Residential and travel camps collect and produce a tremendous amount of information and records regarding campers, staff, facilities, and operations. This article will focus on considerations regarding the retention (and destruction) of camper and staff records. A camp should retain other records, of course, and in fact, retention may be required by law. These other records pertain to financial transactions, including tax matters, equipment inspection, maintenance and replacement, permitting, compliance with state or federal health and safety regulations, compliance with ACA standards (for accredited camps) and other matters.
Questions we will address here include: Should camper and staff records be retained? If so, what should be kept and why? How should a camp retain such records and for how long? When may those records be destroyed?
Developing a camper and staff document/record retention and destruction (DRD) policy is an important business practice, facilitating the camp’s ability to meet legal and other requirements. Importantly, it is central to the camp’s commitment to running a quality organization, as we will see below.
II. What Records and Where Do They Live?
A. Form of the Records
The records we will be discussing include both paper records and electronically stored information (ESI). These might include voice recordings, photographic or other images, or videos. Whatever the form, the information is considered to be of such importance to a successful camp that it must be retained as a future resource and reference. A smart camp will identify such information and develop policies regarding its use, retention, and, when prudent, its destruction.
B. Where Do Records Live?
Records are typically stored in paper or electronic form in camp warehouse storage or on camp computer servers, laptops, or other electronic locations. Understand, however, that camp records may also exist on a staff member’s personal laptop or other electronic device. Staff should be instructed to follow the camp’s DRD policy regarding any camp records (including ESI, voicemail, and email) located on their personal electronic devices and in their paper records, and to periodically download or deliver these records into the camp’s custody. If a staff member leaves his or her employment, voluntarily or otherwise, the policy should direct the employee to download this information before departure, or relinquish his/her devices to the camp, so that camp staff can review and obtain any relevant camp records or information before the employee’s departure.
C. What Camper and Staff Records?
1. Staff Records
Staff records would include (among others) records of staff applications, job interviews, and background checks (including checks of sexual offender registries); employment or other agreements; medical history; work-related injuries; record of work modifications to accommodate disabilities; employment reviews and documentation regarding employee performance, including competencies or warnings; employee complaints or disputes filed by others (regarding the employee); recorded attendance at mandatory employee trainings; signed receipt of employee manual and camp policies, etc. To be fair (and keep records complete), records should include both favorable and unfavorable reports and observations.
2. Camper Records
Camper records would include (among others) records of camper applications, information distributed to campers and their families before, during, and after camp — including camper orientation and other briefings regarding, for example, camper behavior and safety and risk management; relevant paper, email, and telephone communications with campers or parents of minor campers (including those, for example, addressing a parent or camper complaint, or reflecting the camp’s efforts to modify the program to allow access for campers with disabilities); camper medical history and communication with camper’s medical professionals; records reflecting camper misconduct, sickness, or injury at camp, or dismissal from camp and related communications with parents or otherwise; contracts, including any camper or parent agreement containing 1) camp terms and conditions (such as registration, selection, payment, refund, return, and other provisions), 2) an acknowledgment and assumption of risks and release of claims (and other provisions), or 3) camper/parent rules and any code of conduct and/or behavior contract.
3. Other Records Relating to Staff Members or Campers
Other information (covering particular events or periods of time) include a camp’s YouTube videos, content on its website (including its archived bulletins) and social media sites, marketing brochures, essential eligibility criteria (for campers), essential functions of a job (for staff), the camp’s staff manual, and the camper/parent handbook, if any. This other information reflects information conveyed or available to campers or staff, or distributed by the camp to campers or staff, including information or representations about the camp or camp staff to job applicants or camper families. This might also include the camp’s registration configuration for obtaining e-signatures (for records intended as binding contracts).
Other information also includes camp records that relate to camp and/or camp program incidents involving campers and/or staff members, including the camp’s incident report forms, internal incident (including near misses) investigations and witness statements, trip logs, reports to state agencies (e.g., child care licensing, Occupational Health and Safety Administration (OSHA), or to law enforcement (e.g., a report of alleged or suspected child abuse), emergency/incident/crisis response records, evacuation reports, incident investigation, witness reports, etc.
III. Why Keep Records?
As mentioned in our introduction, we believe a camp should develop a system for retaining (and discarding) camper, staff, and other relevant records, most importantly, to support the camp’s ongoing commitment to running a quality camp. This includes staying in alignment with the camp’s mission, developing good business practices, and enhancing training opportunities.
In addition, creating an organized DRD plan forces the camp (in conjunction with its legal counsel) to develop a plan consistent with state and federal laws and regulations or other directives, and associated documentation and reporting requirements. This includes documentation and record-keeping requirements regarding, for example, OSHA, federal or state land permitting agencies, state childcare licensing, ACA standards for accredited camps1, and state or federal civil rules governing litigation.
IV. How and How Long to Keep Records
In what form should a camp keep its records, and for how long? The answer to this question depends on a number of factors, but here are some key guidelines:
Records can be retained as ESI or paper records. In fact, federal and state laws generally allow records (required by law to be retained) to be converted from paper to electronic form if certain rules are followed in the conversion (and it isn’t a bad idea to keep the original paper record if space allows).2
How long a particular record should be kept will depend on the following, among other factors:
- State or federal laws or regulations that may direct the time frame.
- Specifically, in regard to litigation:
- In the event of litigation (e.g., a lawsuit filed against the camp), a camp’s records are subject to a process called “discovery,” whereby each party to the suit is entitled to request from the other party any records that are relevant to the suit. These rules are quite liberal, and allow penalties or sanctions for a party’s failure to produce lawfully requested records.
- Statutes of limitations related to legal claims (civil or criminal) that may be brought by campers, parents of campers, staff, or others against the camp. These limitations periods govern how long an individual plaintiff has to file a lawsuit against the camp. These statutes vary, depending upon the jurisdiction and the claim. In addition, these statutes commonly toll (delay) the running of the limitations period for minors (in most states, those under 18 years of age) until they reach adult age. As a result, this “tolling” greatly extends the period of time a camp should keep records regarding its minor campers.
- Statutes of limitations that include a “discovery” rule – that is (for example), the limitations period for filing a claim does not begin until the individual “discovers” or in the exercise of reasonable diligence “should have discovered” that his or her injury was related to camp activities.
- Federal and state laws or codes that apply civil or criminal sanctions or remedies for one who knowingly alters or destroys any record or document with the intent to impede, obstruct, or influence litigation or an official investigation (“spoliation”).
- Federal and state laws or codes that require organizations to institute a “litigation hold” on records (typically both ESI and paper records), in the event a party knows (or has reason to know) that litigation is “pending, imminent, or reasonably foreseeable.” Typically, the camp’s legal counsel has an obligation to alert the camp to the need for a litigation hold, and once a “hold” is in place, the camp must suspend its normal “destruction” policy to ensure the preservation of relevant evidence.
- Policy or other reasons why the camp may determine to hold records permanently.
In any event, a camp should set time frames for retention of records that are generous and consistent with the laws of the state in which the camp is most likely to be sued. A residential camp will frequently ask campers/parents to agree to the law and “venue” (place of suit) in the state where the camp is based and are therefore directed by that law. However, consult your legal counsel in this matter as you consider applicable law and the camp’s proposed records retention periods.
V. Development of a DRD Policy
Consider these elements for all records retained — not only those pertaining to campers and staff members:
- Policy and purpose for the creation of the DRD
- Definition of terms
- Types of data preserved — ESI or otherwise — categorized to fit a camp’s unique operation
- Location of data (e.g. on-site computer, on-site or off-site (specific location) storage, staff member personal)
- Person/s in charge of particular data;
- Time periods for retaining various types of data;
- Organization systems in place for the storage (including back-up processes), archiving and destruction of data (paper and ESI);
- Statement of litigation hold requirement and process;
- General systems security (physical buildings, computer, or otherwise);
- General data collection and production guidelines, in the event of litigation;
- Training staff on the plan;
- Commitment to periodic review of the plan to monitor compliance with and/or revise the plan.
Developing a camp DRD policy may appear a daunting undertaking. However, in going through the process, a camp will educate itself about where its records truly reside, what records are worth keeping and for how long, and the important reasons for retaining records and having an informed plan for the systematic destruction of records. These important issues go to the heart of the camp’s commitment to running a quality organization. Prioritize developing a DRD plan — as a tool and resource for camp management and other staff members — including, importantly, in the event the camp is required to disclose records in litigation or otherwise.
Camper/Staff Medical Records and Incident Reports
|Medical and other personal histories are important in assessing an applicant’s suitability for the camp experience, as a staff member or camper; and these histories can be an important resource if the person becomes ill, suffers injury, or shows some significant change in her or his conduct or performance.
So too, incidents involving a camper or staff member should be recorded to facilitate an analysis of the event and provide lessons learned for the future. In addition, a reliable record is crucial for the management and, hopefully, resolution of legal disputes. A courtroom admonition worth remembering is this: “if it isn’t written down, it didn’t happen.” The message highlights the importance of a credible record of an event, identification of witnesses and their statements, and contemporaneous observations of camp management. Certainly important here for the camp is training staff on how to complete records — for example, focusing on recording objective information, rather than subjective opinion or speculation regarding fault. Staff should also understand that they should not comment or speculate on social media (or in any form) about an incident, and should follow the camp’s guidelines for other communications inside or outside the organization (a topic beyond the scope of this article).
Some might suggest that if certain records reveal a camp’s possibly improper conduct or even negligence, keeping those records or recording that information is a dangerous practice, for it provides a road map to an adversary in a lawsuit. Consult with your legal counsel on this matter, but we offer this: the primary purpose of record retention is the well-being of campers and staff. If the information in the records is acted upon in a timely and proper manner, it should not be a threat to the camp. Taking care of the campers and staff is more important than simply not keeping a record or hiding relevant information from Plaintiff’s counsel. Importantly, destroying or failing to produce relevant records can subject a camp (and its legal counsel) to court sanctions, including legal fines and penalties. And, failing to keep records robs the camp of an important learning opportunity. The development, retention, surrender, and use of records in litigation will be discussed further below. For now, let us emphasize that, in understanding events, and informing (or persuading) a judge or jury, a clear, written record is a vital resource.
*This article contains general information only and is not intended to provide specific legal advice. Camps and related organizations should consult with a licensed attorney regarding application of relevant state and federal law, as well as considerations regarding their specific business or operation.
**Charles R. (Reb) Gregg is a practicing attorney in Houston, Texas, specializing in outdoor recreation matters and general litigation. He can be reached at 713-982-8415, or by email at email@example.com; www.rebgregg.com.
Catherine Hansen-Stamp is a practicing attorney in Golden, Colorado. She consults with and advises camps and other recreation and adventure program providers on law, liability and risk management issues. She can be reached at 303-232-7049, or by email at firstname.lastname@example.org; www.hansenstampattorney.com.
Photo courtesy of Asphalt Green Summer Day Camp, New York, NY
1 ACA Accreditation Standards (6th Ed.), contain, for example, the following, which require documentation: HW 5.1 (camper health history), HW 7.1 (health screening record), HW 20 (camper contact information), HW 21 (health records of injury, incident incl. admin of medication, treatment, etc. – camper or staff), HW 22 (records retention for health records – per statutory limitations periods), TR 3 (camp private vehicle use permission).
2 See, for example, in Colorado, C.R.S. 24-71.3-112.