Following my previous post, “E-mail Use Policies Must Be Meaningful,” it was pointed out to me, quite rightly, that a difficult part of implementing an e-mail use policy is defining what is a “business record.”
In my earlier post, I suggested that a best practice with respect to an e-mail retention policy is to help users decide whether an e-mail must be declared to be a record. I gave an example of having a drop-down menu which asks the user whether the e-mail has any specific attributes. I hope this post sheds some further light on that practice.
What Do I Mean by “Business Record”?
“Business record” is defined differently by different stakeholders for different purposes (isn’t that just like a lawyer to say!). Here are just a few definitions to work with:
  • According to ISO Standard 15489-1, a record is “information created, received, and maintained as evidence and information by an organization or person, in pursuant of legal obligations or in the transaction of business.”
  • According to the Association of Records Managers and Administrators, “records are evidence of what the organization does. They capture its business activities and transactions, such as contract negotiations, business correspondence, personnel files, and financial statements, just to name a few.”
  • According to the Ontario Evidence Act, “'business' includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise:” and “'record’ includes any information that is recorded or stored by means of any device.” In the litigation context, whether a business record is admissible in court as evidence of an act, transaction or event will depend upon whether it was “made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter” (section 35). (I will not digress onto the topic of admissibility of evidence right now, but I cannot promise to stay away from the topic in the future.)
Fundamentally, when designing a records retention policy, for e-mail and other types of documents, it is practical to think broadly of a business record as recorded information that holds some value to the organization. It is the information’s value that turns the information into a business record that the organization will want to retain, use and dispose of when appropriate. Remember, the format (whether e-mail, text message, Word document, voice recording, etc.) or storage mechanism (on a phone, in a filing cabinet, on an e-mail server, etc.) is irrelevant to the question of whether it is a business record. Value is key.
Why Do I Care if an E-mail is a Business Record?
Quite simply, you need to dispose of nonessential e-mails as soon as possible so that they do not make it inefficient to access what is truly important. For example, an e-mail wishing you Happy Holidays is considerably less important to your company than an e-mail in which a contractor agrees to perform services at a specific price. Most litigators can tell you horror stories of having to sift through reams of nonessential information to get at the documents with real value as evidence in a proceeding.
How Do I Know if an E-mail is a Business Record?
Each organization should be able to define a “business record” for its business using value-based criteria. Consider the following value-driven reasons for classifying an e-mail as a business record. A business record in your company might be any recorded information related to any of the following:
  • Operational decision-making
  • Business planning or policy formulation
  • Financial decision-making, reporting, analysis
  • Customer service
  • Human resources activities
  • Compliance with legislation and regulations (such as privacy and tax legislation)
  • Managing other legal risk (such as the requirement to preserve information relevant to ongoing law suit or regulatory investigation. Usually, legal will circulate a “legal hold” memo to tell people when certain information needs to be preserved.)
Most of these criteria should make the list for records in any organization, but unique circumstances should be considered to add to the list. Once the organization identifies the value-based criteria, it is then possible to train employees to identify business records and have IT create a drop-down menu that asks a number of questions about value (such as, Does it relate to a business transaction? Does it contain employment information?). If the answer to each value question created by the organization is NO, then the e-mail should be deleted after being read
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BLOGGER'S NOTE:
If a rock hits you on the head, does it matter if the tree falls without making a noise? The rock will hurt, regardless its origin. And, when you can prove its trajectory, establish from whence it cometh, its - who's who, it is evidence and becomes FACT!
E-mails are a record; their relevance, and "value-based criteria" rhetoric for a court's debate.