Strategic Directions: Custody
National Archives and Records Administration
Strategic Directions: Custody of Federal Records of Archival Value
NOTE: This document is excerpted from internal NARA Directive 1501 dated February 28, 2003. This document omits only internal NARA designations of responsibilities in sections 5 and 12.
This policy addresses the authority and responsibility of the Archivist of the United States (Archivist) regarding the physical and legal custody of Federal records "determined by the Archivist of the United States to have sufficient historical or other value to warrant their continued preservation by the United States Government" (44 U.S.C 2107(1)). This directive includes provisions for the deposit of records of archival value (designated as "permanent" on records disposition schedules) outside the physical custody of NARA.
The Archivist is responsible for the custody, use, and withdrawal of records transferred to the National Archives and Records Administration (NARA) in accordance with 44 U.S.C. 2107 note sec. 3(2), 2108, 2109, 2111 note sec. 101(b)(2), 2112(c), 2118, and 2203(f)(1); E.O. 12667; and 36 CFR 1228.198.
For the purpose of this directive, the following definitions apply. Sources used for definitions include 44 U.S.C., the SAA Glossary 1992, The American Archivist Glossary 1974, and A Federal Records Management Glossary 1993.
Accession - the transfer to the Archivist of legal custody of Federal records of archival value.
Affiliated archives - a public or educational institution or association that holds, by formal written agreement with NARA, physical custody of records that are accessioned into the legal custody of the National Archives and Records Administration. (This entity acts as an agent for NARA, and performs access, reference, and other archival functions - see section 10 for requirements for affiliated archives.)
Affiliated relationship - a formal association between NARA and a public or educational institution or association whereby NARA and one or more other parties enter into an agreement relating to the custody of Federal records of archival value and on responsibilities for performing archival functions for those records. (Affiliated relationships include but are not limited to those with institutions that meet the requirements of being an affiliated archives - see section 13 for examples of affiliated relationships that do not meet the requirements of affiliated archives.)
Archival value - the enduring administrative, fiscal, legal, intrinsic, historical, evidential, informational, or other research value of records, as determined by the Archivist, that warrants their continued preservation by the Government after they are no longer needed by the originating agency, or its successor in function, in the conduct of current agency business. Records determined to have archival value are designated on records disposition schedules as "Permanent records."
Custody, legal - ownership and the responsibility for creating policy governing access to records regardless of their physical location.
Custody, physical - the responsibility for the care of records and implementing policy governing access to records. (Physical custody may be, but is not always, paired with legal custody.)
Federal agency - any executive agency or any establishment in the legislative or judicial branch of the Government (except Presidential offices, the Supreme Court, the Senate, the House of Representatives, and the Architect of the Capitol and any activities under the direction of the Architect of the Capitol).
Federal records - all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them (44 U.S.C. 3301).
National Archives of the United States - official records that have been determined by the Archivist to have sufficient historical or other value to warrant their continued preservation by the Federal Government, and which have been accepted by the Archivist for deposit in his custody (44 U.S.C. 2901). Hereafter, referred to as "National Archives."
Originating agency - referring to a body of Federal records, the Federal agency that originally created or received the records in the conduct of agency business. The corporate body or administrative unit in which a group of records are created or received and accumulated in the conduct of its business.
Record - same as "Federal record" (see subparagraph h).
Holdings that are not covered by this directive
This directive does not apply to Presidential records and donated historical materials.
The Archivist approves the creation and termination of agreements with affiliated archives. [Internal NARA organizational responsibilities are detailed in the internal directive.]
Transfer of custody of records with archival value
The disposition of records is determined by the Archivist. Determinations of archival value are based upon appraisal guidelines incorporated in the "Appraisal Policy of the National Archives and Records Administration." The appraisal policy is under development and will be issued as a policy directive.
Records with archival value are transferred to the legal custody of NARA. The date of transfer is scheduled to coincide with a point at which the records are no longer needed for the conduct of agency business (44 U.S.C. 2107 and 2901).
Records with archival value are also typically transferred to the physical custody of NARA. NARA accepts records in many forms, including loose papers, bound volumes, motion picture films, videotapes, sound recordings, still photographs, maps, drawings and plans, and electronic records.
Records that are normally transferred to the physical custody of NARA's regional archival repositories include:
(1) Records of field offices of Federal agencies, except for records of agency field offices located in the Washington, DC, area;(2) Headquarters and field office records of agencies, such as the Tennessee Valley Authority and the Railroad Retirement Board whose headquarters are based outside of the Washington, DC, area;
(3) Modern military personnel records; and
(4) Other records determined by NARA to be of enhanced value when located with related holdings and reference experts or nearby interested research audiences.
Records that are normally transferred to the physical custody of NARA's Washington, DC, area archival repositories include:
(1) Headquarters records of agencies based in the Washington, DC, area;
(2) Records relating to the District of Columbia and the Washington, DC, area; and
(3) Other records not deposited in NARA's regional archival repositories.
- Acceleration of transfer of custody of records of archival value
When the Archivist determines that records of archival value in the custody of an agency are at risk of unlawful removal, defacement, alteration, or destruction, he or she takes action to protect the records in accordance with 44 U.S.C. 2905 and may also negotiate transfer of legal and physical custody to NARA before the scheduled transfer date.
- Delay of transfer of custody of records of archival value
NARA and the originating agency agree upon the timing for accessioning the records into the National Archives. The agreement is based upon a presumption that certain conditions will be met before accessioning. If these conditions have not been met by the scheduled transfer date, the Archivist may negotiate continued custody by the agency until the conditions are met. For example:
If the records are still needed for the current business of the agency, the Archivist negotiates a new transfer date. If such records are more than 30 years old, the agency must follow the written certification requirements specified in 36 CFR 1228.264.
Some examples of situations in which the Archivist may delay transfer of custody include:
(1) Level of active retrieval for agency business purposes is too high to be managed in a NARA archival facility; or
(2) The agency is providing specialized access services to the public that NARA cannot or does not ordinarily provide.
Deposit of records of archival value outside the physical custody of the National Archives and Records Administration
Archival facilities managed by the Archivist are designed with the public interest in mind. ("Public interest" should be broadly construed to include the best interests of the public now and in the future.) In most cases it is appropriate to transfer records of archival value to one of these depositories for the duration of their value. However, 44 U.S.C 2107(3) recognizes the possibility that the Archivist may "direct and effect, with the approval of the head of the originating agency, the transfer of records deposited in or approved for deposit with the National Archives of the United States to public or educational institutions or associations." Such institutions, which may include Federal agencies, are called "affiliated archives." In all cases of physical deposit outside NARA, legal custody of the records remains with NARA.
Criteria for selection of affiliated archives
Six principal criteria are used by the Archivist to determine whether it is in the public interest to establish an affiliated archives. Candidate custodians must:
Provide specialized public access to the records and the information in the records beyond what NARA provides. Characteristics that enable specialized access include, but are not limited to:
(1) Availability of special expertise needed to interpret the records and the recordkeeping system;
(2) Availability of special equipment or specially designed facilities needed to provide ready access to records;
(3) Possession of records, manuscripts, or other research resources that provide essential context for the records; and
(4) Close association or proximity to the segment of the public most likely to desire ready access to the records.
Demonstrate an institutional commitment to the long-term preservation of the records. Custodians must store and maintain records under preservation conditions that are at least equal to those that would be provided by NARA.
Demonstrate the capability to protect the information in the records in accordance with the Freedom of Information Act (FOIA), 5 U.S.C. 552 as amended. Records exempt from disclosure under the FOIA (5 U.S.C. 552) cannot be deposited outside the Federal government.
Agree to follow NARA reference, arrangement, description, preservation, and security guidance.
Agree to permit NARA to examine the records and review how they are being managed, preserved, and made available for research.
Agree to notify NARA as early as possible of any substantial risk that they might not be able to continue to preserve or provide access to the records.
Affiliated archives memorandums of understanding
An agreement to establish an affiliated archives must be embodied in a memorandum of understanding (MOU). The MOU must incorporate the criteria in section 10. The MOU must also state that NARA retains legal custody of the records covered by the MOU and that NARA may, after providing notification and an opportunity to correct problems, take physical custody of the records if they are not maintained in accordance with the MOU.
Monitoring affiliated archives
NARA has the responsibility to evaluate how well an affiliated archives is meeting its responsibilities under the MOU. Several NARA units share the responsibility for monitoring and providing guidance to affiliated archives, and operate as a team. [Internal NARA organizational responsibilities are detailed in the internal directive.]
Other affiliated relationships
Other arrangements with public or educational institutions or associations are possible. Such relationships must be established by MOUs that set out the terms of the roles and responsibilities. Examples of other possible relationships include, but are not limited to:
Example 1: An institution holds an official copy of the record (such as a duplicating master or reference copy of microfilm or a public access copy of electronic records) and takes on access responsibilities for the record and NARA accessions and has physical custody of the preservation copy of the record.
Example 2: NARA and other institutions may agree to cooperate in performing archival functions.