On Fri, 12 Aug 2011 10:32:11 -0400, John Montana
<[log in to unmask]> wrote:

>I might add that the record storage vendor is not the bad guy here. The
customer decided to be irresponsible and not pay their bills and in the
process abandoned a large volume of records  that may contain personal
information about people.  When this happens, the vendor does not have a lot
of good options. They can hardly be expected to  continue to maintain the
records indefinitely at their own cost, nor would it be reasonable to expect
them to cull through the records looking for the names of individuals that
could be contacted concerning their personal information. Further, if as was
undoubtedly the case, the nonpaying  client was already substantially behind
on their account, the storage company is already out a  significant sum of
money. At a certain point, they have to try and collect whatever they can,
and cut their losses going forward. That's what any business would do with a
 deadbeat customer that owed  a lot of money and didn't want to pay.
>
>In my view, these auctions are not a good idea from a public relations
standpoint  (as this discussion illustrates), but the real  blameworthy
behavior here is on the part of the customer that didn't pay their bill and
abandoned  a volume of records which for the purpose of this argument we are
assuming contained personal information. They are the ones who breached
their duty to their customers to protect the information, and they are the
ones who created the situation by failing to pay money properly due the
vendor for services rendered under the contract.
>
>

Okay.... umm... this is not often the case, but I have to respectfully
disagree with our esteemed colleague from the legal side of the aisle here. 

Many of 'we' made assumptions that the records potentially contained
information that could require protections due to the nature of some of the
content being protected by PII, PHI, PFI laws, but there are other
assumptions made here that could be equally flawed.

YES, ultimately the responsibility was with the customer who elected to put
records containing information related to/belonging to their clients into
the CRC for handling and like all of us in either our professional or
personal lives, it was their responsibility to see the bills were paid to
avoid them going to 'collection'.  

But beyond that, we don't know the circumstances that resulted in
non-payment and ultimately, the records being offered up for sale.  In the
SoCal case in the past, there was a medical free clinic whose lead physician
died suddenly in a car crash, and the clinic was forced to close on short
notice and the entire business went into receivership... bills were probably
sent, and I'm sure some of the bills were paid, and others weren't.  And
SOMEONE should have determined what was there and made a decision what to do
with it,  but they didn't.

I'm not sure I'd be inclined to say "...the record storage vendor is not the
bad guy here..." or to assume they would "...continue to maintain the
records indefinitely at their own cost".  They're making to decision to take
this route to be remunerated for dead storage, and as for at their cost-
it's more a case of at a loss of profit... having run a commercial record
center for 8 years I know what it 'costs' to store a box as opposed to what
you're paid while your client *IS* paying their bills.... it takes quite a
while before you have any 'cost exposure'. =)

Also, I'd have to agree that "...nor would it be reasonable to expect them
to cull through the records looking for the names of individuals that could
be contacted concerning their personal information"  In actuality it would
be unethical and border on illegal, seeing as they might only have a 'box
level service agreement' which affords them no rights to view or inspect the
contents of the boxes- and if they were to do so in an in-force contract,
they would potentially  be subject to legal actions.  Boilerplate T&Cs don't
usually afford them these rights.

To assume them to be a "...deadbeat customer that owed  a lot of money and
didn't want to pay."  is a pretty big leap.  It could be similar to the
SoCal situation, or a medical, financial services, or property management
office that dissolved suddenly following a long term illness,
hospitalization, or death of the principal partner or owner.  

Not too sure about this part either "...was undoubtedly the case, the
nonpaying  client was already substantially behind on their account..." the
CRC couldn't have been the ONLY supplier who had gone unpaid- it's difficult
to understand what all/any of the others did.  Did EVERYONE simply walk away
unpaid?  Most people rent, pay utility bills, property insurance, liability
insurance, etc... what did all of these others do?  Generally there is SOME
secondary point of contact.

True, most businesses *SHOULD* have systems in place to ensure their
contracts, bills and other operating costs are covered when something like
this happens, but there are things known as "extenuating circumstances" and
customers of the failed/closed business may have NO IDEA the service
provider had their records stored with someone commercially.   If public
notices were posted in the fine print section in legal notices by the CRC,
the affected parties would have no knowledge that these records being
discussed that belonged to the XYZ Corporation MAY include records that
belong to them.  

That's all I've got to say on the issue- I had a couple of clients (small
one person businesses) default on agreements and I was able to find them and
work out some means of addressing the unpaid expenses and deal with the
residual records, either to dispose of them once they signed a release of
liability, or exercise the option I had in the T&C I provided them.  

Mine stated "Records would be discarded, with no liability to the service
provider, after 3 cycles of non-payment for active services or storage if
unable to contact the client to make other arrangements".  Now in THIS CASE?
 I'd have to agree the records storage vendor is NOT the bad guy here.  If
you aren't smart enough to build enough profit into your pricing to cover 3
months of exposure, well... you deserve to get what happens to you.  And if
you aren't in contact with your clients AT LEAST once a month to avoid them
being substantially behind, you aren't doing much about being a "service
provider".

I know there are some commercial service providers on this List and few of
them will speak up because they want to avoid suffering the slings and
arrows of others, so hopefully, this post speaks for them.  Independent
service operators do this MUCH DIFFERENTLY than the 'big boys'- they don't
put themselves or their clients into these situations.

Larry
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