DISPOSITION OF CONTROLLED
RECORDS AND INFORMATION
Whether through training or their own devices,
employees generally learn quickly what records
can be summarily discarded (incidental or
duplicate records) and which records must be
retained (controlled records). Controlled records
cannot be destroyed until after a period of time
that is determined either by their value to the
organization or the legal retention requirements -
whichever is longer.
For instance, in most jurisdictions retained
pediatric medical records must be retained for a
specific number of years past the age of majority
( 18 or 21), even if the practitioner has not seen the child since they
were a toddler. As a result, the legal requirement exceeds their
practical value to the doctor or the patient. On the other hand,
financial transaction records which may have a legal retention
requirement of only a few years, may be useful to an organization
for much longer and so they are retained longer. In this case, the
useful value of the records exceeds the legal retention period.
Most organizations lack the in-house expertise to develop a records
retention policy. In such cases, it is advisable to retain a consultant
or an attorney with the expertise to create one. When turning to a
consultant, it is advisable to look for a professional accredited by
the Institute of Certified Records Managers (ICRM) as a Certified
Records Manager (CRM) or a consultant accredited by ARMA
International as an Information Governance Professional (IGP).
In any case, the record retention policy should be reviewed by
qualified legal counsel prior to adoption.
Too often organizations either fail to develop a records retention
policy in the first place or do not adhere to the one they have
created. When this happens, retained records accrue year after year
until the organization runs out of storage space or decides to stop
unnecessarily spending money to store the obsolete records.
When records are retained beyond their legal retention period
it creates unwelcome consequences, including the expense of
unnecessary storage, the cost of future legal discovery and the risk
that their eventual disposition (inevitable at some point) will be
interpreted as suspicious by authorities; the supposition being the
unpredictable destruction was initiated to avoid incrimination.
Liability of Retaining Unnecessary Records
Retaining records and media longer than required by law or for
sound business purposes is a common practice but one which
carries with in a number of potentially damaging consequences.
Legal discovery is one of the first steps in any legal proceeding, as
well investigations and audits. It is a process that allows opposing
counsel to request any record circumstantially related to the
proceedings under parameters established by the opposition that
are often generously broad in scope. Failure to produce all such
records is viewed as a serious affront to the court, and may result in
contempt charges or adverse inference instructions to jurors.
Discovery applies to all records that exist at that time, even those
no longer required by law to be retained. Preservation (of records)
orders, inherently part of any such discovery process, are issued
precisely to ensure litigants are not tempted to rid themselves of
obsolete records that would, either for guilt or expense, rather not
make available. Had the obsolete records been destroyed prior to
the likelihood of legal action, there would no reason for concern. As
soon as litigation seems reasonably likely, it is too late. Destruction
of any record that exists, even those that are obsolete, could be
ruled as obstructing justice or tampering with evidence.
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