It sounds like an exam question that catches you utterly off-guard. You’ve done the work, you know your stuff, but when you turn the paper you feel flummoxed for a moment or two. Is a fish a record? Eh?
Then you breathe. ‘Ok. I see what they’re getting at. I’ve got this. I think...'
This isn’t an exam question. Thanks to the Enron affair it’s something a court in the USA has been considering and, thanks to Paul Gibbons, it’s a question that’s been swimming around on Twitter. Essentially, a fisherman was accused of catching under-sized fish. Once hooked by the authorities, he was told to land the fish in question. Instead, he threw them back.
According to the report Paul highlighted, this led to him being charged under a law passed after Enron that prohibits the destruction of information during an investigation. As the article puts it, the court had to decide whether ‘fish meet the law's definition of "any record, document or tangible object”’. In a 5-4 decision ‘the court concluded that a "tangible object" must be "one used to record or preserve information”’. Essentially, a fish wasn’t a record; there’d been no act of recording, so there'd been no destruction of records.
Despite the groan-inducing jokes that I’ve seen as a result of Paul’s tweet (and I may have made one myself), the question did get me thinking - could a fish, in these circumstances, be a record?
I can certainly see how a fish could be evidence in an artifactual sense. An object kept and preserved as part of a process. But a record? I'm not sure.
A fish is a fish. There’s no act of recording, no process of creation in terms of taking an action that makes a trace and represents an activity. There's no informational content in a traditional sense. A fish doesn’t have the key characteristics of a record; content, context and structure. A fish has scales, gills and fins.
However, it might be possible to make a counter-argument that runs along the lines of the fish being evidence of an activity taking place; providing a representation of it. Information and evidence may arise from that representation, which could have a bearing on the investigation. The fish is no longer just a fish as it is being considered in a new and different context and is essentially acting as a record. That, of course, raises further questions about the relationship between records and evidence. Records can provide evidence, but is all evidence necessarily a record?
But, with that we descend into the sort of recursive arguments that make people who don't work in archives or records management wonder what on earth we're on about and why anyone should care. And although I'm not a lawyer so have no legal basis for this whatsoever, there does come a point when you just have to roll your eyes. Come on - it’s a fish!