Keywords
electronic business records, admissibility, evidence, records management
Abstract
The business record provisions of the Evidence Acts determine a record’s admissibility by evidence of its history, which must be the product of “the usual and ordinary course of business” (or comparable “business activity” wording). The electronic record provisions determine a record’s admissibility by the, “integrity of the electronic records system in which it is recorded or stored.” The difference is, records management (RM) based on “paper records concepts” versus “electronic records systems concepts.” The former is subjective — each business determines its own “usual and ordinary course of business”; the latter, objective — in accor- dance with authoritative standards of RM. Because of the many new laws that demand and depend upon records, electronic RM is now a matter of “legal compliance” and not merely good business practice. The business record provisions were enacted when: (1) electronic records came from stand-alone mainframe computers and not complex computer networks; (2) most of the present methods of, and reasons for making false records and damaging RM systems did not exist; for example, paper record systems cannot be damaged “remotely,” nor by software failures and error rates; and, (3) objective, authoritatively recognized national and international standards of electronic RM did not exist. The “usual and ordinary course of business” test allows every business to choose its own principles and practices of RM. Therefore it is now too subjective and vague to provide sufficient protection against the use of unreliable records as evidence. The objective, standards-based “system integrity” test must therefore become the sole test of admissibility and “weight.” Or, the business record provisions be reinterpreted so as to judge RM systems and not individual pieces of paper — an alteration perhaps more appropriately left to the legislature. The American case law is used as a comparison. And common electronic RM practices and defects are referred to because the admissibility and “weight” of electronic business records should be interdisciplinary de- terminations. That is what the “system integrity” of electronic RM requires. A list of points made appears immediately before the Appendices.
Recommended Citation
Ken Chasse, "The Admissibility of Electronic Business Records" (2010) 8:2 CJLT.
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