Multi-Jurisdictional Retention Schedules: A Case Study
Shirley R Cowcher
AALIA, MRMA, MACS CT, APRCSA
In these times of globalization and with an emphasis on compliance and corporate governance, not to mention information governance (and I’m not talking data or IT here) many information managers will be faced with the need to develop a retention schedule that is multi-jurisdictional. This could be across Federal, State and Local jurisdictions within one country or (with the case of large corporations) multiple countries.
As you know, IEA meets the challenge of federal and state jurisdictional differences across Australia in its publication The Australian Records Retention Manual (ARRM), so we are well versed with the vagaries of differences in retention periods. Over the years, we have been tasked to conduct research to address not only Australian legislation but that of two or three other countries, but more recently I, along with my associate Gail E Murphy, were faced with a challenge that we thought may be insurmountable. Develop a retention schedule that covered more than 50 national jurisdictions!
How do you do that? Well, let me tell you it wasn’t easy and we learnt a lot about accessing legislation via subscription service and providers of free-of-charge websites. But where to begin?
Some countries have similar services to the ARRM, for example the USA and UK so access to information about retention requirements in those jurisdictions is easily found and worth paying for. When you go beyond those services, however, we found that most legislation subscription services provide access to the low lying fruit. Give them a list of jurisdictions that contains African, European, South American, Asian and Middle Eastern countries and they tell you they can offer access to USA, Canada, Australia, UK and some of the European, Asian and African countries but nowhere near all of them that was required. It was time to delve a little deeper.
We next turned to the free-of charge legal websites as well as a very valuable publication entitled Document retention: an international review. This publication, produced by an alliance of legal firms, sets “ out the principal legal and regulatory retention requirements applicable across 22 worldwide jurisdictions ” including Singapore, Saudi Arabia, China, India, Russia, UAE and Thailand .
In doing our research we found many valuable free-of-charge resources that had to be reviewed to determine if they provided access to the complete legislation or only abstracts; and if we are able to read what we found (Google translate is a marvel but it doesn’t help if the legislation happens to be a scanned image).
WorldLII (The World Legal Information Institute) was one of our first access points and is a gold mine for some countries. WorldLII is a free, independent and non-profit global legal research facility developed collaboratively by the following Legal Information Institutes and other organisations.
- Australasian Legal Information Institute (AustLII)
- British and Irish Legal Information Institute (BAILII)
- Canadian Legal Information Institute (CanLII)
- Hong Kong Legal Information Institute (HKLII)
- Legal Information Institute (Cornell) (LII (Cornell))
- Pacific Islands Legal Information Institute (PacLII)
- Wits University School of Law (Wits Law School)
It provides a list of the countries covered but then qualifies the list with notes indicating that some countries do not yet have a database of legislation to access. For example, the Central African Republic and Egypt, amongst others, don’t yet have databases that can be accessed. Others do have databases that can be accessed but may only access the Constitution, or in the case of Angola there is a link to the Constitution (1992) but when you click on the link the message “The requested URL /law/icl/ao__indx.html was not found on this server” appears.
From WordLII there are links to other free-of-charge resources such as Natlex, the database of national labour, social security and related human rights legislation maintained by the International Labour Organisation’s (ILO) International Labour Standards Department. Natlex provides abstracts of legislation and relevant citation information, and they are indexed by keywords and by subject classifications. Records may be in English, French or Spanish and where possible, the full text of the law or a relevant electronic source is linked to the record . We were able to find legislation relating to employment and occupational health and safety through this resource but it was an intermediate step as it provides abstracts. Unfortunately for us, the abstract does not usually indicate the records retention requirements specified in the legislation, so we still needed to access the full legislation and in many cases we were dependent on Google translate to review what we found.
Another excellent source of free-of-charge legislation is the World Law Guide produced by Lexadin, Netherlands. This site provides access to legislation for 180 countries. Once you gain access to the relevant country the legislation is divided into various categories including constitutional, commercial, mining, administrative, labour, banking and criminal law to name just a few. There is a search facility with this resource that will allow you to search for specific categories of legislation across all jurisdictions but it only searches the titles of the legislation not the content.
There were other links to many other resources of free-of-charge legislation accessible through the Bodleian Libraries of the Oxford University Guide to Resources for Jurisdictions which we made use of during our search, and our high school French and Italian didn’t help very much.
After reviewing the various sources to see how reliable they were we then faced the mammoth task of reviewing the legislation that we could access so we could determine if there were any records retention requirements specified. This is no simple task and it isn’t helped when you are faced with multiple languages.
Searchable documents are very helpful as we were able, as an initial scan, to determine if the legislation made any mention of the record types or subject areas we were researching for retention, but we still had to interpret what was written and put it in the context of what we were trying to achieve. As there were two of us doing the work we had to ensure that we were consistent with the terminology we were searching for and on occasions we would refer to one another to get clarification as to the relevance of the legislation we were reviewing. Believe me it made for some interesting discussions.
The result from this exercise was that of the more than 50 countries we needed to research 44% of them had limited access to full legislation in a format that we were able to read, understand and review to determine relevance. In some cases this was because the links to the legislation databases were broken, or the full legislation, if it was available, was a scanned image in the official language, which was not English. And as we mentioned, Google translate couldn’t help us.
When we got to this point we presented our findings to the client. What do you want us to do about the 44% of countries that we can’t research? We had considered using technology to OCR the items that we could find as images so that we could use Google translate but the cost of that exercise had not been priced in to the original project and we needed to get permission from the client to expand funds for that exercise. In turn the client needed to perform a risk analysis on the likely value of this information against the risk of acting without having the information.
The point that I’d like to make here is that there is a large volume of legislation that does not specify any type of records requirement and it could be a very costly exercise to translate everything we had found just to be sure there was nothing there. That is a risk we may be willing to take when we consider that the compliance requirements of records retention being written into legislation is a relatively new phenomenon and that we can review the requirements of the remaining 56% of countries and determine an appropriate period that would meet the majority requirements.
As this goes to “press” we are still working through the final stages of pulling all the retention information together, and may come across more sites that can offer assistance to us as we complete this massive multi-jurisdictional retention and disposal schedule.
But in conclusion this project has highlighted the following:-
- The demands being placed on information professionals who are working in the global arena.
- The value of technology.
- The vast array of free-of-charge legal resources available.
- The need to be methodical and pragmatic in approaching such a large project (How do you eat an elephant?)
- The time it takes to create a retention and disposal schedule across multiple jurisdictions.
Ultimately, though, the project highlighted for me that retention schedules really are all about common sense and risk analysis.
Shirley R Cowcher