My two cents about this topic:

1). I would say--to the original question--that it depends of legal environment. Natasha and me have already had a discussion about this some time ago. For instance, the example from Quebec is a perfect testimony, so are Natasha's arguments. 

But, if there is no legal specification about how a retention period should apply, then we must look at the rationale for creating a certain record/series. For instance, in Romania up to 1990, the accountant records should be kept for 15 years, as the time for a possible financial fraud to be detected and to be punished for. Since 1990, this retention period went to 10 years; so, if you were not punished in 10 years, the crime is prescribed. In our Criminal Code it is stated that, if two different laws are overlapping,  then the Court should consider the most favourable to the defendant. That is, if someone made a fraud in 1989 and he/she is brought to justice about it in year 1989+11=2000, she/he would not be condemned, because the most favourable law (the last one) is enforced. So, in this case, why bother to keep records longer than the period when a record may be a legal evidence? This is a case where retroactivity of RP should apply.  

In the same logic, but inversely, some files with legal records of companies foundation were estimated to be necessary for 5 years. After a time, it was noticed they are needed more than that, and the RP was increased to 15 years. Isn't it obviously that the NEED that made RP increased is the same for older files, and they should be kept based on the new RP? For me at least, it is. 

As a general rule, I see stating a RP somehow "to the future"; it is a forecast. While the disposal is "to the past"; it is a history. It is always hard to predict things (i.e. needs), but it is almost always easier to identify the past needs. 

So, my vote for retroactivity.  


2). About MoReq2010 and double RS, an example: In many countries in former Eastern Europe, there have been some revision of the retirement pensions regime. These changes made people go back to their former employee or to the Archives to get certificates about their former wages in 60 or 70 years ago. The most valuable records were the payrolls. But, based on current regulations, the RP for payrolls is 50 years; theoretically, all  payrolls older than 1960 should be destroyed, but nobody would dare to this, when they are so much required. So, without cancelling the current RP, a new retention period is applied, stating that, due to the reform in course, for the older payrolls, the RP is extended more than 50 years.  So, both RS are applicable, in the same time, and the longer periods prevail, as long as the rationale for its implementation exists. 

Best regards, 

Bogdan-Florin POPOVICI, Ph.D.
Senior inspector
National Archives 
Brasov County
ROMANIA



-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]] On Behalf Of Dominic Boisvert
Sent: Tuesday, November 30, 2010 5:51 PM
To: [log in to unmask]
Subject: Re: [RM] Implementing Retention Periods Retroactively

Le mardi 30 novembre 2010 à 10:34 -0500, Jones, Virginia a écrit :

[...]

> I am having a difficult time thinking of a legitimate example of the need to use an "old" retention schedule and a "new" retention schedule simultaneously.  Maybe someone on the list can think of something pertinent and share with us.
> 
> Ginny Jones
> (Virginia A. Jones, CRM, FAI)
> Records Manager
> Information Technology Division
> Newport News Dept. of Public Utilities

I have one example.

When the Civil Code of Quebec changed in 1991 we had to change the rule for insurance in the retention schedule. We had to keep insurance contract for 30 years before the new Code of 1991 (in fact 1994, but that's another question/problem). Now we only need to keep them 3 years.

But we still need to keep insurance contracts prior to 1994 for 30 years.

Most retention schedule I've worked with only mention that the 3 year rule applies for records created or received after January 1st 1994. And say nothing more. So, for these records, we still need to use the older retention schedule (to one with the 30 year rule).

I think that we could simply rewrite that rule in the retention schedule so that both the 3 year and the 30 year rule could be applied with the same retention schedule.

This case scenario also proves that, in this case, we cannot retroactively apply a newer retention schedule to an existing record series for witch legal value has been changed be legislation, but for witch the Legislator didn't want to apply the new legislation to existing records.

Finally, just a few words to say that all of this made sens in French so I truly hope that it still does in English.

--
Dominic Boisvert
Archiviste

HB archivistes, s.e.n.c.
www.hbarchivistes.qc.ca

Membre de l'Association des Archivistes du Québec (AAQ) Membre de ARMA International

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