Archiving Historical Documents for Private Associations

Employee Manuals and Mandatory Arbitration
August 28, 2019
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Archiving Historical Documents for Private Associations

Archiving Historical Documents for Associations and Private Clubs[1] 

By Fred L. Somers, Jr., P.C.[2]

 

We are often asked to assist with or recommend the revision or amendment of governance documents, e.g., articles or certificates of incorporation, bylaws, LLC operating agreements policies and rules and regulations. A threshold question sometimes arises over what did the to be revised document(s) contain when members joined in a previous year(s). There is often a need to know because of potential claims of vested or other rights derived from a now superseded document.

 

Other historical documents come into play when addressing changes in governing documents. What do or did the prior and existing membership applications and enrollment agreements recite that may be at variance with the current governance documents? Are there membership certificates extant that were issued in prior years? Have these certificates, applications and enrollment agreements changed from year to year? Was there a written membership plan ever published and incorporated by reference into the governance documents, certificates, applications or enrollment agreements? If “yes” has the membership plan been formally rescinded? Is “yes” is the rescission effective as to not only existing members but members who resigned before the rescission?

 

When requesting historical documents from clients for review and evaluation during a due diligence prelude to making recommendations, the response is often something like “I can’t find it” or “I didn’t find it for 2006 but here is one from 2009”. Or worse, “we don’t seem to have kept that document”.

 

These kinds of responses we find are all too common among nonprofit associations and clubs. No one seems to be charged with the orderly and systematic file naming and archiving of important historical documents for later retrieval. The time wasted in the sometimes futile search for a particular record is inestimable but likely in the thousands of dollars per year even for a small organization.


Carefully preserving now superseded or dated governance and other important institutional documents in an organized and digitized archive is essential. It is a solution to enable efficient access to materials that can no longer be accessed in their original format or difficult to find in hard copy or the normal file format. An archive is a place where authorized people can go to gather firsthand facts, data, and evidence from letters, reports, notes, memos, photographs, and other primary sources.[3]

 

But what steps are necessary to use to enhance their retrieval?

 

In 2014, The National Archives[1]published a Strategy for Digitizing Archival Materials 2015-2024.[4] It is instructive and has useful guidance for private entities. However, a significant difference exists between one of the National Archives’ primary purposes and that of private entities. The National Archives is meant to facilitate public access. In contrast, private entities be they for-profit or nonprofit normally do not desire public access to many if not all of their important documents, especially given privacy laws and regulations. Private entities need to limit access to those persons with a need to know and who are either authorized for access by the entity or armed with legal process.

 

This difference in purpose leads to the need to ensure access to the archives of associations and clubs is limited to those persons with a need to know and only to others when supported by lawful subpoena or other legal process. Persons with a need to know might include the CEO, COO, Controller, legal counsel and independent auditors. If the access is requested based on a civil subpoena, the entity’s legal counsel should be consulted before turning over the requested information and documents.     

 

The National Archives uses a process for identifying and sequestering digitized material for archiving. It includes the following:

 

  • Document identification and selection;
  • Document preparation (including preservation, access review and screening, locating, pulling, and refiling);
  • Basic descriptive and technical metadata collection sufficient to allow retrieval and management of the digital copies and to provide basic contextual information for the user;
  • Safety of the material digitized;
  • Digital conversion [conversion];
  • Quality control of digital copies and metadata;
  • Providing access to the material via online delivery [if desired];
  • Reviewing the existing IT infrastructure to ensure that it can sustain long term growth, storage, and preservation of digital copies and metadata; and
  • Utilizing a management system that ensures the authenticity, reliability, usability and integrity of the digital copies.

 

Document identification has always been a pet peeve of ours even when working with in house associates.  People think differently when it comes to identifying and indexing documents. To avoid archiving documents that are not easily identifiable and retrievable, recourse is available, e.g., to Best Practices for File Naming.[5] This resource aptly recites: “Adopting good file naming conventions can help ensure that files will work with different operating systems and disk formats . . . .”

 

The Society of American Archivists maintains a standards portal[6] which should be consulted before undertaking the digitalization of documents for archiving. It contains a myriad of reference materials relating to the storage of archived documents and protocols.

 

One approach in establishing and organizing a digitalized archive is to hire an archivist consultant. The Society of American Archivists has a directory of these consultants.[7]  They can assist with project scope assessment, recommendations for arrangement and description; budgeting; cataloging; records management; implementation; and staff training, et al.

 

Another approach is to establish a file naming convention by collaboration among key employees and independent contractors, e.g., attorneys and accountants.

 

There are several web resources for naming conventions.[8] These resources contain numerous tips for standardizing file names. For example, avoid having long folder names and complex file names that are impossible to remember; avoid using special characters in your filenames (some of these characters  may instruct software programs or operating systems to perform unwanted functions); employ specific search terms (keywords) included in the name of the file and within the contents of the file; and always start with the year first and end with the day.

 

Above all, the organization needs to be committed to the cost-benefit and value of having a well organized and accessible archive. Whether derived from pride in its heritage and culture or the simple legal and practical need to be able to recover historically and legally important documents in a secure and accessible friendly manner is unimportant. If the need is real and not merely “nice to have”, it should be explored, budgeted for and implemented.

 

If, as is likely, the archive is stored in a cloud platform, care should be taken to examine the security measures maintained by the cloud owner and have counsel review the contract for the services provided. An additional backup program, e.g., Carbonite®, may be useful. If the cloud vendor selected has its own archivists and follows identifiable industry archiving standards and guidelines, the cloud vendor may save the organization a steep learning curve, implementation and training costs. 

 

Finally, as a prelude to adopting a digital archive for historical and important legal documents, it is important the organization has and follows a clearly defined records retention and destruction policy.[9] There is no justification to retain records beyond the organization’s retention and destruction policy period. Retention beyond the records retention and destruction policy can prove to be detrimental during litigation.    

 

However, a litigation hold is one exception to not following a records retention and destruction policy if the policy doesn’t already provide for it. In our legal system and its attendant rules of discovery, once a person or juridical entity reasonably anticipates litigation, paradoxically, that person or entity has a duty to undertake good faith measures to preserve information salient to the reasonably anticipated litigation,  including incriminating (and even privileged) evidence that may ultimately be provided to an opposing party seeking to hold that party liable or guilty.[10] The organization should seek the advice of its legal counsel if it is in doubt whether a litigation hold on archived information is required. If the records retention and destruction policy doesn’t presently contain a litigation hold policy, counsel should be consulted as to the language to be used to provide for it.  Digital archiving is a distinct and sophisticated discipline. To simply relegate documents helter-skelter to an institutional archive without prior planning and organization is worthless. To do so without guidance from an experienced archivist or the use of a cloud vendor with archivists on staff is inefficient and will prove more costly than otherwise.

 

 

[1] This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. The author of this blog is not certified by any state agencies or boards of legal specialization. This blog may constitute attorney advertising in some jurisdictions.

[2] The author is an Atlanta area attorney with a concentration in private clubs and trade associations. See www.somerslawfirm.org. The author is indebted to David Jaffer, Esq., (see www.jafferlaw.com) for valuable comments included herein.

[3] Adapted from the definition found at https://www.archives.gov/about/info/whats-an-archives.html

[4] See https://www.archives.gov/digitization/strategy.html

[5] https://records-express.blogs.archives.gov/2017/08/22/best-practices-for-file-naming/

[6] https://www2.archivists.org/standards

[7] https://www2.archivists.org/consultants?all=1

[8] See, e.g., https://brandongaille.com/7-file-naming-conventions-best-practices/; https://blog.frame.io/2018/10/22/file-naming-practices/; https://ceobuddy.com/file-naming-conventions-best-practices/

[9] See, e.g., https://www.councilofnonprofits.org/tools-resources/document-retention-policies-nonprofits

[10] http://www.phelpsdunbar.com/webfiles/Litigating%20Litigation%20Holds%20-%20Pill.pdf [citing inter alia, Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)].