HOW LEGALLY SOUND IS YOUR ORGANIZATION'S RECORDS RETENTION AND DESTRUCTION POLICY?

Organizations everywhere felt the tremor that rocked the nation when word of the Enron/Arthur Andersen scandal hit the news. The spotlight on indictment charges sustained in connection with destruction of documents and computer files in the case has prompted many organizations to re-examine their own records retention and destruction policies.

Traditionally, records retention programs served the purpose of freeing up valuable space and speeding the retrieval and handling of information. However, in recent years, due to the increased volume of litigation in our court systems, retention programs now encompass standards for records destruction as well. These standards serve the purpose of protecting the organization by making sure documents get destroyed according to policy and before someone on the outside can use that information against the company. Policies need to be legally sound, maintained and enforced throughout all levels of the organization. To ensure that it is legally sound, proper procedures must be followed in developing and operating the program.

When developing a retention and destruction policy, records managers need to work closely with their legal advisers to ensure that the policies in development are legally sound.

Donald S. Skupsky, JD, CRM, FAI, MIT, a legal authority on records re-tention, outlines the following factors that must be included in an overall records retention and disposition program so that it is legally sufficient:

1. An organization must have systematically and thoroughly developed a records retention program and then have enacted its policies over a period of time.

2. The records retention schedules must be comprehensive and cover all records, including reproductions; schedules that provide for only the original or "record" copy in paper form are inadequate to fully protect an organization.

3. The records retention schedule must also include provisions for records maintained on other media, especially microfilm and data processing media.

4. Reviews and written approvals must be ob- tained from the appropriate managers, the CEO and legal counsel to ensure that the program was sytematically developed in the ordinary course of business and not due to anticipated litigation or a government investigation.

5. Records should be systematically destroyed as specified by the records retention program and not by haphazard or selective methods, which could indicate that the records retention program has not been properly implemented.

6. Program controls and management must be provided within the organization, including one manager responsible for the records retention program who ensures that it is up-to-date and that records destruction proceeds in an orderly manner.

7. Procedures must be provided for the suspension of records destruction in case of foreseeable, pending, or actual litigation or government investigation.

8. Documentation relating to the development and implementation of the records retention program, including records retention schedules, procedures, changes in procedures, approvals, legal research and listings of records destroyed must be maintained.

Allocating all of the necessary resources to analyze, establish and maintain legally sufficient policies concerning records management and destruction is time and money well spent. The repercussions of not doing so can be far too great.