Retention & Disposal Policy

Fountain Chambers

Middlesbrough

Head of Chambers:   Collette Price

Digital Compliance Officer:   Anthony Pettengell

Data Protection Officer:  Sam Faulks

1. Introduction
2. Roles and Responsibilities
3. Purpose
4. Review, Disposal, Destruction and Retention Protocol

Annex A:         Records – Definition

Annex B:         Key Considerations

Annex C:         Generic Retention Information

Annex D:        HR Records – Employment and Career

Annex E:         Policy and Compliance Records

Annex F:         Retention Guidelines for Non-Personal Records

Annex G:        Buildings

Annex H:        Complaints

Annex I:          Pupils

Annex J:          Marketing Contacts

Annex K:         Members of Chambers – Marketing Purposes

1 Introduction

1.1  In the course of its business of Chambers’ administration, Fountain Chambers Administration (‘Chambers’) collect information from individuals and external organisations and these are defined as records. These records can be retained either in paper or in electronic form (Further information on the definition of records can be found at Annex A).

1.2  Retention of specific records is necessary to support various business requirements and to comply with legislation.  To destroy these records prematurely could have a significant impact on Chambers. Equally to keep these records permanently or longer than is necessary would mean that Chambers, could be in breach of legislation / regulations as well as creating unnecessary storage costs.

1.3  The General Data Protection (GDPR) emphasises the importance of having systems in place for the timely and secure disposal of documents/records relating to natural persons that are no longer required for business purposes.

1.4  As legislation changes, retention schedules may change. Therefore, this Policy may be subject to amendment.

2 Roles and Responsibilities

2.1  Chambers’ senior managers comprise the following, in association with the Management and Personnel Committees:

• Head of Chambers.
• Secretary
• Treasurer
• Chair of the Personnel Committee.

2.2  The senior managers are responsible for ensuring compliance with this policy within the context of their role.

3  Purpose

3.1  The purpose of this policy is to provide an organisational policy framework to govern management decisions on whether a particular record (or set of records) should be either:

• Retained – and if so in what format, and for what period.
• Disposed of – as indefinite retention of personal data is unlawful in certain circumstances.

3.2  Duplicated records (e.g. photocopies of documents) are classed as records and therefore the same retention & disposal policy applies.

4  Review, Disposal, Destruction and Retention Protocol

4.1     Review

4.1.1  ‘Review’ is the appraisal of documentation to establish what action should be applied to that record, for example whether the record should be destroyed, retained for a further period, transferred to an archival facility.

4.1.2  The review of all types of record must be carried out on a regular basis.  The purpose of the review is to ensure that the records are being retained in line with the appropriate schedule and that they are disposed of at the correct time.  Not only does doing so potentially save storage, but it is a legal requirement under GDPR Legislation.

4.1.3  Where a retention period has expired in relation to a particular record a review should be carried out before a final decision is made to dispose of the record. Such reviews should not be detailed or time consuming.

4.1.4  Any review to decide whether to retain or dispose of a paper or electronic record or file should be taken in accordance with the retention/disposal protocol. This protocol consists of:

• If a record due for destruction is known to be the subject of a request for information, destruction should be delayed until disclosure has taken place, or if Chambers has decided not to disclose the information, until any complaint and/or appeal provisions have been exhausted.
• The key disposal/retention considerations criteria checklist set out in Key Considerations (Annex B) should be applied. Essentially no document should be disposed of unless all these have been considered in relation to the document.
• The Retention Schedules are contained in Annex C (and subsequent Annexes). These schedules provide guidance on recommended and mandatory minimum retention periods for specific classes of records.

4.2   Disposal and destruction

4.2.1  Disposal is the follow-on action from ‘Review’. It is the direct result of a review that concludes a record has reached its expiry date.  Disposal may include one of the following methods:

• Return of records to the original source.
• Irretrievable Destruction of records.

 4.2.2  Irretrievable destruction of records can be achieved by a range of processes:

• Physical destruction (paper records – cross-shredding, incineration).
• Permanent deletion by electro-magnetic means – where electronic records are concerned.

4.2.3  The following considerations should be taken into when selecting a method of disposal and/or destruction:

• Under no circumstances should paper documents containing personal data or confidential information be simply binned or deposited in refuse tips. To do so could result in the unauthorised disclosure of such information to third parties and render Chambers liable to prosecution or other enforcement action under GDPR. Such documents should be destroyed by cross-shredding or incineration.
• Deletion – the Information Commissioner has advised that if steps are taken to make data virtually impossible to retrieve, then this will be regarded as equivalent to deletion. In the case of electronic systems, to meet the business requirement only specific users (system administrators) will be able to ‘hard delete’ information. Business users will have the ability to ‘soft delete’ which in effect will assign the status of ‘marked for deletion’ to the information and remove it from the view of users.

4.3  Destruction Log

4.3.1  Documenting the disposal of both paper and electronic records is a requirement under GDPR.

4.3.2  It is the responsibility of a senior manager (or designated member of staff) to complete a destruction log. The log should detail as a minimum:

• The date and method of disposal requested.
• The person who authorised disposal.
• The date and identity of the person / organisation who undertook the disposal (and date of destruction if applicable).

4.3.3  The destruction log must be kept for all records sent for destruction and must be retained for a minimum of 20 years from destruction date.

4.3.4  The destruction log must be kept locally in a secure place and must be produced when requested by Audit or any regulatory body.

This policy was adopted in March 2021 and will be reviewed in March 2023.

Annex A: Records Definition

Records are documents or data which record information of corporate importance. Not all documents are records. 

Records are created by Chambers and can be collated by individual staff or external organisations. This generates a wide range of data/information which is recorded. These records fall into several different categories:

• Finance
• HR / Personnel records
• Industrial Relations
• Management
• Performance data
• Policy
• Pupil / mini-pupillage records
• Complaint records.

These records can take many different forms e.g.

• Letters
• Medical Reports
• Court papers / bundles
• File notes
• Invoices
• Completed application forms
• Plans/drawings
• Records of expenditure
• Contracts
• e-mail communications (and any attachments)
• Photographs and biometric data.

Many of the above can be retained either as ‘hard’ paper records or in ‘electronic’ form.   Retention of specific documents may be necessary to:

• Fulfil statutory or other regulatory requirements.
• Support audit.
• Evidence events/agreements in the case of disputes.
• Meet operational needs.
• Ensure the preservation of documents of historic or other value.

The premature destruction of documents could cause:

• Operational problems.
• Threats to security.
• Reputational embarrassment
• Difficulty in defending claims or complaints.
• Failure to comply with legislative and regulatory obligations.

On the other hand, the permanent retention of all documents is impractical.  Appropriate disposal is encouraged for the following reasons:

• Physical storage space is in short supply and is costly.
• Disposal of existing documents can produce a more efficient working environment.
• As the records grow, electronic storage space becomes cluttered, making searching and retrieval of records increasingly difficult. It also increases IT capacity requirements and raises IT service costs.
• Indefinite retention of personal data is not compliant with the GDPR which requires organisations must not process (which includes retain) personal data for any longer than is required to fulfil business or legislative needs.
• Reduction of fire risk (in the case of paper records).
• It supports a clear desk policy.

This policy was adopted in March 2021 and will be reviewed in March 2023.

Annex B: Key Considerations

 Key Disposal/Retention Considerations

No record should be earmarked for disposal unless:

(i)         the four Key Disposal/Retention considerations detailed in this Annex, and

(ii)        the Retention Schedules contained in the following Annexes have been considered.

Key consideration No. 1

Has the document /record been appraised?

1. As a first step, the nature/contents of any document /record being considered for disposal should be ascertained. No document /record should be earmarked or designated for disposal unless this has been done. This can only be achieved by carrying out an inspection and appraisal. The process may only take a few minutes – perhaps even seconds. Nonetheless it can be a skilled task – depending on the complexity of the document(s) concerned – and should only be undertaken by persons who possess sufficient operational knowledge to enable them to identify the document /record concerned and its function within Chambers. Any decision that a specific type of document/record should be disposed of on expiry of a defined retention period should be an informed one i.e. taken with a full appreciation and understanding of the nature and function of such document.

2. It follows that, if appraisal is inadvertently overlooked or carried out negligently or by an employee who lacks the necessary background operational knowledge, Chambers run the risk of important documents/records being destroyed in error.

Key consideration No. 2

Is retention required to fulfil statutory or other regulatory requirements?

The pieces of legislation which do, either directly or indirectly, impose minimum retention periods include the following:

• Companies Act 1989
• GDPR
• Data Protection Act 2018
• Environmental Information Regulations 2004
• Limitation Act 1980
• Taxes Management Act 1970
• Direct Access Guidance

Key consideration No. 3

Is retention required to evidence events in the case of a dispute?

On occasions, Chambers becomes involved in disputes with third parties. Such disputes, if not satisfactorily resolved, can result in the dissatisfied party bringing legal proceedings, with a view to obtaining compensation, including monetary compensation. Alternatively, Chambers may wish to take legal proceedings against an individual or organisation e.g. to recover an unpaid debt or in respect of faulty work.

Where a dispute arises, or litigation has been commenced, it is important that Chambers has access to all correspondence and other documentation that is relevant to the matter. Without this there is a danger that Chambers’ position will be compromised.

The Limitation Act 1980 specifies time limits for commencing litigation. The starting point for retention, therefore, is that the retention period is the length of time that should elapse before a claim is barred. The main time limits that are directly relevant are as follows:

• Claims founded on simple contract or tort (other than personal injury claims) cannot be brought after the expiration of 6 years from the date on which the cause of action occurred.
• Compensation claims for personal injury are barred on expiry of 3 years from the date on which:

(i)         the cause of action occurred (this will usually be the date when the incident

causing the injury occurred), or

(ii)        the date when the injured person first had knowledge of the injury, its cause and the identity of the person responsible (some injuries are latent and do not manifest themselves for some period of time).

Under the Limitation Act 1980 S.14A and S.14B: “latent damage claims”: S.14A provides a special time limit for negligence actions (excluding personal injury) where facts relevant to the cause of action were not known to the claimant at the date of the negligence.

As stated above many potential legal claims are statute barred on the expiry of 7 years. For this reason, many organisations consider it prudent to retain files/records for a period of 7 years form the date when the subject matter was completed.

Key consideration No. 4

Is retention required to meet the operational needs of the organisation?

In some cases, retention may be desirable even though no minimum retention period applies or has expired. Chambers’ senior managers should recognise the danger of discarding documents or records that might be useful for future reference purposes (e.g. training), as precedents, or for corporate performance management (performance indicators, benchmarking and other comparison exercises). A professional judgement needs to be made as to the usefulness of a particular document, in conjunction with the business area.

This policy was adopted in March 2021 and will be reviewed in March 2023.

Annex C: Generic Retention Information

Retention Periods for Personal Data

GDPR requires that organisations must not process (which includes “retain”) personal data for any longer than is required to fulfil business or legislative / regulatory needs.

Therefore documents/records relating to: staff, pupils, complainants, marketing contacts, and members of Chambers must be reviewed regularly and destroyed when no longer required.

In the event of a subject access request (“SAR”) being made, we must search for, copy and provide all personal data held even if it is no longer in use. There are also cost implications from unnecessary storage of documents/records.  Review is therefore crucial to effective information management and the efficient use of resources.

Retention Periods for Documents/Records

The attached Annexes state the retention periods which should be applied for key documents/records.  Some of these are taken from guidance issued by The National Archives (“TNA”) and the Cabinet Office.

Any documents which have a bearing on pension entitlement should be kept for 100 years from the date of birth or 5 years after the last action, whichever is the later.

This policy was adopted in March 2021 and will be reviewed in March 2023.

Annex D: HR Records

Employment and Career

Pay and Pension

Annex E: Policy and Compliance Records

This policy was adopted in March 2021 and will be reviewed in March 2023.

Annex F: Retention Guidelines for Non-Personal Records

Guidelines for service provider contracts over £5,000. Records in relation to service provider contracts under £5,000 should not be kept longer than 2 years after the end of the contract.

This policy was adopted in March 2021 and will be reviewed in March 2023.

Annex G: Buildings

This policy was adopted in March 2021 and will be reviewed in March 2023.

Annex H: Complaints

This policy was adopted in March 2021 and will be reviewed in March 2023.

Annex I: Pupils

This policy was adopted in March 2021 and will be reviewed in March 2023.

Annex J: Marketing Contacts

This policy was adopted in March 2021 and will be reviewed in March 2023.

Annex K: Members of Chambers – Marketing Purposes

This policy was adopted in March 2021 and will be reviewed in March 2023.