Legal compliance activities of any type, whether performed by a lawyer, corporate officer or employee or private citizen are subject to rules, standards, ethical considerations, and, if necessary, penalties to ensure that they are performed appropriately. As a general proposition, these rules and considerations demand that performance of legal activities and duties be in good faith, and that the performer make reasonable efforts to ensure that compliance is reasonably complete. However, this general consideration has specific meanings-and failure, specific outcomes-in specific contexts. This article looks at those duties in the records management context.
RECORDS MANAGEMENT AND THE LAW
It is often said that records management is a law-related activity. A number of activities performed by records management personnel support this truism:
compliance with the many regulatory requirements for records creation and retention;
analysis and decision making concerning legal risk and exposure resulting from records management and retention decisions;
support for the legal department and outside counsel during administrative investigations and audit;
support for the legal department and outside counsel during litigation, including document production for opponents.
Each of these activities has a direct legal aspect and direct legal consequences. Personnel performing them are thus necessarily burdened with whatever additional duties and considerations this entails.
DO WE REALLY CARE ABOUT ETHICS?
The ethical considerations of records management activities should not be discounted. Consider the recent example of the Bureau of Indian Affairs (BIA). This agency is alleged to have lost enormous sums of money held in trust for various Indian tribes due to sloppy and antiquated records management practices. Because the money was being held in trust for others, the agency is likely to find that its liability is quite high if, as is likely, the matter ends up in court-fiduciaries are held very strictly accountable for their management of trust money. In addition, however, many persons, both Indian and non-Indian, are likely to regard such practices as an ethical breach, resulting in erosion in the public's confidence in the agency and in government generally.
Consider also the allegations which have come to light recently in the ongoing tobacco litigation. Tobacco companies are alleged to have destroyed or concealed numerous important documents from their opponents and the government. The unethical tone of the actions alleged has proven very damaging to the reputations of the tobacco companies and their executives, and will undoubtedly undermine their position in the ongoing litigation and settlement talks.
RECORDS CREATION AND RETENTION
The legal duties imposed upon records management are most obvious when considering recordkeeping statutes and regulations. The law places an obligation to create and maintain information on a wide variety of individuals and organizations, in an equally wide variety of contexts.
Part and parcel of these duties is the duty placed upon any citizen to know that the law exists, and what its requirements are. The old saw states "ignorance of the law is no defense," and as concerns records required under regulatory schemes, this is quite true, even if criminal penalties are involved. Contrary to many other situations where intent to commit a proscribed act is required in order to punish the offender, legislatures and courts view failure to keep required records as a strict liability offense-that is, intent not to keep records, knowledge that records are inadequate, or lack of knowledge about prescribed conduct are not required for a violation to occur. Mere negligence or even completely innocent failure to do what is required is alone sufficient to justify punishment.
Such statutes are usually enacted and sustained on grounds of necessity, primarily where the regulatory purposes of the statute would be frustrated by requiring the prosecutor to prove the actor's state of mind. …