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Corporate Policy. August on Document Retention and Records Management

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Corporate Policy on Document Retention and Records Management To detail the Council s commitment to records management, advising on the policy and procedures to be adopted regarding document retention
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Corporate Policy on Document Retention and Records Management To detail the Council s commitment to records management, advising on the policy and procedures to be adopted regarding document retention and disposals. August page 1 Contents page 1. Introduction 2 2. Scope & Purpose 2 3. The Retention/Disposal Protocol 3 4. Roles and Responsibilities 3 5. Disposal 4 6. Data Protection Legislation obligation to dispose of certain data 4 7. Standard Operating Procedure (SOP) 4 8. Format of Records 5 9. Reviewing the Schedule 5 Appendix 1 Key Disposal/Retention Considerations Appendix 2 Records Management Society Retention Schedules Appendix 3 Record and Document Disposal Register page 1 1. Introduction 1.1 South Lakeland District Council recognises that its records are an important public asset, and are a key resource to effective operation and to accountability. Like any asset, they require careful management and this policy sets out the Council s responsibilities and activities in regard to the management/retention of its records. 1.2 In the course of carrying out its various functions and activities, the Council collects information from individuals and external organisations and generates a wide range of data/information which is recorded. These records can take many different forms e.g. Letters received from third parties Copy letters which have been sent out File attendance notes Invoices Completed application forms Plans/drawings Financial records Registers Contracts/deeds communications (and any attachments) Photographs Tape Recordings 1.3 Many of the above can be retained as hard paper copies or in electronic form. 1.4 Retention of specific documents may be necessary to: Fulfil statutory or other regulatory requirements. Evidence events/agreements in the case of dispute. Meet operational needs. Ensure the preservation of documents of historic or other value. 1.5 The untimely destruction of documents could cause the Council: Difficulty in defending litigious claims. Operational Problems. Embarrassment. Failure to comply with the freedom of Information or Data Protection Acts. 1.6 Conversely, the permanent retention of all documents is undesirable, and appropriate disposal is to be encouraged for the following reasons: There is a shortage of new storage space. Disposal of existing documents can free up space for more productive activities. Indefinite retention of personal data may be unlawful. Reduction of fire risk (in the case of paper records). There is evidence that the de-cluttering of office accommodation can be psychologically beneficial for many workers. 1.7 The effective management of records in all formats depends as much on their efficient disposal as well as their long-term preservation. Records disposal policies are essential for effective records management. As a local authority we must be consistent in the way we handle and dispose of our information. These guidelines will assist the Council in meeting local needs whilst providing a consistent approach to record keeping across Government. 2. Scope & Purpose 2.1 The purpose of this policy is to provide a corporate policy framework to govern management decisions on whether a particular document (or set of documents) should either be: Retained and if so in what format, and for what period of time; or page 2 Disposed of and if so when and by what method. Additionally, this policy seeks to clarify the roles and responsibilities of Assistant Directors (or designated officer) in the decision making process. 2.2 This policy is not concerned with the disposal/retention of unused materials (e.g. stocks of paper, unused forms, duplicated documents). 3. The Retention/Disposal Protocol 3.1 Any decision whether to retain or dispose of a document should be taken in accordance with the retention/disposal protocol. This protocol consists of: The key disposal/retention considerations criteria checklist, set out in Appendix 1. Essentially no document should be disposed of unless all these have been considered in relation to the document. The retention Schedules (taken from the Record Management Society) contained in Appendix 2. These provide guidance on recommended and mandatory minimum retention periods for specific classes of documents/records. 3.2 Where a retention period has expired in relation to a particular document a review should always be carried out before a final decision is made to dispose of the document. Such reviews need not necessarily be detailed or time consuming. Where the Assistant Director (or designated officer) is familiar with the contents of the document or where the contents are straightforward and easily apparent then such exercises may only take a few minutes. 3.3 In the event that a decision is taken to dispose of a particular document or set of documents, then consideration should be given to the method of disposal (paragraph 5 below). 4. Roles & Responsibilities Assistant Directors (or designated officers) 4.1 Assistant Directors may delegate the operational aspects of this function to one or more senior officers within the Department. However in doing so they should ensure that such Officer is fully conversant with the Policy and is also familiar with the operational requirements of the Department in relation to document retention/disposal. 4.2 Responsibility for determining (in accordance with the Retention/Disposal protocol mentioned above) whether to retain or dispose of specific documents rests with the individual Assistant Director (or designated officer), in respect of those documents that properly fall within the remit or control of his/her Department. The rationale for this is that it is reasonable to both assume and expect that each Assistant Director (or designated officer) should be broadly conversant with the types of documents received, generated and stored by his/her Department. Because of the clear benefits resulting from the disposal of unnecessary documentation, Assistant Directors (or designated officers) are expected to be proactive in carrying out or instigating audits of existing documentation that may be suitable for disposal. Role of the Legal Department and the Research & Intelligence Unit 4.3 The Legal Department can advise on whether minimum retention periods are prescribed by law, and whether retention is necessary to protect the Council s position where the likelihood of a claim has been identified by the relevant Assistant Director (or designated officer). The Legal Department staff cannot be expected to possess the operational or background knowledge required to assess whether a particular document may be required by the Department concerned for operational need. This is the responsibility of the relevant Assistant Director or his/her designated Officers. page 3 4.4 The Research & Intelligence Unit are available to provide Assistant Directors (or designated officers) with advice on effective records management practices. 5. Disposal 5.1 A Record and Document Disposal Register (Appendix 3) of destroyed records will be maintained. Enough detail will be recorded to identify which records have been destroyed. It is not sufficient to indicate that a quantity of records have been destroyed on a certain date. Enough details should be retained to identify which records have been destroyed. 5.2 Disposal can be achieved by a range of processes: Confidential waste. Physical destruction on site (paper records shredding). Deletion where computer files are concerned. Migration of documents to an external body. 5.3 Assistant Directors (or designated officers) should take into account the following considerations when selecting any method of disposal: Under no circumstances should paper documents containing personal data or confidential information be simply binned or deposited in refuse tips. To do so could result in the unauthorised disclosure of such information to third parties, and render the Council liable to prosecution or other enforcement action under the Data Protection Act. Such documents should be destroyed on site (e.g. by shredding) or placed in the specially marked Confidential Waste refuse bins. Deletion the Information Commissioner has advised that if steps are taken to make data virtually impossible to retrieve, then this will be regarded as equivalent to deletion. Migration of documents to a third party (other than for destruction of recycling) is unlikely to be an option in most cases. However, this method of disposal will be relevant where documents or records are of historic interest and/or have intrinsic value. The third party here could well be the Public Records Office (PRO). Migration can, of course, include the sale of documents to a third party. Recycling wherever practicable disposal should further recycling, in-line with the Council s commitment to sustainable development and promoting an alternative waste disposal strategy. 6. Data Protection Act Assistant Directors (or designated officers) need to be aware that under the Data Protection Act personal data processed for any purpose must not be kept for any longer than is necessary for that purpose. In other words, retaining documents or records that contain personal data beyond the length of time necessary for the purpose for which that data was obtained is unlawful. The Data Protection Legislation contains no interpretive provisions on this provision. It is a matter for reasonable judgement and common sense as to how long personal data should be retained. Clearly, in many instances the retention of personal data will be necessary and thus justified for a very long period of time. In general, provided there is adherence to this policy few problems should arise. Assistant Directors (or designated officers) and their staff need to be conscious of the fact that in some contexts it can be relatively easy to fall foul of the Data Protection Act regarding the retention of personal data. 7. Standard Operating Practice (Sop) 7.1 There are some records that do not need to be kept at all; Standard Operating Procedure defines types of records which staff may routinely destroy in the normal course of business. However, the retention and disposal schedule page 4 must still contain reference and instructions referring to them. 7.2 SOP usually applies to information that is duplicated, unimportant or only short-term facilitative value. Unimportant records or information include: Compliment slips 9. Reviewing The Schedule 9.1 These guidelines prescribe minimum and permanent retention periods. The guidance will be reviewed at regular intervals (at least every three years). The Local Government Classification Scheme is the source of the data used in the retention/disposal policy. Catalogues and trade journals Telephone message slips Non-acceptance of invitations Requests for stock information such as maps, plans or advertising material Out-of-date distribution lists Duplicate copies (see para: 7.3) 7.3 Duplicated and superseded material such as stationary, manuals, drafts, forms, address books and reference copies of annual reports may be destroyed as being unimportant. 7.4 Electronic copies of documents where a hard copy has been printed and filed are included as unimportant. 7.5 This does not apply to records or information that could be used as evidence (para 4.3 refers). If you are in doubt about what information might be required then consult the Legal Department. 8. Format of Records 8.1 Record retention policies were primarily created to define retention periods for paper records. However, as more of the Council s business is performed electronically there is a need to define the retention periods of electronic records. These record retention guidelines are relevant to records which are electronic, paper or records which have been transferred to another format such as microfiche. page 5 1. Democratic Process page 6 2. Management and Administration page 7 page 8 3. Housing page 9 4. Legal page 10 5. Human Resources page 11 page 12 page 13 page 14 6. Financial Management page 15 page 16 page 17 page 18 7. Property and Land Management page 19 page 20 8. General Public Services page 21 page 22 9. Planning and Land Use page 23 page 24 10. Infrastructure and Transport page 25 Appendix 1 Key Disposal/Retention Considerations Introduction No document should be earmarked for disposal unless due regard has first been given to (i) the five Key Disposal/Retention considerations detailed in this Appendix, and (ii) to the Retention Schedules contained in Appendix 2. Key Consideration 1 Has the document been appraised? 1. As a first step, the nature/contents of any document being considered for disposal should be ascertained. No document(s) should be earmarked or designated for disposal unless this has been done. Insofar as existing documents are concerned it follows that the above can only be achieved by the carrying out of physical inspection and appraisal. The process may only take a few minutes perhaps even seconds. Nonetheless it can be a skilled task depending on the complexity of the document(s) concerned and should only be undertaken by officers who possess the sufficient operational knowledge to enable them to identify the document concerned and its function within both the individual Department and corporate frameworks. Any decision to the effect that future documents of a specified description be disposed of on expiry of a specified retention period should be an informed one i.e. taken with a full appreciation and understanding of the nature and function of such documents. 2. The above is largely commonsense, and hardly needs to be stated. However, if appraisal is inadvertently overlooked or carried out negligently, or by an employee who lacks the necessary background operational knowledge, the Council runs the very real risk of important documents being destroyed in error. Key Consideration 2 Is retention required to fulfil statutory or other regulatory requirements? There is, in fact, very little specific legislation that stipulates mandatory retention periods for documents in Local Government. The pieces of legislation which do, either directly or indirectly, impose minimum retention periods are as follows: Tax Legislation: Minimum retention period for certain financial records are imposed by statutes such as the VAT Act 1994, and the Taxes Management Act These retention periods are identified in the retention schedules. Statutory Register: Various Local Government statutes require to be kept of certain events, notifications, or transactions. It is implicit with such legislative requirement that these records be maintained on a permanent basis, unless the legislation concerned stipulates otherwise. The Audit Commission Act 1998: This provides auditors with a right of access to every document relating to the Council that appears necessary for the purpose of carrying out the auditor s function under the Act. The Local Government Act 1972, S225: Any document deposited with the proper officer of the Council in accordance with Statute should be retained permanently. (This is analogous to the position re Registers, above). Part VA of the Local Government Act: This governs public access to certain documents relating to Council and Committee meetings. Certain documents that form part of the public part of the agenda are required to be available for inspection by members of the public. page 26 Key Consideration 3 Is retention required to evidence events in the case of dispute? On occasions, the Council becomes involved in disputes with third parties. Such disputes, if not satisfactorily resolved, can result in the dissatisfied party bringing legal proceedings against the Council, usually (but not always) with a view to obtaining monetary compensation. Conversely, the Council may wish to institute legal proceedings against an individual or organisation e.g. to recover an unpaid debt, or in respect of faulty workmanship. Where a dispute arises, or litigation has been commenced it is important that the Council has access to all correspondence and other documentation that is relevant to the matter. Without such, there is the danger that the Council s position will be compromised, and the very real possibility that an unmeritorious claim might succeed, or that the Council may be unable to assert legal entitlements. The Limitations Act 1980 specifies time limits for commencing litigation. The starting point therefore, is that the retention period is the length of time that has to elapse before a claim is barred. The main time limits that are directly relevant to local government are as follows: Claims founded on simple contract or tort (other than personal injury claims) cannot be brought after the expiration of 6 years from the date on which the cause of action occurred. Claims that are based on provisions contained in documents that are under seal are barred after the expiration of 12 years from the date on which the cause of the action occurred. Limitations Act 1980 S.14A and S.14B: Latent damage claims : S.14A provides a special time limit for negligence actions (excluding personal injuries) where facts relevant to the cause of action were not known to the claimant at the date of the negligence. The six-year retention period and risk assessment: As stated above the majority of potential legal claims are statute barred on the expiry of 6 years. For this reason many organisations consider it prudent to retain files/records for a period of 6 years from the date when the subject matter was completed. It is important, though, to keep in mind that in the course of the Council s everyday business large masses of document action are generated that serve no purpose after relatively short periods of time. Many documents will relate to complete matters where, realistically, the risk of subsequent litigation or other dispute is minimal, if not non-existent. Long-term retention of such documents is counter productive. Assistant Directors (or designated officers) should be prepared to carry out a risk analysis, with a view to disposal of such documents within a shorter period of than the 6 year time frame. Compensation claims for personal injury are barred on expiry of 3 years from the date on which (i) the cause of action occurred (this will usually be the date when the incident causing the injury occurred; or (ii) the date when the injured person first had knowledge of the injury, its cause and the identity of the person responsible (some injuries are latent and do not manifest themselves for some period of time). page 27 Key Consideration 4 Is retention required to meet the operational needs of the department? In some cases retention may be desirable (whether permanent or otherwise) even though no minimum retention period applies. Assistant Directors (or designated officers) should be open to the danger of discarding documents or records that might be useful for future reference purposes (e.g. training), as precedence, or for performance management (performance indicators, benchmarking and comparison exercises). A professional judgement needs to be made as to the usefulness of a particular document. Key Documents The Audit Commission recognises that key records may merit permanent preservation, notwithstanding nothing is prescribed. These are covered in the Retention Schedules. Key Consideration 5 Is retention required because the document or record is of historical interest or intrinsic value? In most cases this consideration will not be applicable. However, it is certainly possible that some documents currently in Council storage may be of historic interest and/or even have some monetary value. Illustration A Local Authority may have in its possession records of damage to property caused by air raids during WWII. These records may well be of interest to museums, local history societies, and the County Records office. Where it is suspected that the document falls within
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