Records Management Network

Records Management Network meeting held 29 May 2002 at Victorian Archives building.

Welcome

Ross Gibbs opened the meeting at 10 AM and welcomed all attendees.

To mark Archives and Records Management Week, this meeting of the RMN had been opened to all interested parties. Ross noted that this was a first for the RMN, and that approximately one quarter of today’s attendees came from outside local and state government.

PROV News and Reports

Archives and Records Management Week, 27 – 31 May

Highlights include

A successful launch at Parliament House on Monday 27 May, which included the launch of a Private Sector Records Management Group, the presentation of the ASA Margaret Jennings awards for academic achievement, and the launch of the 2002 Hamer Awards.
Launch of two new Retention and Disposal Authorities, for Local Government and Higher and Further Education Institutions
Training in new PROV Retention and Disposal Authorities

Funding announced for VERS

The Victorian Electronic Records Strategy received $8.2 million in the state budget. This will fund a VERS Centre of Excellence.

2002 Sir Rupert Hamer Records Management Award

Nominations are now invited for the 2002 Hamer Awards, which recognise excellence and innovation in records management in the Victorian public sector. Nomination forms and guidelines are available on the PROV website: www.prov.vic.gov.au

The British and American Tobacco case

Lisa Nichols, Slater & Gordon

Lisa Nichols ran the recent Rolah McCabe vs. British American Tobacco (BAT) case with colleagues at Slater and Gordon. Information about the case, including a link to the judgement, is available on the Slater and Gordon website www.slatergordon.com.au

Lisa gave a clear explanation of the principles involved in the case, and the recordkeeping implications that emerged. The case indicates a sea change in the judicial understanding of recordkeeping, and highlights the importance of our work as archivists and records managers. In his judgement, Justice Eames stated that discovery of documents is central to a fair trial in the civil adversarial process. He concluded that by denying Rolah McCabe the chance to inspect and use relevant documents, BAT and its lawyers Clayton Utz had subverted the discovery process with the deliberate intention of denying McCabe a fair trial. As a result, the BAT defence was struck out.

Slater and Gordon had expected to find BAT documents relevant to the investigation (some BAT documents were already in the public arena), but no documents were supplied by BAT in response to discovery requests. BAT did not disclose to Slater and Gordon that documents had been destroyed. Further investigation revealed that documents relevant to McCabe’s case had been destroyed in accordance with BAT’s document retention policy.

What emerged clearly is that BAT had a reasonable expectation of litigation, yet knowingly destroyed documents that were likely to be required in litigation. Although the document retention policy included a clause indicating that the policy was not designed to get rid of damaging documents, Justice Eames found that this statement of innocent intent was a ruse. He found that the BAT document retention policy had legitimate purposes and benefits, but was directed primarily towards mitigating the risk of litigation. BAT had deliberately destroyed relevant documents under the cover of an apparently innocent housekeeping arrangement. The wording in the retention policy did not save them from being found to have intent to subvert the discovery process.

Lisa emphasised that the case does not mean that companies must keep everything, nor that companies should not have a retention policy. It is appropriate for companies to have a retention policy (incorporating electronic records), and to destroy documents in accordance with that policy. Companies can anticipate litigation, and should therefore consider the relevance of important documents when developing a retention policy. The critical recordkeeping message emerging from the case is that a document retention policy cannot defend illegal destruction.

Panel discussion of implications emerging from the BAT case

Lisa Nichols, Judith Ellis, Michael Piggott, Sophie Sturup, Kathy Sinclair

In the panel discussion following Lisa’s presentation, some general points emerged.

Some industry sectors are likely to face increased risk of litigation eg. environmental litigation
When presenting a business case to senior executives, this case could be used as an example of the importance of good recordkeeping.
The case raises professional, legal and moral issues for us as recordkeeping professionals.
As electronic records increase, it is increasingly important to address electronic retention issues. The case reinforces what we know – records are records regardless of format.
It is difficult to influence and shape recordkeeping in the private sector. It is difficult to convince organisations of the benefits of keeping records whose business value has passed.
We know that records are evidence – in this case the absence of records is evidence.

Another issue emerged: Should we legislate recordkeeping for private institutions?

Such a suggestion was likely to get sympathy within the private sector.
Any legislation would have to be very generic because of highly specific industry requirements in each sector.
Organisations such as the Business Council of Australia need to show leadership in this area.

Other points in relation to the BAT case in particular:

When asked to compare the BAT case with Enron, Lisa said that the intent and the consequences were the same. The destruction of documents by Enron was more spectacular, but the BAT destruction was more ‘Orwellian’ in that it was company policy over a period of time.
If BAT had disclosed to Slater and Gordon that documents had been destroyed, it’s likely that the court would still have drawn an adverse inference, but not have struck out the defence.

Rolah McCabe wanted to try the case on its merits, but BAT tried to prevent that.
The BAT document retention policy covered everything in the company.

VERS update

Justine Heazlewood, PROV

Following the recent announcement of $8.2 million for VERS, Justine gave an update on the VERS project.

The $8.2 million will include the development of an electronic records repository at PROV, and the establishment of the VERS Centre of Excellence.
There is no funding for a VERS implementation in another government agency.

What the VERS Centre of Excellence will be doing:

Increased proactive role for PROV in providing advice to agencies
Development of business cases for agencies to use when seeking funding
Development of implementation strategies which could be used by agencies
Developing and delivering training programs in electronic recordkeeping, linked in with national competency standards
Electronic records repository so that electronic records can be transferred to PROV
Extend Archives@Victoria so that VERS records can be searched and delivered online
Changes to PROV procedures for transfers, access, documentation

Following on from Justine’s presentation, discussion centred on the potential costs associated with a VERS implementation.

A VERS implementation is not necessarily a big $ project. A shared services model could keep the cost down.
Like any recordkeeping system, the implementation takes effort and needs to be sold within the organisation.
At Dept. of Infrastructure, the VERS implementation was part of a big departmental reorganisation.
Vendors are now becoming VERS compliant, so agencies don’t have to pay for software development.
Eventually VERS compliance just becomes part of an agency’s recordkeeping system.

Next meeting

The proposed date of the next RMN meeting is 21 August.