Legal 101 for RIM professionals: understanding the basics will guide RIM professionals in developing policies that adhere to the law and will protect companies in the event of legal action.

• Author: Cogar, Rae N.

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What exactly is "the law" and how does it affect the creation, maintenance, use, and disposition of business records? An understanding of these basics--how the U.S. legal system works; how "the law" by way of statutes, acts, and case law, can affect how records are used and maintained; and how to conduct legal research to ensure that retention schedules meet their legal and regulatory requirements--is essential to the development of legally acceptable, compliant records and information management (RIM) programs.

Fundamental to understanding the legal system is a working knowledge of commonly used terms. The sidebar "Legal Terms RIM Professionals Should Know" provides definitions of those terms used in this article, but free online legal dictionaries are also available, such as at http://dictionary.law.com/or at www.duhaime.org/dictionary/dict-l.aspx. Keep in mind that some of the terms provided may have both a state and a federal component and that the examples and references given may be federal only. It is important to understand the difference between the state and federal requirement and which may apply in a particular case.

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Conducting Legal Research

The first step in determining legal retention requirements is to conduct legal research. As a general rule, the vast majority of all business records created by a company have no legal or regulatory retention requirement. Companies in highly regulated industries, such as pharmaceuticals or financial services, may have slightly more records that do. The first step in conducting legal research is to determine if the records fall under an authoritative entity, usually a government or regulatory agency (federal, state, or local). Records may not have a federal requirement but may have a state or local requirement, so it is imperative to check all sources.

State and Industry-Specific Requirements

Uniform rules, which help to standardize laws and procedures, are a good starting point for researching applicable state laws. These rules are established in the United States by The National Conference of Commissioners on Uniform State Laws (NCCUSL) www.nccusl.org/Update/DesktopDefault.aspx?tabindex =2&tabid=60, a non-profit, unincorporated association comprising state commissions on uniform laws from each state, the District of Columbia, the Commonwealth of Puerto Rico, and the U.S. Virgin Islands.

When adopted by the NCCUSL, uniform rules are provided as model acts or laws that states can either adopt as written or revise and adopt. Just because an act is adopted by the NCCUSL does not make it law in any jurisdiction until it has been adopted by that jurisdiction's legislative authority. Some of the laws or acts most familiar to the RIM community are the Uniform Commercial Code (UCC), the Uniform Electronic Transactions Act (UETA), and the Photographic Copies as Evidence Act.

Uniform rules differ from those promulgated by federal legislation. For instance, there are Uniform Rules of Evidence, which apply to proceedings in state courts, while the Federal Rules of Evidence apply to proceedings in federal courts. While many of the rules are virtually the same, as the Uniform Rules of Evidence closely follow the Federal Rules, there are some differences. There are some states that have not adopted the Uniform Rules of Evidence and have other evidentiary rules in place; these can be found by researching the state code, statutes, or administrative rules. The best method to determine what rules apply to your state--or states--is to request that information from in-house counsel.

Free Research Resources

Some recommended free resources available to assist in legal research include:

* National Archives and Records Administration (NARA) at www.archives.gov provides links to statutes and regulations regarding federal records.

* Code of Federal Regulations and U.S. Code at www.gpoaccess.gov/nara/index.html

* Cornell University Law School at www.law.cornell.edu provides similar information as the gpoaccess site, except that many times the information is more current than the official government site.

Service providers and software products to assist in legal research can be found by using the term "records retention" for searching the web or the ARMA International online bookstore at www.arma.org/bookstore.

Using these resources is only the first step in legal research. In reading many of the citations, the reader may be referred to other sections and citations. All citations must be reviewed for pertinence to a particular record or series. For instance, there are specific federal aviation requirements that govern aircraft, both commercial and private. Some of the requirements do not apply to small, non-commercial, corporate-type aircraft, but a thorough reading of the statute must be done to determine which do apply.

When Retention is Not Specified

Even with research tools, legal research for records retention is time-consuming. Unfortunately, many federal and state regulations do not indicate the specific time periods for which records must be retained. Does this mean the records must be retained forever? The simple answer is no. One factor for determining an appropriate retention period for federal records is to reference The Federal Paperwork Reduction Act at www.archives.gov/federalregister/laws/paperwork_reduction/ 3503.html. Section 3507(g) states: "The Director may not approve a collection of information for a period in excess of 3 years." As a defacto practice, using a three-year retention period should satisfy the requirements of the agency if the federal agency fails to identify the retention period. This, however, is a situation that must be reviewed by legal counsel and the business owner.

Retention periods should not be created to meet "what ifs" and "maybes," especially when the agency provides no more guidance than "the records must be retained."...