04 June 2005

Concerns Arise at A.C.L.U. Over Document Shredding

Published: June 5, 2005
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 A.C.L.U.'s own practices are consistent with its public positions. The organization has generally advocated for strong policies on record retention and 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 a wide variety of 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 A.C.L.U.'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," Ms. 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." Ms. 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 specific questions but made the following statement: "The A.C.L.U.'s records management policies have always been of the highest standards in keeping with, if not more stringent than, those of other nonprofits." The organization refused to address which documents were being shredded, among other questions. 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 A.C.L.U. allows for document shredding but 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. In a speech to the Society of American Archivists last year, Nadine Strossen, the president of the A.C.L.U., said that at its inception in 1920, the civil liberties group arranged for the New York Public Library to archive its records and those of its predecessor organization. "I'm especially impressed by how prescient the A.C.L.U.'s founders were in understanding the importance of preserving our organizational records," Ms. Strossen said. In 2003, the Archivists Round Table of Metropolitan New York gave Ms. Linde an award for her role in helping draft and enact a public records law after Rudolph W. Giuliani, the former mayor of New York, moved records from his administration to a private institution. Under the A.C.L.U.'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 A.C.L.U. 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, about a year after his arrival, 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. Mr. Romero was told it was a violation of policy, the former employees said, but no one pushed the issue. That encounter came several months after the New York attorney general's office had begun an inquiry into security breaches on the A.C.L.U.'s Web site that had resulted in leaks of information about donors and members. The organization is sensitive to such leaks, given past government scrutiny of its membership. "As an advocacy organization dedicated to protecting privacy," Ms. Whitfield said on 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 attorney general's inquiry in December 2002, Mr. Romero signed an agreement that obliged the organization to strengthen its online and computer security and pay a $10,000 fine, a cost covered by the company that manages their Web site, where the problems originated. The organization hired Richard M. Smith, an Internet and computer security expert, to examine its practices and offer suggestions for improvement. Among other things, he recommended that shredders be installed in every department to make document disposal more convenient. In a July 2002 e-mail message to Barry Steinhardt, an A.C.L.U. lawyer who specializes in matters of privacy, Ms. Linde objected to that recommendation, saying that Mr. Smith seemed unaware of the organization's document retention policy. She noted that she had asked to sit in on his audit but had been excluded. Employees began noticing shredders next to copiers throughout the organization in early 2003, according to e-mails. Ms. Linde wrote a memorandum voicing her concerns, so the A.C.L.U. sought advice from the law firm that handles its real estate matters in Washington, D.C. The firm forwarded a report that echoed many of Ms. Linde's points, and several shredders were removed, according to memorandums. Mr. Romero kept his shredder, as did Alma Montclair, the director of administration and finance, according to those memorandums. Later, records managers noted that the accounting and human resources departments had shredders, and, more recently, that Donna McKay, the A.C.L.U.'s director of development, had one, too. To track what was being destroyed on those machines, the records managers attempted to impose a system similar to the one used for the locked bins, putting document destruction sheets next to all the shredders except Mr. Romero's about a year ago. Employees in the departments with the shredders signed the sheets, according to a memorandums, but rarely noted what they were shredding. In January 2004, an employee found bags of shredded documents outside a freight elevator and alerted the archival staff. "We really need to get this shredding documented if there is that much of it going on," Ms. Linde then wrote to David Baird, who worked with Ms. Montclair. Mr. Baird responded that he knew nothing about the bags and defended the shredding of documents with Social Security numbers, salary information and other information in Ms. Montclair's administration and finance department. "It is not clear to either Alma or I the specific reasons why shredding these clearly confidential documents needs to be reported to you," Mr. Baird wrote in an e-mail message. Ms. Linde wrote back, "This is the kind of thing that gets companies and organizations into lawsuits." She was eventually told that the shredded documents in the bags were résumés from the human resources department, a memorandum said.
This article is re-printed with full credit given to the New York Times and Stephanie Strom.
NOTE: In Accordance With Title 17 U.S.C. Section 107, This Material Is Distributed Without Profit Or Payment To Those Who Have Expressed A Prior Interest In Receiving This Information For Non-Profit Research And Educational Purposes Only.
Congressional Emergency
Urge passage of HR 2679, The Public Expression of Religion Act of 2005. What this bill does, is to remove the ability for the award of federal funding in order to recover legal fees in 1st Amendment Establishment Clause challanges. These suits are often taken pro bono. But once won, the attorneys are able to recover legal fees from the government. We need to get groups like the ACLU off the Taxpayers' Dime. Call, write, or email your Congressman and Senators and urge passage of this bill.


Blogger Is It Just Me? said...

Thanks Gribbit for this. It really lends a lot of credibility to our fight against the ACLU.

Oh, BTW...Thanks (again) for letting me use your definition for Anonymous. I haven't had a single one since I posted it. I don't think it is a coincidence either - I'm sure some commenters would rather have not identified themselves. :)

6/04/2005 10:34:00 PM  

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