US federal email and electronic message records

Personal accounts and the 20-day rule

Section 2911 of title 44 says an officer or employee of an executive agency may create or send a record using a non-official electronic messaging account only if they copy their official account when the record is created or sent, or forward a complete copy to the official account within 20 days ¹. An intentional violation, as determined by the appropriate supervisor, is a basis for disciplinary action ¹. The law defines electronic messages as email and other electronic messaging systems used to communicate between individuals ¹.

Section 2209 sets the same rule for the President, the Vice President and covered employees creating Presidential or Vice Presidential records, with the same 20-day limit ².

What an email record must keep

• The names of the sender and all addressees and the date the message was sent ³.
• Attachments that are an integral part of the record, kept with the record or linked to related records ³.
• Full names behind codes, nicknames or distribution lists, so senders and addressees can be identified ³.
• If the email system is not a recordkeeping system, staff must be told how to copy federal records into one ³.
• Agencies with paper recordkeeping systems must print and file email records with their transmission data ³.

The Capstone schedule

General Records Schedule 6.1 lets agencies manage email and other electronic messages by the role of the account holder, an approach NARA calls Capstone ⁴. An agency must not use it until NARA approves form NA-1005, Verification for Implementing GRS 6.1 ⁴. Agencies are expected to cull nonrecord, personal and transitory messages from permanent accounts before transfer, such as spam and agency-wide message blasts ⁴.

When messages are lost or destroyed

The head of each agency must notify the Archivist of any actual, impending or threatened unlawful removal, alteration or destruction of records, and seek their recovery with the Attorney General ⁶. NARA's Records Management Oversight and Reporting Program handles these unauthorized disposition cases ⁵. It says it receives notifications from agencies and from other sources such as the news media and private citizens, and opens a case file for each allegation ⁵.

NARA publishes cases opened from 1 October 2016 onward, with open and close letters where available, and a spreadsheet of older closed cases ⁵. One entry, UD-2024-0079, records that the Department of Agriculture reported the potential loss of up to 770 GB of personal email records created by employees and kept on Google Mail and Drive from 2010 onward, with the status pending review or follow-up ⁵. Another, UD-2024-0071, records one box of records lost in transit to a Federal Records Center ⁵.

Criminal law sits behind these rules. Under 18 U.S.C. § 2071, willfully and unlawfully destroying or concealing a record filed in a public office carries a fine, up to three years in prison, or both ⁷.

Deleted does not always mean gone

Rules on held information differ by country. In the UK, the ICO says information in a recycle bin or on backups may still be held until it is overwritten ⁸. In the US, the Department of Justice FOIA guide notes court rulings that an agency need not attempt to recover deleted electronic data to perform a reasonable search ⁹.