Legal Standards for Records and Information Management Programs
Skupsky, Donald S., Records Management Quarterly
Organizations develop records and information management programs to create, maintain, and dispose of records quickly and efficiently. These programs must also comply with a myriad of federal and state statutes, regulations, and rules of evidence, or the organization could be subject to fines, penalties, loss of rights, adverse consequences in litigation, and other legal problems.
In order to ensure compliance, records and information managers or their legal departments must research, analyze and apply these laws to the design and operation of the program. With tens of thousands of laws to consider, this can be an extremely difficult process.
In response to the legal need for consistency for business records, the National Conference of Commissioners on Uniform State Laws has prepared and promoted uniform laws related to evidence and business conduct. To date, the following four uniform laws have gained significant acceptance in the United States:
* The Uniform Rules of Evidence
* The Uniform Photographic Copies of Business and Public Records As Evidence Act
* The Uniform Preservation of Private Business Records Act
* The Uniform Business Records Act
Once the Conference approves a uniform law, the law must be accepted by a jurisdiction before it becomes binding. Because each jurisdiction may accept, reject, or accept the uniform law with modification, the goal of uniformity is rarely achieved.
This process, however, has provided significant advantages to date:
* Rules of evidence related to admissibility of original and duplicate records are now fairly consistent between the state and federal courts.
* Reproduction of records and destruction of originals is now viewed as a standard business practice and accepted in most jurisdictions, unless the law specifically requires maintenance of the original.
These uniform laws have primarily resulted in consistency in the area of duplicate records. The uniform laws, however, have not addressed system requirements for the legal acceptance of original records produced by sophisticated computer technology or new information technology system that will be developed in the future.
Even phrases in the Uniform Rules of Evidence and the Uniform Photographic Copies of Business and Public Records As Evidence Act that permit duplicate records to be produced by any technology that accurately reproduces the original, have created problems. Many lawyers fail to be convinced that technologies such as electronic imaging are included, unless they are specifically enumerated.
THE CANADIAN APPROACH
Instead of uniform laws, Canada has developed a unique and effective approach to the standardization of records and information management systems for purposes of evidence. Canadian rules of evidence specify that reproductions of records may be admitted in place of the original records (even if the original records have been destroyed) if certain procedural safeguards have been met. In particular, the Evidence Acts recognize that reproductions produced under "national standards" improve the accuracy of the reproductions, justifying the destruction of the original records in the "usual and ordinary course of business." The national standards create a quasi-legal standard against which the courts will determine the accuracy of the reproductions and whether they will be admitted into evidence.
In 1993, the Canadian General Standards Board issued a revised National Standard of Canada entitled Microfilm and Electronic Images As Documentary Evidence (CAN/CGSB-72.11-93). This document specifies the standards for producing microfilm and electronic images for admissibility in evidence and the appropriate procedures for the destruction of original records. The document provides extensive detail and recommendations for making an accurate reproduction using either technology. …