Concerns arise within ACLU over shredding of documents

Legal risk, flouted policy worried former manager

June 05, 2005|By NEW YORK TIMES NEWS SERVICE

The American Civil Liberties Union has been shredding some documents over the repeated objections of its records manager and in conflict with its longstanding policies on the preservation and disposal of records.

The matter has fueled a dispute at the organization over internal operations, one of several such debates over the last couple of years, and has reignited questions over whether the ACLU's own practices are as clear as its public positions.

The organization has generally advocated strong policies on record retention and has benefited from them, most recently obtaining and publicizing documents from the government about prisoners at Guantanamo Bay, Cuba.

The debate over the use of shredders is reminiscent of one late last year over the organization's efforts to collect data on its donors, even as it criticizes corporations and government agencies for accumulating personal data as a violation of privacy rights.

Janet Linde, who oversaw the ACLU's archives for over a decade until she resigned last month, raised concerns in e-mail messages and memorandums for over two years that officials' use of shredders in their offices made a mockery of the organization's policy to supervise document destruction and created potential legal risks.

"It has been shown in many legal cases over the years, including the Enron case, that if a company has an established and documented shredding program they will not be liable if documents at issue in a lawsuit are found to have been destroyed," Linde wrote in a 2003 memo. "If, however, the means for unauthorized shredding is present in the office we cannot say that we have made a good faith effort to monitor and document our records disposal process."

Linde said she was disturbed that her correspondence had become public and declined to comment further. A spokeswoman for the organization, Emily Whitfield, declined to answer questions but made this statement: "The ACLU's records management policies have always been of the highest standards in keeping with, if not more stringent than, those of other nonprofits."

Shredding has become more closely controlled after scandals arising from questionable record-keeping have rocked the corporate world.

Congress has amended the criminal code to permit fines and jail sentences for those who alter, destroy, mutilate or conceal documents with the intent of preventing their use in official proceedings. Many lawyers for companies and nonprofit entities have advised their clients to enact strict policies on records management.

The ACLU allows for document shredding, but it has policies for recording what is destroyed that predate recent changes in the law, and it has historically placed great emphasis on preserving records. Its policy lists specific types of documents - including duplicate records and outside publications - that can be destroyed without creating a record. For other materials, employees are instructed to contact the archives.

Under the ACLU's policy, employees deposit documents, disks and other files slated for destruction in locked bins in their departments. They are required to complete and sign a form next to the box, describing what they have deposited.

A contractor collects the bins each month and shreds the contents under the watch of an ACLU records manager, who then countersigns the sheets to confirm the destruction.

So when Anthony D. Romero, the executive director of the organization, casually mentioned to a group of employees in 2002 that he had a shredder in his office, they were shocked, said two former employees who did not want their names used because they feared it would interfere with future employment. Romero was told it was a violation of policy, the former employees said.

That encounter came several months after the New York attorney general's office had begun an inquiry into security breaches on the ACLU's Web site that had resulted in leaks of information about donors and members.

"As an advocacy organization dedicated to protecting privacy," Whitfield said Friday, "we take very seriously the confidentiality of our donor records and have policies in place to ensure proper document-management procedures."

To end the inquiry in December 2002, Romero signed an agreement that obliged the organization to strengthen its computer security and pay a $10,000 fine.

The organization hired Richard M. Smith, an Internet and computer security expert, who recommended that shredders be installed in every department.

Employees began noticing shredders next to copiers throughout the organization in early 2003, according to e-mail messages.

After Linde wrote a memo voicing her concerns and a Washington law firm echoed many of her points, several shredders were removed, according to memorandums.

Romero kept his shredder, as did Alma Montclair, the director of administration and finance, according to those memorandums. Later, records managers noted that other departments had shredders.

In January 2004, an employee found bags of shredded documents and alerted the archival staff. After an exchange of correspondence about the shredding, Linde was eventually told that the documents in the bags were resumes from the human resources department, a memorandum said.

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