"THE FACTS ABOUT ":

FACSIMILE TRANSMISSION AND ARCHIVES

by

ERWIN WODARCZAK

B.A., The University o-f British Columbia, 1986

A THESIS SUBMITTED IN PARTIAL FULFILMENT OF

THE REQUIREMENTS FOR THE DEGREE OF

MASTER OF ARCHIVAL STUDIES

in

THE FACULTY OF ARTS

(School of Library, Archival, and Information Studies)

We accept this thesis as conforming

to the required standard

THE UNIVERSITY OF BRITISH COLUMBIA

September 1991

© Erwin Wodarczak, 1991 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission.

££/40OL or LIBRARY ? A#CtOA£^ t •Departmcnt of /SJFORMAT/OlO STU&//^S

The University of British Columbia Vancouver, Canada

Date /SrOc/. /J/

DE-6 (2/88) ii

ABSTRACT

In recent years, facsimile transmission, or "fax", has become the leading medium of written . At the same time,

the basic technology for fax has been in existence for some 150 years. Nevertheless, there has been little analysis of facsimile

transmission in an archival context. This thesis aims to fill at

least part of this gap in archival literature.

The first chapter is an overview of the history of fax, and examines the various transmission and recording techniques developed over the years, discusses the uses to which these

techniques have been put, and describes potential sources from which an archives might acquire facsimile documents. The next chapter illustrates modern facsimile processes in detail, analyzes

the chemical and physical make-up of papers and inks used, and explores the conservation problems inherent in certain kinds of

facsimile paper. On the basis of this technical examination, the

rest of the dissertation discusses the treatment of fax documents

in the archival context, in terms of both theory and practice, with specific reference to law, archival theory, and records management.

The nature of facsimiles as records and the characteristics of

their physical form are amply discussed; and their legal value is examined to determine the criteria to be used in their appraisal.

In this regard, special attention is given to the way in which the

legal profession handles problems of authenticity and security

inherent in fax transmission, and to the way in which organizations deal with the operational and legal problems presented by fac- similes.

Archivists have to be alert to changes in communication technology, in order to determine i-f archival theory and practice have to adapt to such changes. In the case o-f -facsimile trans• mission, this study concludes that no fundamental changes in archival theory are required in order to deal with it effectively in the archival context. What is needed is a basic understanding of the technology involved, and a thorough knowledge o-f archival concepts and of relevant legal principles. iv

TABLE OF CONTENTS

ABSTRACT ii

ACKNOWLEDGEMENTS v

INTRODUCTION 1

CHAPTER ONE: THE EVOLUTION OF FACSIMILE TECHNOLOGY 5

CHAPTER TWO: MODERN FACSIMILE TECHNOLOGY AND PRODUCTS ... 22

CHAPTER THREE: FACSIMILE DOCUMENTS AS "RECORDS"— THEORETICAL CONSIDERATIONS 47

CHAPTER FOUR: FACSIMILE DOCUMENTS AS "RECORDS"—

PRACTICAL CONSIDERATIONS 68

CONCLUSION 98

BIBLIOGRAPHY 102 V

ACKNOWLEDGEMENTS

I would like to express my thanks to the following people: Sue

Bigelow, for providing a copy of the Australian Archives technical

report on facsimile; Jennifer Jordan, for giving information on

the B.C. Court of Appeal fax filing project; Kosuku Business Paper

(Canada) Ltd. of Richmond, B.C., for providing technical, informa•

tion released by Mitsubishi; my thesis advisor, Luciana Duranti,

as well as the other members of my committee, Albin Wagner and Tony

Sheppard, for their help, advice, and support; Terry Eastwood, who was a source of encouragement even before I entered the M.A.S.

program; my fellow students in the program, for their moral support

through the past two years; and finally my parents, for their

support, and for being willing to explain to friends and relatives exactly what I was studying. 1

INTRODUCTION

In the course o-f their professional careers, archivists have

to be alert to changes in communication technology, because they work with the products of such technology. That is, they deal with records, which are documents created or received in the course of a practical activity, and which consist of recorded information communicated and preserved on a physical medium. It is therefore necessary to determine whether the archival theory on which archivists base their work has to evolve in order to take techno•

logical changes into account.

In recent years, facsimile transmission, or "fax", has become

the leading medium of written telecommunication, surpassing both

telegraph and . In 1989, over ten million fax machines were

in operation around the world,' and the number continues to

increase. Fax transmission is convenient, fast, and powerful.

With it, one can send any kind of written (as opposed to oral) or still (as opposed to moving-image) document—letter, report, drawing, or photographic image—from one's office to the other side of the planet in a matter of seconds. At the same time, the basic

technology was first developed almost 150 years ago, and has been

in general, though limited, use since the beginning of this century.

P.-A. Wenger, "The Future Also has a Past: The Telefax, a Young 150-Year Old Service", Te1ecommunication Journa1 56 (Decem• ber 1989): 777. Despite its long history and its recent rise to prominence,

there has been little exploration of facsimile technology by archivists. Two recent studies have examined the problems associated with the conservation o-f some fax documents, but no general analysis of -facsimiles in an archival context has been

attempted. The rapid and continuing diffusion of -fax as a means

of communication makes it important to undertake such an analysis.

If they have not already done so, archivists will soon be

encountering records in facsimile form as they appraise series and

fonds created or added-to since the mid to late 1980's. If -found

in paper form, -facsimiles may be printed on what is known as

thermal paper, which deteriorates rapidly and requires special

conservation measures. Facsimiles may also be created and

preserved in machine-readable form, as products of the combination

of the technologies of f_ax t r_a o s m i s s i o n an d computer word-

processing known as PC-fax. Archivists have to decide on stra•

tegies for the preservation of these records, whether in their

original physical form or in other media, such as bond paper or

film.

This thesis will study the history of facsimile technology and

the development of modern facsimile systems in order to establish

the foundation on which an archival examination of facsimiles may

begin. The first point which such an examination needs to

determine is whether -facsimiles are actually "records". In fact,

the nature of a document is the basic idea on which the archival

theoretical construct is -founded. Thus, the status of facsimiles 3 will be established, and the type of documentary form that

•facsimiles represent will be explored. Facsimiles are similar to telegrams and in that they are products of the communica- t ion or t r ansmissron—o f—in f o r ma t-ion—by el ec t r on i'c—means-; Th i s makes them, in—the—eyes—of—some authorities, electronic records.

In order to determine the validity of this position, the term

"electronic record" will be de-fined, and then it will be seen whether -facsimiles fit in this category.

Whatever the result of the theoretical exploration of the above issues, it has to be considered that archivists and archives do not exist only in an abstract world of theory, but also in the real world o-f legal and administrative procedure. How are facsimiles treated in the courts and by the legal profession? This is significant because, if -facsimiles can be accepted as records in the environment of the law, they can be considered as such in the administrative and archival contexts as well. Similarly, if standard procedures for processing -fax documents can be established in the courts—in particular the court registries—where strict adherence to legal and administrative principles is o-f paramount importance, one would think that they can be established anywhere.

Therefore, the law o-f evidence will be explored for the purposes of establishing the admissibility of -facsimiles in court and their weight; and the facsimile filing project recently instituted at the

British Columbia Court o-f Appeal Registry will be examined in detail for the purpose o-f determining how an organization may deal with the problems presented by fax transmission of court documents. Archivists are aware that evolving technology affects their profession as it affects all others. Facsimile transmission is just one example of this. A study such as this one is therefore needed, so that archival work can take such new developments into account. In addition, this study serves the more general purpose of continuing the comparison of basic archival principles with the ever—changing reality that archivists are confronted with, a comparison first made centuries ago and which is as much at the heart of archival work today as ever. 5

CHAPTER ONE:

THE EVOLUTION OF FACSIMILE TECHNOLOGY

Facsimile transmission has become the leading means of written telecommunicat_i.on--more-wi-de-l-y^used tThan either__feei'eg'raph or telex.

Its recent rise to prominence might lead one to think that facsimile transmission is a relatively new technological develop• ment, but this is not so. Facsimile technology has been in existence for almost 150 years; the current boom is merely the product of refinements in the technology, rather than of a break• through .

The first facsimile machine was patented by Scottish inventor

Alexander Bain in 1843; it was an indirect product of his research into electric clocks. Bain had originally developed a mechanism for synchronizing interconnected clocks in a "master—slave" relationship: in this way, by setting one clock, the entire time• keeping system could be adjusted. The pendulums of the secondary clocks would obviously move in the same pattern as that of the primary, and Bain realized t hat''if the primary's pendulum could be modified to trace a design, the others, if they were similarly modified, would produce exact copies of that design.

Bain's battery-powered apparatus worked as follows. Direct current pulses were created by the sending device as a stylus attached to the pendulum swept across raised metallic lettering, alternately completing and disrupting an electric circuit. The 6 pulses would travel by wire to the receiver, the pendulum and stylus of which swept back and forth across a sheet of damp electrosensitive paper. Here, each pulse would produce a mark.

After each stroke, both the original message and the receiving paper would shift one line, the sequence would repeat itself, and eventually a facsimile of the original would be produced.'

Bain's device was too slow and unreliable to compete with , but that did not prevent others from trying to improve upon the concept. Frederick Bakewell approached it in a slightly different way in his facsimile machine, patented in 1848 and exhibited at the 1851 Universal Exhibition in London. A message would be written using an insulating ink on a film or thin plate of tin, which was then wound around a rotating drum. A stylus, attached to the wire leading to the receiver, traced over the message as the drum rotated. The drum was connected to a battery, and when the stylus touched the conducting tin a circuit was com• pleted and a current transmitted to the, receiver, which was synchronized with the and used a piece of electrosensitive paper in place of the tin. The electric current would be inter— rupted when the first stylus passed over the insulating ink. The paper in the receiver darkened when the current touched it, but re• mained white when it was interrupted; the result was a negative copy of the original message. Bakewell's machine was no more

Daniel M. Costigan, Electronic Delivery of Documents and Graphics (New York: Van Nostrand Reinhold Company, 1978), 2-3. -us e d—a g ai£t_jirj_ jFu^tur^_Ja_c.s.im-iH-e--a e v i c e s,

The most successful of the "nineteenth-century facsimile

pioneers was Giovanni ^Casel IX- His device, the "pantelegraph",

was patented in 1855, and was the first to be used in regular

publ^c^_sjer.v_ice . Like Bain's machine i"t—used—a—pendu-luoff or driving

power; to transmit messages it used metal plates with messages

written in insulating ink, similar to Bakewell's device; as in both

Bain's and Bakewell's machines, electrolytic paper was used to

record the messages. The pantelegraph was also more reliable than

either of its predecessors, being fitted with a regulating clock

which maintained the synchronization between and

receiver. ^

The pantelegraph worked well enough to receive the support

of the French government in 1861. A series of tests was carried

out by the French Telegraph Administration, and in 1865 a public

facsimile service was opened between Paris and Lyon. The initial

transmission speed of forty twenty-word messages per hour was soon

increased to 110 per hour. This initial success did not last long,

however. There was relatively little demand for the service; the

pantelegraph could not comp.e-te—with conventional^ e 1 ec trie tele-

Wenger, 778.

Ibid., 778-80. 8 graphy, which was adequate for the needs o-f the period As a 4 result, the Paris-Lyon facsimile service was shut down in 1870.

The first widespread use of facsimile transmission did not come until the early twentieth century, and then it was used to ] transmit^photographs rather than written messages. In 1902 Arthur

~l

Inside the cylinder was a selenium cell, where the light patterns were converted into an electric current. In the receiver, another beam of light, the intensity of which varied with that of the incoming signal, played across a photographic film wrapped around another cylinder, developing the film and producing the facsimile.

Korn ' s process proved successful. 11 ^as^e_spjf_c,i.a.l-l-y-_u.s.e_f.u-l—-t.o_t.be_ press; photographs could now be easily transmitted and received for publication in newspapers. By 1910 a commercial picture trans-

During this period, Edouard Belin was also working on the process of telephotography. In 1913 he developed the first portable facsimile machine, the "Belinograph", which could be connected to an ordinary line. It soon became popular

4 Ibid., 780.

5 Ibid., 780-1; Costigan, 3-4. with reporters, who could now file photographs as well as stories

from "on the spot".4 After the First World War, both Korn and

Belin established their systems in the . The first

Belinogram was sent across the Atlantic in 1921, while Korn first sent a trans-Atlantic te1ephotograph the next year.7

Facsimile technology was not completely new to the United

States, however. had invented the "" in

1888, which according to its patent "enabled one to transmit his own handwriting to a distant point over a two-wire circuit".

Rather crude at first, Gray's device was soon improved enough -for

it to be used for commercial purposes by the American Bank Note

^mp.ajTy_5_i__. The telautograph was _soon.recognized as a valuable tool

receive messages while unattended

By 1924, American Telephone and Telegraph (AT&T), the

Corporation of America (RCA), and had each developed

their OWIT. picture transmission systems. A series of trial runs

demon.sjtrated ^o_riewspapers and press^assoc^a-ticins the^ f e^sibi 1 i ty

of transmitting news photographs by telegraph and radio. The AT&T

domestic system went into commercial operation in 1925, while RCA

established an international system the next year. Western Union's

Wenger, 781.

Costigan, 3-4; Wenger, 781

8 Gerald V. Quinn, The Fax Handbook (Blue Ridge Summit, PA: Tab Bookiks IncInc.. ,, 1989), 3.

9 Ibid., 4. 10 commercial picture transmission service was soon abandoned due to

lack of customer interest. As a result, the company turned more

to exploring ways to use facsimile technology as a means to

transmit messages, as a supplement to its telegraph service. By

the 1930's Western Union had established a facsimile telegraph system, which used a non-electrolytic recording paper called

"Teledel_tos" . Operations were further enhanced in 1948 with the

introduction of the ^Desk-Fax", a desk-top ..fax. transmitter and

receiver.^

In 1934 AT&T sold its picture transmission system to Assoc•

iated PressJ[ArfJ_,__where--i-t—beeame-wel_l_ known as "". AP ' s success with it led othernews agencies to adopt their own news-

picture systems. The New York Times established another system,

World Wide Wire Photos, which used port able f_a cs.i mi le machines to send pictures_ to .the-—T-i mes~ offices over the regular . Similar to the old Belinograph in Europe, the machines nevertheless came as a surprise to AT&T and AP executives and c us tome r s , who jTad_be_l.ieved—that~pic tuTes~coul-d—only—be^sent over expensive_spec_i.al-Ly_conditioned^-Cir-c-u-i-1s-srnrirTar—to—their own . The

result of all this activity was a great expansion of the facsimile

ind.us_tryi, and a news photograph transmission system which exists

to this day."

10 Costigan, 5-7.

11 Ibid., 7-10, 22-23; Kenneth R. McConnell, Dennis Bodson, and Richard Schaphorst, Fax: Digital Facsimile Technology and Applica- tions (Norwood, MA: Artech House, 1989), 11-12. 11

Another -facsimile development connected with the newspaper industry dates -from 1926. A series o-f experiments in Europe and the United States investigated the potential for transmitting pointed news reports over commercial radio channels. The_ first trans(nission_ojf^a^_facsimile newspaper was^accompl ished in 1937 by radio s±a±ion—KSXE in. St. Paul, Minnesota. The Federal Com• munications Commission (FCC) eventually granted experimental fax licences to a number of radio stations. Special fax newspaper editions could be transmitted to private homes, where fax ~i , - receivers attached to standard radio sets could print them overnight to be read the next morning. By 1940 over forty such stations were broadcasting, and over 10,000 receivers had been in- stal^edJ2

In spite of this initial success, facsimile newspaper transmission met with only limited success. In 1948 the FCC gave official authorization for regular commercial fax broadcasting (all previous efforts had only been experimental), and several major newspapers began transmitting special fax editions from their own

FM radio stations. This was not enough, however, to allow fax to outstrip ^the appeal of commercial , which was also appearing during this period. As a result, commercial broadcasting was abandoned.'3 Today, however, many newspapers and journals, such as the UJal 1 Street Journal , the New York Times. and USA Today, have

12 Costigan, 10-12.

13 Ibid. , 12-14. 12 regular editions printed using fax technology: the pages are composed in one location, and are transmitted by fax to the

14 printing plant(s) elsewhere. One use o-f -facsimile technology which has continued to the present day is the worldwide weather research and -forecasting aetwork.^— It originated in 1930, when fax was -first used to transmit meteorological charts and information to ships at sea.

During the Second World War such data were also used 6~y~~American naval and air -forces, resulting in further refinement of the technology. Today, in the United States, observation stations transmit data to the National Meteorological Center. There, the data are analyzed and processed for re-transmission via fax to local weather offices and forecast centres, where they are dis- <:— tributed to news media, airports, and ocean-going vessels.'**

When one sees how long the process o-f facsimile transmission has been known, it is perhaps surprising that it was not untilthe

1980's that it came to prominence. One reason has already been alluded to. On at least two occasions it was another technology— conventional telegraphy in the 1860's, and television in the

1940' s—which was better—suited to the needs o-f the period and pushed fax to the margins o-f the field.

However, those technologies which are best-suited to today's wants and needs have one thing in common: speed. The trend in scientific

McConnell et. al., 16-17.

Costigan, 7, 24-27; McConnell et. al., 14-15. 13 research and its applications has been to increase the speed and ef f ic ien.c_y_o.-f— muc.h_QjL human__a_ct i vi ty . More and more, people want and expect -fast results and immediate access to everything. At the same time, humanity is in the middle o-f what has come to be known as the Information Revolution—comparable to the Agricultural

Revolution at the dawn o-f history, and the Industrial Revolution o-f the nineteenth century. The convergence o-f these two trends has c e rjtaJj2_Ly_ promoted the _p_o puj[ a r j t y o-f -facsimile transmission, because it provides immediate access to documentary information.

It seems that, as with many things, for technology to gain general public acceptance, "timing is everything". There have been several other developments, however, which-have allowed facsimile to take advantaoe o-f this convergence. These -factors — the overcoming of

technical limitations, changes in the structure of the telecom• munications industry, and the development o-f international stan• dards—remain to be explored.

Over the early yearsT one of the main obstacles to the development of fax transmission was the—l-i-m-i-t-a-W-on.5--oJLcc^

technology. The quality of materials did not keep pace with the quality of theory. One example, the problem of synchronizing the

transmitting and receiving devices, was mentioned earlier. It was not until the synchronous motor was incorporated by Arthur Korn in

his 1902 design that the rotating drum mechanism became practical enough to replace the pendulum used by Bain and Case]li.1<: More

lt htConnei 1 et 14 recently, it has been the revolution in the field of micro• electronics, and the corresponding increase in the power o-f electronic components, which since about 1980 has helped to make facsimile technology attractive to the public. Large amounts of data on a single sheet of text could now be transmitted by relatively small and inexpensive units. ~~

Another example of the limits of technology can be -found in the evolution of telephone networks. Not until around 1915 did telephone lines become reliable enough for long-distance fax trans• mission; until then, telegraph lines had to be used.'7 In the

1960's, operator-assisted long-distance calls in the United States gave way to direct dialling, which made regTJTa'r—fax—communication more attractive to companies_and institutions outside the newspaper 18 industry. —

The facsimile industry received another important boost as a result of what was one of the most important events in the history of American telecommunications: the break-up of AT&T and the end of its monopoly over telephone services in the United States. The process had begun as early as ^968 with the so-called Carterfone decision. In "this case, the FCC ruled that "terminal equipment" could be manufactured and sold by companies other than^AX&T; this included not only , but also answering machines, -phones, and facsimile machines. Previously, AT&T had owned

Ibid. , 5.

Quinn, 8. 15 almost all such equipment and had leased it to its customers.

However, the FCC had been under political pressure to rule against the company, as a protest against deteriorating service— More -*c •—— • —— . importantly, it was felt that AT&T, as an established monopoly with relatively little stake in introducing new services, would not be as willing to take advantage of the rapid developments in tele• communications technology as independent companies might be. It was decided that competition was the best means by which such new 19 technolog_ies could be developed and introduced to the public.

Opposition to the AT&T monopoly -from both political foes and potential competitors continued, however. An anti-trust suit was brought against the company in 1974 by the United States Department of Justice. The subsequent out-of-court settlement resulted, on 1 Jarujary 1984, in the dismantling of AT&T. The company retained its long-distance services and its research, development, and manu• facturing operations, while local services were distributed among seven regional holding companies. Those companies may establish their own research and development operations (as of 1989, four had done so), but are prevented by the terms of the out-of-court settlement -from manufacturing their own equipment. The most they

manufacturers to meet

" Steve Coll, The Deal o-f the Century: The Breakup of AT&T (New York: Atheneum, 1986), 10-11, 105.

20 Trudy E. Bell, "Bell Breakup Plus Five: Mixed Reviews", IEEE Spectrum 25, no. 12 (December 1988): 26, 28, 29. 16

_TjTe__r_e.su-l-t—o-f—fch-i-s—ma-j-or u^pj^eava 1 in the telecommunications

industry was the expansion in research and development, and o-f the

market for facsimile equipment. .With an open market there is

incentive for companies to develop and manufacture their own fax

machine models. The research and development centres established

by the regional telephone companies, as well as AT&T's own Bell

Laboratories, have also acted as catalysts for ^innovation in 21

facsimile as well as other technologies. The regional companies

also act as sales outlets for manufacturers in the United States

and, especially, Japan.

The facsimile industry became firmly established in Japan in

1972, when telecommunications authorities permitted fax trans- 22 mission over the__pjuj3l_ic_ .Jt,eJ_ep2igne__network . That same year, 3M

began distributing Japanese-made facsimile machines in the United

States. The Japanese soon began to dominate the market, in part

because their companies established . _ef f i c ien t manu fac turinq

fac i1i t ies.,__aod—opera ted with 1 owej^_^ajDoj_r. costs than their ?4

American counterparts. Also, the leading Japanese fax producers—

Ricoh, Matsushita, Canon, NEC, and Toshiba—were already estab•

lished manufacturers of other electrical equipment, and so had both

11 Ibid. , 26, 29.

Mi tsubishi Business Communication Paper for the [booklet] (Tokyo: Mitsubishi Paper Mills Ltd., n.d.), 4.

23 Quinn, 8.

24 McConnell et. al., 23. 17

the general expertise and an established market presence.

Finally, the very complexity o-f the written language forced fax

technology to develop more rapidly in Japan than elsewhere. It is

impossible to transmit the over 4000 ideograms or kanji characters via telex, , regular computer terminals, or any system

7k which uses a regular keyboard. Facsimile, of course, can transmit any^charac ter or image. ftsof^!988 the Japanese produced aboj__ 907. of the world's facsimile equipment, either in Japan itself or r 27 through overseas companies owned by them.

was the introduction of international standards for the facsimile

industry by the Comite consultatif internationa1 te1eqraphique et

telephonique (CCITT), or International Telegraph and Telephone

Consultative Committee. Part of the International Tele• communication Union, a United Nations agency, CCITT studies new

types of equipment and services, and establishes standards for

78

their design and use. Facsimile standards permit machines from

different manufacturers to communicate with each other, allowing

increased usership and hence expanding the market for equipment. Standardization has also brought about uniformity and compatibility

" Ibid., 177-8.

2* "What is Facsimile? Ctyped information booklet!" (Tokyo: Mitsubishi Paper Mills Ltd., n.d.): 1; McConnell et. al., 181.

27 McConnell et. al., 177.

Ibid., 21. The first set of standards was introduced by CCITT as early as 1968. Known as Group 1, these rules required resolutions of about fifty lines per inch—resolution being defined as the number of lines per inch which are scanned by the transmitting unit. They also specified transmission speeds o-f four to six minutes over a voice-grade telephone line—this refers to the total time it takes

•for the transmitting machine to scan one page of text or graphics, for the signals to travel to the receiver, and for the copy to be printed. Group 1 also established standard frequencies for analog

•facsimile signals using frequency : 1300 Hz corresponded to a white image, and 2100 Hz to a black image.3**

By 1976, technology had improved enough to require new standards. Known as Group_2, they specified a transmission speed of three minutes and resolution of eighty lines per inch, and the use of amplitude and phase modulation at 2100 Hz.31 It was^around this^jtime^jthat Ja_p_ajiese_c_Qmpjanies began to dominate the f^cjs^imi 1 e market with faster and more powerful machines. To take these

" "What is Facsimile?", 1; Quinn, 9.

30 "What is Facsimile?", 1,3; McConnell et. al., 211; Gordon Mackay, "Fax: From the Beginning", Solicitors Journal 132 (April 29, 1988): 612.

McConnell et. al., 211; Mackay 612. 19 developments into account, Group 3 standards were introduced by

CCITT in 1980.32

A Group 3 machine operates digitally—that is, its scanner views each part o-f the image as either white or black, and converts

it into an electrical signal corresponding to either 0 or 1 . A in the fax machine converts the digital signals to analog mode for transmission over voice grade telephone lines. Group 3 machines commonly transmit at a speed of nine to twenty secon.d.s_oer

page, with resolution of 2Q_0__l.ines—per—inch-.-3,3. It was the introduc•

tion of these high-speed, high-resolution machines which -finally

form of written telecommunication in the 1980's

The most recent set of standards to be introduced by CCITT is known as Group 4; although first adopted in 1984, they have yet

to be finalized. The machines to which these rules apply can

transmit at the rate of five seconds per page under optima 1 cond.i-tions-rcwi.th_r_esolution of up to 400 lines per inch. Group 4 units use digital transmission—that is, they do not use a modem

standards using the regular telephone network, but require an Inte• grated Services Digital Network (ISDN). This type of network uses fibre optic lines, and is still not widely available. There are

Quinn, 8-10; McConnell et. al., 23-25.

Quinn, 14, 137.

Ibid., 16; Wenger, 782. 20 pl^n^^^^^rrvert the regular teljgphqne network to ISDN, but there will be no significant progress on this until the mid to late

1990's. Until then, Group 4 -Facsimile machines will be limited largely to use in computer networks and dedicated digital -facsimile lines, - . 35

As facsimile transmission becomes more popular as a means of communication, more fax documents will find their way into archives. One would most likely find them in series produced since the early 1980's, considering that this has been the period when fax has "boomed". Correspondence series would be the most likely source; there, fax documents would probably be mixed in with documents either internally produced, or received by regular mail.

They might also be included in personnel files, which may include faxed correspondence, and in series of official minutes, if, fax documents were used in meetings.

With older records, facsimiles might be found among meteor— ological records, and among photograph collections. As has been discussed, data concerning weather patterns and forecasts have been transmitted by fax since 1930. The records of weather services may have such documents included with them, and so may ships' logs.

Facsimiles of news photographs, if they were kept at all, might be found among the records produced by news services, newspapers, and even reporters; copies of special fax newspaper editions would likely to be found among these same records. However, the limited

" McConnell et. al., 85; Mackay, 612; Quinn, 10, 16, 137; "What is Facsimile?", 4. lifespan of most kinds of facsimile paper makes the survival such early examples of fax documents unlikely. 22

CHAPTER TWO:

MODERN FACSIMILE TECHNOLOGY AND PRODUCTS

Facsimile transmission is considered by CCITT to be one of

the telecommunication technologies known collectively as "telematic services", which also include telex and teletex. CCITT is currently integrating the standards and recommendations for them.'

At least one author has placed telematic services in the broader category of electronic mail or "E-mail", which he defined as the

^onj^ijTt^.caG-tri-ve—communi-c ation—-o-f-—_te.x±_, d.a±a-,—image—OP—voice message s between__a sender and designated recipients by systems utll izing te_l_e.commun.ica_ti.ons—l-in-k-s—.— Also included under this classification would be computer—based message systems, voice mail systems, and computer conferencing or "teleconferencing".3

However, it is usually these latter systems which are normally classed as electronic mail, and telematic systems are considered separately.

Stephen A. Caswell, E-Mai1 (Agincourt, Ont.: Gage Educa• tional Publishing Company, 1988), 31-34, 67.

Ibid., 2. The term "non-interactive" in this context means that the sender and the recipient of the message do not communicate with each other at the same time. However, this term is not appropriate for computer conferencing, which is interactive in nature.

3 Ibid., 31-46. The telegraph, although considered by Caswell to be the first electronic mail technology, is not included in his discussion of the more modern systems. 23

Telex was first introduced during the 1930's in the United

States and Germany as the Teletypewriter Exchange. It is similar to the telegraph in that it uses code to transmit messages; however, while the telegraph uses the three-digit , telex uses the five-digit Baudot code. It uses electronic typewriters which are designed to communicate with each other over the regular telephone network. The sender simply dials the receiving telex machine number, and then types the message, which is reproduced at the other end as it is typed out. In older systems messages are typed directly onto paper; newer systems can store messages on magnetic tape or computer disk. In the 1950's AT&T introduced a slightly di-fferent service. Known as "Telex II", it uses the eight-digit ASCII code instead of Baudot, and is slightly -faster than regular telex.*

Telex is most widely used -for commercial purposes, especially for transferring funds, and ordering^ shipping and receiving goods—both within and between companies. It is also used in law enforcement, to exchange messages and information about crimes and criminals. Finally, in Europe, it is also used to exchange personal messages; it is rarely used for that purpose in North

America, however, mainly because people -find the telephone to be more convenient for exchanging personal information.^

* Ibid., 31-32, 34-35.

5 Ibid., 69-70. 24

Compared to other telecommunications systems, telex is technologically outdated. However, only lately has it been supplanted by facsimile transmission, and as recently as 1988 telex usage was still increasing at about eight percent per year.*

Because it is so well established, therefore, telex is likely to continue in use for the foreseeable future.

"Teletex" is the name adopted by CCITT in 1980 when it intro• duced standards for communicating word processors. Teletex was the technology that was supposed to replace telex, and the CCITT recom• mendations were intended to facilitate this by establishing standards for manufacturers, so that their machines could communi• cate with each other. It was still not anticipated that facsimile would become important, although Group 3 standards were introduced that same year; facsimile was considered inefficient because it required far more data to send the same message than teletex. When

Group 4 was introduced in 1984, the specifications were made compatible so that teletex and fax machines could communicate with one another. However, teletex has never been widely adopted; it has been facsimile which has supplanted telex as the primary telematic service.7

The matter of the relative inefficiency of facsimile needs to be examined in more detail. The image of a document is read by a fax machine's circuitry as a series of light and dark picture

Ibid., 32.

McConnell et. al., 24, 78; Caswell, 38. 25 elements, or "pixels". Group 3 fax machines have an average resolution o-f 200 pixels per inch, with each 8.5x11 inch page consisting of 3.7 million pixels. Each pixel requires one bit to describe, so it would^rjCvrmaXl-y—tak-e~-3-r-7~m"i~l~l~i:on—bi-ts—to~d.e_5cribe one^page. However, that number is reduced by "compression": white spaces on the document are essentially ignored by the machine, which describes only the dark areas and their boundaries. Since most documents, no matter how much writing or how many images they contain, consist mainly of blank areas, the number of bits required to describe a page can be reduced by more than fifty percent.

Compare this to teletex, which requires only eight bits per c h^ra cJLerj^at__ei ghty characte rs^per line and s.i.x.t.y__l_ines p^r^paq e , that translates to only 38.400 b.i.ts p.e.ic page. This was why

tec hno1ogy

There are a number of reasons why facsimile is preferred over both_jte_le.x and—teletex. Perhaps the main reason is that it can handle text and illustrations with equal ease. This makes it useful to institutions and fields which are especially dependent on images to convey information, such as,enqineerinq and adver— ~\ tising. Group 4 guidelines allow a fax machine to accep.t_te.le-tex messages, and a teletex machine to accept the textual part of any fax document. However, there has been little movement by word

Quinn, 12-14; McConnell et. al., 94-95n.

Caswel1, 76. 26 processing hardware and software manufacturers to follow CCITT guidelines. As one author explains:

CCITT recommendations typically have the force of a standard in the telecommunications industry where the CCITT has enormous authority. In computer-communications arenas, however, the recommendations are only adopted_if the_hardware and^50,f-twar.e„,maoufacturers choose to follow them^ This was the-case in facsimile because the key hardware manufacturers, the Japanese, pushed for the recommendations. The key developers of word processing hardware and software, however, have politely ignored the CCITT; so, it is doubtful that any integrated text/image recommendation will be followed unless users literally force vendors to adopt it through purchasing power.^

The important difference between the two systems is that, while teletex transmits characters. fax transmits images. Thus, facsimile can transmit the image of any kind of written character, c " - which is why it has_a_l ways. b.een_.popu-l-ar-in—Japan . Finally, fax can handie large volumes of traffic in a^JLas-te r—and-che.ape.r__w.a.y_ than either telex or teletex; complete documents are sent all at once by fax, while telex and teletex are limited by the typing _speed of the sender."

There are three basic steps in sending a document by facsimile: scanning, transmission, and printing. The sending machine scans the document from top to bottom. There are two methods of scanning, the more common of which is by charge-coupled devices (CCD), which are also used in video camcorders. The CCDs in each are arranged differently, however: in a camcorder they are arranged in a rectangular shape to produce an image for television,

10 Ibid. , 79.

11 "What is Facsimile?", 2. 27 while in a fax machine the arrangement is a single horizontal line along a photosensor chip or "reader bar". The typical machine will contain 1728 of these electronic "eyes". As a document passes through the machine it is illuminated by a fluorescent tube, one

line at a time. The image is bounced off an array of precisely- aligned mirrors, through a lens which reduces the size of the image and focuses it onto the line of CCDs on the reader bar. The process repeats itself line by line, 0.01 inch at a time.12

The other type of fax machine scans by using contact image sensing (CIS), and is slightly more expensive. As in CCD units,

CIS machines use strips of photosensors; the difference is that the strips extend 8.5 inches—the width of a standard page. The document is illuminated by a row of light-emitting diodes (LEDs), which also extends across the entire page. The image is focused by lens onto the sensors with a 1:1 magnification. The entire array is contained in a narrow bar which is in direct contact with the document being scanned — hence the name "contact image sens• ing" .13

The image is read by the ^machine's circuitry as a series of pixels, each of which is translated into a with a value of either 0 or 1—0 stands for white and 1 for black.'4

" McConnell et. al., 101-3; "Fax: How It Works, What to Look For", Fax Buyer's Guide. special issue no. 21 of Computer Buyer's Guide and Handbook (1990): 15.

13 McConnell et. al., 103-6; Quinn, 14; David Elrich, "Don't Mail It... Fax It", Popular Science (October 1988): 64.

14 Quinn, 12-14. 28

Machines with "grey-scale" capabilities—those which are able to distinguish and print shades of grey—vary the threshold between white and black values within each pixel by what is known as

"dither coding". The result is that the black pixels in "grey" areas are of different sizes; the human eye, however, perceives those areas as grey." The information is then converted into compressed format—that is, the bits indicating white spaces are eliminated, and the digital sequence adjusted to indicate only black areas and their boundaries. After the image has been read, the bit sequence is converted by a modem into an , which can be transmitted over a regular telephone line to the receiving fax machine."

At this point the transmission can proceed. This step has actually already begun, with what is known as the "fax handshake".

When the number of the receiving facsimile machine was dialled, the receiver connected itself to the line, and then sent an identifica• tion signal to the sending machine; the operator heard the signal and connected the machine to the line. The receiver then sent a digital information signal outlining its capabilities, including transmission speed and resolution. The unit making the call then adjusted to these capabilities: the two machines were "phased" (the scanning, recording, and printing mechanisms were positioned properly) and "synchronized" (the speeds o-f the two machines were

McConnell et. al., 11, 62-64.

Quinn, 14-15; McConnell et. al., 31-32; Elrich, 64. 29 adjusted to keep them in step). The receiver then sent its con-f irmation-to-receive signal, indicating that it was ready to accept the message.'7

The document is transmitted line-by-line. The -fact that each line is sent, received, and recorded as it is scanned makes phasing and synchronization, and hence the original electronic handshake, important. As it is received, the compressed signal is restored to digital -form by the receiver's modem, and then is "de• compressed": the bits indicating white pixels are restored, so that the complete electronic representation o-f the image is again available. The facsimile can then be printed line-by-line. When the entire document has been sent, the sending unit transmits an end-of-procedure signal, and the receiving unit replies with a message confirmation indicating whether there are any errors in the facsimile as received. The two machines then disconnect from the line."

The above sequence applies to Group 3 fax machines. Since

Group 1 and 2 machines are completely analog-based, they do not use . They are also slower, transmitting at rates of 300 and

2400-7200 bits per second (bps), respectively (compared to Group

3's 9600 bps). Group 1 units are now completely obsolete, but there are still Group 2 machines in use; therefore, Group 3 fax

Quinn, 15; McConnell et. al., 40-42.

Quinn, 15.

McConnell et. al., 42. 30 machines must be able to take this into account and adjust their transmission speeds in order to communicate with them. This procedure, known as "fall-back" or "step-down", occurs during the initial handshake, when the receiving unit transmits its capabil• ities; the Group 3 unit then reduces its transmission speed to that of the slower machine. Fall-back also occurs if the two machines offer different image resolution, different grey scale capabil• ities, or if a poor connection does not allow the high-speed trans-

70 mission of data.

Group 4 facsimile transmission also differs from Group 3, in that the machines are fully digital in nature. They are not designed to require modems, and if they have access to an in• tegrated services digital network (ISDN) or any other fibre-optic network they can transmit at a rate of 56,000 bps. However, such systems are still nowhere near being in general use. Without such a network, Group 4 units still have to use a modem, and they then cannot operate in accordance with the standards for their group.

Group 4 units also receive digitized data as a continuous stream, and then print the facsimile after the transmission is completed— unlike Group 3 machines, which, as was explained earlier, print 22 each line as it is received.

Quinn, 76-77, 134, 136; McConnell et. al., 27, 193; Elrich, 64, 101.

21 Caswell, 74; Quinn, 16-18; McConnell et. al., 85, 97-98.

22 Quinn, 16. 31

Facsimiles have always been considered to be paper records; however, recent developments in both -facsimile and computer technology have altered this characteristic. Fax machines can now be operated through computers, in particular personal or micro• computers, using -fax circuit boards, which allow images and text to be transmitted between computers. This offshoot of facsimile technology, known as "PC-fax", allows transmitted documents to be printed onto paper or to appear onto a computer screen. Documents

23 can also be saved on disk as well as on paper.

Group 4 fax machines will be better able to communicate with computers than those conforming to Group 3 standards. However, there is already a great deal of interaction between the two tech• nologies. Group 3 level PC-fax systems allow users to send documents to specified destinations at specified times; enter information on cover sheets; use word-processing programs; and 24 save, print, or retransmit received documents. Also, fax software can be used to synthesize a document, using both text and images.

25

The document is then converted to Group 3 format for transmission.

When they are received, such synthesized documents actually look

Nat J. Natraj, "Why Facsimile is Inseparable from Imaging" Inform 5(2) (February 1991): 23; McConnell et. al., 80-83.

71 Natraj, 23. One problem that PCs have when handling facsimiles is that the large amount of digitized information they contain, as compared to teletex or other ASCII documents, limits the number of documents that can be saved on disk; see Cary Lu, "Turning Microcomputers Into Fax Machines", High Technology (February 1987) : 61. 25 McConnell et. al., 80. 32 better than those derived -from scanned documents, because they are more precisely -formed, and there are no problems with phasing or synchronization. Finally, like regular PCs, PC-fax units can be integrated into local area networks (LANs). Because the central processing unit and the fax board serve several PCs, administrative 27 tasks can be centralized.

With Group 4 and ISDN the use of fax machines and computers will be even further integrated, so that E-mail, systems can be accessed, documents stored on computer, and textual and graphic information on both synthesized and "ordinary" facsimiles changed 28 or added by computer. Because not all fax operators will need these features, however, CCITT divided its recommended standards into three classes. Class 1 fax units only send and receive regular facsimiles; Class 2 units also receive teletex and mixed- mode documents, while Class 3 units can also create and send both teletex and mixed-mode documents. Because of the lack of interest 29 in teletex, however, Classes 2 and 3 eventually may be eliminated.

Lu, 60; Frank Bican and Winn L. Rosch, "Instant Gratifica• tion", PC/Computing (September 1988): 106-7.

27 Natraj , 23. 2fl McConnell et. al., 85-86. Un-synthesized documents can also be altered using a Group 3 level PC-fax, but the process is very cumbersome; see Lu, 61. 29 McConnell et. al., 85-86, 94-96, 98; Natraj, 29. "Mixed- mode" refers to when the information in a document is divided between text given in ASCII code (teletex), and images coded digitally (facsimile). 33

Most -facsimile machines have extra -features which both aid in information management and provide security. When the document is sent, the transmitting unit includes a transit terminal identification message, indicating who sent it and at what time, and the page number. The information is printed at the head of each page of the document, for the benefit of the person or office receiving the facsimile.3*1 Much the same information, though in more detail, may be included in a fax cover sheet transmitted with the document. A typical cover sheet will state the name/title/of• fice or institution, address, phone number and fax number of the sender; the same information concerning the recipient; the date and time of transmission; the number of pages; the subject; and a request to confirm receipt of the fax. It may also include space for additional messages and information. Not only does a cover sheet indicate who sent the document, it helps ensure that it will reach its destination.3'

A machine may also be equipped to maintain a transmission log, which keeps track of transmissions both sent and received, and from which reports—known as transaction confirmation or management reports—can be printed out, either on demand or automatically.

These reports list the calls made and received, their times, origins or destinations, the time taken for each transmission, the

30 Quinn, 43.

3' Ibid., 63-64; Jim Seymour, "Minding Your Fax Manners", PC/Computing (September 1988): 106. 34

TO number o-f pages sent with each, and whether there were any errors.

A similar feature, known as "fax back", involves the transmitting machine sending a message to the receiver requesting confirmation that the document had been received. The resulting report serves as proof that a complete and legible document had been trans• mitted.33

For security purposes, confidential transmission and reception is also available. The receiving unit can be instructed by the sending machine not to print the document right away, but rather to store it in memory. The document would only be printed out if the fax machine is given the proper password by its operator. If the receiving unit is part of a LAN, such access and security operations can be carried out from a central location.34

There are a number of methods by which a facsimile document may be printed. For his first facsimile process, Alexander Bain used paper which had been soaked in a solution of potassium ferrocyanide (also known as prussiate of potash) to make it electrosensitive—that is, it would darken when an electrical current was made to pass through it.3'' Until recently, variations of this method, using different paper treatments and incorporating

37 Quinn, 43; David A. Sokasits, "The Long Arm of the Fax: Service of Process Using Fax Machines", Rutgers Computer and Technology Law Journal 16 (1990): 537-8.

33 Mackay, 612.

34 Ibid.; Quinn, 44; Natraj, 23.

3^ Costigan, 78; Wenger, 777. 35 improvements in the transmittal o-f data, were the most popular -fax recording processes."

Today, most fax receivers record onto heat-sensitive or thermal paper. The print head is made up of a row of resistor elements reaching across the width of the paper. The electrical pulses, instead of affecting the paper directly, make the resistors hot enough so that they mark the paper. The temperature changes from a non-marking to a marking level and back again before the paper is moved to the next recording, line. A typical receiver uses

24 volts at 0.5 watts for 0.6 milliseconds, producing a recording temperature of 200°F .3 7

Thermal paper was first developed by Western Union in the early 1930's as part of its effort to make facsimile transmission supplement its telegraph system. The paper was called "Tele- deltos", and it was coated with a chemical mixture of which the active ingredient was a copper compound. Titanium oxide gave the paper a normal white coloration. The copper compound darkened from

38 the heat of the electrical current.

Modern thermal paper consists of a several microns-thick coating of white developer bonded to a base paper. The developing layer consists of a colourless dye and a colour-developing phenol compound, suspended in a binding substance with some additives

Costigan, 78-79.

McConnell et. al., 107.

Costigan, 7, 80. >

36

which increase heat-sensitivity. The heat from the print head

melts the phenol compound, which then mixes with the dye. The

resulting chemical reaction produces the image within a few

TO

milliseconds.

The other popular method of fax recording is the thermal-

transfer process. Although it uses untreated paper, the equipment

required is somewhat more expensive than that for thermal fax

recording.'0 The receiver's print head is the same as that used for

thermal fax, but the recording is made from a thermal-transfer film

made of either thin paper or polyester coated with heat-meltable

ink. The copy paper is similar to bond paper, with a very smooth

surface which is required to produce high-quality images. Between

the paper and the film may be another layer of paper, with a

thermal layer on one side and an ink coating on the other. As the

paper passes through the machine, the heat from the print heads

melts the ink, which transfers to the paper to produce the desired

image. The ink is transferred either directly from the film or

from the copy paper—in the latter case, the "copies themselves can

also be used as final documents".41

Other fax processes also use .'ordinary paper. One method,

e1ectropercussive recording, is essentially similar to making a

carbon copy. Electrical pulses cause an electromagnetic stylus to

Mi tsubishi Business Communication Paper... , 8.

40 McConnell et. al., 110..

41 Mitsubishi Business Communication Paper..., 12-13; McConnell et. al., 109. 37 vibrate. As it does, it makes marks from carbon paper onto plain 42 paper. There are also several types of xerography processes, which are characteristic of Group 4 machines. The transmitted image is projected—using either a laser, or light emitted from either liquid crystals or an LED array—onto a photosensitive drum, where the image is converted into an electrostatic charge pattern.

As the drum rotates, black toner powder is applied, which clings to the charged areas through static electricity until it is transferred to the paper. The image is then fused onto the paper by heat or pressure.*3

There has been relatively little research done on the archival quality of fax paper, and what has been done has concen• trated on thermal paper. Thermal transfer technology uses bond paper, the only special requirement being a very smooth printing surface. With the early machines the transfer ink would not mark in the "valleys" of the paper's surface; improved sizing and increased ink viscosity have eliminated this problem.** The ink itself is made up of carbon black, coloured pigments, and wax compounds. The process produces very durable images which supposedly do not smudge, fade, or deteriorate; unaffected by heat, light, water, or chemicals, thermal transfer fax documents "can be

Costigan, 81-82.

Ibid., 82; McConnell et. al., 110-13.

McConnell et. al., 110. 38 stored -for indefinite periods".4'' The main problem which might be encountered would be if the heat used in the transfer process were to affect the structure of the paper; however, because the exposure is for a short period, and it is indirect (it primarily affects the transfer film, not the paper), it should normally have no serious consequences. Heat may also be a problem for documents produced by xerographic processes, where it is used to fix the image to the paper; again, however, the exposure is probably too brief to have serious effects.

Various types of electrolytic papers have been used over the years, with different companies using their own formulas. One author states that Alexander Bain's original formula included sulphuric acid;*6 if this is so, it is doubtful whether any of his facsimile documents have survived. The same author claims that some types of electrolytic paper can be considered "archival"—that is, neither the paper nor the image will deteriorate over time.

However, he gives no examples of these types, and no evidence to support his claim.*7

It is generally agreed that thermal fax paper presents the major problem for archivists. Even manufacturers do not credit such documents with a shelf life of more than five years, given

Mitsubishi Business Communication Paper.... 14.

46 Costigan, 78.

47 Ibid. , 79. 39 optimum conditions of 20-25°C and 50-65% relative humidity.48 Aside from literature put out by manufacturers, only two reports on thermal fax are available: one by the United States National

Archives and Records Administration (NARA), the other by the

49

Australian Archives. The NARA information paper does not deal directly with conservation problems; rather, it outlines a set of procedures to be followed in the production of archival copies of unstable paper documents. The Australian report, on the other hand, outlines a series of tests that were conducted on samples of thermal paper.

Made of poor quality wood pulp, thermal paper contains lignin, alum, and rosin; the resulting acidity is partially compensated by the presence of a calcium carbonate filler, or perhaps by the coating, so that the pH is around 8.5. However, the acidic pulp will eventually cause the paper to degrade. The exact chemical nature of the substances in the thermal coating is not known, presumably because it is a "company secret", so it is difficult to determine its effect on the lifespan of the paper.^

"Stability of Mitsubishi Thermal Paper Cmemorandum1" (Tokyo: Mitsubishi Paper Mills Ltd., April 1990). See also McConnell et. al., 108-09; Cheryl Jackson, "A Short Research Project into the Permanence of Thermal Fax Papers" (Canberra: Australian Archives, ACT Regional Office, n.d.): 1.

49 Norvell M.M. Jones, Archival Copies of Thermofax, Verifax, and Other Unstable Copies. Technical Information Paper No. 5 (Washington, D.C.: National Archives and Records Administration, 1990); and Jackson, "A Short Research Project...". 50 Jackson, 2-3. 40

Chemical tests determined that the thermal layer is soluble in ethanol, which also caused it to develop and turn black.

Several acids—acetic, hydrochloric, and sulphuric—were applied; they turned the coating green, but did not affect the image. Spot testing with toluene, acetone, and 1,1,1-trichloroethane caused the thermal layer to blacken completely; the discolouration also transferred to adjacent pages. However, water, calcium hydroxide, petroleum spirits, and ammonia solutions had no apparent effect.^'

Tests to determine the effect of moisture, light, and heat on the thermal layer were also carried out. In high humidity, images began to fade within 24 hours, and the fading got worse over a period of ten days. Areas in contact with metal fastenings darkened, perhaps as a result of oxidation, but not enough to obscure images. Routine washing in water caused no apparent damage when the sheets were dried separately; when they were dried unseparated to simulate possible water damage, the sheets stuck together. Exposure to ultraviolet light caused paper to yellow within ten hours, and turn brown within five days, but the images would remain; the discolouration was worse around fingerprints, caused perhaps by the reaction of dirt and skin oils with the thermal layer. When touched with a spatula heated to 70°C, the coating darkened slightly; the darkening got worse up to 100°C,

51 Ibid. 41 when it became completely dark. Finally, boiling water also blackened the thermal layer and seemed to wash it off the paper.

Tests carried out in Japan by Mitsubishi Paper Mills Ltd. seem to con-firm these results. Thermal paper turned black or developed when it was exposed to volatile organic solvents (of which the ethanol used by the Australians is one), while non• volatile organic solvents impaired colour development and caused image fading. It was also determined that the paper should not come into contact with either vinyl chloride plastics (of which polyvinyl chloride or PVC, often used in transparent envelopes, may be an example), or pressure-sensitive tape containing polyethylene- glycol, which presumably causes discolouration although this is not stated.^ It was also noted that documents made on blue image paper are more likely to fade than those on black image paper; the blue 54 dye is presumably more unstable.

The American Society for Testing Materials is currently trying to develop testing methods and standards for evaluating the imaging quality of thermal fax paper. Subcommittee F05.06 on

Carbonless Copy Paper began considering the problem in October

1988. Different thermal printers run at different speeds and temperatures, and so it is important to match the proper type of thermal paper to the proper machine. Some papers require less heat

" Ibid., 3.

Mitsubishi Business Communication Paper. . . . 11.

Untitled 1-page technical bulletin (Tokyo: Mitsubishi Paper Mil Is Ltd. , n.d. ) . 42 to develop an image, and so are more suitable -for faster printers, whose print head elements have less time to reach the required temperature. The development of standards would allow consumers to determine the appropriate grade of paper for their machines, and be assured of consistent quality. Subcommittee F05.06 also plans to develop an aging test, to measure thermal paper's ability to retain an image over time. To date, however, no results of these experiments and deliberations have been released."

As facsimile transmission becomes more popular as a means of communication, more fax documents will find their way into archives. Once they are encountered, what can the archivist or conservator do with facsimile documents?

There would appear to be few problems associated with thermal transfer facsimiles, since they are supposed to be of high-quality bond paper. If the inks used in their production cause no harm, and there is no indication that they would, thermal transfer fax documents should require no special treatment.

It is electrolytic and thermal paper which cause the most problems. There are no currervt data on the long-term effect of electrolytes on paper, facsimile or otherwise. As for thermal paper, researchers and manufacturers agree that its effective lifespan as a medium for storing information is only five years under optimum conditions. If they are damaged, conservation

55 "Facsimile Paper to Warm Fall Meeting", ASTM Standardization News 16 (September 1988): 15-16; "F-5 Creating Standards on Thermal Paper for FAX Machines", ASTM Standardization News 18 (January 1990): 18. 43 treatments -for thermal fax records are largely limited to routine washing and drying.^ Also, the acidic qualities of thermal paper discovered by the Australians make it dangerous to store alongside other documents. Finally, some of the spot tests indicate that any discolouration of the thermal layer might affect adjacent papers.

There are several methods of dealing with thermal paper in an archival context. One is to photocopy the facsimile onto archival quality paper, and then discard it."*7 However, in doing this one loses both the extrinsic characteristics of the original facsimile (along with the information that they can provide), and some of the quality of the image, which can be especially important in the case of graphic images. Also, unless the copy is either certified or made in accordance with standard operating procedures, the document's legal value is put at risk. There is also the waste of paper and other resources involved in throwing the facsimiles away to be considered. Finally, photocopying costs money, which many institutions cannot really afford to spend.

In spite of these drawbacks, the National Archives of the

United States has determined that photocopying is the best way to preserve documents created on unstable materials such as thermal paper. The technical information paper released in 1990 specifies that the toner used in the copying machines must contain carbon

Jackson, 3.

Ibid., 4. 44 black, and that the machines themselves must be properly maintained

58 and even tested to ensure that they produce acceptable copies.

NARA recommends that a "peel test" be carried out on photocopies.

It consists o-f making a copy o-f a test pattern onto bond paper, applying a strip o-f tape to the copy, and peeling back the tape: i-f the image o-f the test pattern adheres to the tape, the copy is CO not o-f archival quality. Copies made as substitutes -for unstable documents should be marked as such, to guarantee thei'- legal status, to show ownership, and to ensure that they are not inadvertently thrown or given away. NARA suggests that -for convenience this information should be typed on a piece of paper that would be taped face-down on the glass surface of a photo• copier; this machine then could be reserved for making such copies.

Once an archival copy is made, the original may be discarded according to standard disposal procedures.'0

Another solution involving duplication would be to copy facsimile documents onto microfilm. As with photocopying, one risks losing both the extrinsic characteristics of the original form, and image quality. It can also be expensive—unless it is done for entire series without extracting the facsimiles from the files, in which case the labour cost goes down. However, since it is unlikely that entire series would contain so many thermal

58 Jones, 1 .

59 Ibid. , 3.

60 Ibid . , 2. 45

•facsimile documents to warrant complete reproduction, the micro• filming of such documents would have to be instituted as part of a system-wide program. One benefit of microfilming is that microfilm is now generally accepted by the courts—provided that the copying is done in accordance with a standard, documented procedure, and that a sworn statement to this effect is included at the beginning at the film. These criteria would likely also apply to the copying of documents to optical disk systems.

The feasibility or acceptability of these solutions, however, depends largely on the results of the explorations which will be carried out later in this thesis. Therefore, the issue of making archival copies of thermal paper facsimiles will be re-examined in the context of discussions concerning the record nature and the legal value of facsimiles.

In the end, the best solution might be to avoid the problem altogether—that is, to instruct records creators to use either thermal transfer or xerographic equipment for facsimile transmis• sion. The cost of the equipment is greater, especially of that needed for laser xerography. At, present, parent organizations have to balance the short-term cost of such equipment against the long- term costs of a photocopying or a microfilming program. Since archivists and conservators have usually little influence over the policies of the organizations whose records they receive (unless they are mandated to give advice to records creators on such matters), such decisions may well be out of their hands. 46

The general trend in the -facsimile industry, however, has been for the cost of equipment to decline, so the financial obstacles will likely disappear as organizations come to see the initial capital costs of thermal transfer or xerographic fax machinery as becoming less of a burden. Also, as Group 4 fax transmission becomes more widespread over the next decade, laser printing and other xerographic processes, characteristic of that level of technology, will also become more common. The result will be, hopefully (from the archivist's point of view, at least), that thermal paper facsimile systems will be phased out and the problem of dealing with their products will to a large extent be elimi• nated. 47 ( CHAPTER THREE:

FACSIMILE DOCUMENTS AS "RECORDS"— THEORETICAL CONSIDERATIONS

As previous chapters have shown, facsimile transmission has

become a widespread means o-f communication, and, because of this,

its products are increasingly liable to be encountered by archiv•

ists in their work. What has to be answered, now, is the question of how fax documents should be treated in the archival context.

The first point to be determined is whether facsimiles are records at all, or whether they have to be considered non-record material or ephemera. If it is established that facsimiles are in fact records, it must then be determined whether they are "traditional" paper records, machine-readable or electronic records, or even some combination of these categories.

In order to decide whether or not a facsimile is a record,

it is necessary to begin by defining the term. What is a record?

At the most basic level, the term means "recorded information".'

The word "information", in turn, means "communicated knowledge;... knowledge of some special event, or occasion". "Communicated knowledge" may be defined as a message conveyed by one person or

1 Trevor Livelton, "Public Records: A Study in Archival Theory" (Master of Archival Studies thesis, University of British Columbia, February 1991), 31.

1 Webster's New School and Office Dictionary. rev. ed. (1960), s.v. "information". 48 organization to another.3 To record a message implies the inten•

tion o-f conveying it, not only across space, but across time as wel 1 .4

Defining the term record as recorded information is a useful

starting point, but in connection with archival theory it does not

go far enough, because it takes no account of the context in which

that information is recorded or transcribed. Archival literature

must be consulted to provide such expanded definitions. Michael

Cook, for example, states that "Records are information media which

are generated by an administrative system", thereby recognizing the

importance of the circumstances of their creation.The archival

glossary published in The American Archivist in 1974 does better,

by defining "records" as

Ca311 recorded information, regardless of media or characteristics, made or received and maintained by an organization or institution in pursuance of its legal obligations or in the transaction of its business.'

In law, a "person" may be either "natural" (in other words, an individual human being) or "artificial" (a group of individuals having a collective identity, such as a corporation)—in diplo• matics the equivalent terms are "physical" and "juridical", respectively. In that sense an organization may also be a "person".

Webster's New School and Office Dictionary. s.v. "record"; Livelton, 34-35.

Michael Cook, The Management of Information from Archives (Aldershot, England: Gower Publishing Co. Ltd., 1986), 41.

6 Frank B. Evans, Donald F. Harrison, and Edwin A. Thompson, "A Basic Glossary for Archivists, Manuscript Curators, and Records Managers", The American Archivist 37 (July 1974): 428. 49

Several other definitions are almost identical.7 Thus, records are

de-fined in terms of 1. information, 2. action of recording, 3.

medium, 4. administrative context of creation, and 5. preservation.

These constitutive elements also help to distinguish a record

from a document. The two terms are frequently, and incorrectly, used synonymously. Definitions of "document" are usually similar

to the basic definition of record (i.e. recorded information); for example, the American archival glossary describes a document as

0

"Crlecorded information regardless of medium or characteristics".

One can therefore also refer to a record as being a type of document, distinguished from other documents by the circumstances of its creation, and the fact of its preservation. Keeping this

in mind, the term "document" can then be used in a general sense

to mean any piece of recorded information, while the term "record" can refer to those documents created or received as part of the conduct of a practical activity, and preserved by their creator for

specific purposes, usually of a legal or functional nature. Thus,

record is synonymous with archival document.

See Theodore R. Schellenberg, Modern Archives: Princ i p1es and Techniques (Chicago: The University of Chicago Press, 1956; reprint, Chicago: Midway Reprints, 1975), 16; and James Sregory Bradsher, "An Introduction to Archives", in Managing Archives and Archiva1 Institutions, ed. James Gregory Bradsher (Chicago: The University of Chicago Press, 1988), 2.

0 Evans et. al., 421. See also Bradsher, 16, n2. Jenkinson defines documents in a similar way (Sir Hilary Jenkinson, A Manual of Archive Administration [London: Percy Lund, Humphries and Co. Ltd., 19651, 6), but then goes on to define archives in the same terms in which one could define a record (ibid., 11), thus making a clear distinction between "document" and "archival document". 50

Since archivists dealing with government records must operate within the parameters set by the law and by government policy, it is important to determine the relationship between the definitions provided by archival theory and those incorporated in statutes and regulations. For example, the British Columbia Evidence Act defines a document as "any device by means of which information is recorded or stored", that is, in a way which is essentially identical to that found in archival literature. However, the definition of record provided in the Interpretation Act does not go beyond this except to include a list of types of record,'0 and thus it adds nothing to the current discussion—nor would it enlighten any government records official who might turn to this statute for guidance. The definition of "document" incorporated in the British Columbia Rules of Court suffers from the same shortcoming, and, moreover, its use of terms is confusing."

British Columbia's Administrative Records Classification System manual, on the other hand, provides a more thorough explanation of the term in question: records, in particular government records,

7 Revised Statutes of British Columbia, 1979 (hereafter referred to as R.S.B.C. 1979), c. 116, s. 47.

10 R.S.B.C. 1979, c. 206, s. 29, states that "'record' includes books, documents, maps, drawings, photographs, letters, vouchers, papers and any other thing on which information is recorded or stored by any means whether graphic, electronic, mechanical or otherwise".

" Rule 1(8): "'document' shall have an extended meaning and shall include a photograph, film, recording of sound, any record of a permanent or semi-permanent character and any information recorded or stored by means of any device" (emphases added). 51 are de-fined as

Call 11 recorded information regardless of physical form... (as defined in the Interpretation Act...) which is received, created, .deposited, held with or in an office of a Ministry, Agency, Board, Commission, Corporation, or Institution of the Executive Government of British Columbia....'2

Government statutes and regulations in countries, such as

Canada, which follow the British legal system are based on the principles of the common law. It is therefore necessary to look at these principles as they apply to documents and records. The common law definition of a document has evolved over time, but until recently the emphasis has been on the fact of the information being written. The judgment in a 1908 case, for example, defined a document as being "any written thing capable of being evidence", and stated that it was "immaterial" what the medium was; it went on to emphasize that "it is a document no matter upon what material it be, provided it is writing or printing and capable of being evidence " . '3

12 British Columbia—Records Management Branch Cnow British Columbia Archives and Records Service!, Administrative Records Classification System (Victoria: British Columbia Ministry of the Provincial Secretary and Government Services, 1987), 37. 13 R__ v. Daye. C1908D 2 K. B. 333 (per Darling J.), quoted in J. Douglas Ewart, Michael Lomer and Jeff Casey, Documentary Evidence in Canada (Toronto: Carswell, 1984), 16-17. 52

The concept expressed in that 1908 judgement—that a document must be in written form'*—was a natural result of centuries of

presenting facts and ideas in writing, whether on paper, parchment, stone, or clay; it was a product of its historical background and context. It is also natural, therefore, that it was not until

technology evolved and altered that context that the original

restrictive definition of a document as information given in written form gave way to a more flexible one. Interestingly, this shift seems to have been made possible by another concept in the old definition of a document outlined above: that for something to

be considered a document it must be "capable of being evidence".

A 1945 judgment argued that a document was "something which gives you information". The judge cited the 1908 case noted above:

It is said that a document must be something which is evidence. In my view it is plain that that word "evidence" is not used in the sense of being something which is admis• sible in a court of law, it is used in its strict literal meaning, something which makes evident what would otherwise not be evident. Using the word in that sense, I agree that a document must be something which makes evident....'^

Recordings made on magnetic tape were among the first non- written documents to be accepted as documentary evidence by the courts. The basic argument was that a tape recording could convey

In diplomatics, the concepts of "written" and "writing" are broader and more general in scope. For a document to be considered written, data, images, and sounds need simply be fixed on a medium, in a meaningful form, for the purpose of communicating information. See Luciana Duranti, "Diplomatics: New Uses for an Old Science CPart ID", Archivaria 28 (Summer 1989): 15.

13 Hil 1 v. R__, [19453 K. B. 329 (per Humphreys J.), quoted in Ewart et. al., 16. 53 information or evidence as well as a written text. Once this conceptual barrier was breached, it became clear that the tech• nology used to store or communicate information is irrelevant to determining whether or not a document has been created. This trend has continued until information recorded in a computer memory bank using magnetic impulses has been accepted as a document." In addition, the fact that electronic documents, for example, are especially subject to deterioration also does not affect their status under common law. This implies that the fact that fac• similes recorded on thermal paper also deteriorate is not relevant for determining their acceptability as documents. The medium must be capable of retaining information as long as it is needed, even if the information eventually disappears or is erased.'7

Today, the common law definition of a document can be stated as follows: a document is a physical thing, consisting of a medium on which data are more or less permanently recorded so that they

18 are accessible. The next step—to derive a definition of a record from common law principles—requires an understanding that data and information are not the same thing. "Data" refers to the objective representation of a fact or facts, while "information" is, as explained earlier, communicated knowledge. "Knowledge" is a far

16 Ewart et. al., 17-18, 29.

'7 R.A. Brown, Documentary Evidence in Austra1ia (Sydney: The Law Book Co., 1988), 11-12; see also P__ v. Jones and Su 1 1 ivan. C19781 2 All E.R. 718 (C.A.), cited ibid., 12-13.

18 Brown, 9. 54 more subjective term than "data"; not only does it indicate the existence o-f facts, it also implies understanding the context in which those facts exist, and the interpretation o-f both facts and

19 context by an observer. In other words, information is data which has been or can be communicated to, and has meaning for, an observer.

For a document to be a record in the archival sense (i.e. an archival document), it must be created as part of administrative or practical action. This apparently has also been accepted as part of the common law. Contrast this with an old common law definition of record incorporated in a 1790 act of the Quebec colonial legislature. The act outlined two criteria, for deter— mining whether a document was a true record: it had to "memor— ialize" either an event or a privilege, and it had to be entered 20

in the official rolls or registers. These criteria changed over

the years, however. There was a shift in common law from seeing public records as documenting events and privileges, towards being created in the course of government business and owned by the

17 Ibid. , 10-12.

70 "An Act or Ordinance for the Better Preservation and Due Distribution of the Ancient French Records", cited in Victoria. Bryans, "Canadian Provincial and Territorial Archival Legislation: A Case Study of the Disjunction Between Theory and Law" (Master of Archival Studies thesis, University of British Columbia, November 1989), 30-32. Note that, although French civil law had already been re-established in the courts of Quebec, English common law concepts remained important in legislation. 55

Crown. In a 1978 English court case, a record was referred to as

"relating to any trade or business", and as being created in connection with a transaction. Thus, in common law, a record is now recognized as a physical thing, like a document, consisting of a medium on which communicable and meaningful data has been in• scribed as part of a procedure or transaction.

This extensive discussion of the nature of documents and records is relevant to the larger issue of defining the status of facsimiles—that is, whether they may be classed as records. They are certainly documents in that they consist of information recorded on a medium. And, if records are defined as documents which are c rea ted and maintained in the course of a prac t i c a 1 ac t i vi ty for spec i f ic purposes. facsimiles which satisfy these requirements are records. However, in order to answer this question in a more complete way, one should discuss yet another concept: that of "non-record". The definition provided in A Modern

Arc hives Reader states that "nonrecord material" is

not record in character because it comprises solely library or other reference items, because it duplicates records and provides no additional evidence or information, 23 or because its qualities are nondocumentary.

Bryans, 32-33. By 1861, for example, Nova Scotia's Public Records Act referred to records as being "kept by or in the custody of any provincial or municipal officer in pursuance of his duties as such officer" (ibid, 32).

22 R_ vs . Jones and Su 1 1 i van ( 1978) .

Maygene F. Daniels and Timothy Walch, eds., A Modern Arc hi ves Reader (Washington, D.C.: National Archives and Records Service, and the National Archives Trust Fund Board, 1984), 341. 56

Two of these criteria can be dismissed at the outset for fac• similes: they are not library or reference materials—it has already been determined that facsimiles are documentary in nature.

It could be argued that a facsimile is a duplicate by definition.

However, in an archival sense, it differs significantly from the document which was used to transmit it, because it was received, used, and maintained in a completely different context. Also, if a fax was received in the course of the original transaction, and is maintained with the records of that transaction in the same format in which it was received, it is just as effective as an original, even though it is a duplicate. This point will be clarified in the next chapter.

The Electronic Records Guidelines issued by the United Nations

Advisory Committee for the Coordination of Information Systems

(ACCIS) contrast records and non-records in two ways. First, the guidelines state that a record is "information sent or received in the conduct of an official activity", and that therefore a non- record is information retained by its creator by memory, on computer disk, or on paper and not communicated or made available to others. Elsewhere in the guidelines, a record is defined as

"information created in the course of official business", and a non-record as information received from an outside organization; 57 the corollary is that a document created within an organization, but not distributed, is a record.

Unfortunately, neither of the two definitions above is complete. The first one at first glance seems to imply that documents normally retained by their creator, such as registers or cheque-books, might not be considered record material. However, it is explained elsewhere that such documents contain information which is intended to be communicated over time, either to their creators or to others, and that therefore they are to be considered record material. The guidelines also note that a record includes information which is either sent or received: thus, documents which contain information received from other organizations or sources,

55 and kept by their creators, are also records. The definition which limits records to documents containing information created within an organization is similarly incomplete, because it would eliminate from consideration, for example, all incoming correspon• dence, which is of course unacceptable. The ACCIS report does provide a more useful explanation of the terms in question when it goes on to suggest that records are "official documentation of organizational activity", while non-records are "transient, personal, or external in origin". However, the obvious corollary

Electronic Records Guidelines: A Manual for Pol icy Develop• ment and Implementation. final report of the ACCIS Technical Panel on Electronic Records Management (TP/REM) (New York, Geneva: United Nations, 1989), 20.

25 Ibid. , 10, 20.

26 Ibid. , 20. 58

o-f this is that any document created or received by an institution

outside its sphere of official organizational activity is not a

record of that institution. Two examples might be personal

messages exchanged between members of an organization, and

announcements concerning social events such as dinners, "family

days", and the like. The first are more likely to be either

destroyed or removed from the office by their recipients than kept

on file, and so fall outside the scope of this discussion. The

second do seem to qualify, at first glance, for status as non-

records; however, two factors dictate otherwise. First, social

functions are directly connected to the realm of personnel

management, which is the concern of any organization. Second,

documentation pertaining to them may be retained for reference

purposes, either to help plan future events or to aid in deter—

mining the organization's policies concerning them.

Moreover, the ACCIS definition of non-records as transient

relates that concept to the issue of maintenance and preservation.

Preservation is not necessarily meant as permanent retention, but

rather as "official retention... for the period of time required

27

to fulfil... programmatic responsibilities". There are some

documents, however, which are often maintained without considera•

tion of how they relate to their creator's "programmatic respon•

sibilities". These are commonly referred to as "working papers",

Gary M. Peterson and Trudy Huskamp Peterson, Archives and -> Manuscripts: Law, SAA Basic Manual Series (Chicago: Society of American Archivists, 1985), 13n. 59 and include scraps of paper on which are scribbled notes, messages, and telephone numbers, and incomplete or rejected drafts. Working papers are presumably what the archivist's glossary in The American

Archivist refers to under its definition of "nonrecord material": besides "stocks of publications and processed documents" and

"library and museum material", it mentions "unofficial copies Cor reproductions] of documents kept only for convenience or refer— 28 ence" . The problem here is that while some such documents are indeed of only temporary use—transient and ephemeral in nature— others continue to be used for reference purposes in connection with either the activities to which they were originally related, or other activities; they therefore should be considered record 29 material. Drafts must also be considered: they may contain valuable information not included in final versions, and therefore can be used by their creators to update reports and memoranda, or to create new documents.

Telephone messages written on slips of paper are another example of working papers which are normally considered to be ephemera or transitory documents—made use of, or acted-upon, only once, and then discarded. Only in extraordinary circumstances would they be retained, for legal or administrative purposes. In such cases, phone messages written on slips of paper, with date and time noted, would be considered to be records of contact made (or

Evans, et. al., 426.

Peterson and Peterson, 13-14. 60 attempted), and as such would be retained in the -file o-f the transaction in which they played a part. Otherwise, such documents are non-records and are of little consequence. The same would apply to notes taken during a telephone conversation. Messages recorded on telephone answering machines are even less likely to be retained; normally, they are listened-to and acted-upon by their recipient, and immediately erased so that the magnetic tape can be re-used .

Seen in this context, what is a facsimile except a type of telephone message? It has been transmitted over a telephone line, and has been recorded by a machine attached to a telephone outlet.

Why not allow it to be treated as a phone message — a piece of ephemera—and discarded after it has been used? From a purely pragmatic and utilitarian viewpoint, it would certainly simplify the tasks of records managers and archivists. One reason why this course of action should not be followed, however, is that facsimile transmission is not merely a means of exchanging messages; rather, it is a means of transporting and delivering documents. In that sense, a document sent by facsimile transmission differs little from one sent by mail or delivered in person, and should be treated the same way.

Another difference between a phone message and a facsimile is that the former is not so much a message as it is an interpreta• tion of a message. The person writing it for the intended recipient will likely include only enough information to provide the gist of the original communication; it is up to the recipient 61 either to interpret that information in the context o-f his/her own knowledge, or to contact the sender for an explanation. The same applies to a person speaking to an answering machine; he/she will provide only the main points of the message that would be given in its entirety if she/he was actually speaking to the other person.

Notes taken during a conversation are also "incomplete" in that they are not transcriptions of that conversation; whether or not the complete message is conveyed is dependent on the writer's ability to capture the main points at the time of the exchange, his/her ability to recall later what was not written down, and the interpretation imposed by the writer on both notes and memory. A facsimile, on the other hand, will convey the complete message directly to its recipient, whether it is in textual or illustrative form. Both the content and the structure of the message are reproduced. All of the information that the sender wishes to convey is in the facsimile, to be examined by the recipient either

immediately or at leisure. It is normally subject neither to

interpretation nor to memory.30

Given all of the above analysis, it would seem that, for one

thing, there is little to be gained by defining certain documents

An exception to this might be if a transmitted document, in its original form, contains data which the fax machine is not designed to transmit, such as colour or the texture of fine paper; such data must then be inferred by the recipient. This is a special circumstance, however, which does not invalidate the general argument, mainly because the sender would know in advance that the recipient would not receive the information contained by those extrinsic elements and would, if such information was important, choose to send the document by other means. 62 as non-records. Documents created outside the scope of an admin• istrative activity, if they are maintained at all, do not fall into the category of records. The question of how to categorize those created in the conduct of business but not preserved is moot.

Finally, it can be seen that, from the theoretical point of view, so-called working papers can be considered records, depending on the circumstances of their maintenance and use. They may provide their creator with useful information which is not found elsewhere, and so may be maintained as records for whatever period is deemed necessary. Note that the length of time that a document should be kept is not considered in the definition of records, which requires only that they be preserved long enough to fulfil their pur• posed) .3I

The other thing that one can conclude is that, even if one accepts non-records as a document category, facsimile documents should not automatically be included. Again, a record can be defined as information recorded on any medium (i.e. a document), created or received by a physical or juridical person in the conduct of activities, and maintained for a specific purpose. This definition, as has been demonstrated, is consistent with legal, statutory, and archival views. The fact that a document is the product of a facsimile transmission is irrelevant; if it was received and used during a specific activity, and preserved for as long as necessary, it must be considered a record. It is also

Livelton, 72-73n; Peterson and Peterson, 15. 63 immaterial if the facsimile has been recorded on thermal paper, which retains its message for a maximum of five years; as it was noted earlier, whether or not a medium has a certain degree of permanence has no bearing on whether a document recorded upon it fulfils the definition of record.

It is now necessary to determine what type of records facsimiles are. This is done by examining both the medium by which information is carried, and the medium on which the information is maintained.

At first glance, a facsimile is simply a special variety of paper record—"special" because of the manner of its transmission and recording. In this sense facsimiles are similar to telegrams and telexes in that they are products of the transmission of information by electronic means. These types of records have always been treated like other textual records, in spite of the fact that the method of their transmission—they are produced by electronic devices which "read" the information during trans• mission—has recently led some authorities to include them in the

32 category of electronic records.

Before going further, it is worthwhile to define what is meant by "electronic records" or "machine-readable records". Not all authorities agree on the proper definition. Most state that the term "machine" refers to a computer, so that machine-readable records are those which are created and read using computers. For

Electronic Records Guidelines. 83. 64 example, according to the National Archives o-f the United States, such records consist o-f "data in a -form that can be read and processed by a computer and that satisfy the legal definition of a record".33 This is also the definition accepted by the British

Columbia Archives and Records Service, which defines machine- readable records as

information which is within the overall definition of government records and which is contained on a recording medium... specifically used by electronic data processing (EDP) equipment.34

Looking beyond statutes and regulations to works by archival theorists, one finds that Harold Naugler defines machine-readabie or "processab1e" information as "data created with the use of a computer [and] which requires access to a computer in order to be transformed into a form that is readable by people";^ a machine- readable record, therefore, is a document (recorded information) which both contains such information and fulfils the requirements of a record outlined earlier. The American archival glossary takes a similar approach by arguing that machine-readable records contain information which "is usually in code... [and] is retrievable only by machine" .3'

33 Managing Electronic Records, National Archives and Records Administration Instructional Guide Series (Washington, D.C: National Archives and Records Administration, Office of Records Administration, 1990), 1.

3* Administrative Records Classification System, 38.

3^ Harold Naugler, The Arc hi va1 Appraisa1 of Machine-Readable Records: A RAMP Study With Guidelines (Paris: UNESCO, 1984): 14.

3* Evans, et. al., 425. 65

In contrast to this "narrow" definition of machine-readable record is that supplied by ACCIS, which incidently prefers the adjective "electronic". By its own admission, ACCIS takes an especially broad view of what electronic information is, defining i t as

all machine-readable information except optical micro- photographic images that would be human readable except for size reduction Cthat is, what would be needed to read it is not any machine, but simply a microscope or a magnifying glassl .37

Also, the term "machine" is not limited to computers, but includes all manner of devices, including facsimile machines, as input and transmission devices.38

The general idea is that when archivists and records managers define electronic records, they should consider not only the means of transcription of information and the medium on which it is stored, but also the means of input and transmission of that 39 information. As mentioned earlier, certain types of records—in particular telegraph, telex, and facsimile—are created as end products of the electronic transmission of information, and because of this may be considered to be electronic records.

If one accepts this position, all facsimiles, whether printed on computer disk or on paper, should be considered to be electronic records. When one considers that what sets a facsimile apart from

Electronic Records Guidelines. 81.

38 Ibid.

39 Ibid. , 81 , 83.. 66 other -forms of written communication is how it is transmitted, this makes some sense. Also, there is the fact that PC-fax systems are now combining facsimile and computer technology, as discussed in

the previous chapter. It might be logical to class all fax documents as electronic in nature to take this into account.

There are, however, several objections to this argument.

First, a record is identified by the fact that its information is communicated or is communicable, which implies transmission. In other words, communication or transmission defines the record, not

the type of record. Second, no other type of record is defined according to how it is transmitted. For example, when they develop classification schemes, archivists and records managers do not distinguish between documents received by regular mail from those received by courier. Rather, they may distinguish according to the media on which information is stored—thus, in an archives, both audio-visual and machine-readable records may be handled by different divisions or sections.

The latter point is also made by Fred Diers in his article on the "information media ". He makes no real distinction between paper, microform, and machine-readable records, arguing that they all must be considered together as part of the matrix.'"

When media are distinguished from each other, it is done according to how they store information: Diers' categories take into account

Fred V. Diers, "The Information Media Matrix: A Strategic Planning Tool", ARMA Records Management Quarterly (July 1989): 17- 23. 67

printing, miniaturization, digitization, and analog coding.

Transmission is not taken into account when defining media: in his

words, "CiInformation storage is the first definable element of the matrix".41

If Diers' point is accepted, then it would seem that fac•

similes can be considered to be either paper or machine-readable

in nature, depending on the medium—paper or disk—on which they

are recorded. It is to be remembered that, with PC-fax, trans•

mitted documents can appear either on paper or on a computer

screen, and that they can also be saved on disk. Moreover', if a

fax machine features confidential reception, transmitted documents

4?

are stored in memory until the proper password is entered; unless

the unit is programmed to erase the stored message after printing,

the document exists in both paper and electronic form.

It is these points which throw into sharp relief one of the

problems which face records managers and archivists when they deal

with facsimiles during appraisal. In what form should facsimile

documents be preserved?

Ibid., 20.

Quinn, 44; Mackay, 612. 68

CHAPTER FOUR:

FACSIMILE DOCUMENTS AS "RECORDS"— PRACTICAL CONSIDERATIONS

Fax documents may be records on the basis o-f archival theory; however, are they accepted as such in the "real world"? This issue still has to be examined in the contexts in which such matters are decided and such decisions implemented: respectively, in the context o-f the law and the courts, and in the context of organiza• tions .

In the common law system, documents presented in court as evidence o-f -facts -fall under the "hearsay rule". This rule re-fers to testimony given by a witness which is based on information

learned from another person rather than on direct personal experience. The reliability of such testimony is dependent on the reliability of that second person, who is not present in court and can be neither sworn as a witness nor cross-examined; thus, this type of evidence is inadmissible. To put it in layman's terms, evidence cannot be given second-hand. There are exceptions to this rule; however, they are not always definitively determined. The courts are allowed to "modify established criteria and... create entirely new criteria -for the admissibility of all forms of evidence...".' Just as the reliability of hearsay testimony is dependent on that of the original source, the reliability of a document as proof of the truth of its own contents is dependent on

Ewart et. al., 12-13. 69

that of its author and any other person who supplied the informa•

tion contained in it. If none of these persons is present in

2

court, the document is normally considered hearsay.

Documents may only be admitted as evidence of the information

they contain if they are ruled to fall under an exception to the

hearsay rule. Such exceptions are based on two principles. The

first is that of necessity, when no better evidence is available.

The second principle is that of trustworthiness, when the docu•

ment's reliability is demonstrable.3

Before it becomes admissible, a document must be authenti•

cated; there are a number of ways of doing this. One is by direct

evidence: the document is identified as genuine by the writer, a

signatory, or a witness to the writing or the signing of the

original. Another is by indirect evidence. The handwriting or

typewriting of the document may be identified by a witness who

recognizes them, or compared with handwriting or typewriting found

in other documents. There is also the "reply letter" doctrine, in

which a witness testifies that he/she has received the document in

question in response to an earlier message which had been sent to

the alleged author of the document.*' The authenticity of certain

2 Ibid.. 13

i Ibid., 13-14; Anthony F. Sheppard, Evidence (Toronto Carswell, 1988), 349.

* Sneppard, 350. 70 documents may also be proven by presenting the signed certificate or affidavit of a public official.^

Finally, the circumstances of the document's creation can be used to demonstrate its inherent reliability. For example, a document is admissible as proof of its contents "if the document was made or kept in the usual and ordinary course of business", and if it was standard operating procedure to record the statement of fact which it contains at any time.4 In such a case, the pro• cedures of creation are in themselves circumstantial guarantees of trustworthiness.

Before the development of the printing press, copies of documents were not admissible as evidence because they were reproduced by hand and therefore subject to human error or fraud.

This argument was eventually applied to printed documents as well, presumably because it was thought that those who set the type were just as prone to error as those who copied by hand. This was one of the factors which led to the development of the "best evidence rule".7

Ibid., 352. Under certain circumstances—for example, "ancient" documents (those which are at least 20-30 years old) which are "produced from proper custody"—the authenticity of a document is presumed; in such cases, further proof of authenticity is considered to be unnecessary; see ibid., 351,

6 Evidence Act. R.S.B.C. 1979, c. 116, s. 48(1); Ewart et. al . , 14.

7 Brown, 18. 71

The rule of best evidence applies to writing, inscriptions, tape recordings, or information stored on computer. Originally, it meant that only the most reliable evidence was admissible in court. It excluded any evidence "that was less than the best", which meant that only original documents were admissible. This stipulation, however, is no longer considered binding; today, "the best evidence rule is confined to cases in which it can be shown that the party has the original and could produce it but does o not". The rule changed when photography and, later, photocopy• ing—with their reduced capacity for human error—diminished the weight of the original argument.10 The modern view of the law of evidence tends to favour expanded admissibility.11

Today, there are a number of common law and statutory exceptions to the best evidence rule which allow copies to be produced in court. Thus, "best evidence" provided by an original document is called primary evidence, while that provided by 17 anything else, including copies, is known as secondary evidence.

Statutes may specify the types of secondary evidence which are admissible, and exclude others. Common law principles, however,

Sheppard, 355.

9 R_ v_ Wayte (1983) 76 Cr. App. R. 110, 176 (per Beldam J.), quoted in Chris Reed, "Authenticating Electronic Mail Messages— Some Evidential Problems", The Modern Law Review 52 (September 1989): 652.

10 Brown, 18.

11 Ewart et. al . , 6.

12 Sheppard, 355. 72 while they may de-fine the circumstances under which secondary evidence may be admitted, do not limit or specify admissibility.15

Determining which o-f several copies of a document created in a transaction is the original is difficult because of modern information storage and reproduction methods. However, duplicate or multiple originals, which are created at the same instant, are all considered primary evidence. The same applies to a carbon copy 14 made simultaneously with the "original" or top copy. Carbon copies are considered to be "duplicate originals", because they are created at the same time. This point is especially important in cases when both the original and the carbon(s) are supposed to show a signature.

Machine copies or photocopies of paper documents are con• sidered to be secondary evidence, because reproduction follows creation of the original." There has always been some resistance to accepting "machine copies" as evidence. However, as early as

1898 in Australia they were declared admissible in certain circumstances. Section 34 of the New South Wales Evidence Act of that year allowed them to be submitted as evidence if it could be proven in court "that the [facsimile impression or copy! was taken or made from the original writing by means of... Ca copying!

13 Ibid 360.

14 Ibid • » 358.

15 Ewart et. al 25-27.

16 Sheppard, 359. 73 machine...".17 One authority notes that the word "facsimile" means

"exact copy", which is what a photocopier produces, and that the courts "have regularly accepted facsimile signatures produced by

10 rubber or other stamps". It should also be noted that, like photocopiers, fax machines produce exact copies of documents, and so one would think that copies produced by them would be just as valid as regular photocopies.

By 1967 the circumstances under which a machine copy could be admitted were more precisely defined. Section 2 of the New

South Wales Evidence (Reproductions) Act defined a machine copy as a copy of the document made by a machine performing a process— (a) involving the production of a latent image by chemical means or otherwise Ce.g. photographic process]; or (b) that, without the use of photosensitive material, produces the copy of the document simultaneously with the making of the document Ce.g. carbon copies].1'

In the United States the lack of simultaneous creation, a desire to avoid copy errors, and concerns about fraud have led the courts to treat photocopies in a more restrictive fashion than carbon copies. The loss of extrinsic elements such as watermarks, ink colours, and attached stamps or seals, makes it difficult to authenticate a photocopy, while the ease with which words and images can be covered or changed during copying makes forgery relatively easy. A different view is taken in the United Kingdom,

Quoted in Brown, 21.

Brown, 21-23.

Quoted ibid., 26. 1

74

however. There, it has been declared that the fact that a document

can be altered or forged does not in itself render it inadmis-

sible.20

In Canada, a photocopy is generally considered to be an

"accurate reproduction" of the original document. The reasoning

behind this is similar to that used in Britain. In the words of

an Ontario Provincial Court judge,

the fact and the reliability of the photostatic'copying machine is a matter of such common experience that it needs no person to vouch for it. . . . That is not to say that a photostatic copying machine is foolproof or cannot be tampered with or cannot be so manipulated that it produced something other than a true copy.... But surely, these are matters which go to the weight to be attributed to a photostatic copy, not to its admissibility.2'

The reason for going into these definitions and legal nuances

in such detail is to demonstrate that, under certain circumstances, copies of documents are as legally effective as the documents

themselves. Thus, whether are regarded as copies, or as original documents in their own right, they can be attributed value as evidence, and are therefore worthy of retention.

If no major problem is presented by the nature of facsimiles on paper, the circumstances of the electronic transmission and of

the electronic form of the fax, no matter how temporary that form

is, can cause authentication problems. Originally, fax technology was limited in its options, so that both and recipients

'v Ewart et. al . , 27-2B.

21 R_ v_ Lutz (1978), 44 C.C.C. (2d) 143 (per Langdon, Ont. P.C.J. ), quoted ibid., 28. See also Evidence Ac t, supra. note 6, s. 4B(2). 75 used dedicated machines which would print out a paper document

immediately upon receipt, and only once. It was there-fore easy to authenticate the fax by the sender's signature. Recent develop• ments in fax technology have changed this situation, however.

Documents can now be sent and received via computer. The fact that a transmitted document can be received in RAM (random access memory) and then transferred onto disk and stored until it is needed means that there is opportunity for the document to be

27 altered before being printed. Such alterations also leave no evidence of having occurred—the original structure of an altered electronic document may as well have never existed. At the same time, one of the foundations of modern democracy is the necessity of public accountability on the part of government and private entities. The only way to reconcile these two factors—the use of electronic information systems for carrying out government affairs and the need for accountability—is for electronic information systems to ensure that audit trails are maintained. They would demonstrate the reliability of such systems and thus help to authenticate documents created by them.

There are two likely areas of dispute concerning a fax document maintained, even for a short time, in electronic form.

One is where the sender denies that the document stored in the

" Reed, 650-1. 23 National Archives and Records Administration, National Historical Publications and Records Commission, Electronic Records Issues: A Report to the Commission (Commission Reports and Papers No. 4, March 1990), 4. 76 recipient's computer was the one that was sent; the other is where both parties acknowledge that the received document, whether on paper or in a computer, is the same as that which was originally sent, but the sender claims that its contents dif-fer -from what was 24 in the "original" document.

What the courts require is evidence (outside the document itself) that would confirm the identity of the sender and the genuineness of the document's contents. New fax technology provides some ways of getting around such evidentiary problems.

Some fax machines have error report capabilities—that is, when problems are encountered while a document is being sent or received, the machine will identify the problem and print out an error report. The report will indicate the pages affected by the 2g malfunction, and the pages can then be re-sent.

"Memory fax" is another new feature of some facsimile machines, used when the same document is to be sent to different

locations at the same time. The fax number of each destination is programmed into the memory of the transmitting machine, and then the original document is loaded into the machine. The machine will automatically telephone each receiving machine and transmit the document to them. The numbers are retained in memory, and so can 2A serve as evidence of transmittal.

Ibid., 650.

Quinn, 44.

Mackay, 612. 77

Some evidence of its authenticity normally can be found in the fax transmission itself. Both transmitting and receiving machines send messages identifying themselves to each other, "and it could be argued that, so far as the transmitting machine is concerned,

77 these messages amount to a signature". Traditionally, according to the law of evidence, the contents of the document cannot be used to authenticate it. The identification message, however, is similar to the "reply letter doctrine" discussed above in that it involves circumstances outside the actual document. But there are three drawbacks to the use of such identification messages as means of authentication. The first, and most obvious, is the fact that such messages identify the machine, but not necessarily the sender; unless there are some security arrangements associated with the office or the machine itself, anyone could send a document through that machine and the actual source would not be identifiable with certainty. The second problem is that a false identification message can be sent by PC-fax by reprogramming the computer's fax card. Finally, if an incoming document is stored on disk before it is printed out, the recipient has the opportunity to edit both 78 the contents and the identification message as desired.

An alternative is to use a "digital signature" or code, which identifies the sender, within the message itself. Because it is an integral part of the message, any attempt to change the message

" Reed, 654.

28 Ibid. 78

would be incompatible with the signature. The complexity o-f these

codes makes them cumbersome to deal with, but this is also a

29

guarantee of their security. There are fax machines on the market

with an encryption feature that allows them to put transmissions

into code; however, they are designed to transmit only to identical

units.

Other methods of authentication are more administrative than

technological in nature. When several PCs are linked together in

a (LAN), one fax machine can serve the entire

system. Such a set-up is more efficient than having one fax

machine for every terminal, and administrative tasks can be

centralized. Documents transmitted by fax can be directed to the

appropriate operator(s) within the LAN. More importantly, they can

be traced by the system administrator using the transmission log, which contains data about senders, recipients, and the duration of

each call. Thus, documents sent by facsimile can be traced and

identified.31 Being able to trace a document using the log can also

aid in authenticating the contents of the facsimile because, if the original is maintained by the sender as part of normal business in a secure system, the identification of a document with respect to

its sender would allow a comparison between the original and the

facsimile version which will serve to identify the contents.

" Ibid., 656-60.

3" Guidelines on Facsimile Transmission Security (Toronto: Information and Privacy Commissioner, 1989), 3.

31 Natraj , 23. 79

An "intermediary" can be used during the transmission; there are special communications services which confirm that a document

has been sent, received by the service, and then passed on to its ultimate destination. The process, however, is cumbersome, and only identifies the source and recipient of the transmission, not

TO

its contents.

Some facsimile machines come equipped with keylocks, similar

to those available for personal computers. When they are locked, such machines can neither transmit messages nor print out incoming documents; thus, only authorized documents are sent out, and there is no chance for incoming documents to be tampered with. For the system to be effective, there must be one designated key-holder; while this may not be practical if the machine is meant for general use, it does provide security.33

Perhaps the most important feature offered by today's fax machines, with respect to authenticating facsimile documents, is the transaction report. The report states the time, date, and fax number to which the document was sent. When used for sending court documents, it serves the same function as a return receipt for registered mail, or an affidavit. As one observer put it, "the accountability provided by transaction reports and the recognized reliability of today's fax machines will provide the accountability

Reed, 655.

Guidelines on Facsimi1e Transmission Security. 4. 80 necessary to meet the legal and constitutional requirements -for service of process".34

When an electronic record is to be authenticated, one must be able to determine the date of its creation, the date(s) of any alteration(s), and whether the document had in fact been issued by the appropriate official; otherwise, the record's trustworthiness will be questioned. However, such factors are also taken into account by records management systems which deal with ordinary paper records. Therefore, according to the National Archives of the United States, "computer—based records pose no greater legal problems than do paper or microphotographic records, unless there are specific statutory or regulatory requirements for paper records".3**

Thus, the authentication of fax documents, and therefore their legal value, appears to depend on the security of both transmission and storage procedures. In ancient Greece and Rome, archival documents gained validity and authority by being received and stored according to established procedures in a designated place.34

Today, electronic records are authenticated by the security of electronic storage. The two situations are parallel, as is the case of the British Columbia Court of Appeal Registry, where court documents received by fax transmission are, in a sense, authenti-

" Sokasits, 538.

3"" Managing Electronic Records. 5-_>.

34 Luciana Duranti, "The Odyssey of Records Managers (Part I)", ARMA Records Management Quarterly (July 1989): 6, 9. 81

cated by their receipt and processing in the registry according to

standard operating procedures.

Where there are two or more versions o-f the same record, each

differing slightly in content and/or form, "the original is the

version of the document that was accepted by any parties thereto

as being the version upon which they agreed to operate".57 This

70

principle applies to documents produced electronically, as well.

The idea corresponds to the concept from diplomatics that the

version of a document which first produces consequences has the 39

force of the original.

One can now examine how an organization deals with fax, and

from that derive some general standards for the handling o-f fax within the records management and archival context. The example chosen is a court registry: that of the British Columbia Court of

Appeals. The reasons for such a choice are of two orders: first,

if standard procedures for processing fax documents can be applied

in such an environment, where strict adherence to legal and admin•

istrative principles is of paramount importance, they should be applicable anywhere; and second, this particular court registry has

J/ Brown, 18-19. 38 Reed, 653n: "...the original of an electronic document is that version of it which is intended to have legal effect". 39 Duranti, "Diplomatics [Part 13", 19. The original is the first version meant to produce effects; primitiveness and effec• tiveness are both necessary properties of an original. The fax, on the other hand, is a copy with the effects of the original. It' is not itself an original; at most, it may make the original unnecessary in certain circumstances. 82 gone -furthest in developing and applying such strategies.

The concept o-f "due process" is -fundamental to the modern justice system, and refers to the requirement that a defendant be notified of any legal action taken by a court of law against him, her, or, in the case of an institution, it. This notification or

"service of process" requires the delivery of both the information concerning the action being taken and the document itself. Sending the service of process by fax does both, and for doing so is as effective and reliable as any postal system or courier service.*0

There is a long-standing precedent in the United States for serving process by electronic means. For a number of years the states of Idaho, Montana, and Utah have permitted the transmission by telegraph or teletype of legal process for service upon defendants within state boundaries.*' Also, telex was used during the procedure of serving process on Iranian defendants after the

United States-Iran hostage crisis of 1979.42

Facsimile transmission was officially accepted in the United

States as a means of serving process in 1988. That year, a New

York court declared "that service of an order to answer inter— rogatories by fax would meet the requisites of adequate notice and an opportunity for the defendant to respond as much as any other

Sokasits, 539-40.

Ibid., 532, 549.

Ibid., 544-6. 83 method allowed for service of notice II 43 The ruling was incor• porated in New York's Civi1 Practice Law and Rules the same year.

It declared that service of court papers may be done electron• ically, provided that a has been designated by the receiving party for such purposes. The sender would receive a signal from the machine of the recipient, indicating that the transmitted document had been received. A copy of the document would then be sent to the other party by regular mail or courier.**

Several other American states now allow court documents to be filed by facsimile transmission. For example, since 1 January

1990, Idaho has allowed fax filing in all appellate and trial courts, provided that documents require no filing fee and are no 45 longer than ten pages.

Canadian courts have also begun accepting documents filed by fax. In 1989 the British Columbia Court of Appeal initiated an experiment to determine the viability and acceptability of filing documents in the court registry by fax, in order to improve court access and reduce administrative costs. The court registry declared that it would accept most Court of Appeal documents sent by facsimile transmission to the registry. However, the Court of

Appeal itself retained the option of declaring that a fax copy does not have the force of an original and refusing to accept such a

Ibid • > 546-7

New York Civi1 Practice Law and Rules. R. 2103(b)(5).

45 Don J. DeBenedictis, "Idaho Courts OK Fax", ABA Journal (May 1990): 19. 84 document. In such a case, the' original document (that is, the document used by the sender for the transmission) must be made available for production in court.4'

Almost all statutes and regulations which authorize the service of court documents by fax insist on sending the original of each document by mail. While this procedure may seem in• efficient—"Why not accept the fax in place of the original, and thus save time, money, and paper?", one might ask — it has been pointed out that not even decades of using photocopy technology have led to photocopies being routinely accepted in lieu of originals.47 The one exception is in British Columbia, which will be described in detail shortly. At first glance this limitation is quite puzzling, especially since at least one author has 10 admitted that "the faxed [document] will be fully effective". One problem with accepting court documents by fax is in cases

49 where the original signatures are required. It is also argued that mailing a document after faxing is necessary because of the possibility of transmission error, non-receipt of pages, or the receipt of pages out of order. Mailing assures the receipt of an intact copy, "obviates the problems created by the rapid deteriora-

46 "Facsimile Project, Court of Appeal—Practice Notes", The Advocate 47(4) (July 1989): 652; "Facsimile Filing Pilot Project Evaluation Report" (Vancouver: British Columbia Court of Appeal Registry, 1991): 1 and passim.

47 DeBenedictis, 20.

48 Sokasits, 555.

49 DeBenedictis, 20. 85 tion o-f [thermal] facsimile paper", and ensures the recipient that the transmission had, in fact, been made.'"

Another relevant -factor is that, as it has been discussed, with PC-fax a transmitted document may be received and then stored in memory. The fact that a document may not be immediately printed out upon receipt implies the possibility o-f alteration or even erasure, either accidental or deliberate. It is in such cases— the service of process via PC-fax—that follow-up mailing is also seen as necessary. "The risk of sending a transmission when there is no immediate printout, if there is no follow-up mailing, would result in the possibility of non-receipt while the sender has been informed otherwise"."

The insistence on mailing after faxing seems to imply that the main purpose of fax is not so much to exchange documents and information as it is to allow the prompt ac tion of serving notice.

If this is so, then the content of the fax transmission is, in a sense, irrelevant, provided that the service is actually completed by a later mailing. This, in turn, implies that the fax trans• mission need only include, say, the first page of a multi-page document along with a covering letter. Although this would also

George F. Carpinello, "A Cautious Approach to Service By Fax", Albany Law Review 53 (1988): 156-7. Carpinello seems to imply that the thermal fax copy can be discarded once the mailed copy is received; if so, he is not taking into account the fact that, if action is taken on the basis of the transmission, the fax acts as the original document with respect to the transaction and so cannot be disposed of.

Sokasits, 557-8n. 86 save money, time, and paper, however, such action must be con• sidered an abuse o-f due process, since service o-f process, as mentioned earlier, requires communication o-f both the act of service and the document. Also, such an act of service would be only incompletely documented, and might therefore be considered inva1 id.

When process is served, the defendant must be able to recognize and understand the process documents, even if there are inaccuracies. In other words, the documents need not be perfect, only recognizable and understandable so as to be able to accomplish

their purpose. This fact would seemingly lessen the weight of one of the main objections to service of process by fax: the pos• sibility of error. There are several other factors which further reduce this possibility. The risk that the documents would be sent

to the wrong destination would be remote if the parties involved

had previously been in communication—a likely scenario if their

relationship has progressed as far as litigation—because they would likely have exchanged fax numbers already. Also, even if the

faxed documents are misdirected, the cover sheet sent with them

provides the sender's number, so that the parties can be notified and the problem resolved. If the process is sent to the correct destination but arrives in a garbled or incomplete form, it can be 52 retransmitted.

Ibid., 540-1. 87

The Commercial and Federal Litigation Section o-f the New York

State Bar Association considers the provisions -for dual service o-f

process to be unnecessary, and the wording o-f some parts of the

rule to be vague and open to dispute.'3 In particular, it questions why is it considered necessary to mail another copy, after faxing

a document, in order to complete the service, "in view of the

relative reliability of fax technology".'4

In fact, the requirement for dual service causes its own

problems. The date of completion of service becomes uncertain: is

it the day of the transmission, the day of sending the mailed copy, or the day of the latter's receipt? This is important if there is

a period of time prescribed by law for some purpose which is measured from the date of service. This would seem to cancel out

two of the advantages of fax service: speed and convenience. Or,

as one authority succinctly put it, "Common sense would suggest

that the whole purpose of fax service is to make service complete

upon faxing"

The one-year facsimile filing pilot project at the British

Columbia Court of Appeal in Vancouver was established in May 1989.

Fax filing of any document up to a maximum of twenty pages was

permitted, provided that neither binding nor the production of

New York State Bar Association, "New York's New Fax Law: An Invitation to Litigation", Albany Law Review 53 (1988): 143 and passim.

54 Ibid . , 145-6.

" New York Civil Practice Law and Rules, commentary C. 2103:2 (1989). 88

multiple copies was required. The registry established a dedicated

•fax line, over which documents had to be sent if they were to be

accepted. Upon receipt, the faxed document is processed by

registry staff as if it had been received over the counter like any other document—stamped with the date of receipt, numbered, entered

in the index, and so forth. After this is done, the sender

receives, by fax, a confirmation of receipt, consisting of a cover sheet (which states if there are any filing fees due) and the first

page of the filed document. The sender is not to send another copy

of the- document by regular mail; rather, the confirmation of

receipt is to be kept by the sender on file together with the original document. The sender is merely required to produce the

original if the court deems it necessary. Filing fees are to be

paid within one week, or before the scheduled court date, whichever

is earlier."

Service of documents between parties by facsimile is also covered by the Court of Appeals experiment. Any acknowledgement

of a document which has been sent by one party to another by fax

shall be declared by the registrar as proof of service. Any z objection to such service is to be made to the presiding judge in chambers.^

56 "Facsimile Project, Court of Appeal—Practice Notes", 652- 3; "Facsimile Filing Pilot Project Evaluation Report", 1.

^ "Facsimile Project, Court of Appeal—Practice Notes", 653. According to Rule 26(9) of the British Columbia Rules of Court, if one party to a court action is entitled to inspect documents in the possession of the other party, it may request that copies of those documents be delivered upon payment of the costs of reproduction and delivery. However, there is no mention of how such copies are 89

The registry conducted a survey in 1990' to determine the reaction o-f the provincial legal community to the fax filing experiment. The response was generally favourable, in spite of the fact that only five firms had used the new service, accounting for less than five percent of all filings. Of the firms that did not use fax filing, over ninety percent stated that they had been either unaware of the project, or unable to use the service

(presumably they dad not have access to a fax machine). Never• theless, the vast majority of respondents to the survey supported either the continuation or the expansion of the fax filing service.

Almost three-quarters of them agreed that fax was more efficient than current filing methods, and even more stated that they would

58 make use of an expanded fax filing service.

In the final analysis, fax filing was seen by the legal community as a positive step, being more efficient than using the regular mail system and hence a means towards improving access to the courts. There was a preference for the expansion of the service to the Supreme Court registries, with their higher volume of records and therefore greater opportunities for use. The one area where there was no consensus was again with respect to whether 59 or not originals must also be filed by mail. However, there have

to be delivered. Since the tradition under common law is to allow anything which is not specifically forbidden, it would appear that sending those copies by fax should be allowed.

^ "Facsimile Filing-Pilot Project Evaluation Report", 2.

5' Ibid . . 3. 90

been no challenges to the validity of court documents filed by fax, or of the procedure itself.'0 It would thus seem that arguments against relying exclusively on fax are losing weight.

Dn completion of the fax filing experiment in May 1990, the

Court of Appeals registry decided to expand the service to selected

Supreme Court registries—commencing perhaps in 1991 and continuing

for one year. It was thought that this limited expansion of the service would allow better evaluation of the service without risking the adminiatrative difficulties that a complete implementa•

tion might cause." In the meantime, fax filing at the Court of

Appeal continues.

In addition, some other guidelines suggested by the Ontario

Information and Privacy Commissioner could also be applied. One of them is that any fax machine which is used to send or receive documents whose authenticity must be assured should be placed in a secure area, and used only by authorized persons. Other guidelines refer mostly to features already discussed and are applicable in all situations: confirm fax numbers prior to trans• mission, make use of cover sheets, ensure that the date and time of transmission, the sender's name, location, and fax number are printed on each page, and monitor the transmission log.'3

'° Jennifer Jordan, Registrar, British Columbia Court of Appeal, telephone interview with author, 27 February 1991.

61 "Facsimile Filing Pilot Project Evaluation Report", 4-5.

62 Jordan, 27 February 1991.

'3 Guide 1ines on Facsimile Transmission Security, 7-9. 91

Now that it has been established that facsimiles are accepted as records in the legal and administrative environments as well as

in archival theory, attention should be turned to the question brought up at the end of Chapter 3: namely, in what form should fax documents be preserved? It has to be remembered that, depending on the medium on which they are recorded, they may be classed as either paper or electronic records. Those received in paper form can be treated like any other such record. The only difference would be if thermal paper is used: in that case the copying

procedures described in Chapter 2 should be acceptable. Dealing with PC-fax records is not so straightforward. Organizations have

to decide on the format—electronic or hard copy—in which to preserve records received and used in electronic form. In the end,

the choice may be based on user needs and legal requirements,

rather than on theory.'*

It is not only important to decide in what medium to preserve end products of electronic transmissions, it is also important, in cases where electronic by-products of transmissions exist along with paper end products, to decide whether to keep the information

in both forms.'^ The decision should be based, at least in part, on the usefulness of doing so. Would it provide any advantage to

retain electronic by-products along with the end products them• selves? Numerical information in digital form can be manipulated

Electronic Records Guidelines. 61.

Ibid., 105. 92 and used again, and is there-fore more useful in that form than in hard copy. However, records containing such data are not going to be sent in facsimile form, even PC-fax. Fax is a means of trans• mitting the form of documents as well as the data contained in them. It would therefore make more sense to send, say, statistical data from a census in manipulable digital form than to send them as a facsimile. Written records and images, however, are not usable in digital form, and therefore it would not be advantageous to keep them in that form. Thus, at first glance, there is little reason to retain the electronic version of a fax."

However, the archival value of records depends on preserving the context of their creation and use as well as on preserving their content. To this end, policies could be developed by record- creating agencies which would help identify when it is important to preserve an electronic document's "system functionality".'7 This term refers primarily to the maintenance of original configurations and software documentation; however, it could also be applied to the maintenance of the original physical form (i.e. electronic form vs. hard copy). Whether an organization keeps its records in elec- tronic or paper form can reflect how it performs its functions; the technological environment in which it operates; and the resources that are available to it for establishing and maintaining an electronic communication and records system, and will therefore

Ibid., 83.

Ibid., 64. 93

contribute to the evidential value of that organization's archives.

Nevertheless, the costs of maintaining electronic information

must be kept in mind. The magnetic media on which the electronic

information is stored tend to deteriorate. To preserve the data,

numerous precautions must be taken: periodic transfer of data to new media, monitoring of deterioration, and the use of environ•

mental controls. An additional problem is that of maintaining both AA

the computer hardware and the software needed to read the data.

In theory, one should not consider such costs to be an

obstacle. However, the expenses of archives compete with other expenditures which directly and visibly further the mission of an organization. Therefore, the costs of maintaining records in electronic form have to be constantly justified. "Given that some

proportion of the budget of an organization can reasonably be spent on archives, choices of types of record formats and services are

tactical " .69

One "tactical" reason to keep even non-statistical fax records

in electronic form is the best evidence rule. While it is true

that the rule is no longer as strict as it once was, its acceptance

is still a matter of tactical prudence. It is obviously desirable

to produce in court the best available evidence. Not only would any other evidence be less persuasive to a judge or jury, but

failure to provide the best evidence possible would reflect poorly

E1ectronic Records Issues, 4.

Electronic Records Guide1ines. 98. 94 on that party and its case.7" For example, if the only copy of a

PC-fax record available to a court is a hard copy version, and the party submitting it has to explain that the document received and used in the course of business in electronic form had been discarded for reasons of cost, this might damage that party's case in the eyes of the court. Although not all jurisdictions accept machine-readable records as evidence, that is sure to change,7' and organizations—as well as archivists and records managers—have to be prepared.

Perhaps the main problem with keeping electronic records is that they are system-dependent—that is, they can be read only with the aid of the computer hardware and software that was used to 7? create them. There are two aspects to system dependency in machine-readable records. One is their dependency on constantly changing computer technology. Both hardware and software evolve rapidly, and just as quickly are made obsolete by other advances.

Users have no control over such developments, nor over the availability of systems. It is in this difficult context that the archivist must provide and preserve access to information. The other aspect is the dependency of electronic records on documenta-

Sheppard, 354.

7' Naugler, 38; Bruce I. Ambacher, "Managing Machine-Readable Archives", in Bradsher, ed., Manaq inq Archives and Archiva1 Institutions, 129. 7? They can be transferred to another system, but the process is very complicated and is not relevant here, because we are dealing with records preserved by their creator rather than those transferred elsewhere. 95

tion. The term "documentation" refers to the description o-f how

the collection, organization, processing, and preservation o-f data

are carried out using a given computer software system. Without

such a description, the data remain virtually unintelligible.

Software documentation is therefore necessary to maintain the

usefulness of electronic records; however, it is all too common

for such information not to be transferred to inactive storage

along with the records.73

If an organization decides that neither theoretical nor legal

considerations justify the cost of maintaining records in elec•

tronic form, one way to avoid evidentiary problems would be to establish a standard procedure for the regular transfer of such

records onto paper. If the circumstances of its creation demon•

strate a record's reliability, as was shown earlier, the same

should apply to its transfer to a different medium. What is needed

is evidence that this is done accurately and "in the usual and

ordinary course of business". Procedures for copying electronic

data onto paper should be described in an operations manual or a management directive, and a record that those procedures were /

followed in the particular transfer should be maintained which can

be presented in court as supporting evidence.

It would be more practical, however, if the organization decided from the beginning on the most appropriate medium on which

to retain any given document. Fred Diers' concept of an "informa-

Electronic Records Issues, 3. 96 tion media matrix", in which all media are judged according to their suitability before they are used within an organization, is relevant here. Records analysts have to appraise each category of records in terms of unit capacity (number of documents that can be stored per folder/disk/etc.), requirements for physical space, retrieval speed per unit, accession rate (number of times per day that a document is referred to), unit increase rate, and so on.

The capacities and limits of each medium with respect to those criteria, are also analyzed — including the costs of maintaining the required equipment. The most appropriate medium for each record category is then chosen.7* Thus, if an organization is considering using PC-fax instead of regular facsimile, based on the savings on paper and storage space, it must also consider the costs of either retaining PC-fax records in electronic form or converting them to paper. It may be that those long-term costs will outweigh the short-term savings. Just because a given medium represents

"leading edge technology" does not mean that it will automatically solve an organization's information management problems.7'

As it has been established that fax documents created on paper are no different from ordinary paper records, they can be appraised in the same manner as other paper records. The same is true for fax documents created and maintained in electronic form. Thus, although facsimile transmission is in some ways a unique communica-

74 Diers, 20-23.

75 Ibid. , 21 , 23. 97 tion technology, this does not mean that records management and archives theory have to be reworked in order to take it into account. 98

CONCLUSION

In their profession, archivists have to keep up to date with changes in communication technology, because they deal directly with the products o-f such technology. To carry out their work effectively they have to be able to apply archival principles in

the face of such changes. This dissertation has examined one example of communication technology—facsimile transmission—and

tried to determine how its products—fax ..documents—should be handled from an archival point of view. A review of the history of the technology revealed that facsimile transmission has been in existence far longer than one would judge from its relatively recent success, and demonstrated the need to come to grips with the consequences of its adoption by records creators.

The discussions of the various transmission and recording techniques developed over the years and the uses to which they have been put not only served to lay the groundwork for the rest of this study; they also indicated possible sources of fax documents.

Archivists may encounter them not only among recent records, but also in older fonds. in particular those associated with news agencies and with the agencies collecting meteorological data. If archivists are aware of their existence and the conservation problems associated with them, fax documents can be identified and earmarked for special conservation measures.

Before such measures are implemented, however, the first thing to be determined is whether facsimiles are records at all, or 99 whether they have to be considered non-record material or ephemera.

"Records" have been de-fined here as documents created or received in the conduct of a practical activity and preserved for specific purposes. At the same time, the very usefulness of "non-records" as a category was questioned, since documents created outside the scope of official activity could be maintained for the purposes of the creator, and transient records which are not meant to be preserved need not be considered. Even if one did accept non- records as a category, fax documents should not automatically be included; a detailed comparison of facsimiles with telephone messages bore this out, while the manner of their transmission and the impermanent nature of some of them proved to be, in the light of archival theory, immaterial.

If facsimiles are in fact records, it had then to be deter— mined whether they are "traditional" paper records, or machine- readable (electronic) records. Authorities actually disagree on how to define the latter, whether to consider only the means of transcription and the medium of storage, or also the means of transmission or input. In the former case, facsimiles would be considered either paper or electronic records, depending on the medium—paper, or magnetic disk or tape—on which they are recorded. In the latter case, all facsimiles, whether paper or PC- fax, would be classed as electronic records, because they are the end-products of the electronic transmission of information. In the end, this study sided with Fred Diers, who emphasizes the common place of all facsimiles within the information media matrix, and 100

argues that the means o-f storing information is the -first definable

element of that matrix. Thus, fax documents in all their forms

span both categories, and cannot be classified exclusively as either paper or electronic in nature. Since paper facsimiles are no different from ordinary paper documents (with the exception of

thermal paper facsimiles, which differ only with respect to conservation considerations), they can be appraised along with such

records. The reasoning is analogous for facsimiles created and maintained in machine-readable form.

Once fax documents were defined as records on the basis of

archival theory, the next step was to determine how they are

treated in practice. This issue was approached by examining the circumstances in which such matters are decided, respectively, in

the context of the law, and in the context of organizations. The

legal value of facsimile records was examined, the conclusion being

that documents received by facsimile transmission are legally as effective as the "originals" used to transmit them. The main objection to this point within the legal profession—how to take

into account the problems of authenticity and security inherent in

fax transmission—was answered by describing the ways in which fax

transmission can be made secure, and fax documents authenticated.

Finally, a model for the handling of facsimiles was presented in

the form of the facsimile filing project instituted by the British

Columbia Court of Appeal, on the logical assumption that if such a system can function where adherence to legal principles is the 101 prime criterion -for acceptability, it should be able to function in any administrative environment.

The final matter to be decided was the form in which facsimile documents should be preserved, especially with regard to those created by PC-fax. It was concluded that, while it is desirable to retain machine-readable fax records on magnetic media, in order to maintain both image quality and the complete context of their creation and use, there are practical limitations to this course of action: namely, the costs of preserving a very fragile medium and of maintaining the hardware, software, and documentation needed to have access to the documents. In order to avoid these costs, an organization could establish a standard procedure for the regular transfer of such records to a more manageable medium such as paper or film. However, it would be more useful for the organization to choose the most appropriate medium for each type of record when its information system is first designed.

Throughout this study, archival principles as they exist today have been used to analyze facsimile technology and fax documents.

What this study has demonstrated is that a thorough comprehension of the relevant concepts, and a basic understanding of the tech• nology involved, should enable archivists to deal with new docu• mentary forms. Although fax is in some ways a unique communication technology, no fundamental changes in archival theory and practice are required to understand its place in archives. 102

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INTERVIEW

Jordan, Jennifer, Registrar, British Columbia Court of Appeals. Telephone interview with author, 27 February 1991.