The Sedona Conference® has released the Final Version of its Commentary on Information Governance, Second Edition (April 2019). The Second Edition of this Commentary again sets out 11 principles of information governance that provide a strategic framework for senior management to make decisions with respect to all information within an enterprise. However, the latest Commentary has been revised to incorporate changes and advances in technology and law, including on privacy, that have occurred over the past four years, and in particular in an expanded set of footnotes it includes updated references to publications of The Sedona Conference that have been issued in the intervening years since 2014.

As defined in this Commentary, information governance “means an organization’s coordinated, interdisciplinary approach to satisfying information compliance requirements and managing information risks while optimizing information value.” The Commentary recognizes that information governance encompasses a variety of disciplines, including traditional records and information management, data privacy, information security, and e-discovery. For ease of reference, the 11 principles are set out here in the margin.

THE SEDONA CONFERENCE PRINCIPLES OF INFORMATION GOVERNANCE

1. Organizations should consider implementing an Information Governance program to make coordinated, proactive decisions about information for the benefit of the overall organization that address information-related requirements and manage risks while optimizing value.

2. An Information Governance program should maintain sufficient independence from any particular department or division to ensure that decisions are made for the benefit of the overall organization.

3. All stakeholders’ views/needs should be represented in an organization’s Information Governance program.

4. The strategic objectives of an organization’s Information Governance program should be based upon a comprehensive assessment of information-related practices, requirements, risks, and opportunities.

5. An Information Governance program should be established with the structure, direction, resources, and accountability to provide reasonable assurance that the program’s objectives will be achieved.

6. The effective, timely, and consistent disposal of physical and electronic information that no longer needs to be retained should be a core component of any Information Governance program.

7. When Information Governance decisions require an organization to reconcile conflicting laws or obligations, the organization should act in good faith and give due respect to considerations such as data privacy, data protection, data security, records and information management (RIM), risk management, and sound business practices.

8. If an organization has acted in good faith in its attempt to reconcile conflicting laws and obligations, a court or other authority reviewing the organization’s actions should do so under a standard of reasonable-ness according to the circumstances at the time such actions were taken.

9. An organization should consider reasonable measures to maintain the integrity and availability of long-term information assets throughout their intended useful life.

10. An organization should consider leveraging the power of new technologies in its Information Governance program.

11. An organization should periodically review and update its Information Governance program to ensure that it continues to meet the organization’s needs as they evolve.

As in our prior post when the Public Comment edition was issued last Fall, we wish to note three aspects in particular contained in the Second Edition of the Information Governance Commentary.

First, the latest version of the Commentary recognizes that organizations continue to “struggle with making and executing on effective disposition decisions” (see Principle 6 on effective disposition being a core component of an information governance program). The Commentary goes on to recognize that organizations increasingly operate in jurisdictions where private or personal information is governed under new legal measures, such as the EU’s General Data Protection Regulation (GDPR). Principle 6 of the Commentary cross-references The Sedona Conference Principles and Commentary on Defensible Disposition, which should be consulted when an organization is planning to execute a program of disposition. We note here that a final version of The Sedona Conference Commentary on Defensible Disposition was also issued in April 2019, and can be found on The Sedona Conference publications web page.

Second, Principle 10 of the Commentary emphasizes that organizations should consider leveraging the power of new technologies in any information governance program. These include applying machine learning, auto categorization, and predictive analytics techniques in matters of compliance and business intelligence.

And third, perhaps the most important principle retained in this edition is Principle 11, which states that “An organization should periodically review and update its Information Governance program to ensure that it continues to meet the organization’s needs as they evolve.” Especially in light of the accelerating pace of technological change, it is essential for organizations to put into place a process for actively practicing this type of “continuing improvement” with respect to dealing with issues arising in the data, information and records space.

Interested readers should also consult the discussion of information governance contained in The Sedona Principles, Third Edition, which we discussed in a previous blog post.

A number of Drinker Biddle lawyers have been active participants in The Sedona Conference’s various working groups over the years, including Bennett B. Borden and Jason R. Baron who participated on the editorial drafting team of the first edition of The Sedona Conference Commentary on Information Governance.

The Commentary on Information Governance, Second Edition, is available for download here. For a full list of Sedona Conference resources, visit its publication page here.

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