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Brad Houston, University Records Officer July 7. 2009.

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Presentation on theme: "Brad Houston, University Records Officer July 7. 2009."— Presentation transcript:

1 Brad Houston, University Records Officer July 7. 2009

2  RM programs in public institutions (like UWM!) driven by legal mandate  Provides legal protection in case of public records request, subpoena, etc.  Privacy laws and concerns: dictates disclosure

3  Introduce participants to relevant laws, court decisions, and policies  Explain steps you can take to ensure compliance and limit liability  Focus on electronic records and requirements for storing and producing digital files  Describe basic procedures for dealing with records requests

4  Do NOT rely on this presentation for legal advice!  Guidelines for compliance, preparation for discovery/disclosure  Not intended to provide SPECIFIC instruction for individual litigation cases  If your office is subject to litigation/discovery:  Contact Legal Affairs (x4278)

5 Laws and what they mean for you as a UWM Employee

6  Definition of a public record  Materials “made or received… in connection with the transaction of public business”  Public records are property of the State of Wisconsin  Public records may not be destroyed without approved records retention schedule  Electronic/Microfilm copies may be considered official records

7  Defined regardless of format  “books, papers, maps, photographs, films, recordings, optical disks, electronically formatted documents or other documentary materials”  Major Exceptions:  Convenience/Reference copies  Notices/Invitations  Drafts/Notes (not shared with colleagues)  Routing Slips/Envelopes

8  An accountability measure!  Provision for internal audit of department activities  No destruction without records schedules (RRDAs)  General Records Schedules: Fiscal, Personnel, etc.  Specific Records Schedules: Dept. series  Records Schedules must be renewed every 10 years

9  Make sure all records in office have applicable record schedules  Most offices are mostly covered by general records schedules  Separate records from non-records  Maintain filing by record series and disposition date

10  All public records potentially available to any public requestor  “The denial of public access generally is contrary to the public interest…”  Public records requests coordinated by UWM Records custodian  Exceptions to required disclosure  Limitation of scope of disclosure

11  ANY requestor may request viewing of public records except as otherwise provided by law!  Confidential Records: subject or his/her designee may view (but see exceptions)  Requestors NOT required to provide reason  If requested records are internal use (i.e. not intended for public), refer requestor to Public Records Custodian

12  Information gathered in connection with a complaint/grievance/arbitration  Information which may endanger an individual’s life/safety  Information which identifies informants

13  You are not required to disclose:  Trade Secrets, including research data  Identities of applicants for public positions (until finalists)  Plans/Specifications of State Buildings  Personnel Records (including some supp. materials)  Financial Identifying Information  If you suspect requested records to include these materials, inform the records custodian!

14  Defer ALL public records requests to UWM Public Records Custodian  Maintain appropriate security levels for all records  Suspend records destruction once a public records request is received  Be prepared to make ANY eligible record in your office available  Requestors may sue for “unnecessary delay”, so be timely in responding to the Records Custodian!

15  Define rules and regulations re: discovery of records for subpoenas/litigation in federal court  Describe scenarios under which records disposition can/cannot occur  Provide for potentially severe penalties for non-compliance or premature destruction  In all cases, FRCP-relevant cases will be handled through Legal Affairs

16  Contact Legal Affairs IMMEDIATELY  If electronic records are involved, also contact UITS to preserve backup tapes  Cease all records management activities (especially records destruction)  Assess your ability to produce records, and how quickly

17  ANYTHING in subpoenaed files may be subject to discovery and use!  Protect yourself:  Keep files on different cases/projects discrete  Destroy files scheduled for destruction in a timely manner unless litigation has started  Do not use your personal email for work purposes, or vice-versa ▪ Why? You may need to produce in connection with litigation

18  FRCP “Safe Harbor” clause! Applies if:  Records schedule for that series exists  Disposition of that series is performed on regular basis  Records were destroyed before Legal Affairs became aware of litigation possibility  Strongest argument for practicing good records management

19 FERPA, HIPAA, and UWM’s Personnel File Policy

20  Students have right to view educational records  Educational records are only accessible to student  Student may authorize disclosure  Directory Information may be made available  Exception: if a student has opted-out  Certain other exceptions exist

21  All records pertaining to students maintained at UWM  Presumption of confidentiality  Major exceptions:  Instructor personal/sole possession notes  Employment Records  Campus Security Records  Alumni records

22  Defined as information publicly available:  Name, Address, Contact Info  Year in school, major, enrollment status  Participation in activities  Degrees, graduation date, awards received  Students may choose to opt out of directory information release  Contact Enrollment Services  Campus Directory?

23  Individual Students  UWM Employees with “Genuine Educational Interest”  Exempted classes  Financial Aid Providers  Other educational institutions (for transfers, etc.)  Specifically exempted officials (FERPA Manual)  Accrediting groups/student study groups

24  Students must provide WRITTEN consent (with signature), including:  Specification of records to be released  Identify to whom records may be released  Indication of purpose of release  Provide requested records within 45 days  No consent needed if records are subpoenaed or requested via public records request  But contact Records Custodian first to determine validity of subpoena

25  Release FERPA-protected information to parents  Exception: if student is under 18  Post test or course grades using social security numbers  Provide records to UWM staff without “legitimate educational interest”

26  Keep a log of all disclosures of FERPA- protected information  Exceptions: access by student or student- permitted party, directory info disclosure  Keep a log of notifications to students of disclosure  Maintain letters of consent for AT LEAST six years after student graduates/leaves UWM

27  Do not disclose student information if you have ANY doubt re: permissions  Contact Legal Affairs for guidance  Advise requestor to direct request to Public Records Custodian  Current Legal Affairs stance: presume ALL student information is private  Why? Directory Info “Opt Outs”

28  Defines Official Personnel File and contents  Provides provisions and restrictions for access  Prescribes official custodian, length of retention  This section being revised  Does not in itself have force of law  Clarifies key provisions of Public Records Law

29  Copy of the Personnel File held by Dean or Division Head or their designate  Usually the PRep, but they may delegate  Contains all information related to employment actions by a UWM employee  Become inactive after employee leaves:  Classified: 7 year retention and destroy  Unclassified: 10 year retention and destroy  Faculty: 30 year retention and transfer to archives

30  Employees may view their own personnel file  May not view confidential records within P-file  Coordinate request with Public Records Custodian, especially if sent to Archives  Employees may authorize access to their personnel file  Requires written permission from employee  Route through public records custodian  All subpoenas subject to review by Legal Affairs

31  Defines and protects certain classes of health information  Indicates which entities are required to protect information, and which are excluded  Provides right of patients to access health records

32  Surprisingly, not applicable to most departments on campus!  Employer medical information not subject to HIPAA regulation  Three main groups of covered depts/people:  Provider units (Athletic trainers, Health Center, Health Sciences and Nursing Centers)  Administrative units (Bursar, BFS, Institutional Review Board, some members of UITS)  Researchers and students using clinical info

33  UWM HIPAA resource site  https://www4.uwm.edu/legal/hipaa/index.cfm https://www4.uwm.edu/legal/hipaa/index.cfm  UWM HIPAA manual  https://www4.uwm.edu/legal/hipaa/policies/index.cfm#sectionB https://www4.uwm.edu/legal/hipaa/policies/index.cfm#sectionB  Other questions? Contact Legal Affairs directly

34 Wisconsin Administrative Rule 12, Digital Millenium Copyright Act

35  Electronic documents are records too, and subject to public records request/subpoena!  Latest revisions to FRCP include e-discovery provisions:  E-records are discoverable and usable as evidence  Must be produced within 30 days, in the form in which they are used  Requestor may specify form of production  Third parties may be subpoenaed (Twitter, anyone?)

36  Puts forth criteria for maintaining electronic records  Mandates design and use of information systems to support e-records  Does NOT require departments to maintain records electronically  DOES apply to records already being maintained electronically exclusively

37  Electronic records must be:  Accurate: reflects the original record  Accessible: Record can be retrieved  Authentic: can be substantiated as accurate  Reliable: produces the original record every time  Legible: letters and numbers are identifiable  Readable: Groups of letters recognized as words  All of these properties must be maintained throughout a record’s active life

38  Legible and Readable: keep file formats up to date, migrate files  Usually applies only to long-retention records  Accurate and Reliable: write-protect final copies of electronic records  Authentic: use versioning/logging features of PantherFile  Accessible: Create logical filing system  Robust search terms, tagging, metadata?

39  Defines illegality of republishing copyrighted information via file-sharing  Prohibits circumvention of anti-piracy software or code (incl. DRM on music files)  Limits liability of ISP (i.e. UITS) for violations  Does provide expectation of ISP action, however  Provides exceptions for certain departments/circumstances (mostly Fair Use)

40  UWM takes DMCA violations VERY seriously  Also violation of UWM Computing Policy!  UITS is required to facilitate removal of protected information  Remember: Your work computer is NOT your personal property!  Info Security Office will not hesitate to seize it for forensic analysis if necessary  DO NOT DELETE offending material ▪ It can still be found, AND you get in more trouble!

41  You will NOT be eligible for legal defense from UWM  Limits UWM’s own liability  Legal Affairs may facilitate contact between you and litigant  e.g. forwarding letters of intent, pre-settlement or settlement letters, etc.  Your UWM computing privileges may be revoked

42 Summary and resources

43  Create record schedules for all records in your office  General Schedules cover a lot of these  Maintain appropriate security levels for protected records (FERPA, personnel, HIPAA, etc.)  Destroy records as soon as retention time expires  Separate work-related and personal records

44  STOP destruction of records as soon as you are aware of litigation possibility  Inform legal affairs immediately of situation  Organize your records and prepare for potential format conversion  Don’t discuss the terms of the litigation any more than strictly necessary

45  UWM FERPA Guide  https://www4.uwm.edu/current_students/records _grades/ferpa_facstaff.cfm https://www4.uwm.edu/current_students/records _grades/ferpa_facstaff.cfm  UWM HIPAA Guide  https://www4.uwm.edu/legal/hipaa/index.cfm https://www4.uwm.edu/legal/hipaa/index.cfm  Digital Millennium Copyright Act– Info Security  https://www4.uwm.edu/uits/security/alerts/news_ details.cfm?item_id=1561 https://www4.uwm.edu/uits/security/alerts/news_ details.cfm?item_id=1561

46  Office of Legal Affairs  Legal Topics in Higher Education ▪ http://www4.uwm.edu/legal/resources/legal-topics.cfm http://www4.uwm.edu/legal/resources/legal-topics.cfm  General Legal Resources ▪ http://www4.uwm.edu/legal/resources/general- resources.cfm http://www4.uwm.edu/legal/resources/general- resources.cfm  Wisconsin Statutes (16.61 and 19.31)  http://nxt.legis.state.wi.us/nxt/gateway.dll/?f=tem plates&fn=default.htm http://nxt.legis.state.wi.us/nxt/gateway.dll/?f=tem plates&fn=default.htm

47  Personnel File Policy  http://www4.uwm.edu/secu/acad+admin_policies /S42.htm http://www4.uwm.edu/secu/acad+admin_policies /S42.htm  Public Access to Records  http://www4.uwm.edu/secu/acad+admin_policies /S45.htm http://www4.uwm.edu/secu/acad+admin_policies /S45.htm  Information Security Policy  http://www4.uwm.edu/secu/acad+admin_policies /S-59.pdf http://www4.uwm.edu/secu/acad+admin_policies /S-59.pdf

48  This presentation available online:  http://www.uwm.edu/Libraries/arch/recordsmgt/legal.ppt http://www.uwm.edu/Libraries/arch/recordsmgt/legal.ppt  Or, contact UWM Records Management:  houstobn@uwm.edu (Brad Houston) houstobn@uwm.edu  414-229-6979  http://www.records.uwm.edu http://www.records.uwm.edu


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