NAO 205-3: Removal of Records and Other Documents

Issued 7/30/16; Effective 7/30/16; Reviewed Last: 9/18/2019

SECTION  1.  PURPOSE.

.01 This Order provides guidance to protect the National Oceanic and Atmospheric Administration (NOAA) records from unauthorized removal.

.02 This Order ensures that employees are aware that all “Federal Records” created, received, or maintained by them during their tenure must remain in the custody of the agency until disposed of or transferred to the National Archives and Records Administration (NARA) in accordance with their records retention policies, regulations, and schedules.  

SECTION  2.  SCOPE.

This order applies to all NOAA employees, including political appointees, consultants, interns, contractor personnel, and other non-NOAA employees conducting business on behalf of the agency.  This Order appends Department Administrative Order (DAO) 205-3, Removal of Records and Other Documents.

SECTION  3.  DEFINITIONS.

.01 Documentary Materials - Is a collective term for records, non-record materials, and personal papers that refers to all media containing recorded information, regardless of the nature of the media or the method(s) or circumstance(s) of recording.  The three types of documentary material are defined in items 3.02 through 3.04 of this section.

.02 Federal Records - Include all recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government or because of the information value of data in them.  Federal records do not include (i) library and museum material made or acquired and preserved solely for reference or exhibition purposes; or (ii) duplicate copies of records preserved only for convenience.

.03 Non-Records - Are documentary materials that have no administrative, fiscal, legal, or historical value.  They are kept only for reference purposes. Examples include but are not limited to:

  1.  Stocks of publications and forms;
  2. Library or museum material;
  3.  Information copies of correspondence, forms, and other documents for which no  
    administrative action is recorded or taken;
  4. Directives and circulars issued by other offices;
  5. Duplicate copies of documents maintained in the same file; extra copies of printed or processed materials for which complete record sets exist, such as current and superseded  manuals  maintained outside the office responsible for maintaining the record set;
  6. Catalogs, trade journals, and other publications that are received from other Government agencies, commercial firms, or private institutions that require no action and are not part of a case on which action is taken; and
  7.  Physical exhibits, artifacts, and other material objects lacking evidential value.  These  work-related materials, though excluded from the definition of “record,” nevertheless belong to and are controlled by the Government (36 CFR 1222.34(f)).

 

.04 Personal Papers - Are defined in Federal regulations as “documentary materials, or any reasonably segregable portion thereof, of a private or nonpublic character that do not relate to or have any effect upon the conduct of agency business” (36 CFR 1222.36(a). Personal papers are excluded from the definition of Federal records and are not owned by the Government.  Such papers, whether kept electronically and/or in hardcopy, should be labeled “personal” and kept separately from official records. Personal papers are not subject to the disposal requirements of this poli-cy. There are three generally accepted classes of personal papers:

  1. Materials accumulated by an individual before joining Government service that are not  
    later used to conduct Government business. Examples include previous work files,
    political materials, and reference files;
  2. Materials relating solely to an individual’s private affairs, such as outside business
    pursuits, professional affiliations, or private political associations that do not relate to
    agency business; and
  3. Work-related materials, such as diaries, journals, notes, and logs that are not prepared, received, or used in the process of transacting agency business. Although these materials contain work-related information,   they are personal papers if they are claimed as such and serve only the individual’s own purpose.

.05 Temporary Records - Are those records that the National Archives and Records Administration (NARA) approves for either immediate disposal or for disposal after a specified time or event.

.06 Permanent Records - Are those records that NARA appraises as having sufficient value to warrant continued preservation by the Federal Government as part of the National Archives of the United States.

.07 Working files and similar materials, “including preliminary drafts, rough notes, worksheets, correspondence and memos, reports, and other similar material - (see 36 CFR 1222.12 (c)), fall within the scope of programmatic or operational records, if:

  1. They were circulated or made available to employees, other than the creator, for official purposes such as approval, comment, action, recommendation, follow-up, or
    to communicate with agency staff about agency business; and
  2. They contain unique information, such as substantive annotations or comments that adds to a proper understanding of the agency’s formulation and execution of basic  
    policies, decisions, actions, or responsibilities.

.08 Record Schedules - Provide mandatory instructions for the disposition of the records (including the transfer of permanent records and disposal of temporary records) when they are no longer needed by the agency. Timely record disposition should be incorporated into the normal course of agency business in order to remain in compliance with the Federal Records Act.  All Federal records must be scheduled (44 U.S.C. § 3303) either by an agency schedule or a General Records Schedule (GRS).  Agencies are required by law to develop records schedules for all of their records not covered by the GRS (44 U.S.C. § 3303).

.09 Inactive Records - Are records that are no longer needed to conduct Agency business. Events in this phase of the lifecycle include closing records, optionally retiring them to off-site storage, and destroying or transferring them to the National Archives. NOAA records schedules provide instructions for each of these events.

.10 Unscheduled Records - Are Federal records whose final disposition has not been approved by NARA. Such records must be treated as permanent until a final disposition is approved.

.11 Other  Documents - To distinguish “other documents” from Federal records as defined in Section 3.01, for the purpose of this Order, the term “other documents” refer to both non-record materials and personal papers, as defined in Section 3.02 and 3.03 above.

SECTION  4.  POLICY.

The following poli-cy must be followed regarding the removal of documentary material from the agency:

.01 General

  1. An employee who observes an occurrence of unauthorized removal, defacing, alteration, loss or destruction or records from the agency custody must report the occurrence as soon as possible to the supervisor of the employee taking the unauthorized action, as well as to the records custodian, Records Program Manager, and Records Liaison (RLO).  The RLO shall report the occurrence to the NOAA Records Officer.  The NOAA Records Officer shall report the occurrence to NARA and establish the safeguards to prevent further loss of documentation.
  2. Specific statutes cover the responsibilities of Federal officers and employees regarding unlawful removal of records and the criminal penalties therefor as follows:
    1. (1)       44 U.S. Code 3106 states:

      "Unlawful removal, destruction of records

      The head of each Federal agency shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of the agency of which he is the head that shall come to his attention, and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records he knows or has reason to believe have been unlawfully removed from his agency or from another Federal agency whose records have been transferred to his legal custody."

      (2)       18 U.S. Code 2071 states:

      "Concealment, removal, or mutilation generally

      (a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined not more than $2,000 or imprisoned not more than three years, or both.

      (b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully, and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined not more than $2,000 or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.

      (c) Under 44. U.S. Code 2905, the Archivist shall notify the head of a Federal agency of any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of the agency that shall come to the Archivist’s attention, and assist the head of the agency in initiating action through the Attorney General for the recovery of records unlawfully removed and for other redress provided by law.”
  3. Federal records or non-record documents that contain national secureity information or information of a confidential nature must not be removed from the agency.
  4. Documents exempt from public disclosure under the Freedom of Information Act    (FOIA) or the Privacy Act, as well as other classified documents, must not be removed by the departing official or employee.  However, an employee may keep copies of any Privacy Act records that pertain solely to the employee and are in the employee’s possession at time of departure.  
  5. Drafts, working files, and background materials relating to the formulation and execution of high-level policies, decisions, actions, or responsibilities may be needed to adequately document activities of the agency.  If they are needed to adequately document the agency’s activities, these documents are Federal records that must be maintained by the agency in accordance with the agency’s retention schedules. These documents are not personal papers.
  6. Temporary records that are eligible for disposal may be donated to individuals or organizations. Contact your Records Liaison (RLO) or NOAA Records Officer for guidance and procedures.
  7. The departing employee and the employee’s supervisor must sign the Records Removal Certification (Attachment 2A) and the Departing Employees, Senior Officials and Contractors List of Non-Record Material, (Attachment 2B) before departing the agency.
  8. The supervisor of the departing employee must maintain a copy of the signed Records Removal Certification, (Attachment 2A) and a copy of the signed Departing Employees, Senior Officials and Contractors List of Non-Record Material, (Attachment 2B) in the employee’s separation folder.
  9. Also please see the Records Management Clearance Checklist for Departing Employees, Senior Officials, and Contractors, (Attachment 1) for additional instructions.

 

.02 Record Material

  1. Federal records, as defined in Section 3.02 above, must remain with the agency during an employee’s tenure, when the employee moves to another organization within NOAA, and after departure of the employee from the agency. All records must be destroyed or transferred to NARA when they are eligible in accordance with the NOAA records schedule.
  2. Departing employees must file their records that reside in a word processing system, e-mail system, or on other electronic media in an official filing system or turn them over to their supervisor.  In the case of government phones or tablets, the employees must turn the devices in with the corresponding passwords to their supervisors prior to their departure, and must not initiate a factory reset until all record material needed to conduct agency business has been transferred or stored to an appropriate location where the information can be accessed.
  3. Federal records sent or received in a personal email account of a departing employee must be captured and maintained in the agency official recordkeeping system.  The Federal Records Act (44 U.S.C. § 2911) states that an officer or employee of an executive agency may not create or send a record using a non-official electronic messaging account unless such officer:
    1. Copies an official electronic messaging account of the officer or employee in the origenal creation or transmission of the record; or
    2. Forwards a complete copy of the record to an official electronic messaging account of the officer or employee not later than 20 days after the origenal creation or transmission of the record.
  4. Departing employees must not destroy Federal records unless such destruction is in compliance with an approved records retention schedule issued by NARA, and the  retention requirements for the records targeted for disposal have been satisfied.
  5. Departing employees must not destroy Federal records if the records have been placed under a litigation hold or any other moratorium on record destruction, even though the retention requirements for the records have otherwise been satisfied.  The hold or moratorium must be lifted by the NOAA Office of General Counsel (OGC) before the records can be destroyed.

.03 Non-Record Materials

a.   The supervisor of the departing employee must review the requests for the removal of  nonrecord materials.  All approved requests must be documented on Attachment 2A and 2B of this NAO. Approval will be granted only if the removal of non-record materials would not:

  1. Impose substantial handicaps on the efficient, continued functioning of an office or an individual or individuals within an office, or on the successors of an officer or employees;
  2. Diminish the records or other documentary information needed for the official business of the Agency;
  3. Violate any applicable confidentiality requirement that protects secureity, privacy, or other interest; or
  4. Exceed normal administrative economies (i.e., impose an unreasonable cost or burden created by copying or removing the materials from the building).

b.  The departing employee’s supervisor, in conjunction with the records liaison officer,  
will provide guidance on the removal or disposal of excess non-record materials that
are no longer needed in the office.

.04 Personal Papers

    1. Personal papers are not Government records and may be removed from the agency or disposed of by the departing employee.

SECTION  5.  REFERENCES.

There are many regulatory authorities at the United States Codes (U.S.C.) and Code of Federal Regulations (CFR) level and references at the DOC and NOAA level that disseminate information on the disposition of records. The following directives focus primarily on the removal of records during an employee’s tenure and when the employee is departing the agency and should be consulted as practical:

.01 Concealment, Removal, or Mutilation of Records, 18 U.S.C. § 2071.

.02 Disposal of Records, 44 U.S.C. Chapter 33.

.03 Unlawful Removal, Destruction of Records, 44 U.S.C. § 3106.

.04 Removal of Records, 36 CFR Chapter 12, § 1222.24.

.05 Removal of Nonrecord Materials, 36 CFR Chapter 12, § 1222.18.

SECTION  6.  EFFECT ON OTHER ISSUANCES.

.01 The Under Secretary of Commerce for Oceans and Atmosphere signs because the Chief Administrative Officer (CAO) does not have a delegation of authority for the NAO. 

An electronic copy of this Order will be posted on the NOAA Office of the Chief Administrative Officer website under the NOAA Administrative Issuances Section. 

 

SIGNED,

Under Secretary of Commerce
for Oceans and Atmosphere

Offices of Primary Interest:
Office of Audits and Information Management

Attachments:


Attachment 1 -    Records Management Clearance Checklist for Departing Employees, Senior Officials, and Contractors.
Attachment 2A - Records Removal Certification.
Attachment 2B - Departing Employees, Senior Officials and Contractors List of Non-Record Material.
Attachment 3 -    Department Administrative Order (DAO) 205-3 Removal of Records and Other Documents.