Compliance: Records Management and the Law
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1 Compliance: Records Management and the Law Upland Inland Empire Chapter ARMA International 2008 Annual Seminar Riverside, California Barbara E. Nye, CRM Ictus Consulting, LLC March 27, 2008 (c) Ictus Consulting, LLC 1
2 Introduction Definitions Records Management and the Law Legal Requirements: Fact or Fiction? March 27, 2008 (c) Ictus Consulting, LLC 2
3 Definitions Records Management Record Records Retention Schedule Law Adequate Documentation March 27, 2008 (c) Ictus Consulting, LLC 3
4 Definitions Records Management: Systematic control of records throughout life cycle (ISO 15489) Records Life Cycle: from creation (or receipt) until disposition (destruction or long-term preservation as archives) Promotes compliance, accountability, and transparency March 27, 2008 (c) Ictus Consulting, LLC 4
5 Definitions Record: Contemporaneous evidence of a business transaction Adequate record: incorporates content, context and structure Information created, received and maintained as evidence by an organization or person in pursuance of legal obligations or in transaction of business (ISO 15489) March 27, 2008 (c) Ictus Consulting, LLC 5
6 Federal Records Act Record Definition... records includes all books, papers, maps, photographs, machine read-able materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them. (44 USC 3301) March 27, 2008 (c) Ictus Consulting, LLC 6
7 Definitions Records Retention Schedule: A policy document List of records series, assigned responsibility (owner), retention period Promotes compliance March 27, 2008 (c) Ictus Consulting, LLC 7
8 Definitions Law: A binding custom or practice of a community A rule of conduct prescribed as binding and enforced by a controlling authority March 27, 2008 (c) Ictus Consulting, LLC 8
9 Definitions Adequate Documentation (ISO 15489) Contemporaneous Complete Accurate Reliable Trustworthy Useable Has Integrity March 27, 2008 (c) Ictus Consulting, LLC 9
10 Records Management and the Law Sources of Law: Executive Branch Legislature Administration Agencies Courts March 27, 2008 (c) Ictus Consulting, LLC 10
11 Records Management and the Law Types of Law: Executive Order Legislative (Statutes) Administrative (Regulatory) Judicial (Case Law) March 27, 2008 (c) Ictus Consulting, LLC 11
12 Records Management and the Law What do you need to know? Federal Records Act (44 USC 2901) Jurisdiction Legislation Silent to Specific Litigation Legal Holds Spoliation FRCP revised 12/2006 March 27, 2008 (c) Ictus Consulting, LLC 12
13 Records Management and the Law What do you need to do? Work with legal counsel Conduct legal research Establish policy Develop procedures Communicate with staff March 27, 2008 (c) Ictus Consulting, LLC 13
14 Records Management and the Law Jurisdiction Working with legal counsel: Identify entities promulgating rules Identify specific recordkeeping requirements: Retention period Forms Formats Access March 27, 2008 (c) Ictus Consulting, LLC 14
15 Records Management and the Law Admissible as evidence in court: Made at or near the time of the event or transaction Made based on information by or from a person with knowledge of the event Made in the course of regularly conducted business activity Made as a regular practice of the business Shown to fulfill the above criteria by a competent witness (the records custodian) March 27, 2008 (c) Ictus Consulting, LLC 15
16 Records Management and the Law Records Management and Litigation Work with legal counsel to: Communicate requirements to staff Enforce legal holds Prevent document spoliation March 27, 2008 (c) Ictus Consulting, LLC 16
17 Records Management and the Law Legal Holds: Suspension of the retention period and destruction for the affected records Duty to preserve Potential (threatened) litigation Pending (actual) litigation March 27, 2008 (c) Ictus Consulting, LLC 17
18 Records Management and the Law Spoliation Plundering of evidence Intentional or unintentional destruction or disappearance of things or documents during litigation Recent rulings and legislation (SOX) broaden spoliation beyond litigation to investigations March 27, 2008 (c) Ictus Consulting, LLC 18
19 Records Management and the Law Examples of legal hold failure and document spoliation Zubulake v. UBS Warburg Testa v. Wal-Mart Anderson / Enron March 27, 2008 (c) Ictus Consulting, LLC 19
20 Examples of Federal Laws Affecting Recordkeeping COPPA E-SIGN FACTA FCRA FOIA FRA GPEA HIPAA OSHA SOX UETA March 27, 2008 (c) Ictus Consulting, LLC 20
21 Examples: California State Laws Affecting Recordkeeping Calif. PRA CA GC (model) CA GC (cities) CA GC (counties) CA GC (special districts) Brown Act Information Practices Act (Civil Code et seq) CA Shredding Law (Civil Code et seq) March 27, 2008 (c) Ictus Consulting, LLC 21
22 Recordkeeping Regulations (Examples) 8 CFR 274.2a I-9 Forms 26 CFR Tax returns 29 CFR 1904 OSHA forms March 27, 2008 (c) Ictus Consulting, LLC 22
23 Recordkeeping Guidance Statutes of Limitation CCP 335: The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows: Federal Rules of Civil Procedure Uniform Business Records as Evidence Hearsay evidence March 27, 2008 (c) Ictus Consulting, LLC 23
24 Additional Research Articles by: Carol Chosky Rae Cogar John Isaza Randy Kahn John Montaña Bob Williams March 27, 2008 (c) Ictus Consulting, LLC 24
25 Standards and Best Practice ISO DOD ISO / TS Associations: NAGARA nagara.org AIIM aiim.org ANSI ansi.org ARMA arma.org March 27, 2008 (c) Ictus Consulting, LLC 25
26 Legal Requirements Fact or Fiction? March 27, 2008 (c) Ictus Consulting, LLC 26
27 Fact or Fiction? (David O. Stephens, Records Management: Making the Transition from Paper to Electronic, ARMA International, 2007) Records Management Programs are mandated by statute and retention requirements are driven by the government. New recordkeeping technologies must receive formal government approval before they are legally proven and safe to implement. Some record storage media are legally acceptable and some are not. March 27, 2008 (c) Ictus Consulting, LLC 27
28 Legal Requirements Fact or Fiction? Commercial transactions must be supported by original records and authenticated signatures. Records retention requirements are driven by the government. Most government-imposed retention requirements mandate a 7-year retention, based on the IRS model. Records must be retained to match the longest time period in a statute of limitations. March 27, 2008 (c) Ictus Consulting, LLC 28
29 Legal Requirements Fact or Fiction? Records may be destroyed in accordance with the retention schedule until a subpoena is received. In a litigation-intensive environment, indefinite retention is best in order to retain whatever might be necessary to defend the organization. Retention periods are legally sufficient as long as they satisfy all statutory and regulatory requirements. March 27, 2008 (c) Ictus Consulting, LLC 29
30 Summary Legal concepts related to records management RM Programs support compliance Laws pertinent RM Programs Legal requirements facts and fictions March 27, 2008 (c) Ictus Consulting, LLC 30
31 To be continued Additional research: CFR: US Code: www4.law.cornell.edu All: California Codes: California Code of Regulations: Contact Information: Barbara E. Nye, CRM Ictus Consulting, LLC Pasadena, CA March 27, 2008 (c) Ictus Consulting, LLC 31
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