records retention scheduling workshop final 20150420 to ... retention scheduling... · •...

Records Retention Scheduling Workshop

Sheila Taylor, IGP, CRM

27 April 2015

Our Agenda (1)

1. Logistics and introductions

2. Records retention scheduling introduction– Terminology– Benefits of records retention schedules– Retention schedules for common/

administrative records

2© 2015 Ergo Information Management Consulting

Our Agenda (2)

3. Records retention schedule development– Identify record groups/series– Appraise record value– Complete legal research– Secure retention schedule approval– Publish the retention schedule


Key Learnings

• The benefits of a defensible records retention schedule

• How to identify record groups/series• How to appraise record value for retention

scheduling purposes• Researching legislated/regulatory records

retention requirements


Our Schedule

• Morning break: 10:00 to 10:30 AM (approx.)

• Lunch: 12 Noon to 1 PM

• Afternoon break: 2:15 to 2:45 PM (approx.)

• Workshop ends: 4:30 PM


Introductions: Sheila Taylor

• Information Governance Professional (IGP)• Certified Records Manager (CRM)• 25+ years RIM experience

– Developed numerous records retention schedules and retention and disposition programs for public, private, and not-for-profit clients

• 15+ years experience as iSchool Institute (U of T) instructor in records inventory, records retention scheduling, etc.


Introductions

1. Your name 2. Your organization


TERMINOLOGY


Record

Records: “Information created, received, and maintained as evidence and information by an organization or person, in pursuance of legal obligations or in the transaction of business” (ISO RM Standard 15489-1:2001, s. 3.15)

Record: “Any recorded information, regardless of medium or characteristics, made or received by an organization in pursuance of legal obligations or in the transaction of business” (ARMA International, Glossary of Records and Information Management Terms)


Records Life Cycle

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CREATION STAGE

Records are produced by internal and external

parties... DISTRIBUTION AND USE

STAGE and are transmitted

to internal and external users...

STORAGE AND MAINTENANCE

STAGE and are classified and filed

in storage devices and maintained for active

reference...

RETENTION AND DISPOSITION

STAGE then become inactive and are destroyed or transferred

to a storage facility...

ARCHIVAL PRESERVATION

STAGE or preserved

permanently in an archive for historical or research

purposes

1

2

34

5

(Robek, Brown and Stephens, Information and Records Management) © 2015 Ergo Information Management Consulting

Record Series

Series: “A group of records created and maintained by an agency or person that are in the same numerical, alphabetical, chronological or other identifiable sequence, or result from the same accumulation or filing process and have a similar function, format or informational content” (National Archives of Australia, Glossary)

Records series: “A group of related records filed/used together as a unit and evaluated as a unit for retention purposes, e.g., a personnel file consisting of an application, reference letters, benefit forms, etc.” (ARMA International, Glossary of Records and Information Management Terms)


Office of Record

“An organizational unit designated to maintain the record or its official copy” (ARMA International, Glossary of Records and Information Management Terms)

Synonyms (e.g.)- OPI (Office of Primary Interest)- OPR (Office of Primary Responsibility)- Responsible Department/Office


Retention Period (1)

“The length of time a record must be kept to meet administrative, fiscal, legal, or historical requirements” (ARMA International, Glossary of Records and Information Management Terms)

“The length of time records should be kept in a certain location or form for administrative, legal, fiscal, historical, or other purposes”(Pearce-Moses, A Glossary of Archival and Records Terminology)



1. # of years (or months, rarely days)

2. Event-based (e.g.)– Termination of employment– Project completion– Expiration of a (legal) appeal period



• Active record• Semi-active record• Inactive record

15

Retention Phase/Location Retention Period

Active CY+1

Semi-active 2

Inactive 1

Total CY+4

© 2015 Ergo Information Management Consulting

DispositionDisposition: “For a record, the final action taken per the retention schedule, concluding with destruction, transfer, or permanent preservation” (ARMA International, Glossary of Records and Information Management Terms)

– Destruction: “process of eliminating or deleting records, beyond any possible reconstruction” (ISO 15489-1: 2001, S. 3.8)

– Transfer: “(movement) moving records from one location to another” (ISO 15489-1: 2001, S. 3.21)

– Permanent preservation: management as archival records


Records Retention Schedule (RRS)Records retention schedule: “A comprehensive list of records series titles, indicating for each series the length of time it is to be maintained. May include retention in active office areas, inactive storage areas, and when and if such series may be destroyed or formally transferred to another entity, such as an archives for historical preservation” (ARMA International, Glossary of Records and Information Management Terms)

Retention schedule: “A document that identifies and describes an organization's records, usually at the series level, provides instructions for the disposition of records throughout their life cycle. Notes: Retention schedules may also include instructions for the disposition of documents and other materials that are not official records.”(Pearce-Moses, A Glossary of Archival and Records Terminology)

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(aka records schedule, records retention and disposition schedule, or records retention and disposition authority)


Best PracticesRetention and Disposition• “Records systems should be

capable of facilitating and implementing decisions on the retention or disposition of records

• It should be possible for these decisions to be made at any time in the existence of records, including during the design stage of records systems

• It should also be possible, where appropriate, for disposition to be activated automatically

• Systems should provide audit trails or other methods to track completed disposition actions”

(ISO 15489-1:2001, S. 8.3.7)

Principles• Principle of Retention: “An

organization shall retain its information for an appropriate time, taking into account all operational, legal, regulatory and fiscal requirements, and those of all relevant binding authorities”

• Principle of Disposition: “An organization shall provide secure and appropriate disposition of information in accordance with its policies, and, applicable laws, regulations and other binding authorities”

(Generally Accepted Recordkeeping Principles®) 18© 2015 Ergo Information Management Consulting

‘Defensible’ Disposition

“A defensible disposition framework is an ecosystem of technology, policies, procedures and management controls designed to ensure that all information, not only records, are created, evaluated against simplified retention rules, managed as appropriate and disposed of at the end of their lifecycle.”

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(Kahn Consulting Inc., “How do you Scale an Information Mt. Everest? The Case for Defensible Disposal”)


‘Defensible’ Retention

• Ability to prove a best practices approach • A management-approved RRS• Employee training (initial and ongoing)• High compliance rate• Audit trails:

– RRS revisions– Destruction (legal) holds


Destruction Hold

“A hold placed on the scheduled destruction of records due to foreseeable or pending litigation, governmental investigation, audit, or special organizational requirements” (ARMA International, Glossary of Records and Information Management Terms)

“As soon as litigation is reasonably anticipated, parties must consider their obligation to take reasonable and good faith steps to preserve potentially relevant electronically stored information”(The Sedona Canada Principles Addressing Electronic Discovery, 2008)** 2015 revision is out for public comment

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(aka legal/litigation hold, preservation order, or destruction suspension)


Records Disposition Management

• Disposition date monitoring• Disposition approvals/confirmations• Secure disposition process

– Paper: shred– Electronic: reformat, degauss, physically

destroy the storage media• Disposition certifications (e.g.)

– Destruction certificate– Archives donation agreement & accession list


Systematic Retention and Disposition Benefits

• Identify records that must be kept for business purposes

• Identify records of enduring value• Reduced costs: space, equipment,

and time• Improved efficiency • Support the availability and usability

of electronic records23© 2015 Ergo Information Management Consulting

Systematic Retention and Disposition Benefits

• Minimize legal risks and liabilities by: – complying with legislated/regulatory

retention requirements and recordkeeping obligations

– supporting litigation/audit/investigation– records disposition (particularly

destruction) occurring in the normal course of business

– preserving rights and protect assets24© 2015 Ergo Information Management Consulting

Questions

1. What harm(s) may occur if your organization doesn’t

a) create/capture records, orb) create/capture records that are complete/

authoritative?

2. What harm(s) may occur if your organization doesn’t destroy records in the normal course of business?


RRS FOR COMMON/ADMINISTRATIVE RECORDS

Using the Governments of Canada and Ontario as examples


Library and Archives Canada (1)

Multi-Institutional Disposition Authorities (MIDA)

1. Common administrative records– General Administration Function (Authority No. 98/001)

– Real Property Management Function (Authority No. 2001/002)

– Material Management Function (Authority No. 99/003)

– Comptrollership Function (Authority No. 99/004)

– Human Resources Management Function (Authority No. 98/005)



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Retention Guidelines for Common Administrative Records of the Government of CanadaSection 1, Part 5Human Resources Management Function(Function-based arrangement)



Multi-Institutional Disposition Authorities (MIDA)

2. Authority for the Destruction of Transitory Records

3. Operational and Medium-specific Records (e.g.)– Institutional Records in the Office of a Minister (Authority

No. 96/021)

– Records of Deputy Heads of Government Institutions (Authority No. 96/022)


Ontario Government (1)

Common Records Series for Administrative Functions of the Government of Ontario (2008)

– Human Resources Management– Purchasing: Equipment, Supplies & Services– Accommodations & Moveable Assets– Financial Management– Audit Management– Information & Information Technology Management– General Administration



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Series #

Series Title and Description Retention and Disposition

GOV-[ACRONYM]-4550

Banks and BankingRecords relating to banks and banking, including bank statements, records relating to the establishment and maintenance of bank accounts, correspondence regarding bank accounts, month end reports, bank books, accounts payable vouchers, cash receipts, and returned cheques.

Destroy CFY + 7 years after all administrative actions are completed

Common Record Series for Administrative Functions of the Government of Ontario Financial Management



Common Records Series– Communications Common (2008)– Deputy Ministers’ Common (draft, 2008)– Legal Services Common (2009)– Policy and Program Planning Common (2008)– Transitory Common (2008)– Common Records Schedule Ministers’ Public

Records (2015)

• Premier’s Office Records Schedule (2015)


RECORDS RETENTION SCHEDULE DEVELOPMENT PROCESS


Identify record groups/ series

Appraise record value

Complete legal

research

Secure retention schedule approval

Publish the retention schedule

IDENTIFY RECORD GROUPS/ SERIES

Records inventory


Records Inventory

“A detailed listing that includes the types, locations, dates, volumes, equipment, classification systems, and usage data of an organization’s records”“Note: The inventory is usually prepared to facilitate evaluation, appraisal, and organization of the records for ease of access as well as for backup and disaster recovery planning and procedures.”(ARMA International, Glossary of Records and Information Management Terms)


Record Series

Series: “A group of records created and maintained by an agency or person that are in the same numerical, alphabetical, chronological or other identifiable sequence, or result from the same accumulation or filing process and have a similar function, format or informational content” (National Archives of Australia, Glossary)

Records series: “A group of related records filed/used together as a unit and evaluated as a unit for retention purposes, e.g., a personnel file consisting of an application, reference letters, benefit forms, etc.” (ARMA International, Glossary of Records and Information Management Terms)


Record Series Examples

• Agreements/contracts• Annual reports• Financial statements• General ledgers• Accident reports• Policies• Privacy complaints• IT Help Desk tickets

• Job descriptions• Legal opinions• Meeting minutes• Performance

appraisals• Purchase requisitions• Employee files• Insurance policies• Accounts payable

invoices37© 2015 Ergo Information Management Consulting

Documents, Files, & Record Series


Inventory ScopeRecords

• ALL records– Any physical format– Any in scope location

• Phasing options*:– Paper 1st, then electronic

and microforms– Electronic 1st, then paper

and microforms

*there may also be phases within phases (e.g.) paper records – offices before commercial record centres

Any Exclusions?• Records of affiliated/

related entities, e.g. – Agencies, boards,

subsidiaries, etc.

• Geographic locations• Records storage

locations, e.g.– Closets, attics, basements– Commercial record centres– Portable e-storage media

(e.g. CDs)


Doing Your Homework (1)

• Applicable laws/ regulations

• Organization charts/ phone directories

• Business unit mandates, programs, services

• Policies, procedures, manuals

• Master set of forms• Business process

workflows

• Records classification schemes

• File lists• Network directory

structures• Structured systems

– Data input and sources– Major outputs (e.g. reports,

tables, etc.)– System documentation

(e.g. data dictionary)

• Website content (site map)40

To help identify functions, activities, and transactions


Doing Your Homework (2)

• Walk-abouts• File cabinet inventories• File lists• Commercial record centre reports• Network directory reports• List of structured systems• View websites and postings in social

media applications41© 2015 Ergo Information Management Consulting

Where are the records?

Data Collection

• Obtain the inventory data– Observation– Interviews– Surveys

• Capture the inventory data– Inventory form– Questionnaire/survey


RECORD VALUE APPRAISALAdministrative, fiscal/audit, legal/regulatory, and archival value


AppraisalAppraisal: “The process of evaluating records to determine which are to be retained as archives, which are to be kept for specified periods and which will be destroyed” (National Archives of Australia, Glossary)

(Records) Appraisal: “The evaluation of a document’s worth or its value for retention or archival purposes, based upon its current or predicted future use(s) for administrative, legal, fiscal, research, or historical purposes”(ARMA International, Glossary of Records and Information Management Terms)


Balancing Costs and Risks

© 2015 Ergo Information Management Consulting 45

Cost of maintaining

records

Risks of not having the

records

Risk assessment• Risk: the harm

that may occur• Probability:

likelihood that the risk will occur

• Cost: cost of the harm, and cost of alternatives to reduce the harm

Administrative Value

“1) The usefulness of a record in the conduct of an organization’s business; 2) The value of a record for the purpose for which it was created” (ARMA International, Glossary of Records and Information Management Terms)


Exercise: Administrative Value Questions

What questions would you ask when trying to determine how long a record series’ administrative value lasts?


Fiscal Value

“The worth of records for the conduct of current or future financial business and/or evidence thereof” (ARMA International, Glossary of Records and Information Management Terms)

“The usefulness or significance of records containing financial information that is necessary to conduct current or future business or that serves as evidence of financial transactions” (Pearce-Moses, A Glossary of Archival and Records Terminology)


Legal Value“The usefulness of a record in complying with statutes and regulations, as evidence in legal proceedings, as proof of business transactions, or to protect an individual’s or organization’s rights and interests” (ARMA International, Glossary of Records and Information Management Terms)

“The usefulness or significance of records to document and protect the rights and interests of an individual or organization, to provide for defense in litigation, to demonstrate compliance with laws and regulations, or to meet other legal needs”(Pearce-Moses, A Glossary of Archival and Records Terminology)


Archival Value

Historical value: “A determination during appraisal of the continuing usefulness or significance of the records in documenting the history of an entity” (ARMA International, Glossary of Records and Information Management Terms)

Archival value: “The ongoing usefulness or significance of records, based on the administrative, legal, fiscal, evidential, or historical information they contain, justifying their continued preservation”(Pearce-Moses, A Glossary of Archival and Records Terminology)

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(aka enduring value or permanent value)


Appraisal Subject Matter Experts

Record Value Subject Matter Expert (SME)

Administrative Line of business

Fiscal/audit Chief Financial OfficerAuditor

Legal/regulatory Legal counsel

Archival Archivist


RM’s Appraisal Role (1)

1. Complete the record appraisals – Archivist ideally will do the archival value appraisal– Consult with other SMEs

2. Recommend retention periods– Attempt to reconcile business needs and fiscal/legal

requirements to reduce recordkeeping expenses and mitigate risk

– Remember that the presence (or absence) of information can be helpful (or harmful) depending on the circumstances that may arise during a record’s life

– Avoid the ‘every conceivable contingency syndrome’© 2015 Ergo Information Management Consulting 52

RM’s Appraisal Role

3. Be aware of retention implications (e.g.)– FOI/ATIP and privacy protection laws– Admissibility of electronic records– Pending legislation affecting records

4. Assemble and retain documentation (e.g.)– Records appraisals– Citations to applicable statutes/regulations– Retention period approvals


Exercise: Record Appraisal

LEGAL RESEARCH


Legal Research

1. Statutes and regulations2. Bill types and bill status tracking3. Evidence acts4. The research process

a) Environmental scanb) Legislated/regulatory records retention vs.

recordkeeping requirementsc) Statute of limitation periods

5. Research resources56© 2015 Ergo Information Management Consulting

1) STATUTES AND REGULATIONS


What are They?

Statute“A law which has been formally approved by Parliament (an Act of Parliament) and published as part of the Consolidated Statutes of Canada”

Otherwise known as:• A law• An act

Regulation“A form of law, often referred to as delegated or subordinate legislation, which sets out rules that are usually of general application, rather than rules that apply to specific persons or situations. Regulations are not made by Parliament but by persons or bodies whom Parliament has delegated the authority to make them, such as the Governor in Council or a Minister”

Regulations have the full force of the law

58

(Glossary of Parliamentary Procedure)© 2015 Ergo Information Management Consulting

How are they Published?

StatutesCanada• Statutes of Canada (S.C.)• Revised Statutes of Canada

(R.S.C.)

Provinces/Territories (e.g.) Ontario• Statues of Ontario (S.O.)• Revised Statutes of Ontario

(R.S.O.)

RegulationsCanada• Standing Order and

Regulations of Canada (SOR)• Consolidated Regulations of

Canada (C.R.C.)

Provinces/Territories (e.g.) Ontario• Ontario Regulation (O. Reg.)• Revised Regulations of Ontario

(R.R.O.)

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(see the ‘cheat sheet’ handout for other jurisdictions)


Division of Powers: Federal• Public debt and property• Taxation• Census and statistics• Military, navy, air force• Navigation and shipping• Communications (e.g.

telephone, radio broadcasting)

• Works of general advantage to Canada (e.g. grain elevators)

• Fisheries (seacoast and inland) and ferries

• Banking and currency• Patents and copyright• Marriage and divorce• Penitentiaries• Criminal law• International trade• Inter-provincial trade (e.g.

railways, pipelines, etc.)


Division of Powers: Provincial• Direct taxation within the

province (except natural resources)

• Borrowing of money on the sole credit of the province

• Management and sale of provincial lands, including timber thereon

• Reformatory prisons• Hospitals, asylums,

charities

• Municipal institutions• Retail, auctioneer, and

other licenses• Solemnization of

marriage• Property and civil rights• Administration of justice

(provincial courts)• All matters of a local or

private nature in the province


Finding Statutes and Regulations

Canadian Federal• (Dept. of) Justice Laws

Website– Consolidated acts– Consolidated regulations

• Portals– CanLII (Canadian Legal

Information Institute)– LawCentral Alberta

Provincial/Territorial (e.g.) Ontario

• e-Laws website– Consolidated acts

(statutes) and regulations in one view

• Portals– CanLII (Canadian Legal

Information Institute)– LawCentral Alberta


Demonstration: Statutes and Regulations

http://www.ontario.ca/laws

http://laws-lois.justice.gc.ca/eng/

2) BILL TYPES AND BILL STATUS TRACKING


Bill Types

Federal1. Public bills

– Government bill– Private Members’ bill

2. Private bills

Provincial Bills (e.g. Ontario)

1. Public bills– Government bills– Private Members’ public

bills– Committee bills

2. Private bills


Federal Public Bills

Government bills• Submitted by a Minister• Relates to matters of

public interest• May include financial

provisions• Usually initiated in House

of Commons– Bills for appropriating any

part of the public revenue or taxation only initiated in the House of Commons

Private Members’ Bills• Initiated by a Member not

in Cabinet• May not include financial

provisions unless Royal Recommendation sought and obtained (very rare)

• Most are initiated in the House of Commons


Federal Private Bills

• Concern matters of a private/special interest to specific corporations or individuals– Usually seek exemption from the application of a

statute• May not be introduced by a Minister – must be

based on a petition signed by those interested in promoting it

• Usually introduced in the Senate– If introduced in the House of Commons, dealt with as

Private Members’ business


Federal: Government Policy Becomes Law

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Ontario Public Bills

Government bills• Typically introduced by a

Minister (usually of the dept. most affected by the bill) on behalf of Cabinet– Have the force of Cabinet

• Pertain to public policy– Significant legislation of

general application to the public

– Directs the expenditure of public monies

Private Members’ Public Bills

• May be introduced by any Member except the Speaker or a Minister

• May pertain to any topic within provincial jurisdiction except the imposition of tax or specifically directing the allocation of public funds


Ontario Public Bills: Committee Bills

• Effective October 2009• Originate in the Standing Committee on General

Government or the Standing Committee on Justice and Social Policy

• At least 2/3 of the committee members must support the proposal to consider a particular issue

• Introduced by the Committee Chair (primary sponsor) and the other committee members who support the bill may have their names printed on the bill as secondary sponsors

• Once tabled, generally treated as a Private Members’ public bill


Ontario Private Bills

• Pertain to special powers/exemptions from the general law

• Originate with the municipality, company, or individual seeking the special power/exemption

• Must be introduced by a Private Member (i.e. not a Minister)– Usually the applicant asks the Member for the riding

in which the applicant is located to introduce it– In the case of a corporation, it is usually introduced by

the Member for the riding in which the applicant’s head office is located


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Ontario: Stages in the Legislative Process

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Statutes Come into Force On

1. Date of Royal Assent (if no commencement date in act)

2. A fixed date in the act (may pre-date Royal Assent date)

3. A date to be specified by an order of the Governor in Council (federal) or a proclamation (Ontario)

4. Hybrid/combination

* Different sections of a statute may come into force at different times


Regulations Come Into Force On • Federal: Published in Canada Gazette, Part II, following

registration by the Clerk of the Privy Council– Date of registration (if registration required)

– Date in the regulation or enabling statute – Date made

• Ontario: Filed with the Registrar of Regulations– Date of filing (unless otherwise provided for in the regulation or the

authorizing act)

– Date in the regulation or enabling statute– Date on which an act (or part thereof) comes into force


Bill Status Tracking

1. Federal: LEGISinfo (a project of the House of Commons, Senate, and Library of Parliament)

2. Ontario: Legislative Assembly of Ontario

* Bill numbers are reused from session to session (e.g.) Bill C-6- Personal Information Protection and Electronic Documents Act

(PIPEDA) (1999/2000)- Assisted Human Reproduction Act (2004)


Demonstration: Bill Status Tracking

http://www.parl.gc.ca/legisinfo/Home.aspx?Language=E&Mode=1&ParliamentSession=41-2

http://www.ontla.on.ca/lao/en/bills/

3) EVIDENCE ACTS


Canadian Evidence LawsThe Way it Was

• 2 acceptable formats:– Paper – Microform

• Electronic records (e-records) admitted selectively and case law developed

• Cross-examination allowed to determine the admitted evidence’s probative value (weight or credibility)

The Way it Is • Record definition no

longer media dependent• Conditions for e-records

admissibility now exist• Standards may be used

to determine e-records admissibility

• Continued use of cross-examination to determine the probative value of admitted evidence


‘Record’ Definition Examples

• Evidence Act, R.S.O. 1990, c. E-23– Record = “Information that is recorded or

stored by means of any device” (s. 35(1))– Electronic record = “data that is recorded on

any medium in or by a computer system or other similar device, that can be read or perceived by a person or a computer system or other similar device, and includes a display, printout or other output of that data” (s. 34.1(1))


Factors Bearing on Admissibility and Weight

• Record made contemporaneously

• Personal knowledge or observation of the record-maker

• Person who made the record must have been under duty to make it

• Record made in the usual and ordinary course of business

• Record of an act, transaction, occurrence or event (not opinion)

• No motive to misrepresent


CAN/CGSB-72.34-2005 (1)

• Guidelines for developing, maintaining, and operating programs to capture, store, retrieve, deliver and dispose of electronic information to maximize its probative value (weight or credibility) and likelihood of being determined admissible

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Electronic Records as Documentary Evidence (CAN/CGSB-72.34-2005)


CAN/CGSB-72.34-2005 (2)Requirements

Retention• Document the assignment of

the responsibility for records retention requirements and authority for approving the retention schedule

• Retention periods– Based on record value– Determined by authorized

persons• Define and promote the

systematic disposal of ‘transitory records’

Disposition• Dispose of records (+

metadata) upon expiry of approved retention period

• Document and keep records of the disposal (e.g. audit log)

• Ability to expunge a specific record and its index locator

• Policies for deciding when not to proceed with scheduled disposals


CAN/CGSB-72.11-93 (1)

• Guidelines for image technology in recordkeeping (accurate, reliable, trustworthy systems) used by courts for benchmark evaluation to increase the likelihood that images produced by those systems will be admitted as evidence

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Microfilm and Electronic Images as Documentary Evidence (CAN/CGSB-72.11-93)


CAN/CGSB-72.11-93 (2)Requirements

Retention• Authorize the types of records

to be retained

Disposition• Authorize the disposal of

source records– In the usual and ordinary course

of business (i.e. as per a retention schedule)

– At a reasonable time period after microfilming/ image capture

• Document and keep records of the disposal of source records


E-records as Documentary Evidence• “Reliable computer-produced records, including

electronic images, are considered equal to original paper source records in legal proceedings”

• “Original paper source records can be disposed of once their electronic form is stored in a secure records management environment. Copies produced from these electronic records will have a legal authority equal to the original paper source records.– However, apart from the laws of evidence, other laws,

regulations, by-laws, policies, preservation or business requirements might continue to require the retention of the original paper source records. An organization should consult a lawyer and its CRO before any source records are disposed of.”

85Electronic Records as Documentary Evidence (CAN/CGSB-72.34-2005), s. 5.1


4) THE RESEARCH PROCESS


Step 1 – Environmental Scan1. Where does the organization operate?

– What type of operation(s) in each jurisdiction?

2. What’s the organization’s mandate? Its goods/services?3. Any highly regulated business activities?4. Governed by an ‘umbrella’ act/reporting structure? (e.g.)

– Municipal Act (Ontario municipalities)– Banking Act (Canadian financial institutions)

5. What’s the organization’s litigation and investigation history?

6. Any forthcoming legislation (new/revised) that may affect the organization’s RM/retention practices?


Step 2 – Legislated/Regulatory Requirements

1. Identify records retention requirements

2. Identify recordkeeping requirements

In Canadian law– Statutes (laws/acts)– Regulations (subordinate legislation)


Step 3 – Limitation Periods

1. Identify any applicable statute of limitation periods


Statutes of Limitations“Any law that bars claims after a certain period of time passes after an injury. The period of time varies depending on the jurisdiction and the type of claim.

Statutes of limitations exist for both civil and criminal causes of action, and begin to run from the date of the injury, or the date it was discovered, or the date on which it would have been discovered with reasonable efforts.

Many statutes of limitations are actual legislative statutes, while others may come from judicial common law.”

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(Cornell University Law School, Wex Legal Dictionary) © 2015 Ergo Information Management Consulting

Step 4 – Legal Opinions

• Obtain legal opinions if/as necessary (e.g.)– Which statutes and limitation periods apply?– How to address different requirements? (e.g.)

• Operations in more than one Cdn jurisdiction• Operations in Canada + internationally

– How to address a conflict between a legislated/regulatory retention requirement and a limitation period?


Legal opinions hopefully based on a cost-risk-benefit analysis: analyze the costs, risks, and liabilities of records retention vs. the benefits

RESEARCH FINDINGS


You Want to Find (1)

A statute/regulation containing a requirement to retain a particular record/ type of information for a specified time period (e.g.)

a) Fire Code (O. Reg. 338/97, s. 2.8.3.2)- requires fire drill records to be kept for 12 months after the fire drill

b) Income Tax Act (R.S.C. 1985, c. 1, 5th suppl., s. 230(4)(b))- specified records and books of account + every account and voucher necessary to verify the information contained therein to be kept for 6 years from the end of the last taxation year to which the records and books of account relate

93

A retention requirement


You Want to Find (2)

A statute of limitation period specifying the time frame during which an action can be initiated (e.g.)

Real Property Limitations Act (R.S.O. 1990, c. L. 15, s. 17(1))“No arrears of rent, or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, whether it is or is not charged upon land, or any damages in respect of such arrears of rent or interest, shall be recovered by any distress or action but within six years next after the same respectively has become due, or next after any acknowledgment in writing of the same has been given to the person entitled thereto or the person’s agent, signed by the person by whom the same was payable or that person’s agent.”

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A limitation period is NOT a retention requirement – an organization may elect to retain the relevant records for the duration of a limitation period

A limitation period


What Don’t Limitation Periods Do?

1. Don’t usually identify the records/series that would be relevant to the matter

2. Don’t prescribe a retention obligation – provide another factor to consider when recommending an appropriate period

“Business records may be relevant to the pursuit or defence of a claim, so regard should be had to potential actions and their limitation periods before records are destroyed.” Carswell, Records and Information Management, 1-7


Question: What records would an organization need to collect rent arrears?

You Often Find (1)

No legislated requirement to retain records (or, indeed, any reference to the records)– Check for terminology differences in record names

(e.g. search the Income Tax Act for ‘vouchers’ instead of ‘accounts payable files’)

– Consult legal counsel if you think there are legal implications for retaining the records in question


You Often Find (2)

A statute/regulation requiring the creation or maintenance of a record (e.g.)

a) Companies Act (R.S.A. 2000, c. C-21, s. 161(1))- every company “shall cause minutes of all proceedings of general meetings and when there are directors or managers, of meetings of its directors or managers, to be entered into books kept for that purpose”

b) X-ray Safety Regulation (R.R.O. 1990, Reg. 861, s. 9(2))- employer required to keep a list of all x-ray workers in its employ

97

A recordkeeping requirement


You Often Find (3)

A requirement which suggests a record is to be created and maintained (e.g.)

– Where records to be kept (e.g. at a company’s registered office or such other place as designated by the directors)

– Whether records may be inspected or copied (e.g. by the government, a regulator, a member of the public, etc.)

– Format in which records are to be kept

98

A recordkeeping requirement


You May Find (1)

Conflicting legislated/regulatory retention requirements (e.g.)

a) US Internal Revenue Service (IRS)- requires employers to keep payroll records for at least 4 years (26 CFR §31.6001-1(2)

b) US Dept. of Labor- requires employers to keep payroll records for at least 3 years (29 CFR 516.5a)


You May Find (2)

A retention period in a statute/regulation is not aligned with an applicable limitation period in the same or a different statute/ regulation (e.g.)

Alberta Corporate Tax Act (R.S.A. 2000, c. A-15) • Retention requirement (s. 61(3)): specified records to be kept

until the expiration of 6 years from the end of the last taxation year to which the records and books of account relate

• Limitation period (s. 81(3)): on or before a day 8 years from the time when the matter of the information/complaint arose


Exercise: Researching Requirements

1. Review the excerpt from the Business Corporations Act, R.S.O. 1990, c. B.16

2. Identify:– Any records retention requirements– Any recordkeeping requirements (e.g.)

• Creation/maintenance of specified records• Record format• Location where records to be kept• Making records available for inspection


5) RESEARCH RESOURCES


What Resources Can I Use?

1. Primary resources (free)– Statutes and regulations

2. Secondary resources (paid subscriptions)a) Records Retention: Statutes and Regulations

(supplemented book)• Federal (2-4 supplements/year)• Ontario (1-3 supplements/year)

b) FileLaw (CD-ROM, quarterly updates)• National edition (federal + all provinces) • Provincial editions (federal + 1 province)


Secondary Resources Exclusions• Retention requirements of less than 1 year• Implied retention requirements (e.g. file a report with a government

agency)• Circulars, bulletins, ministerial orders, directives, memorandums of

understandings, etc. issued by federal and provincial governments or their boards, agencies, councils, commissions, etc.

• By-laws, resolutions, etc. of organizations given authority to regulate under legislation

• Guidelines, standards, etc. issued by individual organizations or industry representatives

• References to case law which might provide interpretive meaning for the reader


FileLaw Demo

• Search by one or more of the following:– Jurisdiction– Topic or industry– Type of record– Keywords or phrases– Name or citation of the statute/regulation– (Carswell’s) record code number (e.g.)

• FHR-Pn.Pl.-1 = the 1st reference in the federal Human Resources section (FHR) to the Canada Pension Plan (Pn.Pl.)


RRS APPROVAL


RRS Approval

Approvals• Internal – management

approval (several levels?) to establish RRS as policy

• Additional/3rd party (e.g.)– Council + Municipal Auditor for an

Ontario municipality’s RRS (Municipal Act, 2001, S.O. 2001, C. 25, S. 255(3))

– Archivist of Ontario for a designated body’s RRS (Archives and Recordkeeping Act, 2006, S.O. 2006, C. 34, S. 12)

– Library and Archives Canada for Institution Specific Disposition Authorities (ISDAs) (mandate for disposition approval in Library and Archives of Canada Act, S.C. 2004, c. 11, S. 12)

Retention Scheduling Committee?

Possible members:• Chief Financial Officer• Auditor• Legal Counsel• Privacy Officer• Compliance Officer• Risk Manager• IT Manager

Records Manager (ex officio)


PUBLISHING THE RRS


The RRS Should Be . . .

• Easy to use/understand – do a pilot test– Provide a legend for all acronyms (e.g. OPIs)– Consistent format– Appendix for citations to legislated/regulatory

requirements• Available electronically in protected format• Kept current (a regular update process)• Date and version coded


The RRS and Classification

• If the organization has a records classification scheme (RCS)– RRS should use the same record groupings and

format (e.g. functional)– Consider a combined RRS and RCS document

• If the organization doesn’t have a RCS, select a RRS format– Departmental– Functional


RRS Example (1)

111

A SA FD-00 Policy and procedures S A-01 General S A-02 WCB case files C 3 A

-03Permanently impaired casefiles C 3 A

-04 WCB reimbursement files C 6 D-05 WCB accident cost statements C 6 D-06 Employees incident files C 10 A

832 Health and Safety – Accidents and InjuriesIncludes records relating to accidents, injuries and incidents as required by Workman's Compensation Board for individual employees.

(University of Toronto File Plan, Part B: File Plan Human Resources Primary Numbers 800-899, February 2007)


RRS Example (2)


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Contacting the Speaker

Sheila Taylor, IGP, CRMErgo Information Management Consulting

[email protected]

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