Legal and operational definitions of a record

With the widespread use of information management technology--electronic mail, electronic data interchange, electronic imaging systems, computer output laser disk, object linking and embedding, and compound documents--it has become more difficult to determine exactly what is a "record." Traditional definitions of records have emerged from paper-based concepts and have merely been applied to these new technologies.

The ultimate definition of a record may have profound influence on the welfare of an organization. While certain types of records can be introduced into evidence, many others can be subpoenaed by an adverse party in litigation. In an organization's records retention program, records will normally be included in the program to ensure systematic implementation and preclude a judicial finding of improper destruction of records. Finally, from a practical organization perspective, specific forms, versions or information compilations must be recorded at some instance in time to document the decisions and business of the organization.

This article reviews various issues affecting the definition of a record from both legal and operational perspectives. A new concept for a definition of a "record" is also included.

THE COURT DEFINITION OF RECORD

Court rules of evidence have traditionally provided definitions of records for use in judicial proceedings. The Uniform Rules of Evidence(1) does not use the term "records," preferring instead to use the more traditional legal verbiage "writings and recordings":

Article X. Contents of writings, recordings, and photographs. Rule 1001. Definitions.

For purposes of this Article the following definitions are applicable: (1) Writings and recordings. "Writings" and "recordings" consist of letters, words, sounds, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.

This definition would indeed include almost all forms of recorded information used by organizations today. However, while a record of an organization may meet the definition stated above, it may still not be admissible in evidence. Only a record that qualifies as "business record" is generally viewed by the courts as presumptively trustworthy in determining its admissibility into evidence to prove the truth of its contents.(2)

Business records are generally considered "hearsay."(3) While hearsay is normally inadmissible in evidence, records which meet the definition of business records are admissible, notwithstanding that they are hearsay. The Business Records Exception to the Hearsay Rule sets forth the definition for business records, which serves as the starting point for any judicial inquiry into the status of a business record.

From a judicial standpoint, a record or data compilation must have four qualities in order to qualify as a business record:(4)

* It must be made at or near the time of the event that it records.

* It must be made by or from information transmitted by a person with knowledge of the event.

* It must be made in the course of a regularly conducted business activity.

* It must have been the regular practice of that business activity to make the document or data compilation.

The courts have insisted on this type of formula to ensure that records have achieved a sufficient level of quality and reliability to be introduced into evidence:

[Business] records must be kept pursuant to some routine procedure designed to assure their accuracy,...they must be created for motives that would tend to assure accuracy...and they must not themselves be mere accumulations of hearsay or uninformed opinion.

A business record is recognized as an exception to the hearsay rule because it is made in the regular course of business and therefore possesses certain "hallmarks of authenticity."

The basic theory is that records which are properly shown to have been kept as required normally possess a circumstantial probability of trustworthiness, and therefore ought to be received in evidence unless the trial court, after examining them and hearing the manner of their preparation explained, entertains serious doubt as to whether they are dependable or worthy of confidence.(5)

The courts also recognize that certain records such as public documents, treatises, historical documents, statements for purposes of medical diagnosis or treatment, recorded recollection or statements against interest also have such high probability of accuracy that they will also be admitted as exceptions to the hearsay rule.

Finally, the courts recognize the trustworthiness of records when the records of one party in litigation are admitted into evidence by the other party. This normally occurs when the records have been subpoenaed by the other party and admitted as an "admission by a party opponent." Due to the high weight that a court places on the probability that a party will be truthful in its own records or should be held accountable if it records untruthful statements, the courts will not even view such an admission as hearsay:

A statement is not hearsay if-

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Admission by party opponent. The statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity, or (B) a statement of which he has manifested his adoption or belief in its truth, or (C) a statement by a person authorized by him to make a statement concerning the subject, or (D) a statement by his agent or servant concerning the matter within the scope of his agency or employment, made during the existence of the relationship, or (E) a statement made by a co-conspirator of a party during the course and in furtherance of the conspiracy.(6)

Courts will define any type of recorded information to be a record. A party may introduce certain records into evidence if it is a business record and exhibits the requisite trustworthiness. However, one party can always introduce records of the other party, regardless of form or technology, without having to prove trustworthiness.

OPERATIONAL DEFINITIONS OF RECORDS

Record

The Federal Records Act(7) defines government records as follows:

[A]ll books, papers, maps, photographs, machine readable [i.e., electronic] materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency...as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them...

Federal records may be in any physical form or exhibit any characteristics if they were created or received "under federal law or in connection with the transaction of public business." The records must therefore be preserved if they incorporate "evidence of the organization, functions, policies, decisions, procedures, operations, or other activities...." Under federal law, records that fall under this definition can only be destroyed under guidelines approved by the National Archives and Records Administration.

In a recent court decision, Armstrong v. The Executive Office of the President,(8) the court indicated that in the absence of a rational policy otherwise classifying electronic mail in the Executive Office of the President, records of all the electronic mail records fell under the Federal Records Act. The mere assertion by the government that E-mail was a non-record did not prevail without a specific policy defining the status of E-mail. The key point derived from this case is that the courts will view electronic mail records as records under the Federal Records Act and expect that the same standards of preservation, including a records retention policy approved by the National Archives and Records Administration, be established.

"Record" can also be defined by practical definitions developed by the records and information management industry. ARMA International defines a record as:

Recorded information, regardless of medium or characteristics.(9)

The Association for Information and Image Management (AIIM) defines a record as:

Information preserved by any technique in any medium, now known, or later developed, that can be recognized by ordinary human sensory capabilities either directly or with the aid of technology.(10)

ARMA and AIIM definitions include as a record all forms of recorded information, regardless of the technology used to produce the record. The issue becomes more complicated, however, when one considers the issues of "official records," "unofficial records," and "non-records."

Official Record

"Official record" reflects the final, official recorded position of an organization related to the specific content of the record. ARMA International defines an official record as: "A record which is legally recognized or as establishing some fact."(11) Official records reflect the intent of the organization. These records reflect the information or position the organization believes is true and complete, relies upon to conduct its affairs, and hopes others will also rely upon.

From a court perspective, organizations will likely attempt to introduce official records as "business records" under the Rules of Evidence. Official records must therefore be subject to rigorous procedures for creation, modification and destruction under a records management or records retention program.(12)

Unofficial Record

Official records can be distinguished from drafts, work-in-progress, handwritten notes, copies of records, word processing, electronic records used to create official signed documents, unsigned letters and other material that is either in a preliminary state of development or has not yet been authorized or approved by an appropriate person. These unofficial records do not yet reflect the official position of the organization or remain subject to change before completion.

In one court case S.C. Johnson & Son, Inc. v. Louisville & Nashville Railroad Co.,(13) the court in essence recognized handwritten notes as unofficial records when the information was later incorporated into a typed memorandum (the official record). The court did not believe that the destruction of these notes, even though not done under a records retention policy, represented bad faith, due to the lack of importance of the notes versus the importance of the final, typed document.

Even though unofficial records need not be subject to the same rigorous procedures as official records, they should still be covered by a general records retention policy. A policy could merely state that unofficial records may be destroyed when superseded, when the information has been transcribed to another record or when no longer useful. In any event, the unofficial record should not be retained longer than the official version.

Non-Record Material

"Non-record material" consists of library materials, printed publications, commercially-available computer software, blank forms and other material generally available to the public that does not reflect the recorded position of an organization.

The Federal Records Act also defines non-record material to include:

...Library and museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and processed documents...(14)

ARMA International defines non-record material as:

...Records not usually included within the scope of official records, e.g., administrative record, convenience file, day file, reference material, publications, etc.(15)

Both definitions unfortunately include copies of records as non-record material rather than unofficial records. Because of litigation, these copies should be treated like unofficial records.

Since other forms of non-record materials are not records, they will not be subject to the same scrutiny as official or even unofficial records. Typically, non-record material will be created, modified and destroyed without formal procedures and will not be included in a records retention program.

THE INTENT TO MAKE A RECORD

The difference between the definition of record, official record and unofficial record relates primarily to the intent of the party. The judicial and industry definitions of "record" focus on the mere fact that the information has been recorded. For this reason, any recorded information including electronic mail, voice mail, notes, etc., will fall under the definition.

This result creates a serious problem when applied to modern information technology systems. Organizations now utilize electronic mail to facilitate communication between employees and between employees and the outside world. Electronic mail is often used as a replacement for face-to-face conversations, meetings and telephone calls. For the most part, it is merely a tool to facilitate communication rather than "an official record of the organization." However, because electronic mail operates within a computer system, the communications will be recorded and, thus, will be deemed to be a "record" under traditional definitions.

Many parties do not intend E-mail communications to be a record of official organization business. In fact, they may not even consider that the communications are recorded.

While the judicial and industry definitions would treat electronic mail as a record, the parties treat electronic mail as a non-record. The intentions of the E-mail users probably reflect reality more closely than the definitions. If all verbal communications were to be construed by an organization as records of organization business, then the organization would have to put recording devices into its offices, conference rooms, and telephone systems to record all of the conversations addressing organization business.

But, most organizations recognize that the quality of telephone and other live conversations does not completely or accurately reflect organization business. Further, most organizations do not want to intrude on the privacy of their employees. Intrusions on employee privacy would also reduce or eliminate the use of electronic mail and reduce the efficiency potentially gained by the use of the technology.

Similarly, drafts of documents produced on word processing systems would meet the court and industry definition of a record and, yet, would be viewed as a non-record by the author. Word processing drafts are subject to multiple revisions before they are finally printed, signed and distributed.

To demonstrate the intent of the author, we have traditionally signed paper documents and distributed them in original form. With computer technology, we are currently developing signature encryption technology similarly to validate an electronic transmission with the unique mark or identification of an individual. Other electronic records can be given this stamp of "intent" through the assignment of record codes, retention codes, or other designators to indicate that they are to be construed as official records and not mere E-mail communications.

A NEW DEFINITION OF A RECORD

Due to the special issues of records in litigation and diversity of information technology systems, it may never be possible to develop a universal definition that will meet the needs of both courts and the records and information management industry. In fact, it might even be best that the records and information management industry stop using the term "record" altogether.

From a court perspective, records will continue to be any recorded information. However, even the courts will give greater credibility to official records as opposed to unofficial records. Official records reflect the intent of the party to establish the official position of the organization and to record organization business. Unofficial records merely represent recorded information without any particular intent on the part of the author. It may even be possible to conclude that when court decisions address "records" and "business records," they are really referring to "official records" as defined, in particular, by ARMA International.

From a records and information management industry perspective, the use of the term "official record" instead of the word "record" may also be more meaningful. Official records must be included under a records retention program. For operational reasons, official records may be microfilmed or scanned into electronic imaging systems and maintained for long periods of time due to their enduring value. Organizations will only maintain unofficial records for short periods of time and normally should not incur the costs of maintaining them using expensive technology.

Both the courts and industry could therefore benefit by precisely referring to "official record" or "unofficial record," rather than using the term "record" alone. This would indicate the intent of the parties and the quality of the information. But this would require changes in many national definitions and reorientation of much of the population.

If the term "record" continues to be used, the following definition might be considered:

Record. The result of recording or preserving information on any media with the intent to preserve information that reflects the position or business of an organization.

This definition reflects the essence of the court and industry definitions that records include any media. It adds the concept of "official record" by indicating that it was the intent of the party "to preserve information that reflects the position or business of an organization."

From a court perspective, recorded information (regardless of intent) found in one party's office may still be offered into evidence by either party. The importance the court may place on that information, however, may be affected by whether the creating party can show that the recorded information was official or unofficial--whether or not it reflects the official position and business of the organization. The systematic implementation of the suggested definition may support the credibility of official records and discredit the importance of unofficial records.

This definition would remain effective even as we evolve into information technology systems in the future. With pieces of information located within networks and different computers, the record becomes that information which the author intended to preserve to reflect the position or business of the organization as evidenced by some formal procedures.

SUMMARY

Authors may often not intend that recorded information reflect the official business or position of the organization. The act of recording information sometimes serves merely as a tool to prepare the final, official record. Even before the advent of computer technology, authors prepared notes, written drafts and revised their typewritten documents prior to selecting (with intent) one final version for distribution. A modern definition of a record must incorporate a similar concept of "intent to record the position or business of the organization" to be useful.

REFERENCES

1. The Uniform Rules of Evidence, adopted by the United States federal government as the Federal Rules of Evidence, have been accepted by the federal courts and 36 states.

2. See, Law Records and Information Management: The Court Cases, Information Requirements Clearinghouse, Denver, CO, p. 16-28.

3. "Hearsay" is a statement other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Uniform Rules of Evidence, Rule 801.

4. Derived from Uniform Rules of Evidence, Rule 803(6).

5. Monarch Federal Savings and Loans Assn. v. Genser, 383 A.2d 475, 480 (N.J.Super. 1977) (quoting *Mahoney v. Minsky, 188 A.2d 166, 218 (1963)) as quoted in Law, Records and Information Management, id.

6. Federal Rules of Evidence, Rule 801(d)(2).

7. 44 U.S.C. 3301.

8. Armstrong v. Executive Office of the President, 1 F.3d 127 (D.C.C. 1993) as quoted in Law, Records and Information Management, p. 25.

9. Glossary of Records Management Terms, ARMA International.

10. Performance Guideline for the Legal Acceptance of Records Produced by Information Technology Systems, ANSI/AIIM TR31, 1993.

11. Glossary of Records Management Terms.

12. Law, Records and Information Management, p. 18.

13. S.C. Johnson & Son, Inc. v. Louisville & Nashville Railroad Co., 695 F.2d 253 (7th.Cir. 1982) as quoted in Law Records and Information Management, p. 18.

14. 44 U.S.C. 3301.

15. Glossary of Records Management Terms.

Copyright Association of Records Managers and Administrators Inc. Jan 1995
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