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
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:
Business planning or policy formulation
Financial decision-making, reporting, analysis
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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