Lawful records management in the federal government is critically important, especially with a major deadline looming this year. It can also be confusing and seemingly in constant flux. To help clarify, here’s a refresher on the major laws and presidential Executive Orders impacting federal records management today.
The Federal Records Act (FRA)
The foundational law underlying federal recordkeeping, the Federal Records Act (Title 44 of the U.S. Code) was enacted in 1950 to “govern the collection, retention, preservation, and possibly destruction of federal agency records.” The FRA has been amended multiple times, most recently in 2014 and 2015. Those amendments were intended to bring the FRA in line with the modern world.
The 2014 amendment, for example, updated the definition of a federal records to emphasize the information being stored rather than the physical media used to store information. That means the law can now address digital and electronic information that might not have been covered by the previous definition. Similarly, an update in 2015 (H.R. 1233) was designed to ease the work of federal records managers in keeping up with huge increases in the volume of electronic communications.
The Federal Records Accountability Act of 2014
The Federal Records Accountability Act of 2014 (H.R. 5170) gives the FRA some teeth, in effect. It’s designed to improve compliance with federal recordkeeping requirements by making it easier to hold individual federal employees accountable for non-compliance. Specifically, it makes it easier to fire any federal employee who willfully and unlawfully hides, removes, destroys, or falsifies federal records in their custody. It also bans the use of instant messaging services for work purposes, which should also ease recordkeeping compliance.
Presidential Executive Orders
The Managing Government Records Directive (M-12-18), a 2012 Executive Order from President Obama, established the electronic record-keeping requirements that federal agencies are now trying to meet: “By 2019, Federal agencies will manage all permanent electronic records in an electronic format.” Other relevant Executive Orders include a “Freeze the Footprint” policy that restricted the ability to acquire or expand warehouses for records storage and an “Open Government Initiative” designed to make information about government operations more transparent, accessible, and machine-readable. To date, President Trump has mostly focused on other priorities in his own Executive Orders, though he has ordered the release of certain government records (e.g., certain records related to the assassination of President Kennedy).
The Freedom of Information Act
The Freedom of Information Act (FOIA, 5 U.S.C. §552) provides the public with access to executive branch records, though it does include exemptions for certain types of records. Many of the previous recordkeeping laws and orders directly impact FOIA; a federal agency can only produce their records if those records have been properly managed. FOIA compliance is thus one of the major benefits of recordkeeping compliance, and it alone is a good reason to follow the mandates discussed above.
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