Records retention and legal considerations

Records retention and legal considerations http://web.archive.org/web/20041224150925/http://xnet.rrc.mb.ca/recmgmt/chapter4.htm

Records retention and legal consideration

What is the records retention program?
The records retention program provides a timetable and consistent procedures for maintaining the organization’s records, moving the records to inactive storage when appropriate and destroying records when they are no longer valuable to the organization.

Goals

• First task in developing a records retention program is to determine the goals and objectives of the organization’s retention program
• Major goals of records retention program
• Meet organizational needs, accomplished by
• Cost reduction
• Destroy unneeded records and transfer semiactive and inactive records to low-cost storage areas (improves use of office space)
• Equipment required for storage of semiactive and inactive records (e.g. Metal shelving, transfer boxes), less costly than filing cabinets and shelves
• Only one copy, the record copy, needs to be retained during semiactive and inactive periods
• Retrieval efficiency and consistency
• Destroying unneeded records increases efficiency
• Retention procedures that are consistent throughout the organization provide control over employees who keep everything (pack rats) or employees who dispose of records too quickly (nonsavers)
• Meet legal requirements
• Adhering to government regulations
• Providing litigation protection and support

Government regulations

• Federal, provincial and municipal governments have many statues that have an impact on the retention periods for business records
• Statutes fall into three major categories:
• Tax records
• Employment and personnel records
• Regulations for specific industries

Legal requirements

• Tax records help government establish appropriate amount of tax due
• Employment and personnel records
• Canada Pension Plan Act
• Employment Insurance Act
• Provincial Workers’ Compensation Act
• Provincial occupational health and safety legislation (The Workplace Safety and Health Act in Manitoba)
• Federal and provincial human rights acts
• Statutes applying to specific industries, e.g.
• Agriculture
• Banking and financial institutions
• Communications
• Transportation
• Professional groups, e.g. doctors, lawyers, engineers, etc.
• Also: fair business practices, consumer affairs, right to privacy, access to information

Government regulations

• Retention procedures must meet the statute requirements of federal, provincial and municipal governments, and make sure that records are destroyed after the retention periods have been met
• The records manager must be familiar with the statutes of the government
• Ignorance of a statute does not absolve the organization of its responsibility to keep records for the specified time

Litigation protection and support

• A records retention program helps us to identify the records necessary for litigation and locate the records needed as evidence in the courtroom
• Ensure records are destroyed according to an established records retention program, records properly destroyed prior to litigation cannot be used against the organization during litigation

Records appraisal

• Records appraisal is an examination of the data gathered through the records inventory to determine the value of each records series to the organization
• Result of records appraisal should be a records retention schedule

Steps to establish a records retention schedule

• Establish series value
• Administrative value: a records series that defines operating procedures, e.g. organization chart, policy statements, directives, procedures manuals
• Fiscal value: records that documents use of funds, e.g. financial statements, summaries of financial transactions
• Legal value: records series that documents business transactions, e.g. contracts, financial agreements, titles, records proving compliance with regulatory requirements
• Historical value: records series that documents the organization’s accomplishments, e.g. minutes of board meetings
• Establish retention periods
• Originating department must determine the retention period to support the business activity
• Legal counsel must determine retention period to meet the legal requirements of the records series
• The fiscal officer must establish the retention period for the organization to maintain its fiscal responsibly
• Determine requirements
• Length of time records are retained based on:
• Support for business activity (organizational requirements)
• Legal requirements
• Negotiate and finalize retention periods

Sample inventory and retention forms
Records Management Plan. McMaster University Health Sciences http://www.fhs.mcmaster.ca/recman/invform2.html
Records Inventory and Retention Control Card http://web.archive.org/web/20050101000000*/http://www.bankersbox.com/us/handbook/retention.xls (click on December 16 to download)

Organizational requirements

• Requirements of originating office
• Vital records (4-10% of records)

Requirements of the administrative policies of the organization
http://www.smbsd.org/UserFiles/Servers/Server_3140011/File/migration/Records_Retention_Form.pdf

Legal requirements

• Business records must be maintained in compliance with federal, provincial, and municipal statutes and rules and regulations established by government regulatory agencies
• The statute of limitations must be considered when records retention periods are established
• The period during which a person or organization can bring action in a lawsuit or be sued

Government regulations

• Varying federal and provincial jurisdictions based on Constitution Act of 1867
• Provinces look after property, civil rights as such regulate most business activities
• Federal government regulates international and interprovincial trade, commerce, transportation, communication, navigation, shipping, banking
• Two major legal systems
• Civil code in Quebec
• Common law other provinces
• Language regulations
• Some records must be kept in both official languages
• Quebec, records must be in French
• Most comply with statutes of each province organization does business in
• Records managers must establish retention periods for the records covered by the federal, provincial and municipal states
• Requires researching applicable legislation
• The records analyst is a specialist in systems and procedures used in creating, processing, and disposing of records
• No single source for Canada lists all government statues and regulations

Statues of limitations

• Records managers must establish a records retention program that will support the organization in case the organization is involved in litigation
• Statues of limitations designate time period during which an organization can sue or be sued they do not state records retention requirements
• general rule for breach of contract within six years of cause of action

Archival requirements

• Archival retention may be based on legal, fiscal, or historical reasons
• Usually applies to c. 5% of records
• Archives are used to preserve corporate memory; provide production information, policy direction, personnel information and financial information; maintain public relations activities; provide legal advantage and research service; and prepare commemorative histories

Finalize retention periods

• When records manager receives the records inventory and retention sheets with all the required signatures, a records retention schedule can be finalized
• Retention periods include 
• length of time to remain in originating office
• length of time in records storage area
• final disposition (archives/destruction)
• date scheduled for destruction
• Final retention periods may include the amount of time the record will remain on its original medium, the medium to which it should be transferred for further retention, and the time on the new medium

Program implementation
Steps include

• Schedule preparation
• Retention periods must be summarized in a list or retention schedule/timetable for distribution within the organization
• Retention schedule must include
• Name of the records series
• The retention period 
• Records Retention Policy. Stormont Dundas and Glengarry County Library http://web.archive.org/web/20050212170720/http://sdglibrary.ca/polc.html
• Medicine Hat Public Library Policy No. LM 1 http://web.archive.org/web/20070813011214/http://www.shortgrass-lib.ab.ca/mhpl/PDFDocs/Recordsmgmt.pdf 
• Schedule dissemination
• Distribute schedule to each office that deals with records
• Schedule review and revision
• Provide for review and revision at planned intervals
• Changes in government regulations
• Track pattern of use to adjust non-regulated period
• Development of a manual of retention policies
• Records retention policies and procedures only or
• Single records policies manual
• Guidelines on the Retention and Disposition of School Division/District Records, Manitoba Education and Training, January 2010 http://www.edu.gov.mb.ca/k12/docs/policy/retention/
• Records Management Standards and Procedures http://www.for.gov.bc.ca/tasb/manuals/recman/rmtoc.htm

Legally sufficient records retention program
To make program legally sufficient, i.e. adheres to government regulations and provides litigation protection and support, following factors must be included:

1. The records retention program must be developed in a systematic manner.
2. All records must be covered in the records retention program.
3. Records maintained on media other than paper must be included in the records retention program.
4. Records retention schedules must have written approval by key personnel of the organization.
5. Records must be systematically destroyed according to the records retention program.
6. The records retention program must be managed.
7. Procedures must be in place to suspend destruction of records involved with litigation and government investigations.
8. Documentation relating to the destruction of records must be maintained indefinitely.

Records Inventory and Analysis

http://web.archive.org/web/20041224123513/http://xnet.rrc.mb.ca/recmgmt/chapter3.htm

Records inventory and analysis

Planning the records management program

• Planning
• involves determining
• where the organization wants to go (goals)
• how it will go about getting there (strategy)

Establishing goals and objectives

• Goals
• reflect the philosophy and aspirations of management for the entire organization
• are established from highest to lowest levels
• usually stated in general terms
• e.g. organizational wide goal: to reduce the cost of administrative services
• complementary goal for records management division of the organization: to increase the capabilities and reduce the cost of providing information to managers
• Objectives
• An objective is a statement of how one step in reaching a goal is to be completed and measured
• Specific objectives are defined to relate to goals developed
• e.g. Organizational goal: Reduce costs; Objective: reorganize administrative services to streamline its operation to produce an 8% saving during the next two years
• e.g. Records management goal: to increase the capabilities and reduce the cost of providing information to management; Objective: determine a more cost-effective method of maintaining and storing records to result in a 10% saving in current fiscal year

Determining a strategy

• A strategy is a plan of action
• After goals and objectives are determined, a plan for achieving these objectives should be devised
• Plan would include
• ways to accomplish the objective
• a timetable for the planned action
• a cost projection
• Specific actions should be tailored to the needs of each organization
• Plans serve as the foundation for all organizational achievements

Cost reduction plan

Objective	Action	Completion date	Cost
5% cost reduction by using more cost efficient storage and retrieval practices	Review retention schedule to determine if files are kept too long in active status	30 days	Labour only
	Assesses turnaround time to determine if clerks need additional training	30 days	Labour only
	Check files for overcrowding	10 days	Labour only
	Determine if files are being disposed of according to schedule	45 days	Labour only

Obtain authorization and support

• Management support and commitment is critical to success as is
• User support and commitment
• Obtain user support via
• Positive management attitudes
• User involvement in the process

Files could be in a variety of places, e.g., desk, drawers, i.e. there is no central storage place

Records inventory

• To accompany the overall goal of records management, you must know three things:
• Types of records maintained
• Where they are housed
• Volume of records
• The records inventory (aka records survey) is a detailed review of the quantity, type, function, and organization of records
• Provides answers to:
• What kinds of records do we have?
• Where are the records located?
• How many records do we have?
• Are the records active, inactive, or nonessential?
• Are the records vital?
• Which are record copies?
• Three major goals 
• Define present scope and status of records to be managed
• Provide database for the development of a records retention program
• Provide information for other decisions in the development of an effective records management program
• Provides a basis for many management decisions, e.g.
• What facilities, equipment, supplies, and staff are required to handle records?
• What staff training is needed?
• What controls should be in placed on creation and duplication of records?
• What measures need to be taken to protect vital records?

Planning the records inventory

• Gain commitment from management and those who will be working on the inventory
• Select personnel
• Project director
• May be selected from internal or external candidates
• Inventory group members
• Task Force
• Records management staff (may have less training)
• Contracted Services (no training, not familiar, cost)
• Determine method
• Questionnaire
• Quick, 
• most used, 
• personnel may be most familiar 
• Physical survey
• Time consuming
• most accurate
• Combination physical inventory/questionnaire
• Obtain forms
• Forms should be easy to use
• should collect all information first time
• reflects unique requirements
• Plan schedule
• A detailed schedule for the records inventory is a must
• Records
• Both active and inactive or active only?
• Locations
• Where are records stored?
• Sequence
• Refers to order in which records will be surveyed
• Time
• Need to estimate time in each location
• Include time from interruptions
• Consider level of expertise of those conducting the inventor

Conducting the inventory

• Complete the preliminary purge
• Purge shortens time for formal inventory
• Weed copies not needed
• Identify the records series
• Records series
• groups of records filed as unit
• Data set
• to electronic form of information
• Identify the required space
• Categorize records as active or inactive
• influences where to keep

Records analysis

• On completion of inventory an analysis is made to identify records types common to most departments, those unique to certain areas, different records types that serve the same function, and the holder of the copy of record
• Standardize terminology of inventory forms
• Status Report
• keeps everyone informed; includes preliminary report, progress report, final report
• Data Summary
• Report Preparation