Electronic Discovery Law
National Archives and Records Administration Revises Regulations Regarding Management and Disposition of Very Short-Term Temporary Email
The National Archives and Records Administration ("NARA") announced that it will be revising regulations to provide for appropriate management and disposition of very short-term email by allowing management of such records within the email system. Disposition of Electronic Mail Records with Short Retention Periods, Final Rule, 71 Fed. Reg. 8806-8808 (Feb. 21, 2006) (to be codified at 36 C.F.R. pt. 1234). The effective date for changes is March 23, 2006.
The rule waives the requirement to print out or otherwise save very short-term email records covered under categories listed in General Record Schedule (GRS) 23, Item 7, or in file series in agency schedules with similarly short term disposition periods.
NARA responses to comments from Federal agencies and public interest groups include the following:
-It was requested that the definition of short-term not be limited to 180 days or less, but instead extended to up to 3 years. NARA denied this request, as the rule is only meant to apply to records of fleeting value.
-A definite cut-off for short-term was requested, and it has been set at 180 days.
-Concern was expressed that the change could result in the destruction of important email records and help foster the attitude that email generally is disposable, and it was suggested instead that every email should be preserved. NARA disagreed, finding that requiring the creation of a record copy of every email would be extremely costly and burdensome, and may cause government employees to forgo any email record retention.
-Agencies stated that the proposed rule would require a technology solution, but NARA disagreed because the rule allows message management within the email system - transitory messages no longer need to be placed in a separate recordkeeping system.
-Agencies are required to comply with legal demands and thus may be required to freeze merely transitory documents.
-The rule only applies to Federal executive branch agencies.
-An electronic mail message is defined by 36 CFR 1234.2 as a "document created or received on an electronic mail system incluing beief notes, more formal or substantive narrative documents, and any attachments... which may be transmitted with the message."
-The messages to which this rule applies are only those which need be preserved for a minimal amount of time based on business needs or accountability. Under 36 CFR 1234.24(a), each agency must ensure that the proper metadata is captured as part of the record when it is required.
-Email attachments must be managed as records, such that if the attachment is also deemed transitory it can also be deleted from the email system without producing a recordkeeping copy. Emails and attachments must be considered together to determine if one provides context for the other before either is deemed transitory.
A copy of the announcement can be found by searching for "page 8806" (in quotes) here.
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