Legal Perspectives of Archives and Records Management

Archivists and records engage with their organization’s legal departments for many critical reasons. 

The legal department’s expertise in interpreting and applying relevant laws and regulations ensures that an organization’s records management practices adhere to legal requirements, minimizing legal risks and ensuring compliance. With the growing importance of data privacy laws like GDPR and HIPAA, legal departments provide invaluable guidance on data protection, including retention and disposal policies. Collaboration is crucial in legal proceedings as legal holds may require preservation, necessitating coordination. Additionally, e-discovery, the retrieval of electronic records in litigation, requires legal input to meet court requirements. 

Legal teams assist in developing records retention schedules, align them with regulatory and contractual obligations, reduce legal risks, and improve records management efficiency. A strong records management program aids in making archival labor easier, too. Legal departments foster a culture of compliance and risk mitigation by educating staff on the legal aspects of records management and archiving.

Asking Questions

Archivists and records may ask the following questions to their organization’s legal team regarding records retention:

• What are the legal requirements or industry-specific regulations dictating our organization’s records retention periods?
• How are records classified or categorized within the organization? Are there different retention periods for different types of records?
• Are records that need to be retained indefinitely or for an extended period due to legal, regulatory, or business reasons? If so, which records and what are the reasons for their retention?
• How are records stored and maintained? Are there procedures to ensure their integrity and authenticity over time?
• Are there procedures or protocols for destroying or disposing of records? How are records disposed of when their retention period expires?
• Have there been past instances where records were improperly destroyed or retained for longer than necessary? If so, what steps have been taken to rectify those situations?
• Are there pending or potential legal disputes or investigations that may affect the retention or preservation of certain records? If so, what are the implications for the records retention policy?
• Have there been changes to applicable laws or regulations that may impact the organization’s records retention obligations? If so, what steps have been taken to ensure compliance with these changes?
• Are there records that have been subject to litigation holds or preservation orders? If so, how are these records identified and managed to ensure compliance with legal requirements?
• Are there records that contain sensitive or confidential information? How are these records’ security and privacy ensured during the retention period and when disposed of?
• Are there backup or disaster recovery procedures in place for records? How often are backups performed, and how long are backups retained?
• Are offsite storage or electronic document management systems utilized for records retention? If so, what controls are in place to ensure the accessibility and security of these records?
• Are there internal audits or monitoring processes to assess compliance with the records retention policy? If so, what are the findings of the most recent audits?
• Are there records that may be relevant to ongoing or potential future litigation? If so, what steps are being taken to identify, preserve, and produce these records when required?

Enhancing Goverance

The legal department is pivotal in assisting archivists and records managers with records retention. Their expertise in interpreting and applying relevant laws and regulations ensures that records retention policies are sound and aligned with compliance requirements. Legal teams can help establish clear and defensible retention schedules, considering regulatory obligations and potential legal implications. They guide the retention of records related to contracts, litigation, and compliance matters, helping to mitigate legal risks associated with either retaining records for too long or disposing of them prematurely. By working with the legal department, archivists and records managers can develop comprehensive and legally defensible retention policies that balance compliance and efficient records and archival management, enhancing the organization’s governance.