.\xe2\x80\x9d). This clear preference for certified or\ncompared copies has caused some courts and commentators to conclude that a\nparty may seek to introduce an uncertified or uncompared \xe2\x80\x9cduplicate\xe2\x80\x9d of an\nofficial record under Rule 1003, or \xe2\x80\x9cother evidence\xe2\x80\x9d of the contents of such a\ndocument under Rule 1004, only if a certified copy of the record is not available.\nSee, e.g., Amoco Prod. Co. v. United States, 619 F.2d 1383, 1391 (10th Cir. 1980);\nZenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1190, 1227 (E.D.\nPa. 1980) (Becker, J.), rev\xe2\x80\x99d on other grounds, 475 U.S. 574 (1986); 6 Weinstein\n\xc2\xa7 1005.06[1], at 1005-12; 31 Wright & Gold \xc2\xa7 8033, at 498\xe2\x80\x9399.\nRule 1005\xe2\x80\x99s preclusive effect likely would prevent reliance on Rule 1003 to\nintroduce Electronic Personnel Records into evidence unless no certified or\ncompared copy of the public record is available. Because providing the requisite\ncertification for the electronic records at issue (or comparing the printout with the\nelectronic record) should be straightforward, any difficulty in satisfying the\nrequirements of Rule 1005 would likely be because a \xe2\x80\x9ccopy\xe2\x80\x9d is unavailable,\nperhaps because the electronic record is lost or corrupted. Under such circumstances, it seems unlikely that an agency would be able to produce a reliable\ncounterpart of the original paper record that would qualify as a \xe2\x80\x9cduplicate\xe2\x80\x9d under\nRule 1003. Thus, Rules 1003 and 1004 are unlikely to bear on proving the\ncontents of Electronic Personnel Records.\nIII.\nYou also have asked us to \xe2\x80\x9caddress specifically whether the electronic versions\nof the following categories of documents\xe2\x80\x9d would be admissible in federal courts,\nMcTigue Letter at 1, once the paper versions are destroyed in accordance with\nOPM\xe2\x80\x99s plans:\n(1) documents required by OPM regulations to be notarized and/or\ncertified, such as affidavits and court orders, as required in 5 C.F.R.\n\xc2\xa7 831.2007\xe2\x80\x932008, 838.221(b), and 843.208\xe2\x80\x93209;\n(2) designations of beneficiaries for life insurance (SF 2823), which\nrequire \xe2\x80\x9csigned and witnessed writing[s]\xe2\x80\x9d under 5 U.S.C. \xc2\xa7 8705(a);\n(3) assignments of Federal employees\xe2\x80\x99 group life insurance (RI 7610), which require signed and witnessed writing under 5 C.F.R.\n870.902;\n\n98\n\n\x0cAdmissibility in Federal Court of Electronic Copies of Personnel Records\n\n(4) designations of beneficiaries to receive lump sum CSRS benefits\n(SF 2808), which require \xe2\x80\x9csigned and witnessed writing[s]\xe2\x80\x9d under\n5 U.S.C. \xc2\xa7 8342(c); and\n(5) designations of beneficiaries to receive lump sum [Federal Employees Retirement System] benefits (SF 3102), which also require\n\xe2\x80\x9csigned and witnessed writing[s]\xe2\x80\x9d under 5 U.S.C. \xc2\xa7 8424(d).\nId. As discussed above, a printout of an Electronic Personnel Record should be\nadmissible to prove the content of that document. The best evidence rules of\nArticle X are not the only hurdles that a document must clear, however, to be\nadmissible into evidence. See United States v. Bellucci, 995 F.2d 157, 160 (9th\nCir. 1993) (\xe2\x80\x9c[t]he proponent of a writing at trial must overcome authentication,\nbest evidence, and hearsay objections\xe2\x80\x9d). Accordingly, we will also address\nauthentication of electronic versions of these five categories of documents under\nArticle IX (Rules 901\xe2\x80\x93903), and admissibility under the hearsay rules of Article\nVIII (Rules 801\xe2\x80\x93808).\nA.\n\xe2\x80\x9cThe requirement of authentication or identification as a condition precedent to\nadmissibility is satisfied by evidence sufficient to support a finding that the matter\nin question is what its proponent claims.\xe2\x80\x9d Fed. R. Evid. 901. So long as this\n\xe2\x80\x9cminimal\xe2\x80\x9d standard is met, \xe2\x80\x9cauthenticity [is] established under Rule 901 and the\ncourt or trier of fact may consider conflicting evidence only for purposes of\nmeasuring probative value and weight.\xe2\x80\x9d 31 Wright & Gold \xc2\xa7 7103, at 24; id.\n\xc2\xa7 7104, at 36 (\xe2\x80\x9cThe judge should permit the evidence to go to the jury unless the\nshowing as to authenticity is so weak that no reasonable juror could consider the\nevidence to be what its proponent claims it to be.\xe2\x80\x9d); see also United States v.\nMeienberg, 263 F.3d 1177, 1181 (10th Cir. 2001) (\xe2\x80\x9cAny question as to the\naccuracy of the printouts, whether resulting from incorrect data entry or the\noperation of the computer program, as with inaccuracies in any other type of\nbusiness records, would have affected only the weight of the printouts, not their\nadmissibility.\xe2\x80\x9d) (quoting United States v. Catabran, 836 F.2d 453, 458 (9th Cir.\n1988)). The best evidence requirements of Article X and the authentication\nrequirements of Article IX overlap somewhat, but a paper printout of an electronic\nrecord will have to clear additional hurdles in order to be authenticated. We\nconclude that printouts of the electronic versions of these forms will likely be\nconsidered authentic and admissible.\nThe first step in authenticating a paper printout of an electronic record involves\nauthenticating the electronic record itself. Because the electronic record is the\nofficial or public record maintained by OPM, it should qualify for authentication\nas a \xe2\x80\x9c[p]ublic record or report\xe2\x80\x9d under Rule 901(b)(7). \xe2\x80\x9cPublic records or reports\xe2\x80\x9d\n\n99\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nmay be authenticated through \xe2\x80\x9c[e]vidence that a writing authorized by law to be\nrecorded or filed and in fact recorded or filed in a public office, or a purported\npublic record, report, statement, or data compilation, in any form, is from the\npublic office where items of this nature are kept.\xe2\x80\x9d Fed. R. Evid. 901(b)(7). Each of\nthe forms listed above is likely to be a \xe2\x80\x9cwriting\xe2\x80\x9d within the scope of the authenticity rules. A variety of forms have been held to constitute \xe2\x80\x9cwritings\xe2\x80\x9d for purposes of\nRule 901(b)(7), including \xe2\x80\x9cnot just items prepared by public officials but also\nitems prepared by private parties where those items are authorized by law to be\nrecorded or filed\xe2\x80\x9d in a public office. 31 Wright & Gold \xc2\xa7 7112, at 122\xe2\x80\x9323 & nn.\n7\xe2\x80\x9318; id. at 126; see also Fed. R. Evid. 1001 (defining \xe2\x80\x9cwritings\xe2\x80\x9d).\nAuthentication of such documents is typically straightforward. Proof that a\ndocument was recorded or filed in a public office can be inferred from testimony\nthat the document was found in the official public records, 31 Wright & Gold\n\xc2\xa7 7112, at 125\xe2\x80\x9326, so that the proponent of public documents ordinarily \xe2\x80\x9cmay\nprove their authenticity by proving that the appropriate public office has custody\nof them, without further proof,\xe2\x80\x9d at least when the document is among the official\nrecords. 5 Weinstein \xc2\xa7 901.10[1], at 901\xe2\x80\x9388; id. \xc2\xa7 901.10[1], at 901\xe2\x80\x9389 (proof that\ncopy of document was kept in a government agency\xe2\x80\x99s working files, rather than its\nofficial files, was insufficient to authenticate it); see also Fed. R. Evid. 901(b)(7),\n1972 advisory committee\xe2\x80\x99s note (\xe2\x80\x9cPublic records are regularly authenticated by\nproof of custody, without more.\xe2\x80\x9d). \xe2\x80\x9cThis result is founded on the assumption that\nthe public employees having custody of such records will carry out their public\nduty to receive and maintain only genuine official [documents].\xe2\x80\x9d 2 McCormick\n\xc2\xa7 226, at 70\xe2\x80\x9371 (\xe2\x80\x9cIf a writing is claimed to be an official report or record of a\npublic governmental agency, and is also proved to have come from the proper\npublic office where such official papers are kept, it is generally agreed that this\nauthenticates the offered document as genuine.\xe2\x80\x9d); Gilbrook v. City of Westminster,\n177 F.3d 839, 858 (9th Cir. 1999) (noting presumption that public records are\nauthentic and trustworthy with the burden on the opponent to present \xe2\x80\x9cenough\nnegative factors to persuade a court that a report should not be admitted\xe2\x80\x9d) (quoting\nJohnson v. City of Pleasanton, 982 F.2d 350, 352 (9th Cir.1992)). The testimony\nof a document custodian can establish this fact. See, e.g., United States v. Miller,\n771 F.2d 1219, 1237 (9th Cir. 1985) (testimony of telephone company billing\nsupervisor sufficient foundation for admission of computer-generated toll and\nbilling records).\nThe second step is to authenticate the paper printout. Because of overlap between the Rules, that requirement likely would be satisfied by compliance with the\nrequirements of Article X. For the printout to be introduced under Rule 1005 on\nthe theory that it is a copy of a \xe2\x80\x9cpublic record,\xe2\x80\x9d it will have to be \xe2\x80\x9ccertified as\ncorrect in accordance with Rule 902 or testified to be correct by a witness who has\ncompared it with the original.\xe2\x80\x9d Fed. R. Evid. 1005. Rule 902 permits a copy of an\nofficial record or report to be authenticated when certified correct \xe2\x80\x9cby the custodian [of records] or other person authorized to make the certification,\xe2\x80\x9d Fed. R. Evid.\n\n100\n\n\x0cAdmissibility in Federal Court of Electronic Copies of Personnel Records\n\n902(4), which would again include an official who is familiar with an agency\xe2\x80\x99s\nelectronic record-keeping system. Because of the inherent reliability of public\ndocuments, certified copies are self-authenticating documents whose \xe2\x80\x9cauthenticity\nis taken as sufficiently established for purposes of admissibility without extrinsic\nevidence.\xe2\x80\x9d Fed. R. Evid. 902, 1972 advisory committee\xe2\x80\x99s note. Their authenticity\ncan also be proven by extrinsic evidence. See Fed. R. Evid. 901(b)(7); 31 Wright\n& Gold \xc2\xa7 7112, at 129.\nWe do not anticipate that the statutory requirements of signing, witnesses, and\nnotarization outlined above will present particular issues under the authentication\nrules for threshold admissibility purposes. There is no requirement that the\nproponent of a public record further authenticate it by, for example, proving that a\nspecific electronic document is an authentic copy of the paper original or that its\nsignatures and notary seals are authentic. See United States v. Farah, 475 F. App\xe2\x80\x99x\n1, 10\xe2\x80\x9311 (4th Cir. 2007) (testimony of agency custodian was sufficient to establish\ndocuments in files as authentic; rejecting requirement that documents had to be\nidentified by handwriting authentication), cert. denied, 552 U.S. 1185 (2008); cf.\nTraction Wholesale Ctr. v. NLRB, 216 F.3d 92, 105 (D.C. Cir. 2000) (evidence\nthat documents came from business files is evidence that signatures they contain\nare authentic). See generally 31 Wright & Gold \xc2\xa7 7112, at 128 (authentication\nunder Fed. R. Evid. 901(b)(7) \xe2\x80\x9conly concerns whether an item has been kept as a\ngenuine public record; the provision says nothing about an item\xe2\x80\x99s creation or the\naccuracy of its contents\xe2\x80\x9d). Requiring further authentication would be inconsistent\nwith the understanding that documents maintained in official files can ordinarily\nbe presumed to be authentic because \xe2\x80\x9cthe official custodian has a public duty to\nverify the genuineness of the papers offered for recording or filing and to accept\nonly the genuine.\xe2\x80\x9d 2 McCormick \xc2\xa7 226, at 71. Of course, a litigant in a particular\ncase may contend that a signature or notarization is inauthentic or fraudulent, and\nit may be necessary to introduce known handwriting exemplars or expert testimony to persuade the factfinder that the document is genuine. But ordinarily a public\nrecord will be admissible in evidence once the \xe2\x80\x9cminimal\xe2\x80\x9d threshold showing of\nArticle IX is satisfied, 31 Wright & Gold \xc2\xa7 7103, at 21\xe2\x80\x9322 & n.24, 24, & 27\xe2\x80\x9328,\nand \xe2\x80\x9ccontradictory evidence [about authenticity] goes to the weight to be assigned\nby the trier of fact and not to admissibility,\xe2\x80\x9d United States v. Reilly, 33 F.3d 1396,\n1409 (3d Cir. 1994). To help minimize such problems, it would seem advisable to\nexercise quality control to ensure that signatures and notarization markings on\ndocuments are clear and legible.\nB.\nDepending on how a Personnel Record is used in litigation, statements it contains may be considered hearsay. \xe2\x80\x9c\xe2\x80\x98Hearsay\xe2\x80\x99 is a statement . . . offered in evidence\nto prove the truth of the matter asserted.\xe2\x80\x9d Fed. R. Evid. 801(c). \xe2\x80\x9cHearsay is not\nadmissible except as provided by [the Federal Rules of Evidence] or by other rules\n\n101\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nprescribed by the Supreme Court pursuant to statutory authority or by Act of\nCongress.\xe2\x80\x9d Fed. R. Evid. 802. If a Personnel Record is offered to prove that a\nstatement contained within it is true\xe2\x80\x94e.g., that the employee resided at the address\ngiven on the form\xe2\x80\x94it will be considered hearsay. If it is offered to prove that the\nstatement was made, regardless of its truth\xe2\x80\x94e.g., that the employee designated a\nparticular individual as the beneficiary of his life insurance\xe2\x80\x94it will not be\nconsidered hearsay. In addition, the hearsay rules contain an exception for\n\xe2\x80\x9c[p]ublic records and reports,\xe2\x80\x9d defined in relevant part as \xe2\x80\x9c[r]ecords, reports,\nstatements, or data compilations, in any form, of public offices or agencies, setting\nforth . . . the activities of the office or agency.\xe2\x80\x9d Fed. R. Evid. 803(8)(A). If a\nPersonnel Record satisfies that definition, it may be admitted to prove the truth of\na matter it records, notwithstanding the availability of the person who completed\nit. Id.\nConverting paper Personnel Records to electronic format would not appear to\naffect their admissibility under the hearsay rules. Converting a document from one\nformat to another does not introduce another \xe2\x80\x9cdeclarant\xe2\x80\x9d or add a layer of hearsay.\nThe hearsay exception for public records appears to contemplate that documents\nmay be converted into another format for long-term storage, by providing that\n\xe2\x80\x9c[r]ecords, reports, statements, or data compilations, in any form\xe2\x80\x9d are admissible if\nthey fit the remainder of the definition. Id. Your document conversion plan thus\nshould not increase the risk that a given Personnel Record will be considered\ninadmissible hearsay.\nIV.\nIn sum, Electronic Personnel Records should be admissible under the Business\nRecords Act and as \xe2\x80\x9cpublic records\xe2\x80\x9d under Rule 1005. Such records may be\nauthenticated under Rules 901 and 902, and converting documents to electronic\nformat should not affect their admissibility under hearsay rules.\nThe use of electronic versions of documents may marginally increase the risk\nthat a litigant will be able to refute the accuracy of the paper printout\xe2\x80\x94if, for\nexample, a signature becomes smudged during scanning of the original paper form\nor the file is lost. These risks principally concern the reliability of the conversion\nand reproduction process itself, however, not inherent limitations on the admissibility of electronic versions of paper documents. Assuming that technological and\nconversion issues are addressed consistently and conscientiously, OPM\xe2\x80\x99s plan to\nadopt an electronic record-keeping system should not appreciably increase the risk\nthat a personnel record will be deemed inadmissible in a particular case.\nJOHN P. ELWOOD\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n102\n\n\x0c'