Electronic Recordkeeping

The responsibility for the decision to move towards electronic recordkeeping [ERK] lies with the agency head. Typically the decision is based on an analysis of internal factors such as the business case need for ERK, alignment of ERK with agency mission and strategic initiatives, and other factors. There are also several external factors, in particular legal, statutory and regulatory requirements, that may influence the timing of this inevitable decision.

This product highlights a number of external and internal factors that support an agency's move towards ERK now. Some of these are statutory, judicial and regulatory provisions that promote both ERK and, in a larger context, electronic records management [ERM].

Statutory, Legal, and Regulatory Requirements that Support a Move Towards Electronic Recordkeeping

• Critical Infrastructure Assurance

Presidential Decision Directive 63 (PDD-63) "Critical Infrastructure Protection," calls for a national-level effort to assure the security of the increasingly vulnerable and interconnected infrastructure of the United States. As the Federal Government increasingly depends upon networked information systems, electronic systems become more vulnerable to cyber attacks. Any attack on a networked information system also affects the agency's infrastructure. For this reason, security of electronic records, particularly vital records, must be considered when establishing an ERK. Records are a significant asset and an ERK can and should be an important part of the agency's business continuity, contingency, and disaster recovery plan. While this Directive is classified, a publicly available white paper discusses this subject.

Security of vital business information in agencies' electronic records is a key component that must be considered in both defining and protecting agencies' critical infrastructure. For adequate protection, such business information should be managed by ERK systems. On the positive side, electronic records can be duplicated and protected at less cost than paper records.

• Electronic Freedom of Information Act Amendments [EFOIA] (5 U.S.C. 552(a)(2)(D))

This statute requires agencies to provide electronic access to government records by the public. Agencies must provide the information electronically upon request as long as it is practical to do so. When records that have been released to any person are likely to become the subject of subsequent requests, an agency must make such records available by electronic means if the records were created on or after November 1, 1996.

Records management is needed to track and manage the original records as well as to provide access to the redacted versions released in electronic format. ERK can greatly facilitate this task.

• Government Paperwork Elimination Act (Pub. L. No. 105-277)

By 2003, the Federal Government must begin accepting information from the public electronically. Federal agencies must be able to accept electronic filings with electronic signatures, if necessary, or justify to the Office of Management and Budget (OMB) why the information cannot be filed electronically. In addition, if the agency anticipates receiving 50,000 or more electronic submittals of a particular form, multiple methods of submitting such forms electronically must be in place.

The issue for records management is the authenticity and reliability of records submitted by the public, especially those relating to legal rights, which have been electronically signed. The requirement to accept electronic signatures as legally binding (via technologies such as PINS, public key infrastructure, biometrics, hardware tokens, etc.), introduces a new recordkeeping requirement -- to ensure the reliability and authenticity of the electronic signatures in records documenting electronic interaction with the public. ERK, either implemented as a stand-alone system that receives electronically signed records or integrated into an agency's electronic information system design, supports the legal standing of these embedded electronic signatures.

• Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520)

The main purpose of this act is to reduce the recordkeeping and reporting burden imposed by agencies on the public. It requires government agencies to share information collected from the public as a way of reducing this burden. It also reaffirms OMB records management oversight responsibility which it shares with NARA and GSA. OMB used this statute as one of their authorities for issuing Circular A-130.

This statute provides direction to agencies on managing information electronically. As some of this electronic information attains the status of Federal records, ERK is necessary to manage such records appropriately.

• Clinger-Cohen Act (40 U.S.C. 1401)

The Clinger-Cohen Act, also known as the Information Technology Management Reform Act [ITMRA], establishes the Chief Information Officer position and requires agencies to justify their information technology [IT] investments based on business needs. This legislation reflects the experience of the private sector in using technology -- technology can improve business by helping people do more, better, faster, and cheaper.

Nonetheless, investing in technology without regard to the records management issues could be a waste of government resources. When developing mission-supporting electronic information systems [EIS] subject to ITMRA, agencies should include a cost-benefit study on the inclusion of ERK functionality to manage electronic records created by such EISs.

• The Government Performance and Results Act [GPRA] (P.L. 103-62)

Although there is no specific requirement for electronic recordkeeping in GPRA, it does require agencies to eliminate "waste and inefficiency," to "improve internal management," and to identify "key factors....that could significantly affect the achievement of general goals and objectives." As agencies begin to address specific requirements of the Government Paperwork Elimination Act, the Paperwork Reduction Act, and EFOIA, and as their electronic mail and web files increase exponentially, it will become increasingly apparent that an ERK system is essential to addressing the specific requirements of GPRA that are noted above. It simply will not be efficient, effective, or good internal management to maintain multiple recordkeeping systems, one for electronic records and another for non-electronic. Agencies that collect a significant amount of information electronically from the public, maintain a large number of FOIA releases electronically, or have a large repository of web and e-mail records, are going to reach that point sooner, rather than later.

GPRA requires agencies to define and document measurable goals and benefits, including for their IT projects. The statute also requires systematic measure of service levels and of program performance in meeting those commitments.

ERK can provide quantifiable milestones and benefits for cost reductions and risk avoidance by eliminating the necessity to create and maintain hardcopy documentation "for recordkeeping purposes" in support of GPRA goals and objectives.

• Privacy Act (5 U.S.C. 552a)

Agencies must protect information about an individual. If the information collected is retrieved through an individual's name or other unique identifier, it is protected under this act and agencies must publish a Federal Register notice regarding the information collected and its uses. Agencies must also allow an individual to review and access the personal information about himself. Access to personal information is significantly easier when records are kept electronically.

These electronic records need to be managed with an ERK system that can provide access controls to increase the ability to protect such information.

• Armstrong v. Executive Office of the President (1 F.3d 1274 (D.C. Cir. 1993))

In Armstrong, the U.S. Court of Appeals held that the electronic version of a paper record is itself a record, not just an extra copy of the paper version of the record, and can only be disposed of with the approval of the Archivist of the United States. The case concerned e-mail messages stored on White House computers, some of which were records. The Court held the paper versions of those records did not necessarily reflect all of the information contained in the electronic version. For example, the paper record did not necessarily show the date and time the recipient received the e-mail nor did it show who the recipient was if the e-mail was sent using a distribution list or contained a long list of names that would not necessarily appear on the paper copy. Accordingly, if an agency does not have an electronic recordkeeping system, it must print out the entire electronic record (including any imbedded text or substantive information) and file the printout in the paper recordkeeping system.

Once agencies move to electronic recordkeeping, it will no longer be necessary to "print and file" those e-mail messages that qualify as Federal records, as they will be preserved and managed electronically.

• Public Citizen v. John Carlin, , rev'd, 184 F.3d 900 (D.C. Cir. 1999)

In this case, the U.S. Court of Appeals upheld the validity of General Records Schedule [GRS] 20, which provides government-wide authorization to delete e-mail and word processing records that are filed in scheduled recordkeeping systems (e.g., office files), as a proper exercise of the Archivist's authority. The Court of Appeals reversed a lower court decision that had declared GRS 20 to be null and void on several grounds, including that the GRS did not differentiate between program and administrative electronic records. Both courts, however, expressed views that because virtually all government records are now created electronically, "[i]t may well be time for" agencies to take "the next step of establishing electronic recordkeeping systems"; but the Appeals Court recognized that this "is a question for the Congress or the Executive, not the Judiciary to decide."

ERK enables agencies to manage electronic records in accordance with both agency-specific and General Records Schedules.

• OMB Circular A-130: Management of Federal Information Resources

This circular requires agencies to incorporate records management functionality into information systems design, development and implementation. Appendix I sets the general policy for the Federal Government regarding the privacy of individual information.

Interpreted in its broadest sense, this circular mandates integration of electronic recordkeeping functionality into information system design.

Internal Reasons that Support a Move Towards Electronic Recordkeeping

• ERK allows you to manage information as an asset, rather than a liability.

Organizations must manage their information to fulfill their mission. All resources need to be managed as assets (increasing their value and putting that value to work) as well as liabilities (limiting the damage they might cause). Examples of information as a liability could be: spiraling costs associated with discovery requests for unorganized electronic records; challenges by outside organizations of "arbitrary and capricious" recordkeeping practices for unauthorized disposal of electronic records; or loss of access to significant electronic policy records because of software obsolescence due to lack of an electronic records migration policy.

Agencies should have a single strategic plan for asset and liability management. ERK facilitates development of a uniform strategy for electronic records, including correspondence, e-mail and Web pages, and can enhance asset management by providing unified, efficient access to information.

• ERK enables future accessibility to records in legacy systems.

ERK makes it possible to have access to electronic records in legacy systems. This includes records from mainframe systems, custom built systems, systems that have been (or will be) supplanted or replaced; ideally, all electronic records from all sources. To implement such access requires a strategy to track electronic records as well as a strategy for migration of the retained records throughout their lifecycle as systems software, media, and standards change.

• ERK reduces Freedom of Information Act (FOIA) and discovery compliance costs.

One of the benefits of ERK for agencies is a reduction in the cost and risk of FOIA and litigation. This includes processes to comply with FOIA regulations and to reduce the burden and costs of discovery. Currently, e-mail discovery is the fastest growing area of discovery in litigation, underscoring the importance of managing electronic records that information systems create.

• ERK can aid in business dispute resolution.

To resolve disputes or other issues, agencies have a critical need for fast access to records produced by systems used to transact business with their customers and partners. Today, these records can include electronic documents related to the transaction (invoices, shipping orders, confirmations, etc.), web pages used in the transactions, and e-mail notifications and messages associated with those transactions. Management is even more critical in transactions that involve disparate systems.

• ERK provides long-term cost savings (reducing the need for parallel recordkeeping systems, i.e., paper and electronic).

While there are costs associated with implementing and maintaining electronic recordkeeping, ERK can reduce or avoid costs for many areas associated with paper filing, including the costs for storage space, materials (e.g., paper, folders, cabinets), and labor. In particular, ERK reduces the labor costs associated with the problem of misfiles that are common in paper files.

• ERK improves productivity.

Productivity is about doing things in less time, by streamlining and consolidating processes, by automating them, and by doing tasks simultaneously rather than sequentially. Automation can increase the amount of work you can do with your resources. Improvements may result from digitization and process automation, as well as time savings and storage savings. Adding ERK helps organizations make better decisions because accurate information is readily available through reliable and authentic records. With ERK, all processes that involve records can be improved: gathering, organizing, distributing, collaborating, and analyzing.

• ERK ensures authenticity and reliability of information resources.

ERK will help ensure security of critical records, and will help ensure that only users who have rights to access or modify records have permission to do so. Such integrity and security capabilities can be readily integrated with other security initiatives or existing IT standards.

• Working on ERK now will minimize future impact on IT infrastructure.

ERK must be incorporated in an agency's overall infrastructure strategy. This is because an ERKS manages information from multiple sources (e.g., messaging systems, the web and business applications) and, to some degree, requires integration among all of them. Frequently, such integration requires infrastructure modification. Also, ERK will co-exist with other IT initiatives, and as such, must optimally enable leveraging of existing and future IT investments in areas such as operating systems, databases, and business applications. Finally, ERK will likely be provided to a broad base of users that may have limited experience with records management. Thus, the ERKS must be simple enough to be accepted and used; it will need to be presented seamlessly with business applications and technologies.

• ERK increases the likelihood of success of any records migration/preservation strategy.

ERK provides a fundamental set of tools that can be used to address obsolescence of storage media, hardware, applications, and application-dependent data. Business rules (known as records schedules in the RM environment) embodied in an ERK can be integrated with hierarchical storage management systems, thus segregating temporary and permanent records onto the most appropriate storage medium (i.e., online, near line, offline). ERK systems can also provide the native viewing and batch exporting capabilities that are necessary for any preservation/migration strategy.

Page updated: April 25, 2019