INFORMATION GOVERNANCE: THE CORNERSTONE OF RECORDS MANAGEMENT

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1 RECORDS & DOCUMENT MANAGEMENT EXPERTS INFORMATION GOVERNANCE: THE CORNERSTONE OF RECORDS MANAGEMENT By: David O. Stephens, CRM, FAI SVP, Records Management Consulting 2014 Zasio Enterprises, Inc. All rights reserved.

2 INFORMATION GOVERNANCE: THE CORNERSTONE OF RECORDS MANAGEMENT Page 2 of 5 In today s complex organizations, the preeminent challenge of records management is that the goals of good information governance must be successfully achieved. What are the overarching goals of information governance in a records management context? Simply stated, good information governance requires that organizations manage their records and information in a manner that enables them to demonstrate: That the organization is conducting its business with honesty and integrity, and in a manner consistent with the public interest as well as its own That the organization s records and information are properly maintained and preserved, in case they may be needed as evidence in government investigations, litigation, audits or other legal proceedings That the organization is in full compliance with all applicable laws and regulations, in letter, spirit and good faith

3 INFORMATION GOVERNANCE: THE CORNERSTONE OF RECORDS MANAGEMENT Page 3 of 5 In short, in the U.S. and elsewhere, governments and regulatory authorities want organizations to manage their records and information such they are complete, true and accurate, accessible, legible, retained as required, and fully usable for any and all legal purposes should the need arise. Records retention, which has been the mainstay of professional practice in records management for decades, has a key role to play in information governance. The following are some basic principles that must be considered in the development and implementation of an enterprise retention program in order to achieve good governance and compliance objectives: The only circumstances under which the disposal of records is an illegal act is... First, last and always, comply with the law First and foremost, records management specialists must never put themselves in legal jeopardy in exchange for a paycheck from their employers. If you have questions concerning the legality of any records disposal action, contact your Legal Department. If you are still not satisfied, contact the authorities. If the choice is between your company and the law, comply with the law and cooperate with the authorities, even it means resigning your position. Disposing of business records is almost always a legal act Under most circumstances in the life of an organization, it is a perfectly legal act to destroy unneeded records, regardless of whether such disposal occurs under an established records retention program or as just a casual, somewhat arbitrary act of hitting the delete key, overwriting data, or simply discarding records as office waste. In short, business people routinely and lawfully discard unneeded records every business day. The only circumstances under which the disposal of records is an illegal act is when their retention is required by law or regulation or if they are relevant to an actual, pending or potential litigation action or government audit or other official investigation. When does records disposal become an illegal act? Under the law, it is a crime, punishable by fines and possible imprisonment, to destroy documents relevant to an actual or potential lawsuit or government investigation. This legal prohibition on document destruction begins from the moment at which a person or organization learns of a possible lawsuit or government investigation, even though proceedings have not yet officially commenced.

4 INFORMATION GOVERNANCE: THE CORNERSTONE OF RECORDS MANAGEMENT Page 4 of 5 It s the content that matters, not the format With respect to the legality of document destruction, the law makes no distinction as to whether documents happen to reside on paper, computer media, or any other format, or whether they are official in character or are merely work papers or duplicate copies rather than original records, according to an organization s records management definitions of these terms. If the content of any document is or may be deemed relevant to the subject of the lawsuit or investigation, that document may not legally be destroyed and it must be turned over to authorities if requested. Concerning the key question of the point in time at which document destruction becomes an illegal act, the at the first sign of trouble standard is recommended as the prudent course of action. It s also the motivation behind the disposal that matters If records relevant to litigation or a government investigation are requested and cannot be produced, the investigating authorities will demand an explanation. If the records were disposed of, the circumstances surrounding that disposal will be investigated. The investigators will want to know specifically what records were destroyed, what they contained, who destroyed them, when and why. If it can be shown that the motivation behind the disposal was to suppress or conceal incriminating or even unfavorable evidence, those who authorized and / or carried out the disposal could be held liable. When should records disposal actions be suspended? Concerning the key question of the point in time at which document destruction becomes an illegal act, the at the first sign of trouble standard is recommended as the prudent course of action. This means that, at the point in time at which litigation or a government investigation is contemplated as a reasonably foreseeable event, the destruction of relevant evidence becomes potentially criminal activity and the destruction of any and all relevant records must cease forthwith.

5 Setting retention periods for records of possible legal value In devising retention policies, organizations have a right to construct retention period with a view towards mitigating the risks associated with the use of records in litigation. Assuming all statutory or regulatory requirements have been satisfied, the organization may consider that it has some freedom to make the retention periods relatively short. However, in view of the fact that they may come under judicial scrutiny, the retention periods must meet the test of reasonableness and avoid any inference of bad faith. Thus, if an organization s managers knew or should have known that the documents will or may become material evidence at some point in the future, the retention period should reflect this. Records retention cannot excuse unlawful conduct The foregoing requirements of the law supersede any and all organizational policies authorizing document destruction, including the authority granted in records retention schedules. In other words, organizations or any employee thereof cannot attempt to use the authority granted them in records retention policies as justification for destroying information relevant to actual or pending litigation or government investigation; that is, records retention cannot be a shield to justify the unlawful disposal of records. RECORDS & DOCUMENT MANAGEMENT EXPERTS Zasio Enterprises, Inc. is one of the nation s leading records management software and consulting companies. The firm was founded based on one vision: to provide organizations in both the public and private sector with affordable computer software that establishes total life cycle management and control over their records. In 1995, the company extended the range of its records management services when it established its Records Management Consulting Division. The strategic objective behind this decision was to offer a total solution both software and high-level expertise to those clients that require it. Call the experts at Zasio to discuss your Records Information Management questions and challenges today , Opt. 1 sales@zasio.com