DEFINING A FEDERAL RECORD Presented by Luz Ortiz Department of - - PDF document

7/19/2019 1 DEFINING A FEDERAL RECORD

Presented by Luz Ortiz Department of Defense

Thanks to Hannah Bergman, NARA Information Policy Counsel, for Creation of the Slide Presentation

Why does this matter?

■ Federal Records Act, 44 U.S.C. 3101 –

• What is a Federal record?
• Federal Records Act, 44 USC 3301

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More about the FRA

■ Why does it matter to you? – (%

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■ Violates the FRA ■ Could be spoliation, resulting in an adverse inference against the agency –

So, practically, what is a Federal record?

We recommend agencies treat just about everything that documents official activities as a Federal record, including: – * – + – , – - – * And anything else you can think of (that’s not property). ; * ; ( ; & ; )

Electronic messages

■ 44 USC 2911, part of the 2014 amendments ■ Federal employees may not use non;official electronic messaging accounts unless they forward or copy that message to an official

• account. Must occur within 20 days.

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What is an electronic message?

(1) Electronic messages.;;The term “electronic messages” means electronic mail and other electronic messaging systems that are used for purposes of communicating between individuals. (2) Electronic messaging account.;;The term “electronic messaging account” means any account that sends electronic messages. (3) Executive agency.;;The term “executive agency” has the meaning given that term in section 105 of title 5.

What is an agency record?

■ 5 USC 552(f)(2), FOIA’s definition of a record ■ +.test: – *

• What is an agency record?

■ Four;part test – /#01 ' – /!0 ' – /20+% ' – /$0%% 1 ■ Cause of Action v. Nat'l Archives & Records Admin., 753 F.3d 210, 212–13 (D.C. Cir. 2014)

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Federal records

Are these things the same?

■ Not exactly. ■ Always, remember what world you are in.

Agency records

Why is the Federal records universe larger?

■ The FRA applies to the Legislative and Judicial branches. FOIA does not. ■ Some “entities” are covered by FOIA but not the FRA ■ Some “entities” are covered by the FRA but not FOIA ■ Some documents that are “personal records” under FOIA can still be “federal records” ■ But remember, some documents that are “non;record” under the FRA can be “agency records” under FOIA.

Personal records may be Federal record

Totality of the circumstance test surrounding the creation, maintenance, and use of a record ■ Purpose for the document was created ■ Degree of integration of the record into the agency’s filing system ■ Extent to which the record’s author or other employees used in conducting agency business

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Many “personal records” appear in the GRS

■ “Personal records” law is from an age of less technology, where personal and work life was commingled – 3%

• ■ GRS 5.1, Common office records

– 4 ■ GRS 5.2, Transitory and Intermediary Records – #5" – 4%

Drafts

36 C.F.R. 1222.12, Working files and similar materials. – 6

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• Scheduling

■ General Records Schedules – $$&*22"289 – ( – 7::%%%:4: ■ Agency specific schedules – & – 7::%%%:4 :::+;<:4 :4"!=>

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Records Schedules

■ Describe all records created or received by an agency ■ Provide for the permanent or temporary disposition of the records ■ Establish mandatory retention period for records ■ Provide mandatory disposition instructions

Scheduling process

■ Agency submits schedule to NARA ■ Agency records officer and NARA appraisal archivist work together ■ NARA publishes schedule in Federal Register for public comment ■ NARA approves schedule ■ Agency employees follow schedule/execute schedule

How long do I keep Federal records?

All Federal records are scheduled in agency;specific or general records schedules. These schedules tell you how long to keep these records. Litigation holds suspend a scheduled disposition. Once litigation hold is lifted, schedule resumes. The disposition schedule takes into account why the records are needed when it is set.

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Types of records

■ Temporary records (~97% of records) – ■ Short term value of 180 days or less – &4 – ?4 ■ Permanent records (~3 % of records) – . (

Schedules

Agency specific Agency specific Agency specific Agency specific General Records Schedule

• Records specific to your agency
• Typically mission related

content

• Available for all agencies

https://www.archives.gov/recor ds;mgmt/rcs

• Records common to all

agencies

• Apply unless your agency

has taken an exception

• Examples:
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GRS 5.2, item 020

Intermediary records. Records of an intermediary nature, meaning that they are created or used in the process of creating a subsequent record. To qualify as an intermediary record, the record must also not be required to meet legal or fiscal obligations, or to initiate, sustain, evaluate, or provide evidence of decision;making. Records include:

• non;substantive working files

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Non;substantive working files

■ non;substantive working files: collected and created materials not coordinated or disseminated outside the unit of origin that do not contain information documenting significant policy development, action, or decision making. ■ These working papers do not result directly in a final product or an approved finished report. Included are such materials as rough notes and calculations and preliminary drafts produced solely for proof reading or internal discussion, reference, or consultation, and associated transmittals, notes, reference, and background materials.

GRS 5.2, item 020, Disposition

■ Temporary. ■ Destroy upon verification of successful creation of the final document or file, or when no longer needed for business use, whichever is later.

I asked an office for records and they said, “we sent them to NARA.”

Federal Records Center Program Federal Records Center Program Federal Records Center Program Federal Records Center Program ■ Agency pays NARA to warehouse the records ■ Agency has legal custody ■ Agency makes release decisions ■ When access is needed NARA sends records to the agency Records in the National Archives Records in the National Archives Records in the National Archives Records in the National Archives

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■ NARA has legal custody ■ NARA makes release decisions ■ NARA provides access ■ You visit NARA to see these records

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Federal Records Center Program Federal Records Center Program Federal Records Center Program Federal Records Center Program ■ May be temporary or permanently valuable records ■ Generally paper records ■ Must be searched by creating agency if needed for any purpose – A@A. ■ Your Records Officer must ask for these records. Records in the National Records in the National Records in the National Records in the National Archives of the United States Archives of the United States Archives of the United States Archives of the United States ■ Check catalog.archives.gov ■ Some online, most not ■ more than 25 years old