It is essential that Federal Government Agencies manage their electronic records appropriately. Like all other government records, electronic records can also be used as evidence in litigation (eDiscovery). Agencies can be held liable if they keep their electronic records too long, if their electronic records are not properly destroyed, or if they are destroyed too soon. Under all of these circumstances, the Federal Government Agency can be publicly embarrassed by the events, and can lose significant dollars attempting to protect itself to produce the required records, to identify the relevant records, or to recover lost records. Federal Agency’s are required by law to manage records and this includes electronic records.
This Q&A template has been developed in response to Electronic Records questions received during a recent TDY and some questions received from missions via email. It is intended that this Q&A will assist those mission workers who create, receive, and retain electronic records.
Q: What are electronic records and how do they differ from paper records?
A: An electronic record meets the definition of a record, and is information recorded by a computer that is produced or received in the initiation, conduct or completion of business. Examples of electronic records include: e-mail messages, word processed documents, electronic spreadsheets, digital images and documents produced in many of the systems owned and operated by Agency. Electronic records maintained in many Agencies’ consist of information systems which include financial reports, contracts, personnel information, Foreign Service information, legal information, etc.
Electronic records differ from paper records in three primary ways:
Frequency-There more of them
Fluidity-Electronic records are always moving, where paper is not nearly as mobile
Federacy-They are more accessible
Q: Do the electronic records I create and use at work belong to me?
A: No. All electronic records that are created received or stored by Agency employees are the property of the Federal Government and its citizens. These records are not the property of its employees, contractors, or other staff or volunteers. Employees should have no expectation of privacy when using the Federal Government computer resources.
Q: I sometimes use my home computer to conduct government business. Am I creating public records?
A: Yes. Records created in the performance of an official function, regardless of where you are creating or receiving, must be managed the same way as those created and received using government computer resources in a government facility.
Q: Could my electronic records be released for the purpose of litigation (eDiscovery)?
A: Electronic records might be released in for litigation or the eDiscovery process. Computers are provided to employees for conducting official business. Employees should be prepared to provide access to their electronic records under these circumstances. This process usually begins with a litigation hold. Electronic records that are created using home computers are also subject to eDiscovery.
Q: What are my responsibilities as a government employee who creates electronic records?
A: The Government employee’s responsibilities for managing electronic records are the same as those for other records. Government employees are responsible for organizing their electronic records so they can be located and used. Government employees are responsible for using an approved Disposition Schedule to identify how long electronic records must be kept. Government employees are responsible for keeping electronic records for their entire retention period, and for deleting electronic records in accordance with an approved Disposition Schedule.
Q: What is a Disposition Schedule?
A: NARA (National Archives and Records Administration) requires that all Federal Agencies manage Federal Records regardless of physical format and these records are to be managed according to an approved Disposition Schedule. The records schedule identifies how long the records must be kept, when they must be destroyed and when certain records can be sent to NARA for permanent preservation. No Federal records can be destroyed without the authorization of an approved Disposition Schedule.
Q: Is there a Disposition Schedule that covers the electronic records in my mission? There are three responses to this question:
A. Your electronic records may be located within an Information System that has been scheduled with NARA and that disposition schedule should be reviewed for disposition instructions.
B. Many electronic records are covered under the General Records Schedule (GRS), and this should be consulted for disposition instruction.
C. If the electronic records in your mission are not covered by the GRS, and are not located in one of the Information Systems that have been scheduled by NARA they may be covered under an approved Agency Records Schedule
Q: What should I do if my electronic records are not listed on a Disposition Schedule as listed above?
A: You should contact the Information and Records Division for assistance.
Q: My mission’s paper records were listed on a Disposition Schedule; now most of our records are created electronically. Does the Disposition Schedule still apply?
A: In most cases yes, but there may be exceptions. In most cases the Disposition instructions are medial neutral. You should contact the Information and Records Division for assistance if you have questions determining if the Disposition instructions are applicable.
Q: My mission is buying new software for a database or Information System, and we do not know which data from the old database or Information System we need to keep.
A: Electronic records must be retained in accordance with the Disposition Schedule as indicated, so it is very important that the database or Information System be scheduled. The schedule will tell you how long to keep the older data.
Note: Electronic records cannot be destroyed if they have been requested for eDiscovery, even if their retention period has expired. It is also important that you consult the Agency Policy for information regarding the implementation of new software, such as data bases or Information Systems.
Q: How should I store permanent electronic records?
A: Missions should know how long their electronic records must be retained before they select their storage media for electronic records that are permanent or have lengthy retention periods; therefore it is very important that Disposition Schedules be reviewed before considering storage media. Missions should consider authorized technology when considering storage media. When considering storage media for permanent records it is important that the media be approved by NARA. Currently NARA will receive permanent electronic records stored on CD ROMs. Information regarding authorized storage media may be obtained by contacting the Information and Records Division.
Q: Will my older electronic records be accessible when new technology (hardware and software) is upgraded or changed?
A: Electronic technology is a rapidly changing field. Many electronic records will require that they be kept longer than the original technology that was used to create them. New technology is not always compatible with older technology that missions may have used in the past. Missions are responsible for ensuring that older electronic records are migrated to newer systems to remain usable. As older technology becomes obsolete or unusable due to the evolving field of electronic records in some missions it may be necessary to contact CIO office or Information and Records Division for assistance. Additional guidance for this question is also found in the Agency Policy.
Q: Are deleted electronic records permanently destroyed?
A: Not necessarily. Electronic records should be deleted in accordance with the appropriate Disposition Schedule instructions. However, deleted electronic records may not be completely deleted from the system and may still be latent within the Agency infrastructure. For assistance in deleting electronic records please contact your Agency Information and Records Division or CIO office.
Q: My mission has piles of records which they would like to convert to electronic format and destroy the paper files. What is your guidance in regards to this question?
A: This is a common situation in various missions. There are many advantages to converting the paper records to an electronic format, primarily that of space, convenience, and accessibility. Unfortunately it is not always possible to convert all the paper files to electronic format and destroy the paper. My response would be this: A. Make sure they are records that should be kept, and that some if not many are not subject to deletion due to their Disposition Schedule. A purge day (purge day=a day when old records past their disposition can be destroyed) should be scheduled prior to any type of conversion. B. Some records may be managed in document management data base and the original copy will have to be placed in an authorized storage facility until it has reached its disposition. What this does is it affords the convenience of having an electronic copy and moving the paper to storage until it has reached its disposition. C. Some paper records may be copies and the official record may be contained in a scheduled Electronic Information System. In such cases paper copies need not be retained, however if one wants to retain the paper copy as a working copy it may be scanned into the hard drive and e-filed for the convenience of having an accessible working copy.