Retention, Records Management and Legal Compliance
Quality records management that includes document retention policies is essential in ensuring legal compliance and business efficiency. Having a system in place to execute and monitor compliance to those policies is vital to the long-term credibility of your organization.
A quality document and records management system that facilitates effective record keeping in an organization must have the capacity to design, apply and enact document retention policies. The best solution will enable an organization to seamlessly carry out retention and disposal activities for both paper and electronic documents in any format, in a planned and predictable way, and in accordance with legal requirements. It will provide the functionality and in-built business rules that make first-class records management easy. Compliance with the legal and regulatory framework in which an organization operates is a vital part of doing business. This is not a new concept. What is new is the present level of non-compliance, often inadvertent, due to the current lack of control in the digital environment where most business documentation is being generated. There are numerous examples of mismanaged information in today's business world and it is not difficult for organizations to fall foul of the law, resulting in heavy fines and damaging publicity. Recent legislation mandates greater care of all business critical information. Lawsuits involving business information are increasingly dominated by "digital fights" as opposed to paper fights, as lawyers find more and more of their useful evidence in digital form.1 Organizations have frequently opted for purchasing inexpensive storage facilities for their digital output. This choice has encouraged a regime of "no policy" and the retention of potentially incriminating information. It is more and more apparent that all documents and records, both paper and digital, produced within an organization in the course of business must be managed within a framework that recognizes, amongst other things, the relevant legal requirements. Some lawyers suggest as a solution more discrimination in the information committed to electronic memory. This may alleviate the problem, but it will not take care of the mass of possible digital evidence that organizations create. A philosophy of selective capture relies too heavily on individual judgment. An enterprise-wide policy for defining exactly which documents and records are to be kept, and for how long, is essential. And to enact the policy, an organization requires a records management system that facilitates effective application of these policies to business records.
What are Document Retention Policies? From a legal perspective a document retention policy is "a set of guidelines that a company follows to determine how long it should keep certain records, including e-mail and Web pages. This is important for many reasons, including legal requirements that apply to some documents."2 Retention policies may be designed in-house to meet business needs, laws and regulations or, in the case of government agencies, they may be defined by an archival institution or a Public Records Office. Applying the decisions concerning which records to keep, why and for how long has traditionally been the work of archivists and records managers and is referred to as "appraisal." Appraisal focuses on maintaining records to meet business needs, accountability requirements and community expectations. The appraisal process examines the interests of all stakeholders. With the advent of digital information, there are more players involved and the traditional structures for ensuring that appraisal takes place and that retention requirements are correctly defined and applied has been neglected. The retention policies of an organization must be systematically applied in the creation, maintenance and storage of records, in other words, as part of the recordkeeping system. Items to consider when researching a document and records management system:
1. The ability to import, define and apply retention schedules. Every organization has different records with differing retention requirements, depending on their content. Records management systems should provide for these different requirements. You will want to be able to specify the schedule according to administrative and regulatory (internal or external) conditions. The schedule can be defined to include the details of how long the record or file shall be retained, the source of the requirement, the unique number of the schedule and the retention or destruction trigger dates that control the operation of the schedule. The schedule may be automatically attached at the time of creation or later, when the decision about retention has been made.
2. Manage the legal requirements associated with court actions and can prevent "spoliation of evidence" charges. The policies and procedures which ensure that documents and records are managed according to organizational requirements prevents inadvertent destruction. The current widespread practice of managing e-mails in organizations by purging individual holdings on a routine basis takes little or no account of the actual requirements for evidence that may be stored in these holdings. This kind of action can have damaging legal repercussions. Appraisal of e-mail and the use of retention policies will prevent this. Documents can be inadvertently destroyed after the request from the court as been made. And this can result in prosecution. However, if documents can be seen to have been destroyed in accordance with a well-documented policy, the suspicion is removed that deliberate destruction has taken place in order to avoid possible legal consequences. An essential feature of a retention policy is the ability to respond quickly and easily to an ad hoc request for preservation of documents. A feature called "litigation hold" is available in TOWER Software's product, TRIM Context, which enables an immediate response to a court request by suspending the document retention policy for the duration of the hold. In this way documents cannot be inadvertently destroyed.
3. Retaining documents that are no longer needed may expose a company to unnecessary risk. Sometimes referred to as "removing smoking guns,"3 retention polices can control the existence of e-mails which turn out to be incriminating sources of evidence. Many of the cases that have come to court and caused embarrassment have been built on damaging e-mails.4 E-mail can easily escape the attention of record keepers and retention requirements. As a frequent and everyday occurrence (and one which contains evidence of business decision-making) it is vital that policies for e-mail are applied. Your system should provide a user-friendly in-built integration of e-mail with the records management system. Storing e-mail and applying document retention may be completely automated if required and important business e-mails can be immediately transferred to the records management system. At the same time appropriate document retention and disposal policies are applied.
4. The integration of classification and retention policies meets business needs and saves money. The application of document-retention policies can lower the costs of any litigation involvement. Policies are part of an enterprise-wide information and records management policy to ensure the proper administration of records. Only those documents that need to be kept are retained. Although the implementation of enterprise-wide documentand records policies may initially increase costs, in the longer term there will be significant cost savings. For fewer integration and license management issues plus faster user acceptance, use a system that provides document and records management in one system and through one interface. Classification tools such as the file plan and thesaurus and the facility to apply document retention schedules to the plan structure enable seamless application of retention controls. Using a classification plan means that documents are much easier to find and retrieve. The application of retention policies to documentary evidence ensures that they are kept for the necessary period and not beyond their "use-by date." This reduces the need for the costly "discovery" process. Discovery requires an organization to search all its files to provide necessary evidence in the event of litigation. This job frequently falls to the IT department to carry out and staff may not know what is required. "It is unrealistic to assume that IT professionals can pay attention to all the nuances of litigation, manage the life cycle responsibilities associated with e-mail, and enforce an overall e-mail archive policy. Companies will be caught off guard by assuming that IT can shoulder this burden alone" says Kevin Craine in his white paper Here come the Lawyers. Is your IT Department Ready? The discovery process itself can be a very costly exercise for a company. Trying to discover the evidence "can become an economic and operational nightmare," according to Mr. Craine.
Conclusion
Software to manage records and information must provide in-built business processes and tools to manage records in a fully accountable way. It must enable the routine application of document retention policies to records. While a lot of attention has been focused on the negative impact of not having a document and records management system in place, much more can be said about the benefits of having your organization's information available at the click of a mouse. Decisions can be made faster and with more confidence because the information is available in your proven, well-tried and tested, fully integrated solution that also meets your organization's legal compliance requirements.
Tower's TRIM
TRIM Context is an integrated electronic document and records management (EDRM) solution capable of managing and securing the full range of corporate information assets TRIM Context provides the total solution for any enterprise content management project. Integration to common desktop authoring applications is provided out-of-the-box, as is integration to common e-mail applications. Finally, the powerful SDK enables integration to other line of business and specialist applications, while the solid foundation of records management means you can be sure your project is built on a platform that is stable and solid enough to grow with you. TRIM Context is a proven solution used by hundreds of organizations, and thousands of people, around the world to manage and secure their vital information assets. Quality records management has been the consistent aim of TOWER Software for the 20 years of its history and its product TRIM Context continues to evolve to meet the International Standards in the field. With more than 1,200 sites worldwide, TRIM Context is a dominant player in the government sectors of Australia, the US, the UK and Canada and is the preferred choice in a range of leading organizations in government, utilities, resource and pharmaceuticals sectors.
TOWER Software, the leading enterprise content management (ECM) provider to the public sector, delivers electronic document and records management (EDRM) solutions. TOWER Software's award-winning solutions empower organizations to manage and secure their vital information assets. By relying on its proven domain expertise, strong strategic partnerships and powerful solutions, TOWER Software enables organizations to improve the accuracy of information on which business decisions are made; maximize efficiency by finding business critical information more quickly and easily; and achieve and maintain standards compliance across industries, resulting in sustained competitive advantage. TOWER Software is a privately held company with operations in North America, Europe and Asia-Pacific.
1 Jacobs, Jerald A. (May, 1999), "Legal: Reducing Risks Posed by Electronic Records." Available online at http://beta.asaenet.org/ newsletters/display/0,1901,229,00.html
2 Weil Gall, Barbara (September, 2000), "Document Retention Policies: Legal Reasons to Keep E-mail, Web Pages and Other Records." Accessed online March 31, 2003 at http://www.gigalaw.com/ articles/2000-all/gall-2000-09-all.html
3 Bartlett, David F. (June, 2002), "Document Retention Policies in the Wake of Enron," Illinois Bar Journal accessed online, http://www. gouldratner.com/resources/articles/bartlettarticle.pdf
4 Olsen, S. (May, 2002), "Email: When E stands for embarrassing." Available online http://news.com.com/2100-1023-916257. html?legacy=cnet