Key U.S. Federal Statutes for Records Management

Key U.S. Federal Statutes Related to Records Management

• National Archives Act of 1934:
  • Established the National Archives to centralize federal recordkeeping
  • Archivist of the United States is the chief administrator
• Federal Records Act of 1950:
  • Establishes framework for records management programs in federal agencies
  • NARA is the primary agency for records management oversight
  • Includes appraisal, disposal, and preservation of federal records
• Presidential and Federal Records Act Amendments of 2014:
  • Expanded definition of federal records to include electronic records
  • Grants the Archivist final determination on what constitutes a federal record
• Freedom of Information Act (FOIA) of 1966:
  • Ensures public access to U.S. government records
  • Carries a presumption of disclosure
  • Agencies must disclose records unless exempt
• Electronic Freedom of Information Act Amendments of 1996:
  • Requires agencies to release records in electronic form on request
• FOIA Improvement Act of 2016:
  • Requires agencies to make previously released records available in electronic format
  • Establishes a minimum 90-day appeal period for adverse determinations
  • Provides dispute resolution services throughout the FOIA process

Privacy Act of 1974

• Establishes safeguards for protection of records collected on U.S. citizens
• Mandates disclosure of information collection and use
• Bars agencies from maintaining unnecessary information
• Allows individuals to access and amend their records

Presidential Records Act (PRA) of 1978

• Governs official records of Presidents and Vice Presidents created or received after January 20, 1981
• Establishes a new statutory structure for presidential records management
• Transfers presidential records to the National Archives when the President leaves office

Other Key Acts

• Paperwork Reduction Act of 1995:
  • Requires agencies to obtain OMB approval before requesting information from the public
  • Establishes chief information officers (CIOs) to carry out records management responsibilities
• U.S. Electronic Signatures in Global and National Commerce (ESIGN) Act of 2000:
  • Grants electronic signatures the same legal status as handwritten signatures
  • Standardizes electronic records and signatures in interstate and international commerce
• E-Government Act of 2002:
  • Promotes the use of the Internet and electronic government services
  • Enhances access to government information and services
  • Requires agencies to conduct privacy impact assessments (PIAs) for IT systems

Code of Federal Regulations (CFR) and United States Code (USC)

• CFR codifies general and permanent rules published in the Federal Register
• Title 36 of the CFR is most relevant to RIM
• USC is the consolidation and codification of general and permanent laws of the United States
• Title 44 of the USC is most relevant to RIM on the federal level

Industry-Specific Regulations

• Sarbanes-Oxley Act of 2002 (SOX):
  • Administered by the Securities and Exchange Commission (SEC)
  • Applies to public companies, international companies, and accounting firms
  • Regulates destruction, alteration, or falsification of records
• Financial Industry Regulatory Authority (FINRA):
  • Requires firms to have written policies and procedures to safeguard customer records and information
• Health Insurance Portability and Accountability Act of 1996 (HIPAA):
  • Establishes privacy and security standards to protect individually identifiable health information
  • Applies to healthcare-related organizations and employers outside the healthcare sector
• Electronic Signatures in Global and National Commerce Act (E-SIGN):
  • Facilitates the use of electronic records and signatures
  • Ensures validity and legal effect of contracts entered into electronically

Federal Rules of Civil Procedure (FRCP) and Implications for Records Management

• FRCP governs civil actions brought into federal district courts
• Rules 26 and 37 impact RM programs
• Rule 26(a): Defines electronically stored information and disclosure requirements
• Rule 26(b)(1): Changes the scope of discovery and proportionality
• Rule 26(b)(2): Acknowledges undue burden of production
• Rule 26(b)(5): Relates to claiming privilege or protecting trial-preparation materials
• Rule 34(b)(2): Specifies need for greater specificity in objections to requests for production
• Rule 37(e): Authorizes courts to issue sanctions for failure to preserve ESI
• Rule 37(f): Recognizes routine, good-faith operation of electronic information systems### Discovery
• In a court case, the plaintiff produced over 73,000 pages of documents, while the defendants produced only 13 documents for a six-year period.
• The court agreed that additional documents were relevant and should be produced by the defendants.
• The Sedona Principles emphasize the importance of reciprocal responsibilities in discovery, including:
  • Discovery requests must be appropriately tailored.
  • Discovery should be directly proportional to the stakes.
• The court suggested using search terms, technology-assisted review (TAR), and sampling to ease the discovery burden.

The Sedona Conference

• The Sedona Conference is a non-profit research and educational institute that focuses on law and policy related to antitrust law, complex litigation, and intellectual property rights.
• The institute publishes research products on eDiscovery, including:
  • The Sedona Conference TAR Case Law Primer, Second Edition (2023).
  • The Sedona Conference Commentary on Information Governance, 2nd ed. (2019).
  • The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production (2018).

Electronic Discovery

• Electronic discovery (eDiscovery) refers to the process of locating, securing, searching, and producing electronic data as evidence in a legal case.
• eDiscovery involves identifying, collecting, preserving, analyzing, and producing electronic stored information (ESI).
• The Electronic Discovery Reference Model (EDRM) outlines the eDiscovery process in five areas: identification, preservation/collection, processing/review/analysis, production, and presentation.
• The acronym ICPAP summarizes the duties of the party receiving the eDiscovery request: identify, collect, preserve, analyze, and produce.

Information Governance

• Information Governance is essential to the five areas of the EDRM.
• The Information Governance Reference Model (IGRM) includes activities such as create/receive, protect, retain, dispose, and transfer, as well as policies and processes developed with input from various stakeholders.
• Information Governance is critical for organizations to effectively govern their records and information, and to mitigate risks such as lost files, high costs, and compliance violations.
• Benefits of an information governance program include the protection of essential records, preservation of corporate memory, and effective control and management of records within the organization.