Design of A Records Retention Program

Development of a sound and legally defensible records retention program requires extensive research and analysis of several data sets and strategic considerations:

The organization's current records system must be evaluated and inventoried in order to determine what records and information are being created and maintained, on what media and at what locations.

Prior to development of a retention schedule, this information must be reworked and rationalized in order to eliminate such things as multiple titles for the same record type, variant spellings for the same record title and similar redundant or confusing information.

When record titles have been determined, development commences on record series or records groups that organize individual titles into groups of similar titles that will be treated identically for records retention purposes. Grouping is done according to two criteria:

• The similarity of purpose or similarity of use of the information contained on each record; and;
• The legal and regulatory requirements affecting each record.

Concurrently with the above efforts, legal research is commenced in order to determine legal authorities that will determine the legal treatment of the records and record series. The research yields a number of different authorities:

• Statutes and administrative regulations directly requiring some duty with respect to records retention;
• Statutes of limitation and repose, which help define the scope of risk for any activity or choice of options;
• Case decisions, which examine the real-life outcomes of the parties’ actions;
• Persuasive authority such as SEC no-action letters and IRS revenue procedures, which define the government’s position on an activities.

These authorities in total serve to define the legal terrain on which records retention decisions will be made.

The interaction of the research with the records analysis gives rise to several subsequent activities:

• A given record series is often governed by the provisions of more than one law. In such cases, the research is then itself grouped, with laws governing similar records in the same group. The group is then analyzed, and a retention period and retention treatment chosen which accounts for the requirements of all laws in the group.
• Groups of laws, and their associated conclusions, are then assigned to record series, and the conclusions applied to all records in the series.

The result of this multi-faceted and detailed approach is a schedule that reduces by a very large factor the number of individual items to be scheduled. Hundreds or thousands of individual titles are typically reduced to 50-200 in a series and one or two thousand laws or more are typically reduced to 50 or less groups of laws. The schedule is both short and easy to use, and legally very sound. Detailed listings of individual record titles, records by department and other information can be supplied on additional reports, without making the basic schedule unnecessarily long.

Our legal research is developed from a variety of sources. We maintain and continually develop in-house legal resources of both federal and state requirements, acquired through a wide variety of sources ranging from traditional library searches to CD-ROM databases to the internet to our wide range of contacts in industry and government. This database is very complete and highly refined. However, should our clients require additional research, we are highly experienced research staff specializing in information and records law, and we can quickly and effectively complete any additional research that may be required.