The Irish Companies Act 2014 (the "Act") is noteworthy from an information governance (IG) perspective because it imposes a new duty on Irish corporate boards to ensure that individuals appointed company secretary have the necessary skills to maintain records as mandated by the Act. Whether this foreshadows a global regulatory trend towards requiring designated corporate officers to be familiar with IG - or document management - principles, remains to be seen.
Most of the 1,448 sections and 17 schedules of the Act, which replace a patchwork of over 17 pieces of Irish corporate legislation, came into force on June 1, 2015.
Specifically, the Act requires directors to select a company secretary who has the necessary skills to maintain, "or procure the maintenance of", non-accounting corporate records. While the phrase " procure the maintenance of" records signals some flexibility, in that the records need not be personally maintained by the company secretary, it equally indicates that he or she must be sufficiently savvy in the IG context to oversee compliance with statutory retention requirements.
The importance of this requirement that a company secretary have sufficient IG-related skills is further reflected in its placement as a stand-alone provision of the Act. The Act states that the board's duty in this regard is in addition to the broader statutory responsibility that it owes to the company in selecting a company secretary. Thus, the board must ensure that the appointed company secretary has IG-related skills in addition to the skills or resources necessary to discharge the other duties of office.
Looking ahead, it will be interesting to observe how this IG-related requirement is applied by boards in selecting company secretaries and, ultimately, what threshold level of competence is deemed by the courts to satisfy the Act. Similarly, corporations may wish to stay apprised of signs that this regulatory development is gathering international momentum, such that other jurisdictions also require designated corporate officers to be familiar with the IG discipline.
Contributor – Ricard Pochkhanawala