44 U.S.C. § 3102 — Establishment of program of management

Page 128 TITLE 44—PUBLIC PRINTING AND DOCUMENTS § 3102 Executive Documents MANAGING GOVERNMENT RECORDS Memorandum of President of the United States, Nov. 28, 2011, 76 F.R. 75423, provided: Memorandum for the Heads of Executive Depart- ments and Agencies SECTION 1. Purpose. This memorandum begins an ex- ecutive branch-wide effort to reform records manage- ment policies and practices. Improving records man- agement will improve performance and promote open- ness and accountability by better documenting agency actions and decisions. Records transferred to the Na- tional Archives and Records Administration (NARA) provide the prism through which future generations will understand and learn from our actions and deci- sions. Modernized records management will also help executive departments and agencies (agencies) mini- mize costs and operate more efficiently. Improved records management thus builds on Executive Order 13589 of November 9, 2011 (Promoting Efficient Spend- ing), which directed agencies to reduce spending and focus on mission-critical functions. When records are well-managed, agencies can use them to assess the impact of programs, to reduce re- dundant efforts, to save money, and to share knowledge within and across their organizations. In these ways, proper records management is the backbone of open Government. Decades of technological advances have transformed agency operations, creating challenges and opportuni- ties for agency records management. Greater reliance on electronic communication and systems has radically increased the volume and diversity of information that agencies must manage. With proper planning, tech- nology can make these records less burdensome to manage and easier to use and share. But if records management policies and practices are not updated for a digital age, the surge in information could overwhelm agency systems, leading to higher costs and lost records. We must address these challenges while using the op- portunity to develop a 21st-century framework for the management of Government records. This framework will provide a foundation for open Government, lever- age information to improve agency performance, and reduce unnecessary costs and burdens. SEC. 2. Agency Commitments to Records Management Re- form. (a) The head of each agency shall: (i) ensure that the successful implementation of records management requirements in law, regulation, and this memorandum is a priority for senior agency management; (ii) ensure that proper resources are allocated to the effective implementation of such requirements; and (iii) within 30 days of the date of this memorandum, designate in writing to the Archivist of the United States (Archivist), a senior agency official to supervise the review required by subsection (b) of this section, in coordination with the agency’s Records Officer, Chief Information Officer, and General Counsel. (b) Within 120 days of the date of this memorandum, each agency head shall submit a report to the Archivist and the Director of the Office of Management and Budget (OMB) that: (i) describes the agency’s current plans for improving or maintaining its records management program, par- ticularly with respect to managing electronic records, including email and social media, deploying cloud- based services or storage solutions, and meeting other records challenges; (ii) identifies any provisions, or omissions, in rel- evant statutes, regulations, or official NARA guidance that currently pose an obstacle to the agency’s adop- tion of sound, cost-effective records management poli- cies and practices; and (iii) identifies policies or programs that, if included in the Records Management Directive required by sec- tion 3 of this memorandum or adopted or implemented by NARA, would assist the agency’s efforts to improve records management. The reports submitted pursuant to this subsection should supplement, and therefore need not duplicate, information provided by agencies to NARA pursuant to other reporting obligations. SEC. 3. Records Management Directive. (a) Within 120 days of the deadline for reports submitted pursuant to section 2(b) of this memorandum, the Director of OMB and the Archivist, in coordination with the Associate Attorney General, shall issue a Records Management Directive that directs agency heads to take specific steps to reform and improve records management poli- cies and practices within their agency. The directive shall focus on: (i) creating a Government-wide records management framework that is more efficient and cost-effective; (ii) promoting records management policies and prac- tices that enhance the capability of agencies to fulfill their statutory missions; (iii) maintaining accountability through documenta- tion of agency actions; (iv) increasing open Government and appropriate public access to Government records; (v) supporting agency compliance with applicable legal requirements related to the preservation of infor- mation relevant to litigation; and (vi) transitioning from paper-based records manage- ment to electronic records management where feasible. (b) In the course of developing the directive, the Ar- chivist, in coordination with the Director of OMB and the Associate Attorney General, shall review relevant statutes, regulations, and official NARA guidance to identify opportunities for reforms that would facilitate improved Government-wide records management prac- tices, particularly with respect to electronic records. The Archivist, in coordination with the Director of OMB and the Associate Attorney General, shall present to the President the results of this review, no later than the date of the directive’s issuance, to facilitate potential updates to the laws, regulations, and policies governing the management of Federal records. (c) In developing the directive, the Director of OMB and the Archivist, in coordination with the Associate Attorney General, shall consult with other affected agencies, interagency groups, and public stakeholders. SEC. 4. General Provisions. (a) This memorandum shall be implemented consistent with applicable law and sub- ject to the availability of appropriations. (b) Nothing in this memorandum shall be construed to impair or otherwise affect: (i) authority granted by law to a department or agen- cy, or the head thereof; or (ii) functions of the Director of OMB relating to budg- etary, administrative, or legislative proposals. (c) This memorandum is not intended to, and does not, create any right or benefit, substantive or proce- dural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. SEC. 5. Publication. The Archivist is hereby authorized and directed to publish this memorandum in the Fed- eral Register. BARACK OBAMA. § 3102. Establishment of program of management The head of each Federal agency shall estab- lish and maintain an active, continuing program for the economical and efficient management of the records of the agency. The program, among other things, shall provide for (1) effective controls over the creation and over the maintenance and use of records in the conduct of current business; (2) procedures for identifying records of gen- eral interest or use to the public that are ap- propriate for public disclosure, and for posting such records in a publicly accessible electronic format; Page 129 TITLE 44—PUBLIC PRINTING AND DOCUMENTS § 3105 (3) cooperation with the Archivist in apply- ing standards, procedures, and techniques de- signed to improve the management of records, promote the maintenance and security of records deemed appropriate for preservation, and facilitate the segregation and disposal of records of temporary value; and (4) compliance with sections 2101–2117, 2501–2507, 2901–2909, and 3101–3107, of this title and the regulations issued under them. (Pub. L. 90–620, Oct. 22, 1968, 82 Stat. 1298; Pub. L. 94–575, § 3(a)(1), (2), Oct. 21, 1976, 90 Stat. 2726; Pub. L. 98–497, title I, § 107(b)(19), Oct. 19, 1984, 98 Stat. 2290; Pub. L. 113–187, § 9(f), formerly § 9(g), Nov. 26, 2014, 128 Stat. 2014, renumbered § 9(f), Pub. L. 115–85, § 2(a)(5), Nov. 21, 2017, 131 Stat. 1275; Pub. L. 114–185, § 4, June 30, 2016, 130 Stat. 544.) HISTORICAL AND REVISION NOTES Based on 44 U.S. Code, 1964 ed., § 396(b) (June 30, 1949, ch. 288, title V, § 506(b), as added Sept. 5, 1950, ch. 849, § 6(d), 64 Stat. 583). Editorial Notes AMENDMENTS 2016—Pars. (2) to (4). Pub. L. 114–185 added par. (2) and redesignated former pars. (2) and (3) as (3) and (4), re- spectively. 2014—Par. (2). Pub. L. 113–187 struck out ‘‘the Admin- istrator of General Services and’’ before ‘‘the Archi- vist’’. 1984—Pars. (2), (3). Pub. L. 98–497 inserted ‘‘and the Archivist’’ after ‘‘Administrator of General Services’’ in par. (2), and substituted ‘‘sections 2101–2117’’ for ‘‘sections 2101–2113’’ and struck out ‘‘2701,’’ before ‘‘2901’’ in par. (3). 1976—Pub. L. 94–575, § 3(a)(1), (2), substituted in par. (1) ‘‘the creation and over the maintenance’’ for ‘‘the creation, maintenance,’’ and in par. (3) reference to sec- tions ‘‘2901–2909’’ for ‘‘2901, 2903–2909’’ of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2016 AMENDMENT Amendment by Pub. L. 114–185 applicable to any re- quest for records under section 552 of title 5 made after June 30, 2016, see section 6 of Pub. L. 114–185, set out as a note under section 552 of Title 5, Government Organi- zation and Employees. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–497 effective Apr. 1, 1985, see section 301 of Pub. L. 98–497, set out as a note under section 2102 of this title. § 3103. Transfer of records to records centers When the head of a Federal agency determines that such action may affect substantial econo- mies or increased operating efficiency, the head of such agency shall provide for the transfer of records to a records center maintained and oper- ated by the Archivist, or, when approved by the Archivist, to a center maintained and operated by the head of the Federal agency. (Added Pub. L. 94–575, § 3(a)(3), Oct. 21, 1976, 90 Stat. 2726; amended Pub. L. 98–497, title I, § 107(b)(20), Oct. 19, 1984, 98 Stat. 2290; Pub. L. 113–187, § 8(9), Nov. 26, 2014, 128 Stat. 2012.) Editorial Notes PRIOR PROVISIONS A prior section 3103, Pub. L. 90–620, Oct. 22, 1968, 82 Stat. 1298, contained provisions similar to those com- prising this section, prior to repeal by Pub. L. 94–575, § 3(a)(3). AMENDMENTS 2014—Pub. L. 113–187 substituted ‘‘the head of such agency’’ for ‘‘he’’. 1984—Pub. L. 98–497 substituted ‘‘Archivist’’ for ‘‘Ad- ministrator’’ wherever appearing. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–497 effective Apr. 1, 1985, see section 301 of Pub. L. 98–497, set out as a note under section 2102 of this title. § 3104. Certifications and determinations on transferred records An official of the Government who is author- ized to certify to facts on the basis of records in such official’s custody, may certify to facts on the basis of records that have been transferred by such official or such official’s predecessors to the Archivist, and may authorize the Archivist to certify to facts and to make administrative determinations on the basis of records trans- ferred to the Archivist, notwithstanding any other law. (Pub. L. 90–620, Oct. 22, 1968, 82 Stat. 1298; Pub. L. 98–497, title I, § 107(b)(21), Oct. 19, 1984, 98 Stat. 2290; Pub. L. 113–187, § 8(10), Nov. 26, 2014, 128 Stat. 2012.) HISTORICAL AND REVISION NOTES Based on 44 U.S. Code, 1964 ed., § 396(d) (June 30, 1949, ch. 288, title V, § 506(d), as added Sept. 5, 1950, ch. 849, § 6(d), 64 Stat. 583, and amended Feb. 5, 1964, Pub. L. 88–265, 78 Stat. 8). Editorial Notes AMENDMENTS 2014—Pub. L. 113–187 substituted ‘‘such official’s cus- tody’’ for ‘‘his custody’’ and ‘‘such official or such offi- cial’s predecessors’’ for ‘‘him or his predecessors’’. 1984—Pub. L. 98–497 substituted ‘‘Archivist’’ for ‘‘Ad- ministrator of General Services’’ and ‘‘Archivist’’ for ‘‘Administrator’’ wherever appearing. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–497 effective Apr. 1, 1985, see section 301 of Pub. L. 98–497, set out as a note under section 2102 of this title. § 3105. Safeguards The head of each Federal agency shall estab- lish safeguards against the removal or loss of records the head of such agency determines to be necessary and required by regulations of the Archivist. Safeguards shall include making it known to officials and employees of the agen- cy— (1) that records in the custody of the agency are not to be alienated or destroyed except in accordance with sections 3301–3314 of this title, and (2) the penalties provided by law for the un- lawful removal or destruction of records. (Pub. L. 90–620, Oct. 22, 1968, 82 Stat. 1298; Pub. L. 98–497, title I, § 107(b)(22), Oct. 19, 1984, 98 Stat.