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RECMGMT-L  December 2002

RECMGMT-L December 2002

Subject:

Re: NOW: Topics re:MANDATORY Destruction, etc.

From:

WALLIS Dwight D <[log in to unmask]>

Reply-To:

Records Management Program <[log in to unmask]>

Date:

Wed, 4 Dec 2002 14:06:56 -0800

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (86 lines)

Dwight Wallis
Records & Distribution Services Manager
Multnomah County Fleet, Records, Electronic & Distribution Services
2505 SE 11th Avenue
Portland OR 97202
phone: (503)988-3741
fax: (503)988-3754
[log in to unmask]


-----Original Message-----
From: Larry Medina [mailto:[log in to unmask]]
Sent: Wednesday, December 04, 2002 12:53 PM
To: [log in to unmask]
Subject: Re: NOW: Topics re:MANDATORY Destruction, etc.

Good points, Bob -


>Although I am also not aware of any U.S. regulations that require the
>destruction of documents, I believe there may be some in Japan and other
>countries.

I think you're right on this Bob.  There was a lot of hub-bub last year
regarding the legislation Ashcroft was trying to waltz through about the
destruction of requests for permits to purchase firearms at some specified
period after submission and approval (or denial) but I'm not sure what
happened to that... and in light of the Homeland Security initiatives being
forced through currently, if it DID pass, it's likely going to be
repealed.  (Not intended as a political condemnation or endorsement of any
individual, party or practice)

The other example cited here regarding the records of juvenile offenders is
actually not a requirement to destroy, but to SEAL the records and disallow
them to be used against an individual when they become an adult, UNLESS
they are involved in a trial during the period where they cross over the
boundary from juvenile to adult.  And this is another "thorny"
proposition... in California, the law states that "...any and all records
involved in the trial at the time the individual turns 18 may be brought
forward and become a part of their adult criminal record..." In MANY cases,
records of prior offenses are being used as evidence to establish prior
criminal activity, so in these cases, their entire record may come
forward.  (Not intended as an opinion for or against the practice, just as
a clarifying comment regarding the practice)

>The primary conflict I see in the U.S. is when a specific contract
>requires the destruction of records at the completion of the contract and
>a regulatory authority requires retention for some period after final
payment.

Not a conflict in most cases, as I see it.  Most work performed under
contract establish who the owner of the documents/records generated as
"work product" during the contract belong to, and typically, this is the
client.  Because of this rather clearly defined distinction, the
requirement from the regulatory authority falls upon the owner of the
records, not the producer.

During my tenure as an RIM for an International Construction and
Engineering Firm and an International Architectural Firm, we had these
clauses in contracts from some of our clients.  What was actually stated
was that we "...would not be remunerated for the processing, management,
maintenance or storage of records resulting from actions during the course
of work performed under contract..." and that we "... were not to use the
documents for other business purposes, including but not limited to,
developing bid documents for additional work for the same client or other
clients involved in the original contract..."  Our contracts provided
distribution lists for all work product, including specifying media types
and formats for delivery of all records generated as a part of the contract.

Even in the now well known case involving Andersen and Enron, clauses could
have been put into effect requiring Andersen to turn all documents
resulting from audits performed on behalf of Enron over to them for
maintenance.  And if there was an SEC requirement that the documents be
retained, it would have been Enron's responsibility to ensure this took
place.  If the SEC required an "arm's length" arrangement, then Enron
couldn't have specified the destruction at completion of the work, and as
it was, Andersen would have been charged with the responsibility to
maintain the documents.

Larry

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