Federal Records: Types and Treatments

Federal Records: Types and Treatments

February 26, 2019
Federal Records: Types and Treatments
The Federal Records Act
information qualifies as a record and that the content of the
The Federal Records Act (FRA; 44 U.S.C. Chapters 21, 29,
information is the primary determinant. For example, when
31, and 33), enacted in 1950 and amended since, governs
federal employees use personal email to conduct official
the collection, retention, and preservation of federal agency
business, the communication is considered a federal record.
records. Congress deemed federal records worthy of
Likewise, materials created or maintained for the
preservation for the information they provide on the
government by a contractor may be considered a federal
transaction of public business and also because they
record if the material provides information on the agency’s
document the “organization, functions, policies, decisions,
transaction of public business.
procedures, and essential transactions” of the government
(44 U.S.C. §3301). The FRA also governs how federal
What Is Not a Federal Record?
records are to be destroyed or provided to the National
Incorporating the statutory definitions of non-record
Archives and Records Administration (NARA) for
materials, NARA’s guidance (36 C.F.R. §1220.18)
“permanent” archiving within the National Archives of the
similarly suggests that non-record materials would include
United States.
copies of information “kept only for reference” and
“museum materials intended solely for reference or
What Is a Federal Record?
exhibit.” In cases where there is disagreement over whether
The FRA provides a definition of federal records in order
particular recorded information constitutes a federal record,
to determine whether particular recorded information
P.L. 113-187 expressly empowers the Archivist to
should be retained and managed.
determine “whether recorded information, regardless of
whether it exists in physical, digital, or electronic form, is a
Key Terms: Federal Record
record” for purposes of the FRA and states that this
determination “shall be binding on all Federal agencies.”
44 U.S.C. §3301
NARA’s regulations also state that non-records are to be
(a) Records Defined.—
“physically segregated from records” or “readily identified
(1) In general.—As used in this chapter, the term “records”—
and segregable from records” and “purged when no longer
needed for reference.”
(A) includes all recorded information, regardless of form or
characteristics, made or received by a Federal agency under
Presidential Records and Their Treatment
Federal law or in connection with the transaction of public
Presidential records are separate from federal records.
business and preserved or appropriate for preservation by that
However, they are administered similarly by NARA. The
agency or its legitimate successor as evidence of the organization,
Presidential Records Act (PRA; 44 U.S.C. §§2201-2209)
functions, policies, decisions, procedures, operations, or other
governs the collection and retention of records created or
activities of the United States Government or because of the
received by the President, immediate presidential staff, and
informational value of data in them; and
certain units or individuals within the Executive Office of
(B) does not include—
the President. Presidential records include, among other
(i) library and museum material made or acquired and preserved
types of information, documentary materials relating to
solely for reference or exhibition purposes; or
certain political activities or information that relates to the
(i ) duplicate copies of records preserved only for convenience.
constitutional, statutory, or other official or ceremonial
duties of the President. The PRA also codifies public access
to presidential records.
Prior to the adoption of the Presidential and Federal
Records Act Amendments of 2014 (P.L. 113-187), the
Under Chapter 22 of Title 44 of the U.S. Code, upon
statutory definition of federal record included references to
certain types of materials or platforms on which records
leaving office, an outgoing President may restrict access to
could be created or captured, such as “books, papers,
specific categories of presidential records for up to 12
years. Certain presidential records may be excepted from
photographs,” and “machine-readable formats.” According
to the accompanying Senate report, the act amended the
public access indefinitely if they qualify under any of six
criteria delineated in 44 U.S.C. Section 2204, including
definition of federal record to include the phrase regardless
materials related to appointments and confidential
of form or characteristics in order to “shift the emphasis
away from the physical media used to store information to
communications requesting or submitting advice to the
the actual information being stored.”
President or the President’s advisors, among other possible
restrictions.
Additionally, the Archivist of the United States (the head of
According to NARA, “while only a small percentage of
NARA) has stated that the system used to create the record
agency records are permanent, all presidential records are
should not affect an agency’s determination as to whether
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Federal Records: Types and Treatments
considered permanent, unless the President obtains the
The records schedule should include a description of each
written views of the Archivist to dispose of particular
type or series of records and note whether the records are
records—e.g., public mail and routine administrative files.”
temporary (to be discarded by the federal government) or
permanent (to be permanently retained by NARA). For
Temporary vs. Permanent Records
permanent records, the schedule includes the date the
Once recorded information is determined to be a federal
record would be transferred to NARA.
record, agencies must then work with NARA to determine
whether it is a permanent record, which means it has
Records schedules must be cleared by internal agency
permanent value and should be maintained in perpetuity by
stakeholders, the Government Accountability Office when
the federal government, or if it is a temporary record,
required by 43 C.F.R. Section 1225.20(a), and by NARA.
which means the document may be destroyed after a period
Disposition instructions approved by NARA are mandatory
of time.
(44 U.S.C. §3314). In addition, according to 44 U.S.C.
Section 3303a(a), NARA must publish a notice of agency
More specifically, permanent records are those for which
requests for the disposal of records in the Federal Register.
the disposition is deemed permanent on NARA’s
If NARA has previously approved a request to dispose of
standardized records management form (SF 115). Only
the records covered in an agency request, a notice is
permanent records (which include some federal records and
published only if the proposed retention period is shorter.
all presidential records) may be transferred to the National
The publication of these notices allows interested persons to
Archives. According to NARA, “less than 5 percent of the
submit written comments on the records to NARA before
mountain of documents created by agencies every year
disposal is approved or reapproved with a shorter retention
comes to the Archives,” with the remainder being
period.
considered temporary records.
What Procedures Address Unlawful
The FRA does not use the term temporary record but
Removal or Destruction of Federal
provides NARA the authority to empower an agency to
Records?
destroy certain records that do not “have sufficient
Per the FRA, the head of each agency is to establish
administrative, legal, research, or other value to warrant
safeguards against the removal or loss of records and to
their continued preservation by the Government.” NARA’s
inform employees of the penalties of unlawful removal or
regulation (36 C.F.R. §1220.18), however, defines
destruction of records. Under 44 U.S.C. Section 3106, if
temporary record to mean any federal record that has been
any agency head learns of any “actual, impending, or
determined by the Archivist to have insufficient value (on
threatened unlawful removal, defacing, alteration,
the basis of current standards) to warrant its preservation by
corruption, deletion, erasure, or destruction of records in the
NARA.
custody of the agency,” he or she—with the assistance of
the Archivist—is to notify the Attorney General to initiate
What Is a Records Schedule?
an investigation and any necessary recovery efforts.
A records schedule is created by agencies in consultation
with NARA and sets a timeline for the eventual disposition
If any agency head does not notify the Archivist of an
of temporary records or transfer of permanent records to
allegation or instance of unlawful removal, the FRA
NARA.
authorizes the Archivist to initiate action with the Attorney
General for the possible recovery of such records. The FRA
A records schedule can be any of the following:
also requires the Archivist to notify Congress of instances
in which he or she must initiate such action with the
 a standardized form (SF 115) that has been approved by
Attorney General. The Archivist may not independently
NARA to authorize the disposition of federal records
initiate action without the Attorney General.
(i.e., disposition authority);
Anyone found guilty of “willfully and unlawfully”
 a General Records Schedule (GRS) issued by NARA,
concealing, removing, mutilating, obliterating, destroying,
which authorizes, after specified periods of time, the
or attempting to do any such action against a federal record
destruction of temporary records or the transfer of
can be fined and imprisoned for up to three years (18
permanent records to the Archives that are common to
U.S.C. §2071). In addition to fines and possible
several or all agencies; or
imprisonment, anyone holding federal office who is
convicted of this crime can lose his or her position and be
 a published agency manual or directive containing the
disqualified from holding federal office in the future.
records descriptions and disposition instructions
approved by NARA on one or more standardized forms
Meghan M. Stuessy, Analyst in Government Organization
or issued by NARA in the GRS.
and Management
How Do Agencies Create Records Schedules?
IF11119
All federal records must be covered by a NARA-approved
records schedule or a GRS.

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Federal Records: Types and Treatments

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