Hands up who has more than 1,000 emails in their inbox? With ever-expanding storage available from email providers, the number of people who have their hands in the air will be significant. Most of us automatically keep our emails without giving much thought to it. But which emails is a business legally obliged to keep? Can retaining all business emails get us into legal strife?
A particular advantage of being able to store so many emails is that they are readily available for future reference. Finding a particular email among that huge volume has become very easy, with the use of advanced search engines. Automatically keeping every single email, however, can have legal implications.
When deciding whether or not to keep your business emails, there are a few points you should think about:
- There’s no specific legal requirement to retain emails in general, however the particular content of an email may mean you must keep it.
- If the email contains records that are required to be retained for a certain length of time under law – for example, documents you must keep for tax purposes, certain company records and so on - the email must be retained, or the information within it kept in another form, for the period set out in the relevant legislation.
- If an email contains things like receipts, warranties or evidence of agreements reached between you and another person or company, you should keep the email as evidence in case your position is challenged, or you want to seek a refund or rely on a guarantee. You should keep the email for the life of the particular agreement plus the relevant limitation period.
- Other legislation may require you to delete records when the matter is no longer relevant. The Privacy Act 1993, for example, says that personal information may only be kept for as long as the purpose of collection remains valid.
- The sensitivity of information within an email may also mean you need to keep it. Confidential information, by its very nature, must be kept secure. Storing this information in your Inbox could mean you could inadvertently send it to someone else, you may need to retain sensitive information another way.
That all seems to make sense, but what about the bulk of your business emails which are (excluding spam) just general correspondence? As I’ve mentioned above, there is no specific legal requirement to retain these sorts of emails.
So to avoid the storage of masses of information, it’s up to each business as to how long they retain their emails. There are a number of factors each business will have to think about. These could include the usefulness of the information, costs associated with storage and security, compliance obligations and disclosure requirements. Information disclosure within legal proceedings is also relevant, for example an old retained email could become a smoking gun to be used in your favour or against you. You’ll need to take this into consideration in the weighing-up exercise.
Once you’ve decided how long your business wants to retain its emails, it’s useful to set this out within a record retention policy. You’ll need to include both physical and electronic records, and the policy should be crafted to take into account applicable law and the requirements of your business.
The benefit to your business is you’ll have peace of mind that you’re complying with the law, you may have some reduced costs and there should also be some reduced business risk.
Chris Steenstra is an associate at Norris Ward McKinnon. With offices in Hamilton and Huntly, we have friendly, expert legal advisors ready to help you with your business and personal legal matters. Find out more about us www.nwm.co.nz".