Records Retention & Records Retention Policies

Recently, a question came up on a national nonprofit list serve about how long various documents should be kept by an association, such as board meeting materials. Here was my response. 

“Your question has both legal and political aspects. Since I don’t practice law in your state, I can’t say what specific language or practice should be used for record retention, but here are some general considerations:

    1. State laws matter, so this is something that should involve local counsel. Different nonprofit corporation statutes tend to provide what must be kept, what records members have a right to demand or to request (the latter subject to meeting certain requirements), and for how long they can request them. As a result, different documents may have different legal timeframes for maintaining.
    2. In addition to how long documents must be kept, for documents that are not obligatory, you may wish the records retention policy to state when they will be destroyed. For instance, I’ve known of associations where a personal audio recording was made by the secretary of board meetings to assist in the preparation of minutes (unnecessary and not a great practice, but that’s a different post), but then which recordings were still around and which were not was quite random. That became an issue in a lawsuit about what was said at a past meeting and the recordings were demanded. The policy could state that within a certain time limit such recordings will be destroyed, so that the fact they don’t exist later is not “unusual.”
    3. Keeping documents used to be an issue due to all the paper. In most states for most documents, an electronic version of the document is now as good as the original (again, check with legal counsel). As a result, many documents can be kept forever with little to no cost in the Cloud or saved file format. But now because of the ease of saving things, a provision as to which records can be eventually destroyed after a certain amount of time is likely needed so the records do not become voluminous and hard to find anything!
    4. Politics matter. There is the legal answer, but then there are also important issues of openness, transparency, etc. Sometimes members feel that documents kept only for the statutory requirements suggests someone is “hiding something.” So worth considering what is good practice and will seem reasonable to members in addition to any minimum legal requirements.

    While a bit dated (which means I should update it!), here’s an article I wrote on “Association Documents: Keep or Toss?” that appeared in a national magazine some time ago but is mostly still relevant:

    Corporate LawHOA & Condo Associations