New Federal Electronic Messaging Regulations
Understanding the Expanded Preservation Requirements Facing Federal Employees
In the dynamic landscape of government operations, adaptation is key. Recently, a monumental shift has emerged in the realm of records management, promising to reshape how federal agencies operate. This isn't just a minor adjustment; it's a significant transformation poised to revolutionize how electronic communications are handled within government entities.
The National Archives and Records Administration (NARA) has taken decisive action to update and clarify existing rules for retaining electronic communications. The new mandates, detailed in Transmittal 33 of the General Records Schedules, extend beyond traditional email communications to encompass a wide range of digital messages, including those exchanged via chat apps and text messaging platforms and regardless of whether the messages reside on government or personal devices.
Evolving Regulations: A New Era of Records Management
Traditionally, records retention rules primarily centered on email communications. While email has long served as a cornerstone of digital communication, it's only a fragment of the picture in today's interconnected world. With the proliferation of new technologies and communication platforms—from apps like Signal to text messaging—the scope of electronic communication has expanded dramatically.
Alan Lawrence, General Manager of Everlaw’s Public Sector organization and expert in records management, stated, "As we witness the proliferation of new communication platforms like WhatsApp, Signal, and others, it's evident that the landscape of electronic communication is rapidly evolving.”
Lawrence reminds us that, “Government agencies, like any other entity, must adapt their records management practices to keep pace with these technological advancements. It's crucial to ensure that records management strategies encompass these emerging communication streams, facilitating effective preservation and retrieval of critical information.”
Implications for Government Agencies: Embracing Change
This change has larger implications for the federal government. No longer can agencies rely solely on managing emails; they must now grapple with the myriad of ways electronic communications unfold. This shift represents a fundamental change in how information is captured, preserved, and accessed within government organizations.
Yet, this change transcends technology; it's about accountability and transparency. By broadening the scope of records retention rules, NARA underscores a crucial message: every electronic communication matters. Whether it's an email, a chat message, or a text, these communications document agency activities, decisions, and policies. By ensuring the preservation of all electronic messages, government agencies uphold the principles of accountability and transparency vital to a functioning democracy.
Navigating the Transition: Practical Considerations
Practically, this change will reshape how government agencies treat communications on a day-to-day basis. With expanded rules for retaining electronic messages, agencies must invest in technology and infrastructure to support these efforts. This may entail implementing new software tools, updating existing systems, and providing training to staff members. While these changes necessitate an initial investment of time and resources, the long-term benefits—enhanced efficiency, improved compliance, and better decision-making—far outweigh the costs.
The new regulations apply to communications by "Capstone officials." Capstone officials are designated by each agency individually, but, according to the National Archives, are those individuals "generally responsible for agency and program policy- and mission-related actions."
However, the preservation requirements extend beyond just the leaders of federal agencies, and encompass staff assistants to those officials, roles that provide routine "advice and oversight" to an agency, including general counsels, chiefs of staff, and the like, as well as any roles that "predominantly create permanent records related to mission critical functions or policy decisions."
Preservation is not the only mandate of the new regulations, either. Agencies are also expected to take action to cull records "to the greatest extent possible" before transferring them to the National Archives. That includes the removal of "nonrecord, personal, or transitory messages," spam, agency-wide communications, and more.
Harnessing Technology for Effective Management
The sheer volume and complexity of electronic data pose significant challenges for government agencies tasked with adhering to records retention regulations. With the expanded scope of electronic communication now under scrutiny, agencies must embrace technology-driven solutions to navigate this landscape effectively.
Lawrence says it is important to have the right technology platforms in place, which can offer indispensable tools to enable agencies to efficiently manage, search, and analyze vast amounts of electronic data. “By harnessing the power of advanced analytics, threading capabilities, and intuitive user interfaces, these solutions empower agencies to meet their legal obligations while streamlining workflows and reducing costs,” Lawrence says.
As government agencies grapple with the implications of the new records retention rule, adopting innovative technology solutions becomes a large part of ensuring compliance and effective governance.
Responsibility of Government Attorneys
Federal government attorneys play a crucial role in ensuring compliance with regulations and policies set forth by agencies and departments. In the context of the expanded records retention requirements outlined by NARA, government attorneys have several key responsibilities:
1. Legal Compliance: Government attorneys must ensure that federal agencies adhere to the updated records retention regulations as mandated by NARA. This involves interpreting the new requirements, advising agency officials on their implications, and developing strategies to implement the changes effectively.
2. Risk Management: Non-compliance with records retention regulations can expose federal agencies to legal risks, including fines, sanctions, and reputational damage. Government attorneys must assess the risks associated with non-compliance and work proactively to mitigate them through appropriate legal measures
3. Policy Development: Government attorneys may be involved in the development and revision of agency policies related to records management. They contribute legal expertise to ensure that policies align with statutory requirements, administrative guidelines, and best practices in records retention.
4. Training and Guidance: Government attorneys often provide training and guidance to agency staff on records retention policies and procedures. They help educate employees on their responsibilities regarding the creation, maintenance, and disposal of electronic messages to ensure compliance with NARA regulations.
5. Enforcement: In cases of non-compliance, government attorneys may be responsible for initiating enforcement actions and legal proceedings against agencies or individuals. This may involve conducting investigations, issuing warnings or sanctions, and representing the government in administrative or judicial proceedings.
Embracing Change for a Transparent Future
The new rule on electronic record preservation reflects the growing importance of managing digital communications in legal and regulatory contexts. By understanding the challenges, leveraging innovative solutions, and prioritizing compliance, organizations can navigate this evolving landscape effectively.
Stay tuned to our blog for more insights on electronic record preservation and the latest developments in ediscovery technology.
