The Mythical Laws and Their Effect on Records Management Programs
Skupsky, Donald S., ARMA Records Management Quarterly
Everyone knows a law when they see one--the law is the law! Or, is it? Maybe what you think is the law, is really not the law! Perhaps, your legal counsel is advising your organization to follow a mythical law--a non-legally binding advisory opinion.
Your organization is responsible for complying with the relevant legal requirements (statutes and regulations) that affect your records. Failure to comply with the law could result in fines, penalties, loss of rights, and other adverse legal consequences.
Your organization will probably examine legal considerations--laws that may effect legal decisions but are not legal requirements--when developing records programs. Legal considerations include statutes of limitation for written contracts that state the period you can sue or be sued. The records retention decision involves the assessment of risks and potential costs for not keeping records long enough versus keeping them too long.
But some statements prepared by regulatory agencies may not be laws. Although advisory opinions, rulings, recommended practices, and no-action letters appear to be laws, they actually represent the non-legally binding opinions of regulatory agencies. These opinions do place you on notice regarding the types of practices approved by the agencies. But, they are not legally enforceable.
Most legal counsels accept these advisory opinions in the same way they accept legal requirements because they view it as the "safe" approach. Unfortunately, by continuing your current, "safe" records system, you may be incurring greater costs and inefficiencies, and even more legal risk. A new records system--one that does not conform to advisory opinions--may offer significant benefits and less legal risk.
TYPES OF LAWS
The types of actions that can be taken by regulatory agencies fall into the following classifications:
RULES AND REGULATIONS. These are statements by an agency of general or particular applicability which are designed to implement, interpret or prescribe law and policy. Properly promulgated rules and regulations have the same effect as statutes.
ORDERS. the final dispositions of agency matters requiring agency approval and are generally binding on only the specified party.
LICENSES. These include special orders such as permits, certificates, or other types of orders that grant permission or establish conditions, and are generally binding on only the specified party.
ADVISORY OPINIONS. These contain advice regarding matters under control of the agency. They are not binding and serve only as authoritative interpretations of statutes and regulations.
ADMINISTRATIVE DECISIONS. These are the final determinations of agencies authorized by law to adjudicate controversies arising out of violation or interpretation of statutes, regulations or rules. This function is performed by special Boards of Review, Hearing Examiners, and other officers through administrative decisions. Rules and regulations have the same effect as law. Failure to comply with rules or regulations could result in fines, penalties or imprisonment.
Orders, licenses and administrative decisions have the effect of law for the individual parties affected. In the case of orders, the parties affected must follow the terms specified by the agency. Orders, licenses and administrative decisions also place the public on notice of the agency's position for similar matters.
Advisory opinions differ from the other actions of agencies because advisory opinions do not have the power of law. They merely inform the public regarding an agency's position on a certain matter. Your organization can follow the advisory opinion confidently, knowing that adverse consequences will not result.
Your organization can still proceed contrary to the advisory opinion without violating the law--although, the agency might raise some concern at a later date. An organization that establishes a recordkeeping system, for example, that is contrary to an agency's advisory opinion is not immediately subject to fines, penalties or other legal consequence. …