The fiction of sentencing on creation, and why the model is broken.

It think “sentencing on creation” creates a problem for records management. It creates a fiction that a sentence is applied that we can actually follow through on. The end result is quite different, and the economics of sentencing don’t change – and the economics of storage have, so sentencing has to as well.

The idea of sentencing on creation is fairly simple.

We apply sentences when a file is created based on the function and activity.

This means sentencing on creation is actually a prediction about what the file content will be.

And we know the prediction isn’t accurate.

So when we actually come to the point where we need to destroy, we can’t rely on the sentence, and we don’t press the button.

So if we end up destroying anything, it’s because we’ve sentenced at the content level.

In a paper world, there was a business case and it made sense to spend time appraising content for destruction or archival.

In the electronic world, that business case just doesn’t exist.

The hundred year cost of storing a document is below the cost of getting an appropriately skilled person to sentence it.

So we don’t do it.

Ultimately, the economics of sentencing and retention have to change if we’re going to keep doing it.

It’s already changing for consumer focused organisations with the consumer data right.

Outside that though, I have had many conversations with regulated organisations that have previously had destruction programs, but are now questioning whether they need to. They know that they can stay in compliance with the law as it stands by retaining indefinitely.

When I discuss this with people in the community, the conversation naturally switches to risks associated with retention. So far though, they’re fairly toothless in Australia. They’re also set to remain fairly toothless outside of a few consumer focused areas.

One of two things needs to happen.

We either need to rethink the model of retention and destruction altogether, or the economics needs to improve.

I think a foundational re-thinking is necessary.

When retention rules were established, the focus was very much on ensuring that evidence was retained for a suitable period. It’s understandable because it’s cheaper and easier to throw paper in a bin than to hire a team of people to catalogue and manage it. The economics of retaining were very much in favour of destruction.

The economics of storage have improved dramatically though, and are improving still. While the costs of sentencing have dropped marginally because there is less manual handling, in the end, there is still a person appraising a document.

Fundamentally, I think that at an organisational level, we all need to recognise that sentencing is an economically heavy activity, and reserve it for classes of record that are actually high risk.

Without a rethink, there are only really two viable options to continue destruction practices:

  1. Apply a “legal fiction” that the content reflects the file sentence – and hit destroy.
  2. Use technology to bring down the cost of sentencing at the content level to a point at which it becomes feasible.

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