Guide Recordkeeping for business activities carried out by contractors

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Guide - Recordkeeping for business activities
carried out by contractors

• Natalie Dewson
• Senior Advisor
• Government Recordkeeping Programme
• Archives New Zealand

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Overview

• Purpose of the guide
• What does the PRA say?
• Which contracted out relationships are covered?
• Underlying expectations
• Legal agreements
• What records should be created?
• Recordkeeping considerations

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Purpose of the guide

• To improve recordkeeping by
• Raising awareness among local authorities and
  public offices of the requirement to create and
  maintain records of contracted-out business
  activities under the PRA
• Clarifying recordkeeping requirements
• To support the Create and Maintain Recordkeeping
  Standard

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Target audience

• People with responsibility for drafting contracts
  with independent contractors
• Independent contractors wanting clarification on
  their recordkeeping obligations
• People with recordkeeping responsibilities

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Contractual relationships

• These relationships may cover the performing of
  local and central government business activities
  by
• - independent contractors under contract or by
  another agreement or
• - functions performed by a non-government
  organisation where a public office or local
  authority retains some input

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Coverage

• Internal
• External
• Embedded
• Large projects
• Small projects
• Short-term, Long-term or ongoing relationships
• Outsource of entire functions

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Contractors records includes e-records

• Email
• SMS
• Instant Messaging
• Websites
• Blogs and Wikis
• Databases, etc.

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What does the PRA say?

• s.17(1)
• Public offices and local authorities must create
  and maintain full and accurate records in
  accordance with normal, prudent business
  practice, including records of matters contracted
  out
• s.17(2) s.17(3)
• Public offices and local authorities must
  continue to maintain records in an accessible
  form for reference until their disposal is
  authorised

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Who is responsible for the records?

• It is the responsibility of the public office or
  local authority to ensure that records of
  outsourced activities are created and maintained,
  not the contractor, so stipulating your
  legislative or other recordkeeping requirements
  protects and enables your business

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Create and Maintain Standard

• Depending on the nature of the work being carried
  out, recordkeeping will involve either
• The contractor creating and temporarily
  maintaining the records of the business activity
  on behalf of the public office or local authority
  or
• The contractor regularly providing the public
  office or local authority with enough information
  about the function to enable the creation and
  maintenance of full accurate records, or
• A combination of the two

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What level of recordkeeping is required?

• Public Offices
• Recordkeeping activity should be informed by the
  level of risk associated with the outsourced
  activity
• Where the accountability level is high, the
  public office should require the contractor to
  create records which will provide them with
  detailed evidence of the work undertaken.

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What level of recordkeeping is required?

• Local Authorities
• Section 17(1) requires local authorities to
  maintain good records of contracted business
  activities
• S17(1) does not apply to records generated by
  private contractors in the conduct of their usual
  business (e.g. timesheets)
• The requirement is that the local authority
  maintains the records of the relationship with
  the contractor and the activity the contractor
  has undertaken on their behalf

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The underlying recordkeeping expectations

• The underlying expectation for outsourced or
  contracted out recordkeeping are
• Recordkeeping requirements are clearly understood
  by all parties involved in the process
• Recordkeeping requirements must be consistent
  with any current legislation, and with any
  applicable industry standards

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6 Put recordkeeping requirements into your
contract

• Address Recordkeeping and archiving requirements
  at the time of completion of contracts or
  agreements.
• It is unlikely that the contractors will want to
  devote time and effort to records of a business
  activity that it is no longer performing, unless
  there is a contractual requirement to do so
• Contracts/agreements should contain provisions to
  ensure that records of outsourced business
  activities can be created and maintained
• The Contracting outsourcing guide will contain
  basic generic recordkeeping contract clauses, and
  provide links to others.

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Recordkeeping principles
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1 ensure recordkeeping requirements are
understood by all parties

• Agree with the contractor the records you expect
  to be created, captured and maintained
• Specify the policies guidelines the contractor
  must use when carrying out a business activity on
  your behalf
• Agree on a process to share handover records
• Provide the contractor with training

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2 Prevent unauthorised disposal of records

• Although the contractor may have physical custody
  of the records, the legislative disposal
  requirements and control remains with the public
  office or local authority unless otherwise agreed
• Disposal of records should be defined in
  accordance with the public offices authorised
  RD schedule, one-off appraisal or the Local
  Government Schedule

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3 - Maintain oversight and control of records

• Check the contractor is meeting your
  organisations recordkeeping requirements, e.g.
  through a reporting or audit process
• Define and document the ownership of records and
  the information they contain
• If you give a contractor custody or access to
  your organisations records, set guidelines

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4 Ensure accessibility

• Ensure records remain accessible to your business
  and the public, e.g. through an Official
  Information Act 1982 or Local Government
  Information and Meetings Act 1987 request

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5 Storage

• Appropriate records storage requirements are
  addressed in contractual arrangements.
• Arrange appropriate storage of all records
  involved in the outsourced activity in line with
  Archives New Zealands mandatory storage standard
• NB. It is prudent to come to an agreement over
  the format, management and storage of electronic
  records as they are very vulnerable to accidental
  or inappropriate disposal

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6 -Training enablement

• Give contractors the tools to do it!
• Provide guidelines and procedures for external
  contractors this may include
• using specific BCS structures or electronic
  formats
• periodic transfer or reporting
• sharing your policies, procedures, etc.
• Train internal or embedded contractors as you
  would other new employees

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Benefits of formalising RK requirements

• Protect your assets
• Document your business
• Cover yourself (legal compliance obligations)
• Mitigate against disputes over service delivery
• Protect your intellectual property
• Retain corporate knowledge
• Having well articulated contractual agreements
  is just good business practice and prudent risk
  management, ask your legal people!

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Further resources

• Recordkeeping Issues associated with Outsourcing
  and Privatisation of Government Functions 
• http//www.caara.org.au/Policy/policy13.htm
• New South Wales Government. Guideline 16
  Accountable Outsourcing
• http//www.records.nsw.gov.au/recordkeeping/gover
  nment-recordkeeping-manual

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Timeframes for the guide

• The draft is currently being developed
• It will be available on the Continuum website in
  June 2009

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Questions?

• Email rkadvice_at_archives.govt.nz
• Phone [phone]