Home' ALGY : ALGY Edition 24 2017 Contents 212 • THE AUSTRALIAN LOCAL GOVERNMENT YEARBOOK EDITION 24
INFORMATION + RECORDS MANAGEMENT
expense of future legal discovery and the risk that future
disposition of such items (which is inevitable at some point) will
be framed as being suspicious, the supposition being that it was
done to hide incriminating evidence.
Legal discovery and the liability of retaining
Legal discovery is one of the first steps in any lawsuit or
criminal proceeding, as well as in 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
Discovery applies to all records that exist, even those that
aren't legally required to be retained. Preservation (of records)
orders, inherently part of any such discovery process, are
issued precisely to ensure that litigants are not tempted to
rid themselves of obsolete records that, either due to guilt
or expense, they would 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, however, 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.
The risks of retaining records for longer than legally
necessary applies to electronic and paper records; however,
while space limitations provide some impetus to occasional
disposal of paper records, that is far less true for records stored
on magnetic tape or microfilm, and does not apply at all to
electronically stored records. Records on these more compact
and emerging media formats are susceptible to the risks
described above. In fact, the risks associated with retaining
electronic records for longer than legally or functionally required
are more acute as, while electronic records may be easier and
more economical to review during legal discovery, they are
easily found through electronic discovery. The discovery of a
duplicate electronic copy of a record that an organisation had
previously claimed to have been destroyed undermines the
integrity and veracity of the entire records management in the
eyes of the court, as well as regulators.
Disposition of duplicate records
A duplicate record is either a copy of a controlled record or
contains the same information as a controlled record. The
redundant document (or information) is created and kept
separate for various reasons, including ease of access, protection
from loss, or when someone believes having it might protect
or defend them if need be. By definition, a duplicate record is
not subject to an organisation's information management or
retention program, which is why it poses a threat. Those in an
organisation who propagate or save duplicate records usually
have no idea that they are putting their organisation at risk.
Disposition of incidental records
Incidental records have an organisational life span that is limited
to their immediate use. Common examples include memos,
reports, surveys, drafts of correspondence and flawed copies
of forms. From a records management perspective, the most
important thing to remember is that regardless of their nature,
they are as much an official organisational record as a duplicate
or controlled record. Like duplicate records, incidental records
usually exist outside the data controller's records management
program; however, failure to identify such records and develop
a nominal policy statement and training regarding their proper
disposition is risky and inconsistent with records management
best practices. Given their nature, authorisation prior to
disposition is not practical or legally necessary.
The certificate of destruction
It is common and appropriate that a record be kept and a
document issued in order to record each disposition event.
Unlike internal documentation authorising disposition, the
certificate of destruction (CoD) is a transactional record verifying
that records or media have been destroyed.
Who destroyed it?
Documenting exactly who was involved in the records
disposition process is critical to the veracity of the destruction
event, as well as to overall compliance. In this case, 'who' means
identifying the individuals who accept custody, transport (if
applicable), and render the media or information practicably
unreadable or unreconstructable.
Time and location of destruction
It is important to establish clear expectations regarding the time
frame between custody transfer and destruction, and to also
note that the records should not be destroyed when the CoD is
issued, but rather when they cease to exist.
All information and all media will eventually be discarded. It
is the role of records management professionals to ensure that
this inevitable result is reached purposefully and in a manner
that minimises the risks inherent in the process of disposition.
Although disposition of information marks the end of managed
control by the organisation, the responsibility and repercussions
exist in perpetuity.
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