LEGAL ISSUES IN INTERNATIONAL RECORDS MANAGEMENT

Transcription

1 RECORDS & DOCUMENT MANAGEMENT EXPERTS LEGAL ISSUES IN INTERNATIONAL RECORDS MANAGEMENT By: David O. Stephens, CRM, FAI Senior Vice President of Consulting 2013 Zasio Enterprises, Inc. All rights reserved.

2 LEGAL ISSUES IN INTERNATIONAL RECORDS MANAGEMENT Page 2 of 8 Throughout history, business recordkeeping has been a subject of high interest to the legal community. For centuries, governments their legislative assemblies, courts, regulatory commissions, archival agencies and other ministries of government have enacted laws, promulgated regulations, decrees and directives, and handed down judicial decisions concerning the manner of recordkeeping in business and government organizations. And, throughout history, organizations large and small, public and private, have created and kept records, records in physical format. With the advent of computers, organizational records began to be created, for the first time ever, in non-visible formats. And this changed everything, including the legal framework for recordkeeping. Records, traditionally, have been regarded as things that are fixed, tangible, definite, deliberately created, and having a serious purpose and some longevity. Electronic information, by contrast, has inherent attributes of fluidity and high capacity for constant change. By its very abundance and omnipresence, it sometimes discourages attention to quality, longevity and value, at least relative to the paper records of the past. The evolution of the law reflects these realities. Records, traditionally, have been regarded as things that are fixed, tangible, definite, deliberately created, and having a serious purpose and some longevity. Electronic information, by contrast, has inherent attributes of fluidity and high capacity for constant change. By its very abundance and omnipresence, it sometimes discourages attention to quality, longevity and value, at least relative to the paper records of the past. The evolution of the law reflects these realities.

3 LEGAL ISSUES IN INTERNATIONAL RECORDS MANAGEMENT Page 3 of 8 RECORDKEEPING LAWS IN THE PRE-TECHNOLOGY ERA For hundreds of years, records and documents have been recorded on visible media, predominantly paper. Thus, legislative assemblies throughout the world have traditionally written laws about business records based on their essential nature as physical objects. Such laws remain on the books of many countries even today. This paper describes how the law has developed in a world where digital is the predominant and sometimes the sole recordkeeping medium. ELECTRONIC RECORDS LAWS IN THE PRE-INTERNET ERA During the first thirty years of computer usage, electronic records tended to be used in conjunction with paper records in many recordkeeping environments. Thus, legislative bodies enacted provisions of law that reflected this reality. While some of these electronic recordkeeping laws, enacted during the pre-internet era of the 1970s through the mid- 90s, may have been recently revised or superseded, most remain on the books with full force and effect today. Some of the most common requirements of these nternational laws are as follows: Laws Pertaining to Electronic Tax Documentation Requirements for Maintenance of Computer Hardware, Software and Documentation Laws Pertaining to Record Media Laws Requiring the Keeping of Original Records Computer Systems Require Prior Approval of the Government Requirements that Electronic Records be Printed Upon Request Requirements to Safeguard Electronic Records Against Falsification Requirements for Protecting Electronic Records from Loss

4 LEGAL ISSUES IN INTERNATIONAL RECORDS MANAGEMENT Page 4 of 8 THE MODERN ERA: THE INTERNET AND E-COMMERCE In Europe, the United States and elsewhere, the year 1995 was dubbed the Year of the Internet. For in that year, the Internet reached critical mass a watershed in the inexorable march of technology to revolutionize business and indeed all of society on a global scale. In July of that year, new company called Amazon.com was formed, one of the world s first online retail companies. Here, we see a global business in which information technology is the central organizing principle of the entire business, and in which business transactions are executed in a largely paperless mode. A new era of recordkeeping had dawned and new methods of recordkeeping, and the legal basis for them, must be adopted. THE UN MODEL LAW ON ELECTRONIC COMMERCE In 1996, the United Nations Commission on International Trade Law (UNCITRAL) developed the world s first global legislative model which prescribed legal standards for recordkeeping in alldigital environments. This was the odel Law on Electronic Commerce, and it revolutionized the laws of electronic recordkeeping throughout the world. The basic premise of the model law is that electronic records, if managed correctly, can provide the same level of functionality as their paper counterparts; for example, equivalent levels of reliability, traceability, and unalterability. For those nations that elect to adopt this model law or a version of it, its provisions will be of special significance to those engaged in the management of electronic records. The main provisions of this model law that are of direct relevance to the management of electronic records are summarized as follows: Legal Recognition of Electronic Records The model law confers legal status on data messages as business records and further provides for their admissibility as evidence in courts of law, unless there is some reason for not doing so. Legal Requirements that Information be in Writing This provision can be onstrued to provide a general endorsement of new technologies for business record keeping, provided that organizations assimilating such technologies adhere to the basic provisions indicated in Article 8.

5 LEGAL ISSUES IN INTERNATIONAL RECORDS MANAGEMENT Page 5 of 8 Legal Requirements Pertaining to Electronic Signatures This provision states that Where the law requires a signature of a person, that requirement is met in relation to a data message if (a) a method is used to identify that person and to indicate that person s of the information contained in the data message; and (b) that method is reliable as was appropriate for the purpose for which the data message was generated or communicated... In 2001, UNCITRAL published requirements pertaining to electronic signatures in a separate model law, which is reviewed below. Legal Requirements for Original Records Chapter II, Article 8 states that Where the law requires information to be presented or retained in its original form, that requirement is met by a data message if (a) there exists a reliable assurance as to the integrity of the information from the time when it was first generated in it final from, as a data message or otherwise; and (b) where it is required that information be presented, that information is capable of being displayed to the person to whom it is to be presented. Criteria for Assessing the Integrity of Electronic Records Chapter II, Articles 8 and 9 contain criteria for assessing the integrity (trustworthiness) of electronic records. Electronic Records as a Retention Medium Provisions relating to the retention of electronic records are contained in Article 10 of Chapter II. The important ones are: (1) Where the law requires that certain documents, records or information be retained, that requirement is met by retaining data messages, provided that the following conditions are satisfied: (a) the information contained therein is accessible so as to be usable for subsequent reference; and (b) the data message is retained in the format in which it was generated, transmitted or received, or in a format which can be demonstrated to represent accurately the information generated, sent or received; and (c) such information, if any, is retained as enables the identification of the originand destination of a data message and the date and time when it was sent or received.

6 LEGAL ISSUES IN INTERNATIONAL RECORDS MANAGEMENT Page 6 of 8 (2) An obligation to retain documents, records or information in accordance with paragraph (1) does not extend to any information the sole purpose of which is to enable to be sent or received; (3) A person may satisfy the requirement referred to in paragraph (1) by using the services of any other person, provided that the conditions set forth [in this paragraph] are met. THE UN MODEL LAW ON ELECTRONIC SIGNATURES In May 2001, UNCITRAL issued its second major publication concerning electronic recordkeeping the Model Law on Electronic Signatures. This law provides much more comprehensive guidance for the legislative framework of digital signatures than the brief treatment appearing in the earlier e-commerce law, and is certain to be of equal global significance in the development of international law relative to its subject. THE US E-SIGN LAW In June 2000, the U.S. Congress passed, and President Clinton signed, the Electronic Signatures in Global and National Commerce Act the E-sign Act, as it is commonly referred to. According to many observers, the E-sign Act totally changes the landscape pertaining to the use of electronic information in commercial transactions in the United States. The law removes the impediments in existing law to conducting business electronically. Electronic records will be subject to the same legal scrutiny as physical ones, and the law implicitly recognizes that paper records will be utilized a medium for business recordkeeping for some time to come.

7 LEGAL ISSUES IN INTERNATIONAL RECORDS MANAGEMENT Page 7 of 8 CONCLUSION: THE ROLE OF RECORDS AND INFORMATION SPECIALISTS The central theme of this paper is the law s requirement that organizations be able to demonstrate that their electronic and other recordkeeping systems are operated with integrity. Records and information specialists have a key role to play in the authenticity and integrity of business records. Indeed, the entire discipline of records management has been characterized as the process of managing the corporate memory in a way that makes trustworthy records readily accessible any time they are required. One of the authoritative statements concerning the integrity and authenticity of business records and the role of records and information specialists in supporting it was issued by the International Organization for Standardization, in its international standard for records management ISO (2001). The ISO standard defines the integrity of a record as one that is complete and unaltered. According to the standard, an authentic record is one that can be proven to be what it purports to be, to have been created or sent by the person purported to have sent it, and to have been created or sent at the time purported. The record must be genuine and determined to have been managed by specific recordscustodians through all phases of its life cycle. To ensure the authenticity of records, the ISO standard requires that organizations implement and document policies and procedures to control the creation, receipt, transmission, maintenance and disposition of records. The ISO standard specifies that the management of recordkeeping systems be supported by adequately documented policies, assigned responsibilities, and formal methodologies. It is the central recommendation of this paper that records and information specialists work in close concert with attorneys, IT specialists and the business managers having responsibility for recordkeeping systems to achieve these objectives, based on the principles discussed here.

8 About the Author David Stephens is Senior Vice President of Zasio Enterprises, Inc., a leading records management company based in Boise, Idaho. He has run the records management consulting practice for this firm since Mr. Stephens has spoken to thousands of records managers throughout the United States and in some twenty countries in Europe, Asia, Latin America and the South Pacific. He is a Certified Records Manager, and in served as President and CEO of ARMA International, a professional association representing over 10,000 records managers from countries throughout the world. David Stephens was inducted into the Company of Fellows of ARMA international in He is co-author of the Fourth Edition of the book Information and Records Management, which is generally regarded as the standard reference work on records management in North America. Mr. Stephens formerly served as Contributing Editor of The Information Management Journal. He lectures on advanced records management topics at The George Washington University. David Stephens was awarded status as a Certified Management Consultant by the Institute of Management Consultants in Mr. Stephens may be contacted at: dostephens@zasio.com. 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