Law and Records Management: Toward a Greater Professionalism
Records management already encompasses a diverse group of concerns including forms design, filing systems, inactive storage, microfilm, and records retention. Particularly in recent years, legal requirements for records have added yet another factor to consider when designing and operating records management programs.
The legal concerns primarily address two major areas:
. Protection during legal actions:
ensuring that records
covered by litigation, government
investigation or audit are
adequately protected and available
during the necessary period,
and that all copies of
records that should be destroyed
under an approved
records retention program
have, in fact, been destroyed.
. Legal compliance: ensuring
that records are created and
maintained according to the
requirements specified by law.
Legal counsel is normally responsible for researching and applying these legal requirements to their organization's records. But since many do not have the time nor the interest to do this work, the responsibility often falls on the shoulders of records managers. Understandably, some records managers are initially reluctant to embrace this task because they do not have the experience, expertise, nor confidence to deal with the multitude of complex and confusing legal requirements.
Records managers should instead welcome the opportunity to be more responsible for the legal requirements related to their organization's records. Clearly, records managers cannot make the final decisions related to the application of legal requirements--qualified legal counsel should review the work prior to implementation. On the other hand, records managers can perform most legal tasks in this area and, in the process, achieve greater professional status--hopefully with a commensurate salary.
Traditionally, records managers have turned to their legal counsel for determination of the legal requirements and advice on legal issues related to records. In recent times, some legal counsel are turning to records managers for help in fulfilling their own responsibilities. A synergistic relationship has always existed between law and records management--it has only recently been rediscovered.
RECORDS MANAGEMENT AND LEGAL ACTIONS
In modern litigation, many matters are proven through records. Sometimes these records are helpful while other times they are harmful. Records can either be used by the creating organization to defend its position or subpoenaed by an adverse party to support its position.
Whenever records are needed in litigation, the records manager will need to locate them. By developing effective filing systems, records can be found quickly when needed. These records must then be preserved for the entire period the legal action is pending. A properly designed microfilm system will also ensure that microfilm will be admitted into evidence to support the organization's position, even when the original records have been destroyed.
Similarly, when records are subpoenaed by adverse parties, the records manager is responsible for locating and producing them. When subpoenaed records have been properly destroyed, prior to litigation, under an approved records retention program, records managers may be asked to produce documentation or even testify regarding the procedures followed when destroying those records. However, if records were selectively retained even when permitted by the records retention program or improperly destroyed even prior to litigation, the organization could face adverse consequences.(1) The records manager ensures that records that should exist within the organization do, in fact, exist and that records that should be destroyed under the records retention program have, in fact, been destroyed. …