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Email Management Guidelines - Roadmap

6. Institutions must ensure that their email records are disposed of in accordance with all relevant legislation and policies

In accordance with 12 (1) and 13 (1) of the Library and Archives Canada Act (2004), no government record may be disposed of unless authorized in writing in a disposition authority obtained from the Librarian and Archivist of Canada. It is important to dispose of transitory email messages and copies (including latent copies - deleted, but not overwritten) on a timely basis. However, it is essential that the capacity exist to prevent disposition or alteration of records that are required (or may be required) for legal, audit or ATIP proceedings.

Expected Outcome

In any given federal government institution, the following benchmarks will have been achieved:

  • It will consistently be possible to demonstrate a high level of adherence to institution retention and disposition plans, the Library and Archives Canada approved Records Disposition Authorities, and other legal and policy obligations to ensure the timely disposition of email information that is no longer required by the institution
  • Information designated by the institution as having historical value will be consistently transferred to Library and Archives Canada.

6.1. Obtain authorization for disposition of email information

The Librarian and Archivist of Canada, has the power to give consent for the disposition of any email message under the control of a government institution and may delegate this power to one or a number of responsible parties within a government institution.

The Library and Archives Canada may provide a Records Disposition Authority (RDA) to an institution. The Library and Archives Canada also provides a Multi-Institutional Disposition Authority (MIDA) that authorizes the disposition of commonly created records.

Responsible parties may in turn delegate power to users to make decisions as to disposition of email that they create or receive, but should do so in writing, with reference to these Email Management Guidelines.

Contravention of the LAC Act can result in a summary conviction (fine / jail term).

Party or Parties Responsible for Implementing and/or Applying the Recommendation:

  • Users
  • Network or System Administrators
  • Information Management Specialists

Rationale

Section 12. (1) of the Library and Archives Canada Act states:

No government or ministerial record, whether or not it is surplus property of a government institution, shall be disposed of, including by being destroyed, without the written consent of the Librarian and Archivist or of a person to whom the Librarian and Archivist has, in writing, delegated the power to give such consent.

Sample Policy Statement

If this recommended action is applicable, consider using the following sample policy statement.

If not, indicate what alternative action, if any, to apply.

It is the policy of (name of institution) that email messages, metadata and attachments that are official records or information are to be kept for the appropriate retention period (but no longer). At the expiry of the retention period, records or information are to be disposed of in accordance with the disposition authority delegated to (name of institution) and administered by the information manager.

Written consent must be obtained from the information manager before any files are deleted.

Note that the information manager should not, under normal circumstances, be involved in decisions as to the disposition of individual files. The information manager may provide consent to others in the institution, including individual users, to dispose of certain classes of information or record, at certain times, and under certain conditions.

Note that the retention period of an email message may not be the same as the retention period of the attachment.

6.2. Dispose of email, copies (and latent copies) on a timely basis

Email programs and systems should be able to locate email files scheduled to be disposed of, wherever they may be under the control of the organization, and allow authorized staff to delete them in such a manner as to prevent them from being reconstructed.

Party or Parties Responsible for Implementing and/or Applying the Recommendation:

  • Network or System Administrators
  • Information Management Specialists

Rationale

Deleting an email message does not destroy it. Deletion merely destroys the link that allows the user to select and open the file. The message itself is not destroyed until it is overwritten by another electronic file. That means that an email message, even if deleted, could persist for months on backup tapes, or as a latent or hidden file in the email system or in the electronic information management system used by the institution.

To fully comply with legislation that limits retention of certain information and records, it is necessary to dispose of all copies under the institution's control. Therefore, when an email message reaches the expiry of its retention period, all copies of the message, including latent copies, on all media under the control of the institution must be located and disposed of in such a manner as to prevent their reconstruction.

There are utilities (computer software tools) that will fully delete and/or overwrite files in such a manner as to make them irretrievable.

It must be remembered that email messages are discoverable as long as they are recoverable. That means that they can be requested as evidence even if they have been deleted, as long as it is possible to recover them from any storage medium under the control of the institution. Allowing such copies to continue to exist after the retention period has expired results in two things - the researchers will incur more cost by having to search through more material to find evidence relevant to the court, and the court will end up with more evidence than is necessary.

The intent of such disposition is to comply with the law, not to destroy evidence.

Sample Policy Statement

If this recommended action is applicable, consider using the following sample policy statement.

If not, indicate what alternative action, if any, to apply.

It is the policy of (name of institution) that email programs and systems belonging to (institution) must be able to locate email files scheduled to be disposed of, wherever they may be, under the control of the institution, and allow authorized staff to delete them in such a manner as to prevent them from being reconstructed.

Employees, contractors and users of the email system are hereby cautioned that deleting an email message does not destroy it. Deletion merely destroys the link that allows the user to select and open the file. The message itself is not destroyed until it is overwritten by another electronic file. That means that an email message, even if deleted, could persist for months on backup tapes, or as a latent or hidden file in the email system or in the electronic information management system.

To fully comply with legislation that limits retention of certain information and records, it is necessary to dispose of all copies under the institution's control. Therefore, when an email message reaches the expiry of its retention period, all copies of the message, including latent copies, on all media under the control of the institution must be located and disposed of in such a manner as to prevent their reconstruction.

The (institution) employs the following utilities (provide list of computer software tools) that will fully delete and/or overwrite files in such a manner as to make them irretrievable.

Employees, contractors and other users are also hereby advised that email messages are discoverable as long as they are recoverable. That means that they can be requested as evidence even if they have been deleted, as long as it is possible to recover them from any storage medium under the control of the institution. Email messages must, therefore be stored only in approved locations.

Allowing such copies to continue to exist after the retention period has expired results in two things - the researchers will incur more cost by having to search through more material to find evidence relevant to the court, and the court will end up with more evidence than is necessary.

6.3. Prevent disposition or alteration of records required for legal, audit or ATIP proceedings

Email management programs and systems should have the capacity to protect email information and records, including messages, metadata and attachments from well-intended, ill-intended, or accidental disposition or spoliation (a legal term meaning damage or alteration).

Party or Parties Responsible for Implementing and/or Applying the Recommendation:

  • Network or System Administrators
  • Information Management Specialists

Rationale

Note that courts have ruled against parties who have destroyed, tampered with or spoiled information required as evidence. Rulings have been based on the legal principle "omnia praesumuntur contra spoliatorem," meaning "all things are presumed against the destroyer or wrongdoer." Stated in simpler terms, it is assumed by the court that the party who spoiled the evidence had something to hide. Cases may be lost on this basis alone.

Sample Policy Statement

If this recommended action is applicable, consider using the following sample policy statement.

If not, indicate what alternative action, if any, to apply.

It is the policy of (name of institution) that email management programs and systems belonging to (institution) must have the capacity to protect email information and records, including messages, metadata and attachments from well-intended, ill-intended, or accidental spoliation (damage or alteration).

Courts have ruled against parties who have tampered with or spoiled information required as evidence. In simpler terms, it is assumed by the court that the party who spoiled the evidence had something to hide. Cases may be lost on this basis alone. Furthermore, destruction of evidence may constitute a criminal offence.

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