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Unofficial Opinion 2000-1

Unofficial Opinion 2000-1

January 28, 2000
To: 

Senator
42nd District and
Representative 47th District

Re: 

Under the Georgia Electronic Records and Signatures Act, departments, agencies, authorities, and instrumentalities of the State of Georgia and its political subdivisions have the legal authority to determine how and the extent to which they will create, send, receive, store, recognize, accept, be bound by, or otherwise use electronic records and electronic signatures, in situations where there is no other controlling law specifying a different type of record or signature.

You have requested my opinion as to whether, pursuant to the Georgia Electronic Records and Signatures Act, O.C.G.A. § 10-12-1 et seq. (hereinafter, the “Act”), a department, agency, authority, or instrumentality of the State of Georgia or its political subdivisions have the legal authority to determine how and the extent to which they will create, send, receive, store, recognize, accept, be bound by, or otherwise use electronic records and electronic signatures, in situations where there is no law specifying a different type of record or signature. In your request letter of January 3, 2000, you expressly acknowledge that, if a particular statute specifies a particular method of delivery of a document, such as certified mail, a state agency could not unilaterally decide to use electronic transmission of an electronic record in contravention of that specific mandate. I shall confine this response to those factual situations where no such constitutional or statutory mandate as to a particular method of delivery exists.

The Act establishes rules providing, in effect, for electronic records and signatures to have legal equivalence to traditional records and signatures. Thus, Code Section 10-12-4 provides that:

(a) Records and signatures shall not be denied legal effect or validity solely on the grounds that they are electronic. (b) In any legal proceeding, an electronic record or electronic signature shall not be inadmissible as evidence solely on the basis that it is electronic. (c) When a rule of law requires a writing, an electronic record satisfies that rule of law. (d) When a rule of law requires a signature, an electronic signature satis-fies that rule of law. (e) When a rule of law requires an original record or signature, an electronic record or electronic signature shall satisfy such rule of law. . . . . (j) Any rule of law which requires a notary shall be deemed satisfied by the secure electronic signature of such notary.

O.C.G.A. § 10-12-4(a)-(e), (j). [In this light consider the alternative ground in Department of Transp. v. Norris, 222 Ga. App. 361, 362 (1996) (without more, electronic facsimile “is not a writing;” decided pre-Act) (rev’d on other grounds, Norris v. Department of Transp., 268 Ga. 192 (1997)).]

The Act also provides for proof of fraud, preserves existing requirements for authentication of signatures and records, and imposes a burden of proof on the proponent of a record or signature as to its authenticity. O.C.G.A. § 10-12-4(f)-(h). In the context of this statutory framework, the Act also states:

Notwithstanding the preceding subsections of this Code section, the legal validity, effect, and admissibility of electronic records and electronic signatures shall be limited as follows:

(1) Each department, agency, authority, or instrumentality of the state or its political subdivisions shall determine how and the extent to which it will create, send, receive, store, recognize, accept, be bound by, or otherwise use electronic records and electronic signatures. Nothing in this chapter shall be construed to require any department, agency, authority, or instrumentality of the state or its political subdivisions to create, send, receive, store, recognize, accept, be bound by, or otherwise use electronic records or electronic signatures.

O.C.G.A. § 10-12-4(i)(1) (emphasis added). This provision in Code paragraph 10-12-4(i)(1) was added to the Act during the 1999 Regular Session of the General Assembly, 1999 Ga. Laws 323, 326; prior to the 1999 amendment to the Act, no such provision existed in the Act. The 1999 amendment also contained a general repealer, which repealed all laws and parts of laws in conflict with the provisions of the 1999 amendment.

The language cited above should be read in light of the general rule that “[t]he state is not bound by the passage of a law unless it is named therein or unless the words of the law are so plain, clear, and unmistakable as to leave no doubt as to the intention of the General Assembly.” O.C.G.A. § 1-3-8. In this Act, the word, “person,” is defined to include “any department, agency, authority, or instrumentality of the state or its political subdivisions.” O.C.G.A. § 10-12-3(4). The word, “person,” is then used in defining “signature” and “secure electronic signature,” but not in defining “record” or “electronic record,” in such a way as to suggest possibly that the authorization of Code Section 10-12-4 applies to signatures of agencies but not to their records. O.C.G.A. § 10-12-3(2), (5), (6), (7); O.C.G.A. § 10-12-4(a)-(e).

However, any ambiguity as to that point is removed by paragraph (i)(1) of Code Section 10-12-4 quoted above. The second sentence of that paragraph makes clear that agencies do not have to use or accept electronic signatures and records under the Act. The first sentence, then, has the function of saying that agencies may accept and use the concepts of electronic signatures and electronic records as contemplated by the Act, determining, in their discretion, the “how” and the “extent.” This conclusion is reinforced by the introductory language of subsection 4(i), which “limit[s]” the Act, “[n]otwithstanding” its other provisions. [Note that Subsection 4(i) also limits application to consumer transactions and to testamentary transactions. O.C.G.A. § 10-12-4(i)(2), (3).] The permissive participation of state and local government is also reinforced by the last sentence of the Act, which states that “[n]othing in this Code section [providing remedies for unauthorized use of electronic signature] shall be deemed to waive the sovereign immunity otherwise provided by law to the state or any of its political subdivisions.” O.C.G.A. § 10-12-5.

A reading of the plain language of Code Section 10-12-4(i)(1) shows that it grants broad discretion to state and local government agencies and authorities to implement the use of electronic records and electronic signatures. This remains a developing and technical area of law. See, e.g., Information Security Committee, Electronic Commerce and Information Technology Division, Section of Science and Technology, American Bar Association Digital Signature Guidelines: Legal Infrastructure for Certification Authorities and Secure Electronic Commerce (August 1, 1996). Agencies may need legal guidance in actually implementing projects or systems under the broad empowerment granted by Code Section 10-12-4(i)(1). Such advice might be transactional or involve further interpretation of the Act or Code in a given context. For example, in permitting agencies to adopt the use or acceptance of “electronic signatures” and “electronic records,” the Act is using terms it defines for use in the Act. That suggests what the Act does not say explicitly: that, to the extent that an agency adopts the use or acceptance of electronic signatures and records and does not affirmatively negate the application of the Act, the Act will apply. Such would be my view. However, this may be an area of some remaining ambiguity. I will be happy to provide assistance in any particular situation.

As an aside, I should mention potential interaction with the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-1 et seq. (the “APA”). The Act does not specify the means by which an agency announces its determination as to how and the extent to which it will accept or “use electronic records and electronic signatures.” Presumably this may be by ad hoc decision, for example in a contract situation, in which the parties expressly agree to consummate the agreement electronically, or it may be globally, with an agency announcing a protocol for accepting and storing electronic applications. Under the APA, “rule” means each “agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of any agency.” O.C.G.A. § 50-13-2(6) (emphasis added). Thus, in some cases, the APA may apply, perhaps, for example, in a global situation like the illustration above. However, in many cases, APA exceptions may apply. In part, for example, an APA “rule” does not include:

(G) [r]ules which relate to contracts for the purchases and sales of goods and services by the state or of an agency; (H) [r]ules which relate to the employment, compensation, tenure, terms, retirement, or regulation of the employees of the state or of an agency; [and] (I) [r]ules relating to loans, grants, and benefits by the state or of an agency.

O.C.G.A. § 50-13-6(G)-(I).

In any event, even if APA procedures are not applicable or followed, an agency should give careful consideration to the manner in which it announces its intent, in both the global and the specific situation. At a minimum this should involve a purposeful decision and an express statement of intent to use the electronic means under the Act, rather than to proceed by implication. To illustrate, the Constitution and the Code waive sovereign immunity for “written contracts.” Ga. Const., Art. I, Sect. II, Para. IX(c); O.C.G.A. § 50-21-1(a). The Act provides, “When a rule of law requires a writing, an electronic record satisfies that rule of law.” O.C.G.A. § 10-12-4(c) (emphasis added). This indicates the possibility of documenting a contract through electronic facsimile or e-mail. Since the Act calls for a governmental determination before the Act applies to an agency transaction, an agency intending to contract electronically should say so in express terms in the instrument. Cf. 1974 Op. Att'y Gen. 74-115, p. 247 (an agency may not place itself in a situation where neglect will bind it as well as “conscious determination”). To reiterate, this is a developing and potentially complicated area, and I will be happy to provide further assistance as requested.

In summary, it is my unofficial opinion that departments, agencies, authorities, and instrumentalities of the State of Georgia and its political subdivisions have the legal authority to determine how and the extent to which they will create, send, receive, store, recognize, accept, be bound by, or otherwise use “electronic records” and “electronic signatures” under the Act, in situations where there is no other controlling law specifying a different type of record or signature.

Prepared by:

SHIRLEY R. KINSEY
Assistant Attorney General