The challenges posed by LGR are substantial, and pressures on time and resources are likely to be significant. However, the risks associated with poor record retention should not be underestimated. Claims arising from incidents occurring before or during the transition may not be brought until several years later, at which point the availability and quality of evidence will be critical.
The focus is often on structures, service continuity, financial planning and the practical realities of organisational change. However, an equally important consideration is the management and preservation of historic records. Without clear, consistent systems and proactive transfer arrangements, vital information can easily be lost during transition.
From a litigation perspective, this presents a real risk. The disruption to systems, personnel and established processes increases the likelihood of gaps in record retention, access and continuity. While these issues may not be immediately apparent, they frequently crystallise years later when claims are brought within the relevant limitation periods.
Set out below are some of the key areas where those risks are most likely to arise, together with practical steps authorities can take to mitigate that exposure.
Record keeping
One of the most significant areas of risk during reorganisation is the potential loss, fragmentation or inaccessibility of historic records. In practice, this may arise through mailbox closures and auto-deletion policies, the migration or decommissioning of shared drives, or the loss of access to legacy systems. Particularly vulnerable are historic operational documents such as: Risk assessments, inspection and maintenance records, accident records, internal policies, occupational health and personnel records, training records, as well as contracts with suppliers and third parties.
From a litigation perspective, the loss of contemporaneous documentation is often decisive. Courts place significant weight on them. Where such records are unavailable, authorities may be left heavily reliant on witness evidence, which is in some cases limited by the passage of time, and in other cases, can appear weak if there is no underlying documentary framework underpinning it. In those circumstances, a claimant’s version of events can become difficult to challenge, increasing the likelihood of settlement even where a defence might otherwise have been available.
Authorities should therefore take proactive steps to preserve key documents prior to any changes. As a minimum, records should be retained for six years to reflect the general civil limitation period, although in practice longer retention may be required in personal injury cases, particularly those involving minors or cases with potential latent defects. Data cataloguing could also be valuable, by maintaining a clear ’record of the records’ so it is clear which documents are held and where they are stored, thereby improving accessibility. Consideration should also be given to identifying and recording gaps. Maintaining a central log of missing or unavailable documents can avoid repeated and resource-intensive searches while also providing a clear view on evidential weaknesses at an early stage.
It is equally important to prevent inadvertent loss or alteration of data during transition. Locking documents to read-only where appropriate, and ensuring audit trails are preserved during migration, can help maintain data integrity.
Authorities should ensure that any insurance policies, indemnity arrangements and notification requirements are clearly identified and transferred. Failure to notify claims in accordance with policy terms could prejudice cover.
There are also wider regulatory implications. The inability to locate or retrieve records may affect an authority’s ability to respond to Freedom of Information or Subject Access Requests, with the potential for scrutiny from the Information Commissioner’s Office and associated reputational risk and potential for fines.
In relation to contractual documentation, the stakes are particularly high. Without access to contracts and associated insurance information, authorities may be unable to pursue their rights, including contribution or indemnity from third parties. This creates a real risk that liabilities which could otherwise have been transferred or shared will instead fall entirely on the authority.
Staff turnover
Alongside documentary risks, reorganisation is likely to result in staff turnover and a loss of institutional knowledge. This presents a further challenge in the context of defending claims.
Witness evidence remains an important component of many cases, particularly where documentary records are incomplete. The inability to locate or obtain evidence from individuals directly involved in the events in question can significantly weaken a defence position.
To mitigate this, authorities should, where possible, retain accurate contact details for staff who are leaving or changing roles, within the bounds of data protection requirements. Structured handover processes will also be important, particularly for roles with operational or safety-critical responsibilities. Ensuring that knowledge is passed on, rather than lost, will help preserve continuity and assist in responding to claims in the years following reorganisation.
Training and culture
Periods of organisational change can lead to inconsistent or informal approaches to record keeping. In practice, this often manifests in the creation of local spreadsheets or isolated data storage maintained by individual teams or officers without central oversight.
While such workarounds may appear practical in the short term, they can create significant long term risk. Data held outside central systems is inherently harder to locate, retrieve and rely upon, particularly when claims arise years later. This again results in increased litigation risk due to evidential gaps.
It is therefore important to reinforce a culture of centralised and consistent record keeping. Staff should be encouraged and trained to use approved systems, even if those systems are temporary solutions put in place during transition. Steps should also be taken to discourage the creation of standalone records that sit outside central systems and may not be retrievable at a later date.
Training should also extend to data protection obligations. The migration and consolidation of data creates a heightened risk of non-compliance with the Data Protection Act, particularly where data is duplicated, stored insecurely or separated into unregulated splintered systems. Regulatory consequences (including fines) could loom, together with a further threat to reputational risk.
Introducing clear accountability will likely be key. The appointment of a designated individual or team responsible for data governance provides a clear point of contact and helps ensure consistency in decision making. Just as importantly, it avoids a situation in which responsibility is unclear and issues remain unaddressed due to a diffusion of responsibility across the organisation.
AI
The scale of data involved in reorganisation exercises means that technology may have an important role to play. There is increasing scope for the use of AI and related tools to assist with organising, categorising and analysing large volumes of information.
While any use of AI must be approached with appropriate caution, particularly in relation to accuracy and data protection, it may offer practical assistance in identifying relevant records, highlighting gaps and improving searchability across legacy systems. Used appropriately, such tools could reduce the administrative burden associated with large scale data management.
Key takeaway
Proactive steps taken now to preserve, centralise and manage records will place authorities in a far stronger position to defend future claims, comply with regulatory obligations and manage financial exposure. Record retention should therefore be treated as a core component of the reorganisation process, rather than an administrative afterthought.