Educa&onal Event Spring Things to Know About International Record Retention William Saffady

Transcription

1 Educa&onal Event Spring Things to Know About International Record Retention William Saffady

2 #1 Who Needs to Know About This? These organiza-ons: Mul-na-onals headquarters in one country with branches or subsidiaries in other countries Transna-onals autonomous opera-ons in mul-ple countries Examples include corpora-ons, partnerships, universi-es, scien-fic and medical research organiza-ons, founda-ons, scholarly and professional associa-ons, cultural ins-tu-ons, philanthropic and charitable organiza-ons, religious groups

3 #1 Who Needs to Know About This? These stakeholders: Records managers Informa-on governance specialists Compliance officers Legal counsel Risk managers Data protec-on, privacy, and security officers Auditors Business units as record custodians

4 #2 Governmental Structures that Impact Reten-on Unitary States Central government issues laws and regula-ons, subna-onal jurisdic-ons have administra-ve responsibili-es European examples: Albania, Bulgaria, Croa-a, Czech Republic, Denmark, Estonia, Finland, France, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovak Republic, Sweden, Ukraine Asian examples: Bangladesh, Brunei, Cambodia, China, Hong Kong, Indonesia, Japan, Macau, Mongolia, the Philippines, Singapore, South Korea, Sri Lanka, Taiwan, Thailand, Vietnam

5 #2 Governmental Structures that Impact Reten-on Federated States Na-onal government shares legisla-ve authority with subna-onal jurisdic-ons, which must be researched individually European examples: Austria, Belgium, Bosnia and Herzegovina, Germany, Russian Federa-on, Spain, Switzerland, United Kingdom Asian examples: India, Malaysia, Nepal, Pakistan Other examples: Argen-na, Australia, Brazil, Canada, Ethiopia, Mexico, Nigeria, South Africa, United Arab Emirates, USA, Venezuela

6 #3 Impact of Suprana-onal En--es Member states delegate some legisla-ve powers to a mul-na-onal poli-cal en-ty Purpose: Legal harmoniza-on (including laws that specify record reten-on periods) but member states must transpose legisla-on and direc-ves into na-onal laws Examples: European Union (EU), Commonwealth of Independent States (CIS), Organiza-on for Harmoniza-on of Business Laws in Africa (OHADA), Associa-on of Southeast Asian Na-ons (ASEAN)

7 #4 Sources for Reten-on Research Online availability of legal informa-on has increased significantly in recent years Sources: na-onal databases of laws and regula-ons, web sites of government ministries, web sites of local law firms, fee- based commercial services Background research is necessary to iden-fy relevant sources for a given country but much incorrect informa-on is available More than one source must usually be consulted to adequately research legal reten-on for a given country Many laws and regula-ons must be examined to iden-fy the few that are relevant Laws may be amended or rescinded, but consolidated versions are not always available

8 #5 Vernacular Versions vs. English Transla-ons Vernacular versions are the only authorita-ve resources English is an official language de jure or de facto for laws and regula-ons in at least 77 countries (about 40 percent of the global total) even where it is not the primary language In other countries, laws and regula-ons are available in unofficial English transla-ons from government agencies or other sources Transla-ons must be used with cau-on because they may not be based on the most recent version of a law or regula-on Transla-on tools are useful where laws are only available in vernacular versions but background research about the language is advisable Develop a list of vernacular terms to be searched within the text of a law or regula-on

9 #6 Legal Status of Electronic Records Many countries have electronic transac-on or electronic signature laws Based on model law developed by the United Na-ons Commission on Interna-onal Trade Law (UNCITRAL) Laws may describe electronic records as electronic documents or data messages Electronic records are acceptable as official copies for reten-on subject to certain condi-ons Most common requirement: electronic records must remain readable throughout their reten-on periods and printed copies must be created when requested by government officials Computer equipment must be available to support retrieval, display and prin-ng

10 #7 Accoun-ng Records and Statutes of Limita-ons Minimum reten-on periods are specified for accoun-ng records Source may be a accoun-ng act, bookkeeping regula-ons, companies law, commercial code, or civil code Typical reten-on range is 3 to 12 years from end of the fiscal or calendar year, depending on the country Tax laws may specify longer reten-on requirements for accoun-ng records in some situa-ons Civil codes specify statutes of limita-ons that may impact reten-on decisions for records related to contracts, agreements, payments, product liability, personal injury, employment rela-onships Limita-ons range from 1 year to more than 10 years, depending on the circumstances

11 #8 Special Situa-ons Certain records are subject to special reten-on requirements Surveillance recordings some countries mandate destruc-on ager a short period of -me Records of dissolved en--es a custodian must be designated to maintain records for a specified minimum period Reten-on is not covered specifically, but laws that require reten-on of correspondence related to accoun-ng, taxes, or other business mahers presumably apply. Statute of limita-ons may also impact reten-on decisions.

12 #9 Data Protec-on and Record Reten-on Data protec-on laws impact reten-on of personally- iden-fiable informa-on Records containing personally- iden-fiable informa-on must be destroyed when no longer needed for original purpose Applies to employment records, payroll records, workplace health and safety records, shareholder records, customer records, pa-ent records, correspondence Requires interpreta-on about original purpose In some countries, data subject can demand destruc-on of records Some countries may specify excep-ons or allow personal data to be retained anonymously for scien-fic or sta-s-cal research

13 #10 Transborder Record Reten-on Laws may restrict the loca-ons where records can be retained Will impact centraliza-on of reten-on in designated repositories or use of cloud- based services Some laws require in- country reten-on for accoun-ng, tax, personnel, or other records Data protec-on laws prohibit transfer of personally- iden-fiable informa-on to countries that lack an adequate level of protec-on Some countries have a white list of acceptable loca-ons For transfer to USA, compliance with Safe Harbor framework may be acceptable

14 Thank You William Saffady (718)