The myriad laws requiring companies to archive different documents, including electronic ones, "makes it almost impossible to ensure absolute compliance".
This is according to legal expert Lance Michalson of Michalsons Attorneys, who says "all a company can do is strive to attain substantial and material compliance".
Michalson was responding to questions posed by ITWeb on how South African companies are faring with electronic document archiving legislation compliance, and what challenges they encounter.
According to Michalson, many organisations mistakenly believe the Electronic Communications and Transactions (ECT) Act requires them to archive electronic documents. "This is not the case," he says. "It is not the ECT Act but rather hundreds of other statutes in South Africa which require companies to keep 'records'. Records are contained in both paper and electronic media, including e-mail."
The ECT Act does make allowance for records that have to be retained for other legislative purposes to be kept electronically, says Michalson, "provided they have implemented a reliable, auditable process".
According to legal expert Mike Silber, also of Michalson Attorneys, companies have to juggle a number of balls in setting up such a process.
"Organisations need to archive all important e-mails, but they want to separate the wheat from the chaff before they do, so that invitations to drinks on Friday evening do not get archived, but important meeting requests with related documents, like agendas and minutes, do get archived.
"They [companies] need a proper deletion policy so they do not land up storing mail forever, but also ensure that when mail is deleted, it is not in terms of an arbitrary decision, but rather in terms of properly formulated business rules."
Michalson adds this problem is compounded by the very ECT legislation that allows for electronic data storage, as it does not provide any procedural or technical standards for the process to be legally valid.
Counting the cost
Michalson says companies face both direct and indirect costs in archiving electronic documents for too long.
"The direct costs of storage include additional disk space, bandwidth, hardware, software, backup and archival systems, and the cost of their related medium migration requirements, and possibly even storage area networks to store such records," says Michalson.
"The indirect costs include the cost of technical staff for maintaining these records, the cost of personnel classifying such information and the potential costs of outside consultants to review and exclude irrelevant electronic information in the discovery process."
Trashy business
"It is not a criminal offense to destroy a document unless the law requires you to retain it, and that law specifically makes it an offense to do so," Michalson says.
The trick comes in knowing what documents might be useful in future, for example in litigation, and which might be used against the company or individual.
"Companies often rely on individual employees to save what is prescribed by law," says Michalson. Archiving documents can be very useful if a company should find itself involved in litigation, "and also avoids ancillary litigation about a company's document retention policies and practice".
It is important that a deletion and saving policy not only be put in place by businesses, but is also clearly communicated to all relevant staff, he concludes.
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