Thanks John and everyone!
So the overall answer for those of us negotiating future storage contracts is to ensure that we have a privacy clause that allows us the ability to at least have our private/personal information destroyed in the event we default on the terms of storage.
In realiity as individuals we mostly have laws that protect our medical records, but don't have much repercussion elsewhere for private data other than the ability to know that we might win if we were to go to trial to protect our personal information.
We still have a long way to go in the US to protect our privacy rights.
As for the VA auction in question, if only people who essentially own the data can bid on the data, how fair is that auction going to be and what happens to the data if it is not sold at auction?
----- Original Message -----
From: "John Montana" <[log in to unmask]>
To: [log in to unmask]
Sent: Thursday, August 11, 2011 10:03:14 AM GMT -08:00 US/Canada Pacific
Subject: Re: Records storage auction
This is a good question. the answer would depend to some extent upon the exact wording of the privacy laws in the jurisdiction in question. It would also depend on the exact wording of any laws or contracts governing ownership of the records, and the terms of the record storage contract. If, as a matter of law, the records storage company owns the records after abandonment by the client, the person whose information is on the records might not have any recourse with respect to recovering the records. On the other hand, in many cases, the law gives persons such as patients some sort of property right in their records, and to the extent such a property right exists, the person might well be able to exercise some control over the disposition of the records.
Beyond that, to the extent that the information on the records is subject to the provisions of a privacy law or laws requiring its protection, a person or entity disposing of them in a fashion which does not comply with the requirement, including, for example, selling the records to the general public, might be subject to legal action, including a lawsuit by the person or persons whose information was improperly disclosed, And, as part of such a lawsuit the person whose privacy rights were violated could very likely obtain an injunction preventing the disposition of the records until the relevant issues were settled, which would probably have the effect of permanently enjoining the lawsuit, since by this time the violator would undoubtedly have realized that they had stepped into a legal minefield and could not possibly benefit from the proposed sale of the records.
Further, the sale of the records might well also stimulate legal action by regulatory authorities whose job it is to enforce privacy laws. That could include both state and federal regulators, and could involve substantial risk for the person or entity disclosing the information, since many such laws treat one violation involving one record as a separate offense, and thus a violation involving many records would be multiple offenses with a corresponding multiplier of the penalties involved. In similar manner, if a number of persons whose privacy was violated instituted a class-action lawsuit, the potential penalties for the violating entity would correspondingly multiply.
Best regards,
John
John Montaña
Montaña & Associates
29 Parsons Road
Landenberg Pennsylvania 19350
610-255-1588
484-653-8422 mobile
[log in to unmask]
www.montana-associates.com
twitter: @johncmontana
On Aug 11, 2011, at 12:38 PM, Ilona Koti wrote:
> Larry,
>
> You bring up a very interesting point about personal records. I know that we are mostly records managers that work with larger entities, but I have watched one too many episodes of "Storage Wars" this summer and am curious to see how this affects the general public.
>
> Does anyone out there know what rights an individual can take to have their personal documents removed from a public auction from a storage facility or even a home going to auction? And to what extent can the contract with a storage facility protect your rights (or a company's right) to privacy? Do you have room to negotiate?
>
> Let me know your thoughts. Thanks -ink
>
> Ilona Koti
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