It is important for organizations to start thinking about their electronic records and system before a complaint or adversarial matter arises. For example, as part of a regular routine to reduce the storage of paper documents, your organization may decide to scan and keep an electronic version of the documents instead of paper documents. Or, your organization only keeps electronic records to support the fact that someone clicked on an "I Agree" button when making a donation or purchase online. Organizations need to be aware that these electronic records can be called into question such that they may not be able to rely on the records to support their positions. I asked my colleague Martin Felsky to provide some guidance for organizations in terms of their electronic records management program.
Question: Are organizations able to rely on an electronic version of a document?
Martin: In general terms Canadian law supports the use of electronic business records. In other words, just because a business record may be created, communicated or stored in electronic form does not mean it is any less "legally" effective than a paper record. However, since digital records are more volatile than paper, and unlike printed documents are machine readable only, special care must be taken to ensure the reliability and availability of electronic business records for legal purposes. For example, it is perfectly acceptable to scan and shred tax-related records, but Canada Revenue Agency has issued specific guidance about how the scanning is to be done to ensure that the digital image is acceptable, for example if you are audited. (Reference: "Electronic records management and imaging" section of Information Circular IC78-10R5 (2010) "Books and Records Retention/Destruction", and IC05-1R1: "Electronic Record Keeping".)
Question: How can organizations increase the likelihood of being able to rely on their electronic records?
Martin: In law, the reliability of an electronic business record is dependent on the integrity of the system in which it was created and stored. Therefore organizations need to assess and improve the overall reliability of their information systems. Happily, there is plenty of guidance. The Canadian General Standards Board issued two relevant standards. A good part of my practice includes helping organizations comply with those standards. The first one applies to conversion from paper to digital format (CGSB 72.11) and the other one applies to "born-digital" records (CGSB 72.34). By adopting and complying with these standards, which largely deal with quality, security and documentation, an organization will definitely have more confidence in their electronic business records.
Question: In creating an electronic records management program, what are some of the key things to consider?
Martin: Some of the key elements of a reliable electronic records management system include: the use of reliable software and data sources; tracking of major system changes; validation of data entry; implementation of records management industry standards (such as ISO 15489); and active security controls.
Question: Can organizations solely rely on their internal systems to produce evidence from their electronic records, or should they also be considering the products/services of a third party?
Martin: Organizations that are frequently involved in investigations or legal proceedings would be well advised to investigate third party software for records management that have evidence-friendly features such as powerful search, retrieval and export tools, detailed logging, and even targeted collection or early case assessment. However, for most organizations, the key to a reliable system is not software at all, but the standardized, routine and documented practices of well-trained staff.
Question: Is it too late to make corrections to one's electronic records management program? For example, organizations are now grappling with Canada's anti-spam law, which for the most part will come into force on July 1, 2014. As part of an organization's defence, do you have any tips to help them be able to rely on consent that they have obtained or will obtain over the internet?
Martin: This is a good question because in most cases consent will be collected digitally, and without proof of consent, penalties can be very serious. The best approach to a specific situation like this is to build data integrity and retention into your marketing campaign plan. For example, ensure that you have considered issues such as how to ensure that consent is coming from a particular individual, and how to verify that; how to deal with individuals who withdraw their consent or argue that they never provided consent; in what format to retain the consent communications and how to ensure against tampering or unauthorized access. Most organizations in my experience get into difficulties when quality and security are taken for granted, and no record of decisions is kept.
Question: Any last words for organizations to keep in mind when they generate electronic records or shred their paper records in reliance on electronic records?
Martin: Yes. Scanning and shredding paper business records is a great idea to save space and improve access. But there are pitfalls that can be avoided by getting some legal advice up front. First of all, for your organization, are there any applicable legal, regulatory or contractual exceptions to the general law that enables scanning and shredding? Have you established an authorized image management program as recommended by CGSB 72.11? If not, how do you plan to prove the integrity of your information systems if your digital business records are challenged? Compliance is not always simple, but it leads to much greater peace of mind.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.