I think it's correct to say backups are not records, and backups should never be used as a means of retention. (yes I know of organizations that have wanted to use backups for retention.)
Although backups should never appear in retention schedules, the records manager should be aware of the procedures and provide advice when necessary.
I've always been under the impression that if it exists you might be forced to produce it. This is why we always advise constituents to destroy all copies of records including convenience copies and backups.
Sorry, my iPhone won't allow me to delete Jesse's original text.
David F. Lowry, CRM
Manager, Local Government Advisory Services
New York State Archives
9A47, Cultural Education Center
Albany, NY 12230
Phone: (518) 473-9454
Fax: (518) 486-4923
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www.archives.nysed.gov
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________________________________
From: Records Management Program <[log in to unmask]> on behalf of Jesse Wilkins <[log in to unmask]>
Sent: Wednesday, October 26, 2016 5:48:20 PM
To: [log in to unmask]
Subject: Re: Backups are not Records
It is a certainty that backups can be evidence, though the jurisprudence,
at least in the US, the last 15 years or so has moved significantly in the
direction of backups being considered inaccessible absent a specific reason
to make them so (such as operational access to them to recover
inadvertently deleted information). And I am not a lawyer, nor do I work
for the federal or any government. But most organizations keep backups for
the absolute minimum periods required for disaster recovery and business
continuity, or should anyway, meaning that conflating them with records
would seem to open up some very uncomfortable discussions and avenues of
inquiry.
The Oliver North case was an attempt to destroy evidence, so going to the
backup tapes made some sense. Same with many of the email-related landmark
cases like Zubulake and Coleman v. Morgan Stanley. But those involved bad
actors, not the court looking to backups as just another records
repository.
Were I still a consultant, and I still do advise this as an ERM trainer, I
would advise that backups are backups and to be retained as long as needed
to fit their business purpose, and then recycled or destroyed as part of
the normal course of business, legal or other specific holds
notwithstanding.
My .02 on a warm Colorado afternoon,
Jesse Wilkins, CIP, CRM, IGP
Denver, CO
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