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E-Mail Legal Requirements

MEMORANDUM
DATE:November 29, 1995
SUBJECT:Legal Requirements Concerning the Creation, Maintenance and Disposition of Electronic Mail Messages
FROM:Jonathan Z. Cannon
General Counsel
TO:Assistant Administrators
Inspector General
Associate Administrators
Regional Administrators
Regional Counsels

The purpose of this memorandum is to outline the legal responsibilities of Environmental Protection Agency (EPA) employees relating to the creation, maintenance and disposition of electronic mail. Electronic mail includes messages transmitted over any electronic mail communications system, whether implemented on a mainframe computer, local area network (LAN), or other platform. Examples of such systems include ALL-IN-1, WordPerfect Office Message Center, Lotus Notes, and cc:mail. As discussed below, Agency employees may have obligations under the Federal Records Act (FRA), 44 U.S.C. 3101 et seq., and the Freedom of Information Act (FOIA),

5 U.S.C. 552, to retain, retrieve, or disclose certain electronic mail messages.

The purpose of this guidance is not to require the preservation of every E-mail message. Rather, its purpose is to alert you to the requirement to preserve those messages that document Agency policies, programs, and activities. E-mail message creators must decide whether a particular message is appropriate for preservation. In making these decisions, all personnel should exercise the same judgment they use when determining whether to retain and file paper records. We expect that the Office of Information Resources Management (OIRM) [reorganized as the Office of Environmental Information (OEI) Oct. 1999] will be developing additional guidance regarding records retention practice in this area in the near term.

SUMMARY

All government employees and contractors are required by the FRA to make and preserve records which document the organization, functions, policies, decisions, procedures, and essential transactions of the Agency. In addition, Federal regulations provide that these records must be properly stored and preserved, available for retrieval, and subject to appropriate approved disposition schedules.

For FRA purposes, Agency information may be either records or nonrecord personal materials; personal material is not subject to EPA's records disposition schedules. If an electronic mail message meets the definition of a record under the FRA, it is required to be retained in accordance with EPA records disposition schedules.

Electronic mail messages also may constitute agency records under FOIA. If an electronic mail message is an agency record for FOIA purposes, it must be disclosed where responsive to a FOIA request, unless protected from disclosure under a FOIA exemption.

OBLIGATIONS UNDER THE FEDERAL RECORDS ACT

Definition of record under the FRA.

Before determining the appropriate disposition of an electronic mail message, one must ascertain whether the message is a record for FRA purposes. Whether electronic mail messages (or, for that matter, any other documentary materials) are record or nonrecord materials is a function of the use of the document/message, not of the medium upon which it is recorded. The court in Armstrong v. Executive Office of the President, 1 F.3d 1274, 1278 (D.C. Cir. 1993), has provided guidance in determining whether electronic mail messages are Federal records. The Court found that they are Federal records if:

  1. the messages were "made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business;" and
  2. the messages were "preserved or appropriate for preservation by that agency . . . as evidence of the agency's organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in [it]." Armstrong at 1283.

"Preserved" in the context of the EPA's electronic mail systems means that the data are deliberately filed, stored, or otherwise systematically maintained for future use by the Agency.

"Appropriate for preservation" has not been defined for the Agency as a whole; rather, each program office is responsible for making the determination. Generally, offices should preserve those documents which would enable persons reviewing the files to trace the development of policies, decisions, procedures, etc.

Thus, under FRA regulations (36 CFR 1222.38), the principal categories of materials, including E-mail, that are to be preserved are:

Examples of E-mail messages that may constitute Federal records include:

Nonrecord Materials

Certain types of materials created within EPA are considered "nonrecord" because they do not meet the FRA definition of "record" or because they are excluded by statute from the status of records. Some examples include:

A common subcategory of nonrecord materials is personal documents. The National Archives and Records Administration (NARA) has defined "personal papers" to include:

36 C.F.R. 1222.36

Documents created by government officials as reminders and personal observations on work-related topics are generally considered personal papers. Cover notes, routing slips and other transitory notes (and their electronic equivalents) that do no more than facilitate the flow of a document from one party to another are generally considered personal documents.

Beyond this general guidance, the Office of General Counsel, Offices of Regional Counsel, and OIRM [OEI] are available to assist in determining which records are appropriate for preservation.

OBLIGATIONS UNDER THE FREEDOM OF INFORMATION ACT (FOIA)

The Freedom of Information Act, 5 U.S.C. 552, requires release of agency records within the scope of a FOIA request unless the records fall within one of FOIA's exemptions or exclusions. Agencies responding to FOIA requests are responsible only for "agency records". See. e.g., United States Dept. of Justice v. Tax Analysts, 492 U.S. 136 (1989). The FOIA definition of "agency record" is broader than the concept of records under the FRA. While the FRA focuses on records appropriate for preservation, FOIA requires only that the record be (1) either created or obtained by an agency, and (2) under agency control at the time of the FOIA request. Id. at 144-145.

REMOVAL AND DESTRUCTION OF ELECTRONIC MAIL MESSAGES

As with paper records, copies of electronic mail messages which constitute government records may not be removed from EPA. Additionally, electronic mail messages which are records under the FRA or which are the subject of a FOIA request received by the Agency may not be destroyed except as authorized in an approved records disposition schedule (under development in OIRM [OEI]).

AVAILABILITY OF CALENDARS

Calendars created on electronic mail systems that contain information about government business may also be records for FRA or FOIA purposes. Calendars that are not circulated to others, and are not made accessible to others (e.g., daily planners), do not need to be preserved, and may be updated, changed or deleted at the individual's discretion. In determining whether to make your calendars available, you should note that the Administrator, by memorandum dated August 6, 1993, has made her weekly appointment calendar publicly available and encouraged Senior Agency managers to make their appointment calendars available as well.

FOR FURTHER ASSISTANCE

Attached to this memorandum is a two-page Quick Reference Guide with several useful "points to remember." OIRM [OEI] currently is working on implementation issues and guidance concerning the retention and/or disposal of electronic records. As part of this process, OIRM [OEI] will form a work group to develop procedures and practices to identify and manage electronic mail messages which qualify as records under the FRA. Please direct questions concerning this work group to the National Records Management Program Help Desk.

You may direct questions concerning this memorandum to Alan Margolis at margolis.alan@epa.gov.

Attachment: Electronic Mail Quick Reference Guide


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