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Subject: Re: Disposal Alternative
From: John Montana <[log in to unmask]>
Reply-To:Records Management Program <[log in to unmask]>
Date:Thu, 27 Sep 2012 15:50:25 -0400
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The idea that records could be "disposed of" to a server not subject to US law (or the law of any other country) by place it outside the geographic boundaries of the country is not well taken.  It is the activities that the data record that is subject to US law, and insofar as those records are relevant to enforcement of laws governing those activities, the records continue to be subject to regulatory access requirements.  And if those records continue to exist, you cannot deny access to them based upon a theory that their records retention period has expired.  Their current location is irrelevant -- regulatory requirements virtually always contain a provision that if the records are maintained outside the jurisdiction they must be made available on demand at a location convenient to the regulator, and in the absence of such a requirement, I am confident that a court would so conclude anyway.  There is also something called long-arm jurisdiction that is routinely used as a doctrinal basis for getting at things and activities that are outside the geographic boundaries of a jurisdiction, and the boundaries of long-arm jurisdiction are growing not shrinking. 

The same is true of litigation.  If the records are subject to the custody control of you or your agent, they are fully subject to legal process, regardless of where they may reside. There used to be some conflict between this doctrine and things like Swiss secrecy laws, but that has recently been resolved in favor of disclosure, much to the discomfiture of of many people who were relying on Swiss secrecy laws to prevent disclosure of Swiss banking records to the Internal Revenue Service. 

I am of the opinion that even trying to assert such a proposition to a regulator or court would be problematic.  You'd almost certainly lose, and simply raising the defense would very naturally cause some very searching inquiries into just exactly what was in those records.

  
Best regards,

John
John Montaņa 
Montaņa & Associates
29 Parsons Road
Landenberg Pennsylvania 19350
610-255-1588
484-653-8422 mobile
[log in to unmask]
www.montana-associates.com
twitter: @johncmontana

			

On Sep 27, 2012, at 11:21 AM, Ralph Better <[log in to unmask]> wrote:

> It is my undertanding that there are currenlty two valid disposal
> alternatives for records. The first is documented destruction and the
> second is sending records to the archives.
> 
> Hypothetically, there is now a third method. Dispose of records to a
> repository outside US jurisdiction. Electronic records, created, used and
> maintained outside the US,can be disposed of by transferring records into a
> storage server that is not subject to US authority. The records could be
> maintained and even used as long as they are never moved within the US
> jurisdiction.
> 
> Ralph Better
> 
> List archives at http://lists.ufl.edu/archives/recmgmt-l.html
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