- DEPARTMENT OF STATE Wash naton O C 20510 9 DEC 1976 MEMORANDUM TO A - Mr John A Thomas FROM L - Monroe Leigh SUBJECT GSA Bulletin FPMR B-65 On November 15 GSA issued Bulletin FPrrn B-65 concerning the disposition of personal papers and official records This Bulletin was circulatca i the Department under Jack Pruden's memor ar du of November 22 Tab 1 With one major excep ion w agree with all of the provisions in the GSA Bulletin The one major exception is paragraph 3c of the GSA Bulletin That paragraph states that the definition of personal papers covers material pertaining solely to an individual's private affairs and that otherwise personal correspondence which is relevant to the conduct of public business is nonetheless an official record In uur view paragraph 3c goes beyond existing law in the following respects 1 Existing case law rejects the view that personal papers are limited to material pertaining solely to an individual's private affairs Instead it is wel l established that a paper of a government employee can refer extensively to government bus i ness and still remain personal Thus the fact that a government employee keeps a diary or personal notes that refer to government business does not by itself convert the diary or notes into official records United States v First Trust Co of St Paul 251 F 2nd 686 8th Cir 1958 Porter County Chapter v A E C 380 F Supp 630 N D Ind 1974 - 2 - 2 Existing government regulations recognize that personal p a pers can include discussions of gove rr ment activities Thus the 0MB Guidelines to the Privacy Act make it clear that agency records do not include uncirculated personal notes papers and records which are retained or discarded at the author's discretion and over which the agency exercises no control or dominion -- even if such materials are in possession of age ncy employees and used by them in performing official functions 40 F R 28952 1975 Under Department of State regulations a paper is deemed personal if it has been expressly and consisently designated or filed as personal from the time it was originated or received 5 FAM 417 1 A copy of the Department of State regulations is attached 3 The provisions in the new GSA Bulletin have an internal inconsistency Paragraph 3b requires that extracts be made of certain matters pertaining to official business that appear in private-personal correspondence Yet in paragraph 3c the term personal papers presumably including private-personal c o rrespondence is defined so as to cover only mater ia ls pertaining solely to an individual's private affdirs If a personal paper cannot by definition contain any discussion of any official business of what use are the longstanding regulations that require the preparation of extracts of official matter from personal correspondence Either the longstanding regulations on extracts or the new paragraph 3c is incorrect and we believe i t is the latter 4 A formula similar to that appearing in paragraph 3c appeared in a proposed regulation submitted to Congress under the Presidential Recordings nd Materials Preservation Act Earlier this year both houses of Congress expressly rejected that very provision s Res 428 H Res 1505 H Rep No 94 -1 485 at 4-5 1976 This Congressional action places s ome clo ud on the viability of paragraph 3c in the r ecent GSA Bulletin 3 For these reasons the Department s hould not follow paragraph 3c but shou l d a dhere s t rictl y to its own regulations which have b een i n effec t since 1967 To avoid any misimp r ession s aris ing from Jack ' s memorandum of Novembe r 2 2 we have p r epared a draft fo llow-up memora ndum Ta b 2 for FADRC ' s consideration cc 0 FADRC Att achments 1 Jack Pruden ' s memorandum of November 2 2 with GSA Bulletin attached 2 Proposed follow- up memorandum L MDS a ndler rr 12 8 76 X 22149 DECLASSIFIED Authority 7 l ib 95 DEPARTMENT OF STATE Washl iitOn 0 C 20520 November 22 1976 MEMORANDUM TO ALL EXECUTIVE DIRECTORS MflD ADMINISTRATIVE OFFICERS FROM O FADRC - John S Pruden SUBJE T GSA Bulletin FPMR E-65 Disposition of Personal Papers and Official P ecords · An advance copy of GSA Bulletin FPMR B-65 is at a ched for your information The princ iples outlined therein having to do with disposition of personal papers and official papers are in harmony with the Department's regulations found in 5FAM400 O FADRC in • carrying out its record officer r e sponsibilities stands ready to assist offices and individuals in making determinations in this area -· Attachment As stated I - jJb7 l oEcLAssmJ a Authority • GENERAL SERVICES ADMINISTRATION National Archives and Records Service PERSONAL PAPERS AND OFFICIAL RECORDS Notice of Issuance of GSA Bulletin FPMR B-65 Notice is hereby given of the issuance of GSA Bulletin FPMR B-65 regardi g the disposition of personal papers and official records crea te d in Federa l agencies Heads of Federal agencies will receive GSA Bulletin· FPMR B-65 through normal methods of distribution but the timely nature o•x the information in the bulletin warrants its immediate publication Dated November 15 1976 iES B RHOADS Archivist of the United States -· • GENERAL SERVIC 5 ADMINISTRJITION Washing ton DC 20405 November 15 1976 BULLETIN FPMR B-65 ARCHIVES Mill RECORDS GSA TO SUBJECT Heads of Federal Agencies Disp osition of personal papers and official records 1 Purpos e Th is bulletin summarizes the requirements of Fe-dera l l aw and related r e gulations and reminds all Federal agencies of their l egal respo 1sibili y to a inform agency officials and personne l about established p rocedures for maintaining pe sonal papers a ld o ensure L1 e security and integrity of Federal records 2 Exoiration dat This bulletin contains information of a cont inuing nature and will remain in effect until canceled 3 Backgrounc a 44 U S C 3301 legally defines the word records to include-- ••• all books papers maps photographs machine readable materials or other docu entary materials r e gardless o f physical form or characteristics made or receive d by an agency of the United States Government unde r Federal 1aw or in connection with the transaction of public business and preserved or appropriate for preservation- by that agency or its legitimate s uccessor as evidence of the _ organization functions policies decisions procedures operations or ot cr activitie s of the Gove e nt or because of the informa tional value of data in them Librazy and museum material made or acquired and preserve d solely for reference or exhibition purposes extra copies of docunents pr served only for convenience of reference and stocks of publications and of processed documents are not included b FP 101-ll 202-2 d provides a legal definition of personal papers and p escribes standards for t eir maintenance-Pape s of a private or nonofficial character which pertain only to an individual's personal affairs that are kept in the office of a Feceral official will be clearly designated by him as nonofficial and will at all tiI' es be filed se arately from the official records of his office In cases wh€ re atters requiring the I DECLASSIFIED J i t9 5C Authority • 1 GSA Bulletin FPMR S-65 transactio - o o icial - November 15 1976 business are received in private personal cor espondence the portion of such corresponcence -chat pertains to official business will be extracted and ade a part of the official files •• • c The definition of official records involves materiuls made or received either in ursua - ce of ederal law or in connection with the transaction of public busin ss The definitio 1 of personal papers covers material pertainir g solely to an individual's private affai rs 1n o her words corresponde 1ce designated personal confident i al or pri• ate etc but relevant to the conduct of public business is nonetht less an official record subject to the provi ion of Federal l i w pcrtin nt to the maintenance and dis osal of such records Official r ecord$ ar e public records and belong to the office rather than to the officer d The legal cefinitjo of records 44 u s c 330 specifical lI excludes extra co ie s of coc Ul'l ents preserved only for conveni r c£ of reference Suen extra copies of documents are commonl y n gard d l nonrecord materials and are disposable without reference to the requirements of chapter 3 3 Title 44 United States Code A Government official may acct ulate for convenience of reference extra copies of papers and other materials which he has drafted reviewed or othenvise acted upon When deposited in a research institution ex tra copies can serve the needs of historical scholarship Government o£ficials may b e permitted to retain these extra copies provided that such retention would Pot 1 diminish the official records of the agency 2 violate confide ntiality required by national security privacy or other interests protected by law or 3 exceed normal administrative economies F deral law 44 U S C 3105 requires heads of F ederal agencies to establish safeguards against the r emoval or loss of Federal records Such s afeguards include notifying agency officials that 1 the alienation • and destruction of records in agency custody is governed · by specific provisions of chapter 33 Title 44 United States Code and 2 crimi nal penalties are provided for the unlawful r emoval or destruction of F ederal records 18 u s c 2071 and for the unlawful disclosure of certai n information pertaining to national security 18 u s c 793 794 and 793j e f Federal law 44 U S C 3106 requi es heads of Federal agencies to hotify the Administrator of General Services of any actual or threatenec unlawful removal or destruction of records in their custody The Archivist of the Unite States has been delegated authority to assist agency heads in i i iating action through the Attorney General for the recovery of records unlaw ully removed November 15 1976 • • GSA Bulletin FPHR B-GS unlawful loss of Federal records following measures Adequate safeguards include the 1 Ensure that employees are acquainted with the Federal l aw -- governing the disposition of official records Disposal of Federal records can occur only as a result of authorization of NARS approved records contro l schedules or provisions of general records schedules covering records coIT Iilon to one or more Federal agencies 2 Ensur e that e ployees are aware of the cr i minal penalties that attach to the unl awful removal or destruction of Fede ral records Employees also should be made aware of their legal 1·esponsibili ty for -informing their records management officer of any actual or threat ned unlawful loss or removal of official records 3 Ensure that employees are aware of the requirement for identifying and maintaining their personal papers separately from official records Records management officers should monitor compliance with this requirement on a regular basis b An effective means of bringing these legal requirements to the attention of agency personnel is incorporation of the require ents into agency files maintenance manuals and records control schedules Adequate and proper separation and control of personal papers dt the time of their _creation offers the best approach for avoiding the p obl m of commingled personal and official papers Widespread knowledge of tha require nent for identifying and separating official from private papers at the time of their creation can assist greatly in e ta blishing adequate and pLoper control over private papers 5 Assistance to agencies The National rchives and Records Service will assist agencies in appraising a body of materials and determining whether it co prises personal papers or official records Oral requests for such assistance should be directed to the Records Disposition Division Office of Federal Records Centers telephone number 376-8845 Written requests should be forwarded to the General Services Administration NC Washington DC 20408 JAMES B RHOADS Archivist of the United States 3 DECLASSIFIED AuthontyJ i b sL p - DRAFT MEMORANDUM TO AtL EXECUTIVE DIRECTORS AND ADMINISTRATIVE OFFICERS FROM 0 FADRC - John S Pruden SUBJECT Disposition of Personal Papers and Official Records On November 22 I sent you a memorandum enclosing an advanced copy of GSA Bulletin FPMR B- 65 The memorandum states that the principles out lined in the recent GSA Bulletin are in harmony with Departn en I o State regulations found in 5 FAM 400 On closer examination we and L have found one problem with the GSA Bulletin In paragraph 3c the GSA Bulletin presents an expansive view of what papers constitute official records as opposed to personal papers We have determined that this paragraph goes somewhat beyond both existing law and Department regulations It is our intention to adhere to the provisions of the Department's regulations -- in particular those stated in 5 FAM 417 and 432 Again 0 FADRC stands ready to assist offjces and individuals in making these and other determinations in this area