Applying Records Retention to Electronic Records.

• Author: SKUPSKY, DONALD S.

As reliance on electronic records increases, organizations face growing legal and operational risks by not implementing a records retention program to systematically destroy electronic records in a manner similar to programs traditionally developed for paper records. Electronic document management systems and electronic imaging systems typically fail to provide the functions necessary to systematically obliterate records under a records retention program. This article reviews the special retention problems of electronic records; describes how the functional, relational retention methodology works; and identifies specifications for successfully applying this methodology in electronic recordkeeping systems.

Organizations create and maintain an increasing volume of electronic information. Computer users are empowered to create e-mail, letters, spreadsheets, databases, and a variety of other potential records. Instead of maintaining traditional paper files as the official record, more information is being created and maintained by users exclusively in electronic form.

While this evolution enables workers to produce more in less time, it has also created major information management and legal challenges. For example:

* Records are organized inconsistently throughout the organization.

* Records related to the same or similar matters are not linked together and are often stored on different computers or different areas of a file server.

* Records needed in litigation to support certain actions are difficult to find and assemble.

* Records subpoenaed in litigation are hard to find, with failure to comply often resulting in adverse consequences.

* Individuals selectively destroy records, without following a records retention program.

After years of neglect, identifying records that correspond to discovery requests is difficult and sometimes impossible. With the growing use of e-mail and electronic records created on user desktops, the problem becomes more troublesome. In many large organizations, discovery costs millions of dollars annually. Corporate counsel is well aware that failure to respond adequately in discovery or to explain the destruction of certain records could cost the organization even more.

Legal departments recognize the litigation problems caused by ineffective records retention programs and top management may now be more willing to fund new programs. Today, a records retention program must address the retention and destruction of electronic records, not just paper records. By decreasing the volume of records and by eliminating valueless records, especially electronic records, system implementation costs can also be reduced and systems become operational sooner.

Problems with Electronic Recordkeeping Tools

For larger enterprise functions and applications, such as accounting and human resources, the information systems group manages the computer files in mainframe or centralized computers. Individuals typically create and manage files on standalone computers and local area networks, using operating system tools such as Windows Explorer to establish a file structure to classify and organize information. But these file structures are generally too personalized and free form to serve as an organization's recordkeeping system. Some of the problems created include the following:

* Individuals can manipulate files -- create, store, modify, delete -- in almost any way, without rules or discipline.

* Individuals have difficulty sharing information since all participants must understand the file structure and voluntarily' adhere to consistent interaction.

* Individuals can destroy records at any time without compliance with records retention requirements.

Professional Electronic Recordkeeping Systems

Vendors now offer professional electronic recordkeeping systems to provide the functionality needed to manage records properly. These recordkeeping systems fall into three main categories:

* electronic document management systems (EDMS), which generally manage electronic records produced by individuals using their desktop computers (e.g., word processing, spreadsheets, presentations, projects, e-mail)

* electronic imaging systems (EIS), which manage electronically scanned documents

* records management software (RMS), which typically manages paper files or storage boxes maintained in offices or record centers

These systems differ in orientation and purpose as well as operation. The records management software only tracks information about records and the location where they are physically stored. It also enables the systematic implementation of a records retention program; the other products do not. EDMS and EIS store information about the records and store the actual physical records.

Electronic Document Management Systems

EDMS provides only primitive records retention capabilities. Some systems permit individuals to assign a future date for reviewing the records. The systems provide notification on the user-defined review dates and users determine whether to destroy the records.

No EDMS product by itself provides a systematic records retention component. But most EDMS systems can be modified, through supplemental programming, to provide records retention capabilities or to respond to commands from another product.

Electronic Imaging Systems

EIS do not provide appropriate records retention capabilities. In systems using non-erasable optical disk or CD-ROM, the non-erasable media hampers record destruction; the media prevents destruction of individual records on the disk. Even when erasable media is used, records cannot be systematically destroyed because the systems lack the features necessary for systematic records retention (such as those found in the records management software).

Systems with non-erasable media could be designed to facilitate destruction of records according to a records retention program. By applying the retention periods and calculating destruction, records whose retention periods have...