That’s the title of my Slaw post for today.  It reads as follows:

The Law Society of Upper Canada is having a teleseminar at noon today entitled “The New Guide to File Retention and File Destruction.”

I’m one of the speakers – talking about issues relating to electronic records.

One of the fundamental principles of electronic records from a records retention and destruction perspective, is that electronic records should be retained and destroyed on the same schedule as paper records.

As I was thinking about the issues, it occurred to me that if I had to hazard a guess, I suspect many law firms, and many businesses for that matter, have not come to grips with this yet. 

The reason is simple.  Take the period of time a file is active, then add to that the time a closed file should be retained. (The LSUC suggests 15 years for typical files.)  Then consider how long electronic records have been around in a significant quantity.   We are just now coming to a time when law firms might have a significant amount of electronic records in addition to paper files. 

Certainly word processing and email have been around for more than 15 years, but in the early years the only thing that was kept was the paper. 

Personally, my viewpoint is that the electronic versions (word documents, email, images, faxes, collaboration tools, instant messaging, etc.) of documents are the real, original documents. The paper versions are just a physical manifestation of those records.

For the London Free Press – February 23, 2009 

Read this on Canoe

The Ontario Court of Appeal recently handed down what is being hailed as a landmark decision in terms of openness and transparency in electronic records.

A complaint by James Rankin, a journalist at the Toronto Star newspaper, led to an adjudicator’s decision, an appeal to the Divisional Court and a further appeal to the Ontario Court of Appeal. It has significantly broadened rights to view electronic records of governmental agencies.

Rankin had written a series of articles in the Star in which he hypothesized that the Toronto police engaged in racial profiling — an allegation vehemently denied by the police.

In an effort to substantiate his claims, Rankin applied under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) for disclosure of certain police records. Specifically, Rankin wished to know whether individuals with police records had been arrested only once or on multiple occasions.

The journalist acknowledged the information he sought would contain personally indentifying information that would violate privacy laws if disclosed. However, Rankin felt the indentifying information could be replaced by a system of coded numbers, essentially assigning a specific number to each individual. This system would allow him to access the information he needed without compromising the right to privacy of those individuals with police records.

His request was denied by the Toronto Police Services Board, which stated that processing Rankin’s request would force them to design a new computer program to rid the data of the identifying information. The police did not deny they could create such a program, but instead denied the request on the grounds the information did not constitute a record as set out in the MFIPPA.

Upon the refusal of his request, Rankin filed an appeal with the Information and Privacy Commissioner of Ontario. The adjudicator held that the information being requested by Rankin was a record under the MFIPPA and ordered the police services board to disclose the records with the understanding that Rankin was to pay the board’s cost in obtaining the requested information.

The Toronto Police Services Board appealed the adjudicator’s decision to the Divisional Court. The court accepted the board’s arguments and ruled the information being requested by Rankin was not a record pursuant to the definition set out in the MFIPPA.

The Divisional Court’s decision was then appealed by Rankin to the Ontario Court of Appeal, which overturned the lower court’s ruling and reinstated the adjudicator’s decision.

In a statement released just after the Court of Appeal decision, Ontario Information and Privacy Commissioner Ann Cavoukian said: “This case represents a victory for openness and transparency in the context of electronic records. Welcome to the 21st Century.”