Electronic Messaging Recordkeeping Requirements

Electronic Messaging Recordkeeping Requirements

May 21, 2019
Electronic Messaging Recordkeeping Requirements
The emergence and widespread governmental adoption of
agency heads to “make and preserve records containing
digital technologies that create information subject to the
adequate and proper documentation of the organization,
retention and preservation requirements of the Federal
functions, policies, decisions, procedures, and essential
Records Act (FRA; 44 U.S.C. Chapters 21, 29, 31, and 33),
transactions of the agency.”
as amended, and the Presidential Records Act (PRA; 44
U.S.C. §§2201-2209), as amended, may be of interest to
NARA has promulgated regulations, pursuant to the FRA,
Congress, officials charged with maintaining government
stating that executive branch agencies must “create and
records, and the public.
maintain authentic, reliable, and usable records and ensure
that they remain so” until they are provided to NARA for
Processes related to the preservation and archiving of born-
permanent retention or lawfully destroyed. NARA
digital record materials created by email (referred to in
regulations further state that agencies must (1) “integrate
statute as electronic mail), text messages, mobile
records management … into the design, development, and
applications, and other forms of electronic messaging—
implementation of electronic information systems,” (2)
whether created using official, governmental resources, or
provide records management guidance and training to all
through personal devices owned by government
agency personnel, and (3) conduct formal evaluations of the
employees—may be of interest to multiple audiences.
records management effectiveness.
Congressional interest arises from many perspectives,
including compliance with federal recordkeeping laws, the
Office of Management and Budget (OMB) Memorandum
consequence of more-complicated (and potentially
M-12-18 required agencies to maintain all email records in
incomplete) recordkeeping information, and the ability of
an accessible electronic format by 2016 and similarly
Congress to conduct oversight of executive branch
maintain all permanent electronic records by the conclusion
activities.
of 2019. According to the 2017 Federal Agency Records
Management Report on Federal Email Management, issued
Are Electronic Messages Federal
by NARA after conducting the Records Management Self-
Records?
Assessment survey (RMSA), 97% of agencies self-reported
Records materials are defined not by the media used to
that they would meet the 2019 deadline.
store the information but rather by the content of the
information itself. Federal records, as defined in Title 44,
Identifying and Collecting Records
Section 3301, of the United States Code, are “recorded
For Congress and the public to have a complete
information, regardless of form or characteristics, made or
understanding of agency actions, it is important for
received by a Federal agency under Federal law or in
agencies to identify and collect electronic messaging
connection with the transaction of public business … as
records as completely as possible. In practice, however,
evidence of the organization, functions, policies, decisions,
questions regarding the use of official and personal
procedures, operations, or other activities of the United
accounts and the diversity of platforms used to create
States Government or because of the informational value of
government records may make a complete collection
data in them.” If the information meets this definitional
difficult.
criteria, the information must be treated as a federal record,
regardless of whether it is in email or other electronic
What Is a Non-Official Electronic Messaging
message form.
Account?
Prior to the enactment of the Presidential and Federal
The National Archives and Records Administration
Records Act Amendments of 2014 (P.L. 113-187) in
(NARA), which oversees the implementation of the FRA
November 2014, the FRA included no explicit language
and PRA, issued Bulletin 2014-06, which explains that all
limiting the use of personal electronic messaging to conduct
agency-administered email accounts are likely to contain
official federal business. Additionally, no timeline existed
federal records. The guidance goes on to say, “Email sent
within the FRA requiring the forwarding of any record
on personal email accounts pertaining to agency business
created on personal email accounts.
and meeting the definition of Federal records must be filed
in an agency recordkeeping system.”
Under P.L. 113-187, executive agency employees are
generally prohibited from creating or sending records via a
Creation and Maintenance of Electronic
“non-official electronic messaging account” unless the
Messaging Records
employee copies an official electronic messaging account
In the course of their official duties, federal employees
when sending the message or forwards a copy of the record
regularly create federal records and, therefore, have records
to an official electronic messaging account no later than 20
management responsibilities. The FRA requires federal
days after the original creation or transmission of the record
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Electronic Messaging Recordkeeping Requirements
(44 U.S.C. §2911). Similar requirements exist for
imprisonment under Title 18, Section 641, and Title 18,
presidential and vice presidential records (44 U.S.C.
Section 2701, of the United States Code.
§2209).
Storing Electronic Messaging Records
Despite these requirements, there appears to be no statutory
For electronic messaging records to be useful to members
or regulatory definitions of non-official electronic
of the public, federal employees, and Congress, records
messaging account or official electronic messaging
must be usable, unaltered, and reliably retrieved for years to
account. This ambiguity might create inconsistencies and
come. To accomplish this, NARA guidance and OMB
confusion about the use, access, and disposition of records
Circular A-130 on “Managing Information as a Strategic
materials under the FRA and PRA and raises questions for
Resource” stipulate criteria for appropriate records
Congress, including:
management and information technology systems.
 Should email accounts through which official business
Circular A-130 primarily governs the security and
is conducted be government-owned?
supervision of government information technology systems.
NARA’s storage guidance focuses on the records capacity
 When (if ever) and how should official messages use
of the system. In addition to each agency complying with
private applications?
Title 44, Section 3506, of the United States Code—which,
among other things, requires periodic review of information
 Should government communications on other
technology systems—NARA requires agencies to specify
applications also be forwarded if technically feasible?
forward-thinking criteria to assist records use and retrieval
in the future, such as:
 What happens when private platforms retain records of
official government action?
 specifying technical characteristics necessary for
reading and processing the records;
NARA Bulletin 2014-02 provides related guidance but does
 defining the contents, determining the restrictions on
not fully answer these questions. The bulletin notes that
federal agencies must “d
access and use, and identifying all inputs and outputs;
etermine the most appropriate
ways to incorporate recordkeeping requirements into their
 understanding the purpose(s) and functions(s) of the
business processes and identify the specific means by which
system;
their agencies will fulfill their responsibilities under the

Federal Records Act.”
describing update cycles or conditions for adding,
changing, or deleting information; and
Required Email Record Information
 ensuring the authorized disposition of records.
NARA guidance (36 C.F.R. §1236.22) requires certain
forms of information be preserved along with email records
Considerations for Congress
in particular, including:
Questions regarding the effectiveness of electronic
messaging management policies remain for Congress,
 the names of the senders and all addressees, including
which may wish to consider the following matters:
linking codes or nicknames to the full names of the
senders;
Whether agencies are able to comply with existing
policy. NARA conducts the RMSA to oversee electronic
 the date the message was sent;
records management, including electronic messaging.
However, the data are self-reported by the agency. NARA
 attachments preserved as part of the email record or
acknowledges that it might have to conduct oversight in
linked to the record;
cases of extreme response changes.
 calendar and task list items if these items meet the
Retention and preservation of electronic messaging
definition of federal record; and
records. NARA requires electronic records be copied to
“tested and verified new electronic media” before the media
 draft documents that meet the definition of federal
on which the records are stored are 10 years old (36 C.F.R.
record.
§1236.28). However, the guidance does not specify how
these new electronic media are to be verified or by whom.
Accuracy of Records
As with any federal record, Title 44, Section 3105, of the
The capacity of agencies and NARA to preserve digital
United States Code prohibits the destruction or alteration of
records and the long-term usability of those formats. By
electronic records. NARA defines alteration as “the
2022, NARA intends to only accept records in an electronic
unauthorized annotation, addition, or deletion to a record”
format. Congressional oversight concerns might include
(36 C.F.R. §1230.3). Agency heads are responsible for
consideration of whether the criteria for making complete
maintaining the integrity of federal records, and attempts to
electronic messaging and email records are adequate and
alter or unlawfully destroy records are to be reported to
whether agencies and NARA will have the capacity and
NARA. Additionally, the removal, mutilation, or
technical components in place to ensure a robust capacity to
destruction of records is punishable by both fines and
preserve and retrieve government information.
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Electronic Messaging Recordkeeping Requirements

Meghan M. Stuessy, Analyst in Government Organization
and Management
IF11220

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