NARA gets more power over records under new law

President Barack Obama quietly signed new federal records legislation into law just before the Thanksgiving holiday that is mostly about putting limits on the ability of presidential administrations to slam the brakes on the release of records from prior administrations. But the legislation also drills into records management practices, and gives the National Archive and Records Administration new authority to make rules about what is and is not a federal record. It also enshrines in law current administration policy of preserving electronic and digital records in their original form, and transferring them to the Archive in keeping with records schedules.

That might sound hum-drum, but it's not.

"In a word, yes, this is a big deal," said Arian Ravanbakhsh, a records management policy analyst at NARA in an email interview with FCW. "This law is the first time since the passage of the Federal Records Act in 1950 that the definition of what constitutes a record has changed," he said.

The legislative language reads: "The Archivist shall promulgate regulations requiring all Federal agencies to transfer all digital or electronic records to the National Archives of the United States in digital or electronic form to the greatest extent possible."

While NARA has issued guidance for years on including electronic records as part of an overall recordkeeping schedule, the emphasis now has the force of law. Obama's Memorandum on Managing Government Records in November 2011 and a follow-up directive in 2012 instructed agencies to store all digital records in their original electronic formats by 2019. The law gives NARA the ability to issue rules rather than guidance about how to hit that target.

Not all feds are covered by records schedules. Mostly, the records rules apply to managers, senior policy officials and political appointees. And even for those covered employees, the application of the new law might not seem like a big transition. "Not much may change from a day-to-day perspective," Ravanbakhsh said. "For decades, we have issued guidance on electronic records and the need for them to be properly managed."

The law also looks to root out the willful destruction of agency records, and sets hard and fast rules on how to treat communications sent along private channels that qualify as federal records. Agency heads are responsible for informing the archivist about "any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the agency" and initiate action to recover the records via the attorney general. If agency heads don't act, the archivist is compelled to take action and notify Congress. The rules governing communications over non-governmental accounts (like an agency head writing an official email using a Gmail account) are based on existing NARA guidance.

Ravanbakhsh said that feds looking to keep up to date on NARA guidance should follow the Records Express blog, the official blog of the Chief Records Officer of the United States.