To Keep or Delete? Managing E-mails Within the Law

The explosion of e-mails as part of the everyday operations of the Not for Profit sector (as well as the corporate world) sees different organisations dealing in different ways with this information and its legal significance…so don’t push the ‘delete’ button too quickly or you may be breaking the law!

Is the answer to keep everything electronic? Not according to a recent US study called Legal Obstacles in E-mail Message Destruction – funded by the ARMA International Educational Foundation.

The study shows that there are no simple solutions to this dilemma of managing e-mail to exploit its usefulness while minimising its risk.

And while this is a US based report it uses many examples from Australia, New Zealand and the UK to determine the ‘delete or keep it’ proposition.

It uses the example of the Australia’s National Archives which states that all digital data (ie e-mails) created or received in the conduct of Commonwealth business are Commonwealth records under the Archives Act 1983 and need to be managed in accordance with the Act. Commonwealth Government agencies must manage electronic records with the same care as they manage paper records.

ARMA International Educational Foundation is a Not for Profit research and educational organisation founded in 1997 by ARMA International, a Not for Profit association for records and information management professionals. The foundation funds research projects such as this and other educational opportunities to further promote and develop records and information management.

In recent years, legal precedents in Australia have seen the use of e-mails like any written ‘evidentiary’ documents that need to be kept. As well there are a number of Government Acts that require financial records to be kept…so if they appear in e-mails or are kept electronically they need to be managed.

So what needs to be kept in Australia and for how long?

– Financial records that evidence a transaction – 7 years
– Tax records – 5 years
– Customs records –5 years
– Employment records 7 years
– Occupational Health & Safety records – 7 years
– Evidence of a contract –6 years

Legally organisations should not destroy; (read ‘delete’) records that an organisation knows might be used in litigation. Alternatively organisations should not destroy records that are in their interest to keep!

But how does your organisation manage and maintain all these electronic documents?

The US report says the obvious answer to this dilemma is to devise functional classifications for e-mail, similar to or identical to those of paper or other electronic records, and maintain and purge e-mail based upon this classification scheme.

It says it’s a cheap option because a high percentage of e-mail is purged in short order, while legally or operationally significant items are retained.

Searches to recover desired objects are easier because all retained e-mail is categorised when received or shortly thereafter. Another alternative is paper-based (printout) retention, or maintenance of e-mail as word-processing files.

The report says this option has significant advantages:

– There is no need to create an indexing of filing or indexing systems for e-mail — it is simply incorporated into whatever filing system is already in place, including its retention periods;
– Sophisticated e-mail management software is unneeded; if any records management software is in use, it can be used to manage e-mail in the same manner as other data objects;
– E-mails related to other data objects such as contracts can be physically filed with them (or stored in the same computer directories and folders), making file review and similar activities easier and more complete;
– Little or no specialised training is needed — most e-mail users will be able to print e-mail, or copy to a text file, with little or no additional training.

What a New Year’s resolution! ‘E-mail management’! If you are inspired and you would like an electronic version of the report called Legal Obstacles in E-mail Message Destruction just send us an email with the report title in the subject line to probono@probonoaustralia.com.au.