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

The Records Management System

The Records Management System. http://web.archive.org/web/20050224040041/http://xnet.rrc.mb.ca/recmgmt/chapter1.htm

The Records management system

Records

• A record is recorded information regardless of medium or characters made or received by an organization that is useful in the operation of a organization.
• Records contain information about evidence of organizational functions, policies, decisions, procedures, operations and other activities.
• Includes all books, paper, photographs, maps, other documentary materials, regardless of physical form or characteristics, made or received for legal operational purposes in connection with the transaction or business
• Various forms: paper, microfilm, computer tape, word processing disk, original manuscript of E.T.

Early record keeping practice

• Early records were carved into stone or clay tablets or recorded in wax, on wood, or on animal skin
• Papyrus was developed by Egyptians and was in widespread use from about 400 B.C. to A.D. 400
• Government records were initially stored in archives
• 1st known retention schedule came into being about A.D. 1200

Introduction to paper records

• 15th century paper was developed it allowed a new ease of recording information and number of records made and preserved rapidly multiplied
• 1900s typewriter hit businesses and government offices and had major effect on paperwork explosion
• Numerous steps taken by all levels of government to control government records
• Major actions affecting federal records management
• 1867 Confederation numerous records already accumulated
• 1868 Act creating Department of Secretary of State, which was made responsible for public records
• 1897 Many valuable documents destroyed in fire in West Block of Parliament Buildings – emphasized need to protect irreplaceable historic records; should they have had better storage methods?
• 1912 first federal Public Archives Act
• 1936 Treasury Board final authority regarding disposal of records
• 1952 National Library of Canada created
• 1953 Treasury Board placed records management under control of Dominion Archivist
• 1968 Subject Classification Guide for Housekeeping Records published (basis for most classification plans developed in Canada)
• 1978 Canadian Human Rights Acts (part IV provides protection of privacy and limited access to personal information); identifies who, what, where has record
• 1980 Internationally, the Association of Records Managers and Administrators (ARMA) undertook a campaign to eliminate use of legal-size files called Project ELF (Eliminate Legal-size Files)
• 1982 Access to Information Act gave right to examine or obtain copies of federal records with specified limitations (supposedly almost any record)
• 1987 National Archives of Canada Act – consent of National Archivist needed for disposal of government records
• 1989 Canada Evidence Act defined a record
• 1993 Alliance of Libraries, Archives and Records Management (ALARM) formed; government/CLA (Canadian Library Association) sponsored
• 2000 Personal Information Protection and Electronic Documents Act – encourages electronic commerce, defines. What can be kept and accessed?

Major actions affecting Manitoba Government records management

• 1981 creation of Government Records unit within Archives at both provincial and national levels
• 1988 Freedom of Information Act proclaimed (required publication of guide to government records)
• 2001 Archives and Recordkeeping Act
• 1997 The Freedom of Information and Protection of Privacy Act (FIPPA). FIPPA came into force for Manitoba government departments and agencies on May 4, 1998 and the city of Winnipeg on August 31, 1998. On April 3, 2000, it was extended to all local governments, school divisions, community colleges, universities, regional health authorities and hospitals.

Why the need for records management
Management of all phases of records life is essential to life of organization.

Major reasons for records management

• Records serve as corporate memory
• Aid in management decision making
• Provide litigation support
• Reduce paperwork volume
• Produce cost reduction
• Aid organizational efficiency
• Meet legislative requirement
• Preserve organizational history

Paperwork costs
The creation and storage of records is likely to be the greatest consumer of time, space, salaries and equipment of all government activities.

It is estimated that:

• 30% of paperwork is useless and could be eliminated
• 37% of photocopies are unnecessary
• Between 1 and 5% of all records in a typical office are misfiled and effectively lost
• A typical office worker can waste up to two hours a day looking for misplaced paperwork – a total of 500 hours or 62 days a year – almost one-fourth of the work year
• It costs approximately $2,150 US annually to maintain a single five-drawer filing cabinet in a local government office.

Nevada Local Governments Manual. 1996.

• 130 billion of the 350 billion copies made by American offices each year are not needed – they’re wasted, unnecessary, or for personal use
• American business produces 370 million new documents daily, totalling 190 billion pages
• 18,000 pages of paper per white collar employee are being created each year; almost 30 billion documents
• Photocopies produce 100 billion pages per year
• Computer outputs produces approximately 350 billion pages per year
• While projected volume increase is 62 million file drawers each year, reference is never made to 85-90% of stored records and 95% of references made are to records created in the last 3 years
• 0% of references occur within 18 months

Legislation and regulations requirement

• Each year new statues and regulations require companies to keep records longer, or keep different records or reduce recordkeeping requirements
• New definitions of records – more legislation required due to electronic document copies

History

• Records provide a reference base for company history
• Organizations must maintain historical base both as evidence of their past achievements and into the future

System concept

• System is a group of interrelated parts acting together to accomplish a goal
• The goal of records management is to provide the right record to the right person at the right time at the lowest possible cost

Records management system

All systems are composed of 3 basic elements:

• Input into system
• Process of input
• Generation of output system

Input component

• Factors include: information; equipment/supplies (hardware, software, used in processing records); money (provides resources for planning, implementing, operating, controlling system of records administration); people (administrative and managerial generate records, administrative support personnel get “right record to right person at right time at lowest cost”)

Processing component

• Includes record creation and receipt; distribution; use; maintenance; disposal
• Information is transformed into a record in process component
• The 5 functional phases of the process element represent the life cycle of a record from its birth (creation) to its death (disposition)

Life cycle of a record

Inactive and archives storage

• Records may be stored in private or commercial record centres or in archives. Archives have public or private records that have been selected for long-term storage and preservation
• Where to store records is based largely on whether the records have been previously classified as active, inactive, long-term or temporary, a record or nonrecord

Types of records

• Active record is referenced (used) on a regular basis, e.g. records of current employees, invoices for current fiscal period, correspondence, creative works in process
• Inactive record is referenced fewer than 10 times a year
• variety of records fall into inactive category e.g. semiactive record referenced once a month
• Examples of inactive records include
• Personnel files of terminated employees
• Paid invoices for previous periods
• Completed projects
• Cancelled cheques
• Long-term record has continuing value and is held indefinitely, or for a specified period identified in the retention schedule.
• Vital record (aka essential record) is essential to operation of organization and the continuation/resumption of operations following a disaster, recreation of legal and financial status of the organization or to fulfillment of its obligations to stockholders and employees in event of disaster
• e.g. accounts receivable, inventory lists, contracts, creative works in progress
• Temporary records do not have a continuing or lasting value to an organization. They may be referred to as transitory records or transactional records indicating their temporary value to the organization.
• A record copy is an official copy of a record that is retained for legal, operational, or historical purposes.
• Nonrecord copy refers to a record not usually included within the scope of official records, includes copies of a document maintained in more than one location, not identified in the retention schedule, not required to be retained or available from public sources.
• Records are not limited to one classification but they are:
• Active or inactive
• Long-term or temporary
• • Records may change placement within classifications over time, e.g. most move from active to inactive status
• Every record may not proceed through each stage of the life cycle

Records classification

Example	Active	Inactive	Long-term	Temporary	Record	Non-record
Current orders	X		X		X
Current issue of Canadian Business magazine		X		X		X
General correspondence	X	X	X	X	X	X
Personnel pay records 1995-96		X	X		X
Creative work in progress	X		X		X

Output component

• Information processed through the system and available in recorded form to the right person at the right time at the lowest possible cost = output component

Records management

What are records?
Fixed documentation of an organization’s activities having to do with its mission, regardless of format or purpose.

Examples of records:

• Correspondence and interoffice memos
• Fiscal documents like budgets and payment records
• Personnel files

What is records management?
Discipline/Profession concerned with “systematic analysis and control of recorded information.” As such, it has professional jargon and specific practices taught to newcomers.

Five Components of the Records Management Program

• Determining how long recorded information should be kept
• Ensuring compliance with recordkeeping laws and regulations
• Managing interactive records
• Organizing active records for retrieval when needed
• Protecting organization’s vital records

Life cycle of records
Records are created in course of business, initially accessed frequently

Records information ages, becomes less important to daily business, accessed less frequently

Information becomes outdated and moribund, records rarely accessed so they accumulate in expensive office space

Records become burden to efficient operation, cannot be readily accessed

Records management job is to ensure that records are cared for and most effectively stored throughout their lives

How? Create policies enshrined in records schedules that tell office workers what to do with records as they age and accumulate.

Difference between records and non-records
Records directly pertain to the organization’s mission and are created in pursuit of that mission

Non-records are fixed information, but do not pertain to the organization’s mission

Records are owned by their creators, e.g.: business files owned by the business, research writings or lectures owned by the professor

Should be managed like other assets

Good records management
Reduces business costs
Protects rights of owners, clients, citizens

Value of records
Primary values – value to creating organization

• administrative
• how the organization is set up and how it operates
• fiscal
• tracking the money/assets
• legal
• fulfilling all pertinent laws
• operational
• how the organization accomplishes its mission

Secondary values – long-term value to those outside agency (aka: historical value)

• evidential--has to do with accountability not value as legal advice
• provides evidence of how organization was
• structured
• how it operated
• how it did its job
• informational
• information not about the functioning of the organization but what is gathered within its records
• test for information value
• uniqueness of information
• level of concentration of information
• importance of information

Allied professions
Librarianship
Information Technology
Archives