Identification of Records, Nonrecord Materials, and Personal Papers
What are Federal records? As defined in 44 U.S.C. 3301:
A) includes all recorded information, regardless of form or characteristics, made or received by a Federal agency 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 United States Government or because of the informational value of data in them; and
(B) does not include:
(i) library and museum material made or acquired and preserved solely for reference or exhibition purposes; or
(ii) duplicate copies of records preserved only for convenience.
This legal definition contains several important terms and phrases that require further explanation:
- "Recorded Information" includes all traditional forms of records, regardless of physical form or characteristics, including information created, manipulated, communicated, or stored in digital or electronic form.
- "Regardless of physical form or characteristics" means that the medium may be paper, film, disk, or another physical type or form. It also means that the method of recording may be manual, mechanical, photographic, electronic, or any combination of these or other technologies.
- "Made" means the act of creating and recording information by agency employees, regardless of the method or medium involved. Such recorded information is generally circulated to others or placed in files accessible to others.
- "Received" means the acceptance or collection of documentary materials by agency employees:
- Regardless of who originated the materials, whether employees within the agency or in other agencies or whether private citizens, public officials, contractors, Government grantees, or others.
- Regardless of how the materials were transmitted, whether directly by the originator or indirectly by messenger, mail, electronic means, or some other method.
- In this context the term "received" does not refer to misdirected materials. It may or may not refer to loaned or seized materials. The question of Government ownership of loaned or seized materials depends on the conditions of agency custody and use and should therefore be referred to legal counsel for advice.
- "Preserved" means the filing, storing, or any other method of systematically maintaining documentary materials by the agency, even if those materials have not yet been filed or have been removed temporarily from existing filing systems.
- "Appropriate for preservation" means suitable for filing, storage, or other systematic maintenance by the agency, regardless of any inadequacies in the agency's formal recordkeeping policies and practices.
In summary, the legal definition has three key points:
- Records are made or received by a Federal agency either to comply with a law or to conduct public business. As a result, they belong to the Government rather than to individuals, and their legal disposition depends on the prior approval of the Archivist of the United States.
- Records are, or should be, preserved because they constitute evidence or contain information of value. They document an agency's organization, functions, and activities or the persons, places, things, or matters dealt with by an agency.
- Records vary widely in their physical form or characteristics. They may be on paper, electronic, audiovisual, microform, or other media.
Attention should also be given to working files, or working papers, because of the difficulty of determining record status. Normally case working files are records because they generally need to be organized and maintained for some specified period of time. Other likely record categories include working files used in preparing reports or studies and preliminary drafts of policy documents circulated for comment. In contrast, preliminary drafts not circulated for comment are more likely to be nonrecord materials.
An agency's disposition program also needs to include managing nonrecord materials, because their volume may exceed that of records. These are US Government-owned documentary materials excluded from the legal definition of records (44 U.S.C. 3301), either by failing to meet the general conditions of record status already described or by falling under one of three specific categories:
- Extra copies of documents preserved only for convenience of reference.
- Stocks of publications and of processed documents. Each agency needs, however, to create and maintain record sets of processed documents and of publications, including annual and special reports, special studies, brochures, pamphlets, books, handbooks, manuals, posters, and maps.
- Library and museum material made or acquired and preserved solely for reference or exhibition purposes.
On the basis of these conditions and the categories specifically cited in the law, nonrecord materials include:
- Information copies of correspondence, directives, forms, and other documents on which no administrative action is recorded or taken.
- Routing slips and transmittal sheets adding no information to that contained in the transmitted material.
- Tickler, follow up, or suspense copies of correspondence, provided they are extra copies of the originals.
- Duplicate copies of documents maintained in the same file.
- Extra copies of printed or processed materials for which complete record sets exist, such as current and superseded manuals maintained outside the office responsible for maintaining the record set.
- Catalogs, trade journals, and other publications that are received from other Government agencies, commercial firms, or private institutions and that require no action and are not part of a case on which action is taken.
- Physical exhibits, artifacts, and other material objects lacking evidential value.
Determining whether a particular document is a record does not depend on whether it is an original or a copy. Several copies of a single form may each have record status because each serves a separate administrative purpose, and they are maintained in different filing systems. A single set of publications should be designated the record copy, as distinguished from copies elsewhere or stocks of the same publication.
Managing Nonrecord Materials
The following guidelines should be used in managing nonrecord materials:
- Within the agency, only the records officer should determine record or nonrecord status, after obtaining any necessary advice from the agency's legal counsel. Giving such responsibility to officials at agency staff or operating levels may lead to misuse of the nonrecord label, weaken the entire disposition program, and result in the loss of valuable records.
- The records officer should seek NARA's guidance regarding the record or nonrecord status of a questionable file or type of document.
- When it is difficult to decide whether certain files are records or nonrecord materials, the records officer should treat them as records.
- Nonrecord materials should not be interfiled with records.
- Nonrecord materials should be destroyed when no longer needed for reference. NARA's approval is not required to destroy such materials.
- Nonrecord materials should be removed from US Government custody only with the agency's approval. The agency should ensure adequate protection of any security-classified or administratively controlled information contained in such materials.
Some Government employees, especially executives, senior staff, scientists, and other specialists, accumulate and keep various personal papers at the office. The maintenance of personal papers in agency space and equipment may require agency approval and also compliance with Federal and agency requirements. If kept there, such personal papers must be clearly designated as such and maintained separately from Federal records and nonrecords.
Personal papers are documentary materials belonging to an individual that are not used to conduct agency business. They relate solely to an individual's personal and private affairs or are used exclusively for that individual's convenience. They may refer to or comment on the subject matter of agency business, provided they are not used to conduct that business. In contrast to both records and nonrecord materials, personal papers are not Government-owned. Certain documentary materials are clearly personal and may readily be identified and claimed as such. Categories of personal papers include:
- Materials accumulated by an individual before joining Government service that are not later used to conduct Government business. Examples include previous work files, political materials, and reference files.
- Materials brought into or accumulated in the office that are not used to conduct agency business and that relate solely to an individual's family matters, outside business pursuits, professional activities, or private political associations. Examples include family and personal correspondence, volunteer and community service records, literature from professional organizations, and manuscripts and drafts of articles and books.
- Work-related materials, such as diaries, journals, notes, personal calendars, and appointment schedules, that are not prepared, received, or used in the process of transacting agency business. Although these materials contain work-related information, they are personal papers if they are claimed as such and serve only the individual's own purpose (e.g., as reminders and personal observations about work-related and other topics). This category is the most difficult to distinguish from agency records because of its work-related content.
Determining if Materials are Personal Papers or Federal Records
Employees should keep in mind that some materials appearing to be personal papers could prove to be agency records. Determining their record status depends on all the circumstances of their creation, maintenance and use, and disposition.
In determining whether or not certain documentary materials are records, the Federal courts have developed guidance, subject to change, in deciding Freedom of Information Act (FOIA) cases. Based on current case law involving executive agencies, the meaning of "agency records" for FOIA purposes is broader than that of "records" under 44 U.S.C. 3301 with respect to such agencies. Therefore, documentary materials falling outside the FOIA usage would also fall outside the statutory definition of "records" for those agencies. The following topics include relevant questions and guidance regarding the record status of work-related documentary materials:
- Creation. Was the document created or received by an agency employee on agency time, with agency materials, and at agency expense? If not, then the document is unlikely to be an agency record. If so, it may or may not be an agency record, depending on other considerations.
- Content. Does the document contain only substantive information about agency business, or does it contain only information about the employee's personal matters? Does it contain both official and personal information? If the document does not contain official information, then it is unlikely to be an agency record. If it does, then its potential record status depends on additional considerations.
- Purpose. Was the document created to facilitate agency business? If so, then it may be an agency record, depending on its distribution and use by other agency employees. Or was it created solely for the employee's personal convenience? If so, it is unlikely to be an agency record.
- Distribution. Was the document distributed to other employees for an official purpose? If so, it may be an agency record.
- Use. Did this employee or others actually use the document to conduct agency business? Materials brought into the agency for reference use do not become agency records merely because they relate to official matters or influence the employee's work. However, if the employee relies on such materials to conduct agency business or if other employees use them for agency purposes, then the materials are more likely to be agency records.
- Maintenance. Was the document placed in agency files, or was it kept in the employee's possession? If placed in agency files, it is likely to be an agency record. If not, then it is possible record status depends on other considerations.
- Disposition. Does a NARA-approved records schedule govern the document's disposition? If so, the document is a Federal record and is also likely to be an agency record for FOIA purposes. Or is the employee free to destroy or remove the document solely on the basis of individual discretion? If so, the document is unlikely to be an agency record.
- Control. Has the agency attempted to exercise "institutional control" over the document through applicable maintenance or disposition directives? Did it do so by requiring the document to be created in the first place? If so, the document is most likely an agency record.
- Segregation. Can substantive agency information in the document be segregated from any personal information? If so, the official portion should be extracted and placed in agency files.
In short, mere location in the agency does not mean that the materials are records, nor is use alone conclusive in determining record status. Materials generally assume record status, however, when the agency asserts control by requiring their creation or retention. Furthermore, documents created within an agency cannot be regarded as personal merely because the employee is free to dispose of them. Depending on other considerations, they may be records or nonrecord materials and therefore subject to agency control.
Government employees also tend to accumulate extra copies of documents, particularly those they have drafted, reviewed, or otherwise acted on. They may retain and remove these copies, with agency approval, if such actions do not impose an administrative or financial burden or violate the confidentiality required by national security, privacy, and other interests protected by law.
- Word of the Week: Record (Video)
- Word of the Week: Nonrecord (Video)
- Word of the Week: Personal Papers (Video)