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RECMGMT-L  December 2000

RECMGMT-L December 2000

Subject:

Re: FW: Mailing Out Client Files

From:

John Gervais <[log in to unmask]>

Reply-To:

Records Management Program <[log in to unmask]>

Date:

Tue, 19 Dec 2000 20:07:11 -0500

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (267 lines)

Well this certainly did provoke a high level of thinking.  I don't believe
there is a right or wrong approach to this issue.  There are many Acts and
pieces of legislation relating to the access and control of
records/information.  Some say do and some say don't.  Where one Act
indicates appropriate release, another indicates not to.  In order for there
to be 100% agreement between all RIM professionals, we would have to
research every piece of legislation, law, Act, by-law etc.  I really don't
believe that any of us have the time, resources and/or budget to do this.
So what I am really trying to say is that what may be correct for one entity
does not necessarily mean it is correct for another.  I hope this made some
sense.  :o)

Kind Regards,


John A. Gervais
[log in to unmask]
Manager Corporate Information Services
City of Kanata
Freedom of Information and Privacy Coordinator
1-613-825-2921 (Home Office)
1-613-592-4291 x293 (Work Office)
1-613-794-2753 (Cell)
----- Original Message -----
From: US Records List <[log in to unmask]>
To: <[log in to unmask]>
Sent: Tuesday, December 19, 2000 7:45 PM
Subject: Re: FW: Mailing Out Client Files


> Well John, I have certainly received an education from my US colleagues on
> Bar Association (etc) practices in this area!  It is interesting that
> different respondents see providing files to former clients as the
> "conservative" approach whereas others seem to see things slightly around
> the other way.
>
> Bill Millican's response provides the classic humane arguments in favour
of
> this practice and is difficult to argue with.  Indeed any business
practice
> that treats people as people rather than objects generating profit, in any
> discipline (including records and archives) is to be encouraged and
> applauded.
>
> I think that this would make a great ARMA subject, especially as we have
> different perspectives from: records traditions; disciplines etc.  Imagine
> getting some client groups up in a debate with records professionals,
> lawyers etc?  A very stimulating time would be had by all.
>
> Best wishes to all
>
> Carl Temple
> (views my own, not my employers)
>
> -----Original Message-----
> From: John Gervais [mailto:[log in to unmask]]
> Sent: Wednesday, 20 December 2000 11:23 AM
> To: [log in to unmask]
> Subject: Re: FW: Mailing Out Client Files
>
>
> When it comes to access, under legislation, I always say "everything is
> accessible but..." instead of saying, "nothing is accessible but...."   I
> agree Carl it is incumbent upon the records professional to always
consider
> each and every access request.  I would rather err on the side of caution,
> as the customer is not "always" right.  I would rather deny access and
then
> later decide to grant it, as opposed to granting access, then finding out
> you shouldn't have.  Access legislation has mandatory and discretionary
> exemptions and the latter being the difficult one to fathom.
>
> It certainly is a gray area for many RIM professionals and there are
varying
> opinions on how to handle your question.  I would say this would a good
> "seminar discussion" at an ARMA conference wouldn't you?
>
> Kind Regards,
>
>
> John A. Gervais
> Manager Corporate Information Services
> City of Kanata
> Ontario, Canada
> [log in to unmask]
> 1-613-825-2921 (Home Office)
> 1-613-592-4291 x293 (Work Office)
> 1-613-794-2753 (Cell)
> ----- Original Message -----
> From: US Records List <[log in to unmask]>
> To: <[log in to unmask]>
> Sent: Tuesday, December 19, 2000 5:57 PM
> Subject: Re: FW: Mailing Out Client Files
>
>
> > Hi John and fellow list-serv members,
> >
> > my apologies for not signing my last posting - I was interrupted near
the
> > end!
> >
> > Of course you are correct.  The difference between Access to Information
> > legislation and forwarding files routinely is one of who initiates the
> > issue.
> >
> > The concerns that I raised are very difficult to canvas without seeming
> > secrecy-fiend or wanting to take some right away from individuals. My
> > posting is not advocating that we don't send people their files, merely
> that
> > we think the issues through carefully rather than acting hastily on what
> > could be a very serious issue if something goes wrong.
> >
> > As records professionals it is incumbent on us to appreciate the
> > implications of policies where they impact on records and to provide
> > appropriate advice to our organisations.  Being aware of the complexity
of
> > some issues is part of that process.
> >
> > Speaking personally, when it comes to medical files (thankfully I have
had
> > no need for legal ones!), I would like to have my file but from the
> records
> > perspective, I appreciate that the file is not mine (even if some of the
> > information is).
> >
> > An interesting subject in any event.
> >
> > Best wishes
> >
> > Carl Temple
> > (views my own, not my employers)
> >
> > PS just noticed Lennie Walker's post. This surprises me that the Bar
> > Association can come to this view.  It does explain how this subject
arose
> > at all.  If I recall correctly, in New Zealand there is legislation
> > concerning the return of psychiatric patient files to former clients and
> it
> > was this context in Australia that I first came across the issue.
> >
> > -----Original Message-----
> > From: John Gervais [mailto:[log in to unmask]]
> > Sent: Wednesday, 20 December 2000 9:41 AM
> > To: [log in to unmask]
> > Subject: Re: FW: Mailing Out Client Files
> >
> >
> > We must, however, keep in mind, Access to Information legislation, which
> > states that no personal information may be collected about an
individual,
> > without the knowledge or permission of that individual.  Also, all
> personal
> > information is accessible under ATI to that individual, should they make
a
> > request.  The firm does have the right to dispose of the information, by
> > using their solicitor/auditor approved records retention and disposal
> > schedules.
> >
> > Kind Regards,
> >
> >
> > John A. Gervais
> > [log in to unmask]
> > 1-613-825-2921 (Home Office)
> > 1-613-592-4291 x293 (Work Office)
> > 1-613-794-2753 (Cell)
> > ----- Original Message -----
> > From: US Records List <[log in to unmask]>
> > To: <[log in to unmask]>
> > Sent: Tuesday, December 19, 2000 5:31 PM
> > Subject: FW: Mailing Out Client Files
> >
> >
> > > I would question why you would want to send former clients their files
> at
> > > all.
> > >
> > > This issues comes up often in relation to medical histories and whilst
> > there
> > > can be some perceived benefit in handing over your records to former
> > > clients, I think that the issues need to be really thought through.
> > >
> > > First. The record is the property of the law firm and not the client.
> The
> > > law firm made the record as part of their professional conduct of the
> > > client's case. The record documents how the case was conducted and the
> > > history of the actions/decisions made on behalf of the client. The
> > > information may have come at least in part from the client but the
> record
> > is
> > > the firms. There is no obligation, moral or otherwise to "return" the
> file
> > > to the former client.
> > >
> > > Maybe this labours the point somewhat but it is important to be clear
> > about
> > > this issue right from the start.
> > >
> > > Now it is a nice thing to think of the former client when the firm no
> > longer
> > > sees a need in keeping the record and maybe the former client will be
> > happy
> > > to receive it. However, frankly, having the chance of it falling into
> the
> > > wrong hands as seems to have been the case is alarming and more that
> > > sufficient reason to discontinue this practice.
> > >
> > > Then there is the example of a former client that sees things on the
> file
> > > they didn't know at the time such as prejudicial comments against them
> or
> > > maybe even simple professional error. What if this gives them
sufficient
> > > angst to sue?  Limitations of actions legislation may not save the
firm,
> > > especially where personal injury is concerned as (certainly in
> Australia)
> > > this can depend on the plaintiff being aware that they have an
> actionable
> > > claim - something giving the file to the former client might provide.
> > >
> > > -----Original Message-----
> > > From: Gary L. Grieme [mailto:[log in to unmask]]
> > > Sent: Wednesday, 20 December 2000 8:40 AM
> > > To: [log in to unmask]
> > > Subject: Re: Mailing Out Client Files
> > >
> > >
> > > >>>> Please read the confidentiality statement below <<<<
> > >
> > > We currently give them client/matter number, matter name, attorney,
and
> > date
> > > closed.  We started indexing a file as to its physical contents in
'95,
> so
> > > the clients will get more detail as those files approach destruction.
> > >
> > > Gary L. Grieme
> > > Records Manager
> > > Robins, Kaplan, Miller & Ciresi L.L.P.
> > > Minneapolis, MN
> > > 612-349-8538
> > > [log in to unmask]
> > >
> > > >>> [log in to unmask] 12/19/00 3:30:30 PM >>>
> > > Gary:  I would put information within the body of the letter that
should
> > > trigger
> > > their memory cells.
> > >
> > >
> > >
> > > ______________________________________
> > >
> > > Information contained in this e-mail
> > > transmission is privileged and
> > > confidential.  If you are not the
> > > intended recipient, do not read,
> > > distribute, or reproduce this
> > > transmission.  If you have received
> > > this e-mail transmission in error,
> > > please call 612-349-8799.
> > >
> > > Robins, Kaplan, Miller & Ciresi L.L.P.
> > > http://www.rkmc.com
> > > ______________________________________

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