Don't write it down you'll get caught

By Peter V O'Brien

Friday 23rd July 2004

The wonders and advantages of the information and communications revolution have a downside for businesspeople who have or are alleged to have something to hide in their internal and external dealings.

Disclosure about document and email destruction at failed US energy trader Enron were the most spectacular example of dangers in widespread dissemination and retention of indiscreet records and communications.

The issue arose in New Zealand last week in the spat between the Commerce Commission and former executives of Tranz Rail, now under the control of Australia's Toll Holdings.

Executives denied they destroyed information pertinent to a commission investigation into alleged Tranz Rail anti-competition activity regarding Cook Strait ferry business.

Former chief financial officer Mark Bloomer said the only emails he "directed" to be deleted from executives' computers related to jokes.

Another executive was reported as saying the making of a direction to delete did not necessarily result in deletions.

The pros and cons of the commission/executive arguments were immaterial to the general issue about communications.

Assuming the alleged communications related to indiscreet and inappropriate jokes, the people involved should have confined their attempts at humour with colleagues to oral exchanges.

That would be a commonsense approach, irrespective of the exchanges involving criminal behaviour or being innocuous levity.

Smart marketing of "convenience" from telecommunications companies resulted in many people who should know better becoming besotted with electronic communications.

They joined the ranks of the dummies who make anonymous telephone calls, apparently unaware the police can access calls through the companies' records for months.

Similar dummies who download "information" from the internet can also be traced, as shown in regular prosecutions and convictions for obtaining illegal pornographic and paedophiliac material.

Some communications in the business world relate to criminal conspiracies, however reprehensible that is to law-abiding people.

It has happened for years, even centuries, as has the destruction of incriminating documents.

Only idiots masquerading as intelligent executives would commit such material to the record, particularly an electronic form.

That observation in no way condones criminal behaviour or rip-off activity, which is less than criminal.

It is realistic, knowing that hoods are just as likely to be wearing suits as ripped jeans.

Several expensively suited Enron executives were indicted in the US on charges, which included fraud conspiracy and document destruction.

They could have avoided the alleged destruction charges if there were no documents.

The clearest trail is the so-called "paper trail." It was the easiest trail for historians, whose publications relied on extant documents, apart from doubtful oral recollections of people who often put personal glosses on retelling of events.

Keeping communications oral or disposing of documents always fools historians and investigators.

Libraries have been written about the reign of England's Elizabeth I, for example, relying on documents.

No historian who wrote about the Elizabethan age had information about private discussions between the queen and her "spymaster" (doubling as foreign secretary) Sir Francis Walsingham when they dealt with threats to the realm.

They would know a lot if only someone could have bugged the queen's private chambers.

Transferring that discourse to business in the 2004, we see the vast majority of business communications and documentation were sensible accounts of legitimate transactions and valid discussions.

The perpetrators of fraud, or intending potential fraud, lost the plot when they used electronic toys to reply information to colleagues.

They opened themselves to discovery, in both senses; being found out and legal discovery of documents.

Investors who find a bombardment of unwanted electronic communications an intrusion could be comforted with knowledge that the records can catch arrogant company executives.

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Don't write it down ­ you'll get caught

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