NARA Bulletin 2020-01

This guidance pertains only to Federal agencies and applicable contractors and is binding on agency actions as required by law and similar authority. This guidance does not apply to, and is not meant to bind, the public, except as authorized by law or regulation or as incorporated into a contract.

September 30, 2020

TO: Heads of Federal agencies

SUBJECT: Guidance on OMB/NARA Memorandum Transition to Electronic Records (M-19-21)

EXPIRATION DATE: Expires when revoked or superseded

1.  What is the purpose of this bulletin?

This guidance answers common questions and provides clarification to OMB/NARA Memorandum, Transition to Electronic Records (M-19-21). NARA will update this bulletin as recurring questions arise. The bulletin specifies how agencies may request exceptions to M-19-21.

General Questions

2.  Does OMB/NARA Memorandum M-19-21 supersede the Managing Government Records Directive M-12-18?

Yes, while this memorandum officially rescinds OMB/NARA Memorandum M-12-18, Managing Government Records, it incorporates all of the outstanding M-12-18 requirements while adding additional guidance on transitioning to a fully digital recordkeeping strategy. Also, M-19-21 rescinds OMB/NARA M-14-16, Guidance on Managing Email.

3.  Where is section 2.2 of M-19-21?  

This is a numbering error. The relevant content is located in the final paragraph in Section 2.1.

4.  Does M-19-21 apply to Federal records that contractors create or receive?

Yes, M-19-21 requirements apply to all Federal records, including records that Federal contractors create or receive. Consistent with 36 CFR § 1222.32, agencies should ensure all contracts and agreements address any records management obligations.

5.  Will the targets established in M-19-21 be extended due to the COVID-19 pandemic?

We are sympathetic to the challenges agencies are facing during the current health crisis; however, the targets set for federal agencies in 2022 are not imminent and do not require adjusting at this point. NARA and the Office of Management and Budget (OMB) will continue to monitor the current situation as we all work through this crisis together. We will coordinate any decision on M-19-21 targets with OMB.

Exception Process Questions

6.  What does “to the fullest extent possible” mean in M-19-21?

The phrase “to the fullest extent possible” is based on the language in 44 U.S.C. § 2902(6), which directs the Archivist of the United States to give continuing attention to records from their initial creation to their final disposition, with particular emphasis on the prevention of unnecessary Federal paperwork and the transfer of records from Federal agencies to the National Archives of the United States in digital or electronic form to the greatest extent possible. The memorandum’s use of the phrase “to the fullest extent possible” recognizes agencies may need an exception to transfer a limited number of analog records to NARA Federal Records Centers (FRC) or directly to the National Archives after December 31, 2022, based on the exception criteria.

7.  What are the criteria for exceptions from the requirements of M-19-21?  

Section 2.1 of M-19-21 indicates exceptions for requiring agencies to manage all permanent records in an electronic format and with appropriate metadata. 

Exceptions will be considered based on three broad categories:

• Cases where replacing analog records with electronic systems would be burdensome to the public;
• Situations where, following a comprehensive analysis considering all relevant factors, the cost would exceed the benefit;
• Cases where analog records cannot be replaced for some other reason, including statutory or regulatory barriers.

Exceptions will be based on a combination of criteria, broadly outlined in M-19-21, as part of an overall business case. The business case may contain variables such as the cost for digitization services, the cost for reference services, legal analysis of ownership and access issues, and time estimates with supporting documentation for how long an exception would be needed.

Exception requests will be considered in the context of an agency’s overall program for managing their records. Agencies should submit one request to cover all the records series they believe need exceptions after conducting an analysis of agency records and business needs.

8.  What is the definition of “burdensome to the public”? 

In general, digitizing agency business processes should provide substantial value to the public. On rare occasions, the shift to new ways of interacting with the public could cause disruptions or undue burdens. Agencies making an exception request under this category must make the business case that this shift increases the burden for the public in terms of cost due to time, effort, or resources expended. 

9.  What sort of statutory and regulatory barriers should agencies consider?

Agencies should consider specific statutory or regulatory requirements to create analog records or records in a specific format other than electronic. The agency must identify and provide to NARA the specific statute or regulation prohibiting the creation of a record in electronic form and the legal interpretation and justification from their general counsel. 

10.  Do the requirements in M-19-21 apply to classified records?

Yes, agencies with classified analog records should submit an exception request if classification presents a barrier to the records’ digitization or commercial storage.

11.  Can agencies consider intrinsic value as a justification for requesting an exception?

If appropriate, agencies may consider NARA’s Appraisal Policy, Appendix 3 – Qualities and Characteristics of Records with Intrinsic Value, in developing their business case. Intrinsic value is an archival term applied to permanent records that have qualities and characteristics that make the physical form of the record the preferred form for preservation.

12.  Does an agency requirement for a “wet signature” entitle an agency to an exception? 

No, we will not grant agencies exceptions based solely on agency “wet signature” policies or practices. NARA expects agencies to transition to electronic records unless specifically precluded by law. OMB guidance is also clear that agencies may not deny electronic records and their related electronic signatures legal effect, validity, or enforceability merely because they are in electronic form (OMB Circular A-130, “Managing Federal Information as a Strategic Resource”).

13.  What if my agency has analog records that, due to their age or fragility, are not appropriate for digitization?

If the age or fragility of analog records requires specialized digitization techniques that the agency believes presents an undue cost burden, the agency should submit to NARA a request for an exception with supplementary cost/benefit documentation.

14.  How should we develop our exception request?

Agencies must develop a comprehensive business case for their plans to transition to electronic records and provide it to NARA. The business case covering all requested exceptions should address considerations related to the categories below, including but not limited to the following:

• a plan for the prompt and orderly transition to full compliance with the requirements of M-19-21,
• detailed description of agency policies requiring analog recordkeeping,
• cubic footage of the records affected,
• the NARA-approved records schedule, item number, and description. If the records are unscheduled, please include a description and proposed retention and disposition,
• the cost of digitization services or reference services,
• the cost of implementing electronic records management systems to support the goals of M-19-21,
• documentation describing the cost/benefit analysis of digitization,
• legal analysis describing statutory or regulatory barriers, and
• time estimates with supporting documentation for how long an exception would be needed.

Agencies should submit one exception request package to NARA that covers all circumstances where exceptions to the requirements in M-19-21 are needed, such as continuing to run an agency-operated records center and digitizing inactive records. The exception request package should include the business case and all supporting documentation, including all relevant cost-benefit analysis reports and legal opinions.

The Federal Records Management Council has published a white paper that has extensive background information on the costs, benefits, and risks of digitization in Federal agencies. The white paper is located on NARA’s website at: https://www.archives.gov/records-mgmt/policy/frmc. 

15.  How will exception requests be adjudicated? 

When an agency submits an exception request package, we will review the submission, following up with the agency as needed. A recommendation will be made to the Archivist of the United States and coordinated with OMB. Once NARA and OMB make a decision on the recommendation, the Office of the Chief Records Officer will formally communicate the outcome to the agency and will maintain all documentation of the request and determination. 

16.  What is the time frame for NARA and OMB to complete the adjudication process?

After an agency submits an exception request package, there is no set time frame to complete the adjudication. Due to the specific and varied nature of each request, it is not possible to give an estimate of the time required to decide each exception request. NARA and OMB will expedite the review process as much as possible.

17.  How do we submit our exception requests?

Exception request packages must be approved and transmitted to NARA by the agency-designated Senior Agency Official for Records Management (SAORM). Agencies that are prepared to submit an exception request package must email the request with all supporting documentation to rmstandards@nara.gov.

If you have questions or require clarification about the requirements of OMB/NARA M-19-21 or the exception process, please contact rmstandards@nara.gov.

18.  Is an exception needed if an agency is working towards compliance with M-19-21, but is unable to meet the 2022 deadline?

If an agency determines the logistical or budgetary challenges rise to the level of being “burdensome to the public” or that “the cost would exceed the benefit,” then they may submit an exception request with a comprehensive analysis of all relevant factors described in questions 7 and 14, including a reasonable timeframe for compliance. 

19.  Should agencies include both permanent and temporary records in a comprehensive exceptions request?

Yes, agencies should review all records series, regardless of whether they are permanent or temporary, in evaluating whether an exception is required for transfers of temporary records to NARA FRCs or for accessions of permanent records to the National Archives after 2022. 

Records Storage Facility Questions

20.  What is the definition of agency-operated records centers?

An agency-operated records storage facility, or records center, is defined in 44 U.S.C. §2901(6) as an establishment maintained and operated by a Federal agency primarily for the storage, servicing, security, and processing of inactive records that need to be preserved for varying periods of time and need not be retained for active use in office equipment or space.

Agency-operated storage facilities, including leased buildings, are managed by the Federal agency and capable of storing more than 25,000 cubic feet of records (36 CFR § 1234.30). 

Commercial records storage facilities are private sector commercial facilities that offer records storage, retrieval, and disposition services (36 CFR §1220.18).

44 U.S.C. § 3103 authorizes agencies to transfer records to a center maintained and operated by the head of the Federal agency only when approved by the Archivist. However, M-19-21 rescinds existing approvals after December 31, 2022.

21. What if an agency operates records centers outside of the continental United States (CONUS)?

Agencies with records stored outside of CONUS should submit an exception request.

22.  Can agencies submit refiles and interfiles into records stored in NARA Federal Records Centers after December 31, 2022? 

Agencies do not require any additional approvals to conduct normal business on inactive records in NARA FRCs, including reference, refile, interfile and disposal, for the life of the record.

23.  Will the FRCP continue to offer digitization services to Federal agencies after December 31, 2022 even if the paper records are not stored in the FRCP? 

Yes, the Federal Records Centers Program (FRCP) currently offers digitization services to Federal agencies regardless of whether the records are stored in the FRCP system.

24.  Is the FRCP authorized to store analog records onsite until digitization and quality assurance have been completed and verified? Is the FRCP authorized to dispose of the records in accordance with an approved records schedule and agency concurrence?

Yes, the FRCP is authorized to service Federal records. The only prohibition on conducting business with the FRCP is the transfer of new analog records for storage, without an approved exception, after December 31, 2022.

25.  If agencies have permanent records stored in a NARA FRC with a disposition date after December 31, 2022, will the agency need to permanently withdraw records and digitize them before transfer to NARA?

No, the requirement to transfer permanent records to NARA in electronic format and with appropriate metadata after December 31, 2022 does not apply to records already stored in FRCs on or before December 31, 2022. These records will be accessioned by NARA in analog format in accordance with the NARA-approved records schedule.

Scheduling and Transfer Questions

26.  May agencies transfer analog records to the FRCs that are scheduled as media-neutral? If these are records that will be sent after December 31, 2022, will a new schedule be needed?

No, agencies do not need to reschedule these records, but an exception will be required after December 31, 2022. Agencies that want to update instructions for transferring records to inactive storage may do so by contacting their assigned appraisal archivist. Such a change does not require rescheduling, whether the records are scheduled as media neutral or not. Records do not need to be rescheduled for transfer to commercial storage facilities.

27.  Whom should I contact for more information?

For specific questions regarding your agency operations, you should contact your agency’s Records Officer. A list of agency Records Officers can be found on the NARA website at https://www.archives.gov/records-mgmt/agency. Your agency's records officer may contact the NARA appraisal archivist with whom your agency normally works. A list of the appraisal contacts is posted on the NARA website at http://www.archives.gov/records-mgmt/appraisal/. If you have questions about any part of this bulletin, you may send an email to rmstandards@nara.gov.

DAVID S. FERRIERO

Archivist of the United States