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Public records requests and legal holds from the Records ManageR Viewpoint

Public records requests and legal holds from the Records ManageR Viewpoint. Presented by: Carrie Fager Martin, CRM, CA Records Policy Planner, Louisiana State Archives

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Public records requests and legal holds from the Records ManageR Viewpoint

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  1. Public records requests and legal holds from the Records ManageR Viewpoint Presented by: Carrie Fager Martin, CRM, CA Records Policy Planner, Louisiana State Archives All views presented are my own and does not constitute a legal opinion. Please consult your organization’s attorney for legal advice.

  2. Overview • Which elements of a Records Management Program can help with Public Records and Legal Hold situations? • Records Retention Schedule • Disposal process • File/Records Transfer protocols • Legal Hold Policy • Real life example: • DOJ vs. Secretary of State, ROVs, LDH, DCFS, Louisiana Human Service Authorities

  3. Records Retention schedule • Acts as the backbone for your agency’s records • Helps guide you to where it might be, how long it is maintained and by what sections and access rights and importance in a disaster. • Should be your first step when requests come in to see who might have related records to meet request outside of key word searches.

  4. Disposal Process • Review agency policies and procedures for disposal of agency records. • In addition to retention having been met, you need to verify with your legal section that there are no legal holds that cover the records. • After you review your retention schedule, you need to review your disposals to see if you still have records that have met retention or if they have been destroyed. • Review Certificates of destructions (SS ARC 933) to see if there is documentation regarding the disposal if needed) • The State Archives has a method for tracking Legal holds that agencies may be under to ensure that disposal requests are not inadvertently processed by accident. • NOTE: The State Archives can only track what we know about. If you don’t tell us we may not know to remind you not to process disposals for certain records.

  5. File/Transfer Protocols • After you have looked at your Records Retention schedule and disposals, you need to review your content lists, transmittals and inventories. • These lists will give information on what is in what container and what space location that container has been assigned if physical records. • Reviewing File plans of Shared drives may help better identify where to locate electronic records rather than searching an entire server or drive. • These protocols can also help understand how records are arranged and labeled to better understand the order of the records and how they were used in the section.

  6. Legal Hold Policy (LAC 4 XVIII section 909) • Requires each state agency to develop and implement an internal process for placing legal holds on records that are involved in state or federal investigations and/or litigation. • Agencies should submit the policy within 30 days of creation to the State Archives. • Plan includes: • Agency’s internal disposal approval process; • Which employees are notified of legal hold, when they are told and how they are told; • Who is responsible for contacting possible 3rd party vendors who may house records or data covered under a legal hold; • What steps should be taken by notified employees to safeguard records or data covered under legal hold; • Legal Hold forms (including file level notice sheets) and instructions for any legal hold form/release forms created by agency to implement the plan; • Who within agency has legal authority to life the legal hold once the litigation or investigation has concluded.

  7. Tips • When selecting content management software, look for software that has the ability to flag records for legal holds. • Look for the ability to track multiple holds for same records. • Remind employees of status of legal holds regularly until hold is lifted. Life goes on and people can forget. • Have your legal counsel communicate legal holds to employees and search requests. By doing so, it becomes attorney work product and not part of a public records request. • Keep track of where you put records that are in a hold pattern due to a legal hold so that when it is lifted you can go back and retrieve them for disposal.

  8. Real life examples… • In April 2011, a private lawsuit including Secretary of State’s Registration division, LDH (then DHH), DCFS, LWC (vocational rehab), the various Human Services Authorities and all 64 ROVs was filed related to the National Voter Registration Act (NVRA). • In July 2011, the U.S. Justice Department filed a similar lawsuit. • Both suits were not settled until August 2017. • Disposals had to be rejected and returned related to the registration records…including those for records that had been converted. • Storage space became an issue over time and people had to get creative about where to put their records.

  9. Questions? Carrie Fager Martin, CRM, CA Records Policy Planner Archives and Records Management Division 225.925.7552 (o) 225.922.0002 (f)

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