In this Issue we will be looking at:
- The Legal Minefield;
- Bypassing the system;
The Legal Minefield:
Every organisation regardless of its size, status and country of origin creates and receives business records. Apologies, I know you know that. In days gone by these “records” constituted vast forests of trees pulped into sheets of paper onto which words and images were inscribed. These pieces of paper were looked at, decisions made and the piece of paper was filed, stored or screwed up and chucked in the bin. With the advancement of technology most of those bits of paper have become bits and bytes of computer speak.
As the formats changed, so did the problems associated with the capture and storage of these ethereal business transactions. They are easily created, altered and of course deleted. Which is all very well, but we also have issues relating to:
- What version am I looking it?
- Is this the same version you created and sent out;
- Or have you re-configured it?
- Has some one else changed the content?
- Am I basing my business making decisions on the right information?
And that’s before we start looking at the problems associated with electronic email as our primary means of communicating.
As we reported in the May edition on the digital divide, most record keeping professionals have a hard time trying to convince the powers that be, that we need to collect and store emails, let alone MSN conversations, SMS messages, and we won’t begin to mention the social networking sites such as Twitter and the problems these sites represent to organisations the world over.
Whilst most of you may be aware of the definition of what constitutes “a record”, I think it is worth repeating at this point. And like formats of records, there are many definitions, but the one that we will use in the context of this paper comes from the WA State Records Act 2000, and states:
“any record of information however recorded and includes
(a) any thing on which there is writing or Braille;
(b) a map, plan, diagram or graph;
(c) a drawing, pictorial or graphic work, or photograph;
(d) any thing on which there are figures, marks, perforations, or symbols, having a meaning for persons qualified to interpret them;
(e) any thing from which images, sounds or writings can be reproduced with or without the aid of anything else; and
(f) any thing on which information has been stored or recorded, either mechanically, magnetically, or electronically.”
West Australian State Records Act 2000. State Records Principles and Standards 2002 as published by the Government Gazette, Tuesday 5th March 2003, No 38.
But it is what these records represent that is interesting. According to the AS/ISO 15489 a record is:
“Information created, received, and maintained as evidence and information by an organisation or person, in pursuance of legal obligations or in the transactions of business.”
Which is why there is so much interest in the West Australian situation at the moment, although we are not alone when it comes to emails coming back to haunt us.
Bypassing the system:
The old adage still appears to be true “you can’t please all of the people, all of the time” if a member of staff does not like the system you are proposing (for whatever reason) they will find a way around using it. Whether they do that deliberately or not, or with malicious intent may be open to question, but the truth of the matter is until the systems are user friendly, people understand their record keeping requirements or the fines and/or jail terms are commensurate with the scale of the problem, these issues will continue to face the record keeping profession and those tasked to ensure that records are preserved in accordance with the relevant laws. Until then, people will bypass the systems if they feel it is in their best interests to do so.
Whilst the Corruption and Crime Commission in Western Australia investigates the wider issue of why Mr Burke was talking to Mr Fong, and this paper will not be looking at that issue, the State Records Commission will be looking to see if the deletion of the emails (after 3 months) was done so in accordance with the approved retention and disposal schedule, or did the deletion in fact breach the State Records Act.
If the emails were not (as rumour has it) business related, then they could be treated as ephemera and deleted as and when reference to these emails cease. However, if they were then chances are going to be good that the deletion did in fact breach approved retention and disposal guidelines. Which begs several questions:
- Why aren’t emails using organisation accounts captured at source and therefore liable for backup and archiving?
- Why can individuals still decide which records are kept and deleted if they do form part of the organisations corporate memory, and in this case, potentially be part of the wider governments corporate memory.
- What other records are missing from the official timeline?
- Can these emails be recovered?
- What about the other “records” eg., MSN et al, Word documents, or are there gaps in this record too?
- What can the State Records Commission do if breaches are found to have occurred and the records cannot be recovered?
- Does this make a mockery of the State Records Act and the work being done by the Commission?
Of course these issues are not just the domain of Western Australia. In the United States, similar issues have already been investigated by what is termed the Oversight Committee and the fall out continues to make headlines. In the US, White House Officials are bound by the Presidential Records Act, which means White House Officials are obliged to keep and preserve all communications, which they send on official government business. And an email system is provided for this purpose. This “official” email system ensures that all email correspondence is backed up and archived, and therefore available to demonstrate accountability, not just to today’s generations, but to anyone able to read these documents into the future. Of course, the opposition can also access this information and will use it to discredit the current government if they can after all it’s not called politics for nothing.
Unfortunately some 88 Bush officials ignored / forgot about / didn’t realise this requirement under the law existed. Instead, they used addresses supplied by the Republican National Committee (RNC), which does not appear to have the same capabilities with regards to backup and archival procedures. According to investigators reports large gaps in the time line have occurred as email records were deleted. What is also interesting to note (if the stories are true) only some of the 88 email accounts had any form of retention and capture processes applied to them, so not only is there a gap in the timeline there is a huge gap in the entire government memory.
The committee apparently learnt of the parallel email system when investigating Karl Rove’s lobbyist, Jack Abramoff. Karl Rove’s PA, Susan Ralston sent an email to Abramoff’s associate Todd Boulanger, which said: “I now have an RNC BlackBerry which you can use to email me at any time. No security issues like my WH email.” http://www.theregister.co.uk/2007/06/19/whitehouse_cogr_emails/ which indicates that at least Ms Ralston knew she was bypassing the system.
Of course the issues with electronic communication do not end there. Many reports abound about technology being left in taxi’s, airports and hotels. Computers, phones, thumb drives, external hard drives and in the case of Mr Rove, his Blackberry of which, he apparently managed to leave two of them behind whilst travelling.
With paper based documents, it takes a conscious act to get up from your desk, pick up the potentially damaging file and put it through the shredder. With electronic records we can “accidentally” hit the delete button. However if your systems are not set up to retain electronic information and communications, ie., backups and archival procedures, then you can argue the point that it wasn’t YOUR fault emails are deleted from the system after a certain period of time now is it?!
As records and information managers we have a considerable task ahead of us. Not only is the technology changing at such a rapid pace that we can’t keep up with the technological refreshing that we know needs to happen, just don’t have the money for. We try and migrate the relevant information and hope somewhere along the line that we’ve managed to capture all of it, but we don’t have time to check every file to ensure that the contents haven’t been corrupted in the transfer process.
We also have to try and retain our staff, people who we’ve spent time and effort training, getting them to understand the importance of filing in the correct file folders so the records can be backed up and archived.
We still have to contend with the fact that there will always be people who will conveniently bypass the system for their own reasons.
These are quite exciting and interesting times for our profession. Yes it could be argued that we are banging our heads against a brick wall, but if we can utilise these transgressions to highlight the importance of record keeping, we may have made a considerable break through in the battle to retain our corporate memories.