Information Governance - 2013 in Review

by BakerHostetler
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2013 was the year that the term "Information Governance" or "IG" began to be widely used outside of technical circles. Despite that fact, the concept of IG is not well understood. Gartner, a premier information advisory company, defines IG as the specification of decision rights and an accountability framework to ensure appropriate behavior in the valuation, creation, storage, use, archiving, and deletion of information. It includes the processes, roles and policies, standards, and metrics that ensure the effective and efficient use of information to enable an organization to achieve its goals.

Information management is not the same as IG. IG represents a strategic, as opposed to tactical, enterprise-wide approach to the governance of the entity's information. It requires coordination across all business units, as well as IT, security, compliance, privacy, and legal. A successful IG program will avoid siloing and require strategic coordination among all stakeholders. This, of course, may be easier said than done.

A centralized, global approach to IG is necessary so that entities can maximize the value of their data while also reducing risks and costs. Implementation of an IG steering committee or the creation of a Chief Data Officer position should be considered so that a holistic result can be achieved. We anticipate the development and maturation of different IG models in the coming years as entities become more aware of the importance of these issues, and believe that those models will start with a common strategic seed and seat of individual responsibility, likely at a C- or near-C-Level position, but will be further refined based on organizational and even division-based risk assessments.

BIG DATA

The emergence of Big Data, with its accompanying risks and benefits, accelerated IG to a prominent C-Suite concern for many entities in 2013. Organizations were forced to determine a balance between the need to mine data assets for valuable information (such as customer buying preferences, optimal marketing strategies, and workforce analytics) with the cost of storing ever-increasing amounts of data, maintaining its security, complying with relevant laws, regulations, and litigation holds -- all while avoiding unnecessarily high e-Discovery costs in litigation. These sometimes competing interests must be carefully weighed when developing IG policies and procedures.

INFORMATION MANAGEMENT

The importance of good information management, a critical component of IG, became even more pronounced in 2013. Organization of records, taxonomy, retrieval, and defensible destruction all become more complicated in today's Big Data environment, especially as more and more data is stored in the cloud. These challenges militate in favor of development of strong IG policies.

DATA SECURITY

"Data breach" has now been incorporated into the popular vernacular. Massive breaches, caused by everything from international hackers to negligent employees and vendors, made front page news all year. Regulations, particularly those governing protected health information, have become more rigorous; we have seen more enforcement actions and class action lawyers are asserting creative theories of liability for breaches. The costs of a data breach can run the gamut from regulatory and industry fines, civil damages, and reputational damage leading to the loss of customers.

2013 showed us that Big Data can mean big trouble if entities are not alive to data security issues. Entities of all sizes are urged to adopt a "when, not if" mindset and to incorporate into their IG program a comprehensive data protection plan to minimize the chances of a breach, as well as an incident response plan that can be immediately implemented in the event of a breach.

Data breach issues have also spawned additional information management practices, such as "tokenization," where sensitive data is replaced with unique identification symbols that cannot be mathematically reversed. In a tokenization scheme, the system takes a record and removes customer and otherwise sensitive data. That data is encrypted and transferred to a safe location; the sensitive data is then represented in the original record by a uniquely generated token that represents or stands as proxy for the sensitive data. This process attempts to remove the sensitive information from the organization-held record, where in the event of a breach, the sensitive data would not travel with the compromised records; however, these practices then implicate existing e-Discovery collection and preservation regimes within organizations. This highlights the continuing need for stakeholder input from legal departments when advising on information governance and security implementation.

BYOD

The BYOD (Bring Your Own Device) phenomenon also has created important IG issues that came to the fore in 2013. BYOD programs are challenging because they must balance the needs of the employee, the entity's business units, information security, human resources, and privacy concerns. Aside from the fact that each individual device can become the source of a data breach, "combined use" devices -- devices that store both business and personal data -- can lead to thorny legal issues if the device is at issue in either business-related or personal legal disputes.

In addition, the BYOD phenomenon also creates a further haze associated with IG and appropriate information management. Here, IG strategy combined with stakeholder input is key: IG requires overall goals and purposes in order to seem viable to decision makers, but will ultimately live or die based on the strength of appropriate stakeholder support and adoption.

TAKE-AWAY MESSAGES

As a first and most fundamental step, every entity should acknowledge that their information must be governed on an enterprise-wide basis. Obtaining the input of corporate stakeholders and balancing their needs against the backdrop of legal and regulatory requirements and sound information technology is crucial to the success of an IG plan and achievement of overall corporate goals.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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