September 9, 2013
TO: Heads of Federal Agencies
SUBJECT: Guidance for agency employees on the management of Federal records, including email accounts, and the protection of Federal records from unauthorized removal
EXPIRATION DATE: Expires when revoked or superseded
1. What is the purpose of this bulletin?
This bulletin is being issued to reaffirm that agencies and agency employees must manage Federal records appropriately and protect them from unauthorized removal from agency custody. Also, this bulletin clarifies records management responsibilities regarding the use of personal email accounts for official business and the use of more than one Federal email account. NARA recommends that Federal agencies refer to this guidance when advising incoming and departing agency employees about their records management responsibilities.
2. What must heads of Federal agencies do to implement this bulletin?
Heads of Federal agencies must provide guidance on the proper management of Federal records, including the handling of records containing information exempt from disclosure under the Freedom of Information Act (FOIA) (5 U.S.C. 552), the Privacy Act (5 U.S.C. 522a), or other applicable laws. Managing records effectively ensures that permanently valuable records become part of the National Archives and Records Administration (NARA) while other records and information of temporary value are retained for as long as needed and then properly disposed. In addition, the heads of Federal agencies must issue instructions to staff on the identification, management, retention, and disposition of email messages determined to be Federal records (36 CFR 1236.22(a). Finally, they must notify employees that there are criminal penalties for the unlawful removal or destruction of Federal records (18 U.S.C. 2071 and 36 CFR 1230.12) and the unlawful disclosure of national security information (18 U.S.C. 793, 794, and 798).
3.What materials are Federal records?
As defined in 44 U.S.C. 3301, Federal records are documentary materials that agencies create and receive while conducting business that provide evidence of the agency's organization, functions, policies, decisions, procedures, and operations, or that contain information of value. Government employees, including Federal contractors, create and maintain Federal records as part of their duties and responsibilities. Federal records can exist in a variety of electronic forms including images, video and audio recordings, websites, social media and collaboration tools, databases, shared drive files, and email.
In certain cases, drafts and notes may be “working files and similar materials” that should be maintained as Federal records (see 36 CFR 1222.12). Whether they are in electronic or paper form, “preliminary drafts and rough notes” and other similar materials must be maintained as records if they meet the criteria specified in 36 CFR 1222.12(c).
4. Can email messages be Federal records?
Yes, email messages created or received in the course of official business are Federal records if they meet the definition mentioned above, and agency employees must manage them accordingly. Under NARA’s current policy and regulations, defined in 36 CFR 1236.22(a), agencies must issue instructions to staff on the identification, management, retention, and disposition of email messages determined to be Federal records. Employees who create a significant amount of permanent email records should consult with their records officer to determine the most effective way to manage them, including using NARA’s recent “Capstone” guidance, NARA Bulletin 2013-02, entitled “Guidance on a New Approach to Managing Email Records.”
5. What are agencies’ and agency employees’ recordkeeping responsibilities when the use of personal email accounts is authorized?
While agency employees should not generally use personal email accounts to conduct official agency business, there may be times when agencies authorize the use of personal email accounts, such as in emergency situations when Federal accounts are not accessible or when an employee is initially contacted through a personal account. In these situations, agency employees must ensure that all Federal records sent or received on personal email systems are captured and managed in accordance with agency recordkeeping practices. Agency policies and procedures must also ensure compliance with other statutes and obligations, such as FOIA and discovery.
6. What are agency responsibilities when employees have more than one Federal email account?
NARA recognizes that employees may have a business need for more than one agency-administered email account. Business needs may include, but are not limited to:
- Using separate accounts for public and internal correspondence;
- Creating accounts for a specific agency initiative which may have multiple users; and
- Using separate accounts for classified information and unclassified information.
Regardless of how many Federal email accounts individuals use to conduct official business, agencies must ensure that all accounts are managed, accessible, and identifiable according to Federal recordkeeping requirements, as established in 36 CFR 1236.22. Agencies must ensure that the name of an individual employee is linked with each account in order to comply with FOIA, discovery, and the requirement to transfer permanent email records (or accounts if the agency is using the Capstone approach) to NARA. In most cases, this requires the full name or readily identifiable nickname that is maintained on a distribution list.
7. Are there Federal documentary materials that do not qualify as records?
Materials such as extra copies of records kept solely for convenience of reference, library or museum materials, and stocks of publications and processed documents are excluded from the definition of "record" (44 U.S.C. 3301). These “non-record” work-related materials nevertheless belong to and are controlled by the Government (36 CFR 1222.14) and must not be removed unless approved as cited in 36 CFR 1222.18.
8. Under what circumstances may employees remove records and documentary materials from Government custody?
a. Employees must not remove Federal records from Government custody without proper authorization. Under 36 CFR 1222.24, agencies must develop procedures to ensure that departing employees do not remove Federal records.
b. Within agency guidelines, employees may remove extra copies of records or other work-related, non-record materials when they leave the agency, with the approval of a designated official of the agency, such as the agency's records officer or legal counsel.
- When determining whether to permit departing employees to remove extra copies, the agency should also consider the extent to which such removal could affect the agency's ability to invoke various legal privileges, and should consider the use of nondisclosure agreements in appropriate cases.
- Copies of records that are national security classified must remain under the control of the agency. If the agency permits removal, they must be transferred to a facility that has an appropriate level security storage area and safeguarded in accordance with Information Security Oversight Office requirements for national security classified materials (36 CFR 1222.18 and 32 CFR 2001.40 - 2001.53).
- Copies of records that are otherwise restricted (e.g., as privileged or under the Privacy Act) must be maintained in accordance with the appropriate agency requirements.
c. Employees may remove documentary materials that are of a purely personal nature when they leave the agency. Personal materials include family and personal correspondence and materials documenting professional activities and outside business or political pursuits (36 CFR 1220.18 and 36 CFR 1222.20). However, in many cases, employees intermingle their personal and official files. In those cases, the agency may need to review and approve the removal of personal materials to ensure that all agency policies are followed properly.
9. What does an agency do if there is an unauthorized removal of records?
If an agency knows of any actual or potential threat to records (e.g., removal, alteration, or destruction), it must contact NARA as required by 44 U.S.C. 2905 & 3106 and 36 CFR 1230.14. NARA will assist the agency in the recovery of any unlawfully removed records, including contacting the Attorney General, if necessary. It is also important to follow all agency internal reporting requirements, which may include reporting the threat to the agency's legal counsel and to its Inspector General.
10. Is further information available within my agency?
Each agency's records officer has more information about the maintenance and disposition of records and other documentary materials. The agency's records officer, legal counsel, Senior Agency Official for records management, or information security officer has more information about the agency’s policies on the removal of extra copies of records and how to secure approval. The list of agency records officers is available online at http://www.archives.gov/records-mgmt/agency/.
11. Is further information available from NARA?
a. NARA's publication Agency Recordkeeping Requirements is available online at http://www.archives.gov/records-mgmt/policy/agency-recordkeeping-requirements.html.
b. NARA's records management regulations (36 CFR Chapter XII, Subchapter B), including the identification and protection of Federal records, is available online at http://www.archives.gov/about/regulations/regulations.html.
12. What assistance is available from NARA?
a. In addition to contacting the agency’s records officer, employees may refer to NARA’s records management web site for relevant regulations, guidance, publications, and tools for managing Federal records and documentary materials. These and other helpful resources may be found at: http://www.archives.gov/records-mgmt/.
b. NARA's Records Management Services Division, within the Office of the Chief Records Officer, provides assistance and advice to agency records officers in the Washington, DC, area, and in the field. The agency's records officer may contact the NARA appraisal archivist with whom that agency normally works. A list of the appraisal and scheduling teams is posted on the NARA web site at http://www.archives.gov/records-mgmt/appraisal/.