Legal Research for Records Managers
Montana, John, Records Management Quarterly
Authorities and writers often urge that information managers utilize adequate legal research, both for everyday management activities, and for the development and implementation of retention schedules. Unfortunately, the organization's lawyers may not be interested in doing the research, may have other priorities, or may not be skilled in this type of research. Thus, for many records managers, the reality is that complying with this advice means doing that research oneself.
For the nonlawyer, this can be a seemingly hopeless task. Law libraries contain thousands of apparently identical volumes; the organization of this material makes little obvious sense, and the sheer volume of material to be searched is immense - the Code of Federal Regulations (CFR) is over 250 volumes (each 500-700 pages in length), the Federal Register, 65,000 to 70,000 pages every year. There are, in addition, the United States Code (USC); statutes and regulations for all fifty states, five territories, and the Indian nations; court cases from federal and state courts; administrative decisions; revenue rulings and procedures; no-action letters; and a variety of other miscellaneous materials.
Plowing through this mass for that minute fraction one is interested in at the moment requires knowledge of its structure, an understanding of where relevant material is likely to be found, and knowledge of how it is indexed. This column will set forth the basics of the research process.
THE STRUCTURE OF THE LAW
Most law applicable to business activities comes from three basic sources - the legislature, the courts and administrative agencies such as Internal Revenue Service (I.R.S.), Occupational Safety and Health Administration (O.S.H.A.), etc. Each of these three sources has counterparts on both the federal and state level - the federal legislature is Congress, and, of course, each state, territory or Indian nation has an assembly or legislature. Similarly, there are federal courts, dealing with questions of federal law, and state, territorial and tribal courts, each dealing with legal disputes arising within its territorial or subject matter jurisdiction. Finally, there are federal and state regulatory agencies, which administer the technical administration of tax schemes, workplace rules, or other legal matters which require relatively detailed rules for adequate oversight.
TYPES OF LAW
Legislatures produce laws called statutes, adopted after public debate and a vote. Statutes are organized and numbered and placed in a set of volumes such as "Code of the United States" or "Colorado Revised Statutes" or the like. These are the preeminent law for most purposes. Courts look to the statutes of the jurisdiction in deciding a question, and are usually bound by them, although they do have some discretion in construing vague or conflicting statutes. A court may only overrule a statute when the court concludes that it is unconstitutional. Even in this case, however, the legislature can assert its supremacy by rewriting the statute so as to address any constitutional infirmity, and thereby overrule the courts. So long as a statute is written in a constitutionally permissible fashion the courts are bound to follow its mandate. In addition, court decisions can be overruled (prospectively) by statute.
Regulatory agencies such as the I.R.S. produce laws called regulations, administrative regulations, or rules. Rules and regulations are usually, but not always, codified in a fashion similar to that of statutes (e.g., "Nevada Administrative Code"). Regulations are of great interest to records managers, because they contain detailed requirements which businesses are required to follow, commonly including record-keeping and records retention requirements. In contrast to statutes, regulations are adopted without debate or public vote. Instead, the agency is required to notify the public of its intent to make rules in an area, allow the public to comment on the proposed rules, and then consider those comments prior to adopting the final rule. …