Legal Considerations for Records Management-Business Risk Decisions

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Legal Considerations for Records Management-Business Risk Decisions

Organizations face critical legal decisions related to their records and information management programs. What records must be maintained to meet the requirements of state and federal agencies? How long must our records be maintained? Will our microfilm records be admitted in evidence in place of the original paper?

Lawyers are consulted to provide the answers to these complex legal issues. In some cases they will determine the precise actions to be followed by an organization. In other cases they will review the possible alternative approaches.

In many areas of records and information management affected by the law, the answers are not precise. For example, while some laws clearly specify the minimum period of time records must be maintained, others merely state the requirement to keep records but do not specify the retention period. The clearly stated, specific requirement to keep records may be considered a "legal requirement" while the more nebulous, imprecise areas of law may be viewed as "legal considerations." The interaction between records managers, lawyers, and others in our organizations will depend upon whether a legal requirement or legal consideration is involved.

LEGAL REQUIREMENTS

Legal requirements are generally quite precise in terms of identifying what the organization must do. The requirement often states a specific retention period or a specific procedure to be followed in order to admit the record into evidence or submit it to a regulator agency. Our main concern then is merely locating the requirement and implementing it into our records and information management programs.

LEGAL CONSIDERATIONS

Legal considerations, on the other hand, involve one or more legal issues which affect a decision related to our records or information. In the area of records retention, legal considerations may include the following:

* How long should we keep

records if the law does not even

require that the record be kept

in the first place?

* How long should we keep

records if the law requires that

we keep them but does not

state a specific retention

period?

* How long do we keep records

which may affect legal actions

during a statute of limitations

period?

The answers to these questions and others require an assessment of the benefits and risks of one approach versus another. What are the likely benefits to an organization if we keep records versus the risk if those records do not exist under some circumstances? What would be the impact in litigation if those records were not available to help us support our claims versus the harm to our organization if those records were subpoenaed and used against us by an adverse party?

In the case of legal requirements, the lawyers can provide specific answers and guidance to the organization. In the case of legal considerations, the lawyer's role is quite different. Because no precise answers are available for legal considerations, the lawyers can only identify the alternative approaches available and the potential legal risks of each. While the lawyers often make the decision on behalf of an organization when a legal requirement is involved, the business managers must normally decide among the alternatives and risks when legal considerations are involved.

RISK IS A BUSINESS DECISION

One of the major responsibilities of an organization's management is to make difficult decisions regarding organizational activities. Should a particular project be initiated this year, next year, or at all? Should we start manufacturing a new product? Should we continue manufacturing an old one? Should we expand our operation through acquisition or sell off unprofitable divisions? …