There’s some play around the edges where you can declare something a record
or non-record, so the assertion is not per se wrong. Past a certain point,
however, it is untenable, so you have to be careful about how you do it. For
some information, it would be an outright violation of law – some statute
requires you to keep it, and that makes it a record, regardless of your
unilateral declaration otherwise. For other information, it would be
unreasonable -- going into an audit or lawsuit and telling the other party
you don’t have it because you declared it a non-record and destroyed it
would violate a rule of reason, and smell mightily of spoliation. You could
declare maintenance orders for say, changing light bulbs in your office to
be non-records or transitory records, but next time the EEOC investigates
your company, try telling them that your payroll registers are non-records
so you got rid of them all, and see what they think about the theory.
John Montaña
General Counsel
Cunningham & Montaña, Inc.
29 Parsons Road
Landenberg PA 19350
610-255-1588
610-255-1558 fax
484-832-3260 mobile
-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]] On Behalf
Of Allen, Doug
Sent: Thursday, January 26, 2006 7:47 PM
To: [log in to unmask]
Subject: Re: What is a record?
I would wish the attorney well in his/her next career. Unfortunately,
attorneys don't get to define what is and what is not a record based upon
their own declaration. There is significant case law precedent regarding
this..... and, as I recall there once was a White House that claimed that
emails were not records. As I recall, the courts didn't quite see things
that way.
Douglas P Allen
-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]] On Behalf
Of Nolene Sherman
Sent: Thursday, January 26, 2006 6:38 PM
To: [log in to unmask]
Subject: What is a record?
According to the "Glossary of Records and Information Management Terms"
a Record is "Recorded information, regardless of medium or
characteristics, made or received by an organization that is evidence of
its operation, and has value requiring its retention for a specific
period of time."
One of the attorneys posited that a business record is what the company
says is a record ... that a company can unilaterally say that XYZ is not
a record (or is a non-record, or a transitory record), and therefore has
no obligation to retain. Does this fly from a litigation standpoint?
From a regulatory standpoint?
Nolene Sherman
Director of Records Management
Standard Pacific Homes
(949) 789-1668
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