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Legal Proceeding Preparation (E-Discovery) Policy

 

  1. Purpose

 

Purchase College has always been responsible for complying with various information demands made upon it by the public, oversight agencies, and the courts.  Such demands may arise in the context of litigation, administrative proceedings, audits, investigations, and Freedom of Information Law requests.  With the proliferation of electronic information storage capabilities and systems, the task of compliance with the requests has become ever more complicated and challenging.  The purpose of this Policy is to provide guidance and directives to aid various University constituencies and officers in their efforts to comply with those “e-discovery” responsibilities and demands. 

 

  1. Summary

 

Custodians must understand the basic operations of electronic storage systems and programs and must manage records and ESI according to applicable laws, regulations, policies, retention schedules, and best practices.  This includes the duty to notify Counsel of potential Triggering Events. 

The SUNY Office of General Counsel will make the ultimate determination of what constitutes a ‘Triggering Event’ and after such determination is made, will order Legal Holds accordingly.  Counsel will also direct the production of ESI, if necessary.    

Key Persons must cooperate with Counsel to identify, preserve, maintain, and produce ESI that is subject to a Legal Hold issued by the General Counsel’s Office.  

 

III.       Definitions

 

E-Discovery” is a short hand term for the process of preserving and exchanging electronically-stored information (ESI) in the context of modern litigation or other legal processes. 

 

A “Legal Hold” is a process by which the Office of General Counsel (“OGC”) directs the preservation of certain records, information, and data, for the purpose of complying with an information request or other legal obligation. 

 

Counsel” means any member of the University’s Office of General Counsel.

 

A “Custodian” is any officer, employee, or agent of the Univeristy that possesses, controls, or maintains any record, information, or data of the University. 

 

A “Key Person” is any officer, employee, or agent of the Univeristy that possesses, controls, or maintains any record, information, or data that is subject to a Legal Hold.  A Key Person may also be someone who is in a position of leadership over a subject program or department (HR, Student Affairs, Facilities, etc.), or someone who has been designated as a campus liaison to Counsel.

 

IT Personnel” means the Chief Information Officer of any campus or the designee thereof. 

 

A “Triggering Event” is any event or set of circumstances that cause Counsel to reasonably anticipate litigation or another legal process which could give rise to a preservation obligation.  Factors to consider in determining whether a Triggering Event has occurred include:

  1. Likelihood of litigation or other legal processes;

  2. History of the institution;

  3. Location, durability, and control of potential ESI;

  4. Media coverage;

  5. Seriousness or magnitude of potential legal action;

  6. Relative burdens and costs of preservation effort;

  7. Common sense and professional judgment. 

 

A “Legal Preservation Notice” or “LPN” is a set of written instructions sent from Counsel to Key Persons.  A LPN may be issued electronically; however, it should include an appropriate acknowledgment.  At a minimum, a LPN should include information related to:

  1. The nature of the event giving rise to the Legal Hold;

  2. The ESI or other records that are subject to the Legal Hold;

  3. A brief recitation of the legal obligations related to Legal Holds in general;

  4. Instructions for preserving the relevant ESI (including any transfer instructions);

  5. Contact information for both legal and IT advice.

 

Electronically Stored Information” or “ESI” means any information, record, document, file or data stored on any University program, system, device, or server of any kind.  ESI can also reside on the personal devices and in the personal accounts of university officers, employees, and agents if such devices and accounts are used for conducting University business.  ESI may include documents, audio recordings, videotape, e-mail, instant messages, word processing documents, spreadsheets, databases, calendars, telephone logs, contact information, Internet usage files, metadata, and all other electronic information created, received, and/or maintained on computer systems.  

  

 

  1. Specific Duties

 

Counsel

 

  1. Be familiar with campus ESI systems, including e-mail, word processing, spreadsheets and databases, student information, backup and archival systems, and websites.

 

  1. Issue Legal Hold upon the occurrence of the following events:

    1. Receipt of EEOC Complaint;

    2. Receipt of SDHR Complaint;

    3. Receipt of OCR Complaint;

    4. Receipt of NOI, Claim or Summons and Complaint;

    5. Catastrophic events involving injury to persons or property.

 

  1. Consider issuing at Legal Hold upon the occurrence of any event giving rise to a reasonable anticipation of litigation or another legal process for which ESI may be relevant. Such events may include:

    1. Initiation of investigation by state or federal law enforcement;

    2. Initiation of investigation by Inspector General;

    3. Receipt of Attorney Demand Letter;

    4. Injury to persons or property;

    5. Major employment actions, such as tenure denial or the filing of a disciplinary grievance;

    6. Major contract actions, such as breach or early termination;

    7. Major student actions, such as dismissal or interim suspension;

    8. Receipt of FOIL request;

    9. Audit engagement;

    10. Receipt of a subpoena.

 

  1. Once it is determined that a Triggering Event has occurred, work with applicable campus leadership to identify Key Persons.

 

  1. Describe litigation facts and issues sufficiently to aid in identification of relevant documents or information. This may include determination on an on-going basis of appropriate search terms or key words for use in search tools/software.

 

  1. Identify a retrospective time period for Legal Hold.

 

  1. Define scope/types of ESI for recipients of LPN. This determination should be based, in part, on reasonable proportionality determinations.  The more likely or serious the potential case or action, the more extensive the Legal Hold should be. 

 

  1. Work with IT Personnel to determine appropriate method for preserving ESI.

 

  1. Issue instructions with respect to future communications (i.e. limit use of e-mail; save relevant emails in particular folder).

 

  1. Monitor compliance with LPN.

 

  1. Issue periodic reminders that LH is still in effect.

 

  1. Set review parameters and participate in ESI review process to the extent necessary to ensure appropriate determinations are made regarding relevance, privilege, and other factors.

 

  1. Manage any necessary production in consultation with IT Personnel, Records Management Officers, the Attorney General, and other appropriate parties.

 

Custodians/Key People

 

  1. Understand the basic operations of electronic storage systems and programs.

 

  1. Manage records and ESI according to applicable laws, regulations, policies, retention schedules, and best practices. This includes limiting the amount of ESI that is stored on systems and devices under your control that does not have a legal, operational, or historical value to the University.

 

  1. Notify counsel of threats of legal action and other potential Triggering Events.

 

  1. If you are a “Key Person” and receive an LPN, you have a duty to preserve relevant information (define relevant, define types of information/ESI), no matter where it may be located (e.g., home computer, personal phone).

 

  1. You must provide counsel with information on the sources, locations, nature of relevant ESI, and other records in your possession or control.

 

  1. You must not delete, destroy, purge, overwrite, or otherwise modify existing relevant ESI (or newly created relevant ESI) even if it is a duplicate, draft or “personal”.

 

  1. You must give access to relevant information in order that it can be preserved and retrieved if needed.

 

IT Personnel

 

  1. Educate Counsel and Custodians on basic operations of systems, devices, and programs under their control.

 

  1. Monitor use of IT systems to ensure Custodians comply with applicable policies, including those related records management.

 

  1. Contract and work with capable, responsible vendors. This may include vendors responsible for e-discovery services.

 

  1. Cooperate with Counsel in identifying ESI sources.

 

  1. Work with Counsel and Key Persons to implement Legal Holds. This may include having direct responsibility over ESI collection and preservation activities, pursuant to the direction of Counsel. 

 

  1. When receive LPN, take steps to preserve relevant ESI (define types); be aware of names, locations of Key Persons.

 

  1. Work with Key Persons to ensure preservation of new relevant data, if any.

 

  1. Be prepared to help Counsel review, produce and explain relevant ESI during any related legal proceedings.

 

  1. Other Policy Determinations

 

  1. All electronic storage systems, devices, and programs purchased or used by the University should be capable of meeting the obligations described herein. Generally, in the least, this means that they should be capable of long-term retention of ESI.  It is considered preferable if such systems, devices, and programs also allow for the easy searching and sorting of ESI. 

 

  1. Failure by any party to follow this policy may result in discipline and expose him or her to legal sanctions.

 

  1. All officers, employees, and agents of the University should familiarize themselves with potential Triggering Events and communicate the occurrence of such events to Counsel through appropriate channels.

 

  1. The exact scope, parameters, and features of a Legal Hold should be custom fit to the circumstances of the Triggering Event and proportional to the risk presented.

 

  1. Campus policies should allow for administrative access and control of all University systems, programs, and devices. These policies should make clear to all employees that they have no privacy interest in Univeristy records and ESI, regardless of where it is stored.

 

  1. All University officers should endeavor to document the steps they take pursuant to this policy and provide such documentation to Counsel.

 

  1. Campuses must make compliance with this policy a priority and provide adequate resources to ensure that compliance is readily achievable.

 

  1. OGC will provide routine guidance to University leadership and constituencies.

 

  1. The Univeristy will at all times strive to coordinate its efforts with applicable vendors, unions, and the Attorney General’s Office to meet its E-Discovery obligations.

 

  1. Custodians should work to eliminate multiple copies/drafts of records and other documents, and delete unnecessary email on a routine basis. ESI that does not have a legal, operational, or historical value to the Univeristy should not be retained and stored on Univeristy systems.

 

  1. Back-ups systems at Univeristy campuses should generally be used for the purpose of disaster recovery only. Time frames, or cycles of such systems should be gauged accordingly. 

 

  1. The Records Management Officer on each campus shall be charged with ensuring compliance with this policy, unless the President makes another designation.

 

  1. Each campus should consider creating policies to supplement this in order to better fit its local environment and organizational structure.

 

  1. Supervisors and IT Personnel are jointly responsible for managing records and ESI that are associated with a separated employee in accordance with University policies and procedures.

 

Other Related Information

 

SUNY Policy 6609 – Records Retention and Disposition http://www.suny.edu/sunypp/documents.cfm?doc_id=650

 

SUNY Policy 6608 – Information Security Guidelines http://www.suny.edu/sunypp/documents.cfm?doc_id=583

 

Forms

 

Legal Preservation Notice

 

Questionnaire/Interview Outline to Prepare for E-Discovery 

 

Authority

 

NY Education Law § 353 http://codes.lp.findlaw.com/nycode/EDN/I/8/353

 

Appendices

 

Introduction to the SUNY Records Retention and Disposition Schedule http://www.suny.edu/compliance/topics/recordsretention/intro%20button.jpg

 

From:              Counsel

To:                  Campus / IT Personnel

Subject:          Notice to Preserve Information Related to [Case] – A/C Privilege

______________________________________________________________________________

 

Dear [Campus / IT Personnel],

 

Please forward the following message to [known Key Persons] and anyone else that might have information regarding the recent [describe Triggering Event]:

 

“You are receiving this message because a [litigation/investigation/audit] involving a [campus name] program is anticipated and the College has determined that you are likely to be in possession of data, documents, or information that may become part of the College’s response to this [litigation/investigation/audit].  [Campus] has an urgent legal obligation to preserve this information.

 

You are required to take all reasonable steps to identify and preserve any and all emails, hard copy files, electronically-stored information or other records in your possession that relate to [Triggering Event].  Relevant information may be in paper files, on campus IT systems, hand held devices, removable media such as CDs or flash drives, laptop computers, back-up tapes, personal computers (if SUNY business was conducted utilizing a personal or home computer), or any other storage medium.

 

Immediately halt all deletion efforts including routine destruction and deletion or modification of such information, documents or evidence.  You must maintain this information, as well as any new information/evidence (hard copy or electronic) created after receipt of this message, in the form which it now exists.  Please contact [IT Personnel] if you need help collecting or preserving information responsive to this request.

 

If you identify and preserve any documents or other materials identified as a result of this communication, please contact [Counsel] and inform him/her that you are in possession of such materials.  Further instructions will be forthcoming once the scope of the [litigation/investigation/audit] becomes more apparent.  

 

As this obligation is continuing, you must also save any new information/evidence that you create or receive until the Office of General Counsel notifies you we are no longer under a duty to preserve it.  However, future communications involving this matter should be limited to formal discussions involving [Counsel].

 

Please confirm by return email that you have received this communication and are in the process of complying with the directives herein.  Any questions regarding this matter should be directed to [Counsel].  Thank you for your cooperation.”

 

QUESTIONNAIRE/INTERVIEW OUTLINE TO PREPARE FOR E-DISCOVERY

 

 

OVERVIEW OF COMPUTING ENVIRONMENT

            Types of computers:  How many and how are they used?

                       IT-managed computers:  

                                   Centralized mainframes and mid-range processors

                                   IT-managed servers

                                              Application servers   

                                              Email servers

                                              File servers

                       Departmental servers: How many, what uses, relationship to IT?

                       Desktop computers

                       Mobile computers (including sub-computing devices)

                       Hosted services

                       Other

            Storage devices and media:  What policies and practices govern their use?

                       Hard drives

                                   Network drives:  How many and what uses?

                                   Local hard drives

                       Removable media

                                   Magnetic tapes (other than backup tapes)

                                   CD / DVD drives

                                   Other: flash drives, etc

            Backup practices

                       Backup schedule for incremental and full backups

                       Backup media: magnetic tapes and other

                       Number of backup copies produced

                       Storage locations for backup media:  onsite and offsite

                       Retention / recycling practices for backup media

                       Organization and accessibility of backup tapes

                       Is real-time backup in use or planned?

 

DATABASE APPLICATIONS

                       Survey of databases likely to be relevant for e-discovery

                                   Purpose: business functions that database supports

                                   Software that creates and maintains database

                                              Current status

                                              Plans for upgrading / replacement

                                   Computer system on which software operates

                                   Database retention policy

                                   Archiving practices for older database records

                       Legacy database applications: current status and usability

 

EMAIL

            Type of email software in use

            Number and location of email servers

            Number and types of email users

            Retention practices for email

Limitations on mailbox size

Automatic deletion after a specified time

            Transfer of email to other files:  Is it permitted and/or encouraged?

            Backup practices for email (if different from general backup practices)

                       Backup schedule: incremental and full

                       Storage locations for backup media

                       Accessibility of backup media

            Use of non-SUNY email for SUNY business

 

FILESHARES:  DEPARTMENTAL AND OTHER

                       Network storage locations

                       Retention practices

                       Backup practices

 

 

 

 

 

         STATE UNIVERSITY of NEW YORK

 RECORDS RETENTION & DISPOSITION SCHEDULE

 

INTRODUCTION

 

  1. PURPOSE

 

This new State University of New York (University) Records Retention and Disposition Schedule (RR&D Schedule) indicates the minimum length of time that campus and University officials must retain the records covered by this schedule before the records may be disposed of legally. Schedule items have been reviewed by the NYS Offices of the Attorney General and State Comptroller and approved by the New York State Archives for use by the University, pursuant to provisions of Sect. 57.05, Arts and Cultural Affairs Law and 8 NYCRR Part 188. This new RR&D Schedule replaces and supersedes the 1977 Records Retention and Disposition Schedule formerly issued by the University. It also replaces and supersedes any other retention authorizations and guidance that campus and University officials may have adopted for specific records. It must be noted that the University also follows the New York State Archives’ General Retention and Disposition Schedule for New York State Government Records (State Schedule) to the extent that a category of records is not covered by the University’s own retention schedule. University and campus officials should determine first if there is a specific record category applicable from the RR&D Schedule. That schedule will supersede retention periods for similar items in the State Schedule. Records not covered by the RR&D Schedule will be governed by the State Schedule.

 

All University records must be retained in accordance with the retention periods and guidelines specified in this new RR&D Schedule and in any related policies, procedures, guidelines, or directives that the University has issued or may issue in the future. See Section 5 of this Introduction for suggestions regarding the disposition of records that no longer need to be retained.

 

The purposes of this new RR&D Schedule are to:

  • ensure that records are retained as long as needed for administrative, legal, and fiscal purposes;

  • ensure that state and federal records retention requirements are met;

  • ensure that records with enduring historical and other research value are identified and retained permanently; and

  • encourage and facilitate the systematic disposal of unneeded records.

 

  1. RECORDS MANAGEMENT OFFICER AT THE STATE UNIVERSITY OF NEW YORK

Pursuant to NYS Arts and Cultural Affairs Law §57 (Divisions of History and Public Records) and 8 NYCRR §188 (State Government Archives and Records Management), the University has designated a University Records Management Officer to coordinate the proper retention and disposition of records throughout University campuses and at the System Administration Office. It is suggested that each campus also designate a records management officer.

All inquiries about records management should be referred to the University Records Management Officer (518-320-1311) and, whenever necessary, the Office of University Counsel & Vice Chancellor for Legal Affairs for resolution. The University Records Management Officer and the Office of University Counsel & Vice Chancellor for Legal Affairs will also be responsible for referring, whenever necessary or appropriate, any questions on records management issues to the State Archives.

 

  1. HOW TO USE THE RR&D SCHEDULE

 

3.1 Interpreting the RR&D Schedule Items

 

Many of the items on this RR&D Schedule are broad and describe the purpose or function of records rather than identifying individual documents and forms.

 

Specific items are listed in sixteen (16) tables with functional headings (e.g., Academic Affairs, Athletics, Student Accounts) which are arranged alphabetically.  Using the Subject Index at the end of the RR&D Schedule, campus and University officials should match the records in their offices with the descriptions on the RR&D Schedule to determine the appropriate retention periods. Records whose content and function are substantially the same as an item described on the RR&D Schedule should be considered to be covered by that item. Campus and University officials should check with the University Records Management Officer when they are uncertain regarding coverage of a function.

 

In situations where campus and University officials have combined related types of records covered by different items on the RR&D Schedule into a single file, it may be impractical to separately apply the retention periods of the various applicable RR&D Schedule items to the individual records in the file. In such situations, officials may find it more convenient to dispose of the entire set of records by using the applicable retention item with the longest retention period.

 

Retention periods on the RR&D Schedule apply to one “official” copy designated by the campus or the University, regardless of physical form or characteristic (paper, microfilm, computer disk or tape, or other medium), unless otherwise stated. No matter what the medium, campus and University officials must ensure that the information will be retained for the specified retention period.  The time identified as the minimum retention period begins with the creation of the record, unless otherwise specified.  When original records are migrated to different media, unless pre-approved in the RR&D Schedule, approval of the State Archives is needed to destroy the original records prior to the expiration of the assigned retention period even when the new media versions will be retained for that period. 

 

3.2 Records Disposition Authorization (RDA) Number

 

In addition to the consecutive numbering of items within each section of the RR&D Schedule, each item is assigned a Records Disposition Authorization (RDA) number by the State Archives.  The Subject Index at the end of the RR&D Schedule refers to items by their RDA numbers.

 

  1. SPECIAL SITUATIONS

 

4.1 Legal Actions

 

Some records may be needed for use in legal actions involving a campus and/or the University. Records that are identified in or relevant to such actions must be retained for the entire period of the action, including any appeals, or the period for making an appeal,  plus an additional year, even if their retention period has expired. Prior to disposing of records related to or retained for a legal action, campus and University officials should consult with the University Records Management Officer, who will work with the Office of University Counsel & Vice Chancellor for Legal Affairs to verify that no new legal actions or appeals have been initiated that would require longer retention of the records.

 

4.2 Electronic Records

 

While items on the RR&D Schedule for the most part cover records regardless of the physical form in which they are maintained, they do not cover all records relevant to the operation of electronic information systems.  For guidance on the disposition of records of the design, development and operation of IT systems, refer to the Information Technology section of the State Archives’ General Retention and Disposition Schedule for New York State Government Records. Contact the University Records Management Officer if you have any questions or problems or if you need additional information on the disposition of electronic records.

 

Generally, records transmitted through e-mail systems have the same retention periods as records in other formats that are related to the same function or activity. E-mail records should be scheduled for disposition in conjunction with any other records related to that function or activity. Campus and University officials may delete, purge, or destroy e-mail records if the records have been retained for the minimum retention period established in the RR&D Schedule and are not being retained for a legal action or otherwise subject to a litigation hold or for an audit. Transitory messages may be destroyed when no longer needed.  For further guidance on the disposition of e-mail messages and attachments, see item 90369 in the State Archives’ General Retention and Disposition Schedule for New York State Government Records Contact the University Records Management Officer for additional information.

 

4.3 Drafts and Personal Working Papers

 

When drafts are created in the preparation of University records, the final version is considered the official copy for retention purposes.  Temporary drafts that were not reviewed, circulated or used to make decisions may be discarded when no longer needed.  This should be done at the earliest opportunity following approval of the final version.  This policy applies to drafts in all forms, including word processing files, spreadsheet files, and other computer files.

 

Personal working papers, including notes, may be developed during the transaction of University business or during the preparation of University records. Most personal working papers, such as notes taken at a meeting or annotations on a draft record that is ultimately superseded by a final version, have no legal, operational, or research value that warrants retaining them beyond their moment of immediate usefulness. These records should be discarded at the earliest opportunity, generally within one (1) year after the purpose for which they were created has been fulfilled. This policy applies to personal working papers in all formats, including word processing files, spreadsheet files, and other computer files.

 

4.4 Additional Retention Requirement for Licensed Health Professionals Other Than Physicians

 

The State Education Department’s Office of the Professions oversees the professional conduct of licensed health professionals other than physicians (e.g., athletic trainers, nurses and mental health practitioners, etc.). Paragraph 3 of subdivision a of 8 NYCRR §29.2 (Regulations of the Commissioner of Education) states that “unprofessional conduct” includes “failing to maintain records for each patient which accurately reflects the evaluation and treatment of the patient” and that, unless otherwise provided by law, records of minor patients must be retained for at least six years, and until one year after the patient reaches the age of 21 years.

 

Some health-related items on the RR&D Schedule contain minimum legal retention periods that permit disposition of records after a minor attains age 21. In these instances, certain records pertaining to minors must also be retained for an additional year if the records are subject to the Section 29.2 requirements for health professionals other than physicians, if these professionals are employed by or associated with a campus or the University. For additional information on this situation, contact the University Records Management Officer.

 

4.5 Audits

 

Program and fiscal audits and other needs of state and federal agencies are taken into account when retention periods are established in the RR&D Schedule. However, in some instances agencies with audit responsibility and authority may formally request that certain records be kept beyond the retention periods. If such a request is made, these records must be retained beyond the retention periods until the campus or the University receives the audit report or until the need is satisfied.

 

4.6 Archival Records

 

Archival records are records that campuses and the University must keep permanently to meet their fiscal, legal, or administrative needs or that campuses and the University retain because they contain historically significant information. Records do not have to be old to be archival; campus and University officials create and use archival records daily in their offices. What makes a record worthy of permanent retention and special management is the continuing importance of the information it contains.

 

When the State Archives has determined that a record item has enduring historical or other research significance, the item has been given a permanent designation on the RR&D Schedule. However, the State Archives cannot identify all record items with historical or research significance. Knowledge of people, places, or events in each campus community and the unique circumstances of each campus will determine which records are significant. Campus and University officials will need to appraise records with non-permanent retention periods for potential research or historical value before destroying them.

 

The usefulness of archival records depends on the ability of the campuses and the University to preserve them, retrieve the information they contain, and make that information available to researchers.

 

4.7 Appraising Records for Historical or Research Significance

 

A campus or University record has historical or other research importance if it provides significant evidence of how the campus or University functions and/or if it provides significant information about people, places, or events that involve the campus or the University. Since each campus community has its own unique history, the importance or value of a record item may vary from campus to campus.

 

Campus and University records may contain a tremendous amount of information about the people, buildings, and sites in the campus or University community, as well as important time periods or significant events that affected the people associated with the campus or the University. This information can be very valuable to staff, researchers, and the public, but only if the information itself is significant. The significance of the records will depend on:

 

  • When the records were created. Records created during a time of momentous change, which are scarce, or which cover a long period of time tend to be more significant.

  • What kind of information the records contain. Records that contain more in-depth information are more likely to have enduring value.

  • Who created the records. Records that reflect an employee’s perspective or individual point of view may be more significant.

  • What other records exist. If the information in the records exists in other records within a campus or the University or elsewhere, then the records are less likely to be significant.

  • The unique history of the campus or the University. Records created during important time periods or events can provide clues to how the events affected the development of the campus or the University and the community it serves.

4.8 Records Not Listed on the RR&D Schedule and Non-Existent Records

 

The RR&D Schedule covers the majority of all records of the campuses and the University. For any record not listed, the custodian of the records should contact the University Records Management Officer, who will then contact the Office of University Counsel & Vice Chancellor for Legal Affairs for assistance. If the record is not covered by an item on the RR&D Schedule or an applicable item on the State Schedule, it must be retained until a revised edition of or addendum to the RR&D Schedule is issued containing an item covering the record in question and providing a minimum legal retention period for it.

 

Conversely, the State Archives has no legal authority to require a campus or the University to create records where no records exist, even if the records in question are listed on the RR&D Schedule. Although there may be laws, regulations, or other requirements that certain records must be created, the mere fact that a particular record is identified on the RR&D Schedule should not be interpreted as a requirement that the record must be created.

 

4.9 Public Access to Records/Confidentiality

 

The RR&D Schedule does not address the issue of public access to records. Access issues are covered by the Freedom of Information Law (NYS Public Officers Law §§84 – 90), Personal Privacy Protection Law (NYS Public Officers Law §§91– 99) and Access to Personal Information Maintained by State University of New York (8 NYCRR § 315), as well as by the federal Family Educational Rights and Privacy Act (FERPA). Campus and University officials should consult with their Records Access Officer on questions related to public access to records.

 

Records on the RR&D Schedule may or may not be confidential, depending on what information they contain and on the possible effect of disclosure of that information. In approaching issues of confidentiality and access, it may be helpful to consider the following:

 

  • What was the purpose for which the records were created?

  • What information do they contain? What subjects are covered?

  • How are the records used?

  • How do they relate to other records that may have similar information?

  • What would be the likely effect of disclosure of the information in the records?

Campus and University officials should consult their Records Access Officer with questions related to public access to records that may contain confidential information.

 

4.10 Migration of Records to Different Media, i.e., digitizing of records

 

The majority of the tables within the RR & D Schedule have been pre-approved for migration of original paper records into electronic formats.  This means that once paper records are scanned and reformatted as electronic records, the original paper records maybe destroyed even if the assigned retention period has not expired.  The new electronic records must be retained for the remainder of the applicable retention period.  The University was given authorization for migration of paper records into electronic formats under the following conditions.

 

(1) the images will accurately and completely reproduce all the information in the records being imaged;

(2) the imaged records will not be rendered unusable due to changing or proprietary technology before their retention and preservation requirements are met;

(3) the imaging system will not permit additions, deletions, or changes to the images without leaving a record of such additions, deletions, or changes; and

(4) designees of  the State University  of New York will be able to authenticate the imaged records by competent testimony or affidavit which shall include the manner or method by which tampering or degradation of the reproduction is prevented.

 

Accordingly, campuses planning to replace original records with electronic or imaged copies for retention purposes must ensure that all conditions listed above are met and that a campus official will be able to attest to the manner in which replacement of records occurred to fulfill these conditions.

 

Before undertaking any replacement of paper records as described above, the campus records management officer should determine if pre-approval exists for the category of records involved and if not, must seek specific approval from the State Archives, through the University Records Management Officer. 

 

  1. SUGGESTIONS FOR RECORDS DISPOSITION

 

Records without historical value must be disposed of continually as they meet their stated minimum retention periods. The advantages of a program for systematic, legal disposal of obsolete records are that it:

 

  •     Demonstrates routine, good faith operation of the records retention system;

 

  • Ensures that records are retained as long as they are actually needed for administrative, fiscal, legal, or research purposes;

  • Ensures that records are promptly disposed of after they are no longer needed;

  • Frees storage space and equipment for important records and for new records as they are created;

  • Eliminates time and effort required to service and sort through superfluous records to find needed information;

  • Eliminates the potential fire hazard from storage of large quantities of valueless records; and

  • Facilitates the identification and preservation of archival records.

Suggestions for systematically approaching the disposition process include the following:

 

  • Disposition should be carried out regularly, at least once a year. It should not be deferred until records become a pressing storage problem.

  • Since State law does not prescribe the physical means of destruction of most records, records may be destroyed in any way prescribed by the University Records Management Officer. Disposition through consignment to a paper recycling plant is often the best choice as it helps conserve natural resources and may also yield revenue for the campus or the University. For records containing confidential information (e.g., Social Security numbers, credit card numbers, personnel evaluations, salary levels), disposition should be carried out in a way that ensures that the confidentiality of individuals named in the records is protected.

 

  • A record should be kept of the identity, inclusive dates, and approximate quantity of records that are disposed. Sample disposition forms designed by the State Archives are available from the University Records Management Officer.

The official who carries out disposition at your campus will describe what has been done to dispose of records during the year in an annual report to the University Records Management Officer.

 

  1. REMINDERS

 

  • No records may be disposed of unless they are listed on the RR&D Schedule, or their disposition is covered by the State Schedule or other state laws.

  • Records are listed in sections with a functional heading. You should use the Subject Index at the end of the RR&D Schedule to match the records in your office with the description on the RR&D Schedule to determine the appropriate retention period. You should check with your Records Management Officer if you are uncertain regarding coverage of a function.

  • Records being used in legal actions or otherwise subject to a litigation hold must be retained for one year after the legal action (and any appeals period) ends, or until their scheduled retention period has expired, whichever is longer. Consult the Office of University Counsel & Vice Chancellor for Legal Affairs before disposing of any such records.

  • Any record listed on the RR&D Schedule for which a Freedom of Information (FOIL) request has been received should not be destroyed until that request has been answered and until any potential appeal is made and resolved, even if the scheduled retention period of the record has expired.

  • Records being kept beyond the established retention periods for audit and other purposes at the request of state or federal agencies must be retained until the campus or the University receives the audit report, or the need is satisfied.

  • Retention periods on the RR&D Schedule apply to one “official” copy designated by the campus or the University, unless otherwise stated.

  • The minimum retention period begins with the creation of the record, unless otherwise specified.

  • The retention periods listed on the RR&D Schedule pertain to the information contained in records, regardless of physical form or characteristic (paper, microfilm, computer disk or tape, or other medium).

  • Duplicate copies of records prepared for administrative convenience, including copies maintained in different media (paper, electronic, etc.) may be disposed of at any time, except where retention is specified elsewhere on the RR&D Schedule. When original records are migrated to different media, unless pre-approved in the RR&D Schedule, approval of the State Archives is needed to destroy the original records prior to the expiration of the assigned retention period even when the new media versions will be retained for that period. There is no requirement for campuses or the University to create records where no records exist, even if the records in question are listed on the RR&D Schedule.

  • The RR&D Schedule cannot identify all record items with historical significance for individual campuses or the University. Campus and University officials will need to appraise records with non-permanent retention periods for potential research or historical value before destroying them.

  • Certain records may need to be retained for one year longer than the RR&D Schedule dictates if those records are subject to the requirements stated in 8 NYCRR29.2 for health professionals other than physicians, if these professionals are employed by or associated with a campus or the University.

  • The RR&D Schedule does not address confidentiality of records. Confidentiality of records is often dependent upon what information they contain. Campus and University officials should address such questions to the Office of University Counsel & Vice Chancellor for Legal Affairs.