AGENCY RECORDS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86-00895R000100060013-4
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 10
• Document Creation Date: December 12, 2016
• Document Release Date: March 28, 2002
• Sequence Number: 13
• Publication Date: March 6, 1975
• Content Type: MF

OGC-P,EVIEVJI. Approve
COMPLETED
Rele3`q((art1DP86-Q,R000100060013-4
OGC 75-0811
6 March 1975
25X1A
MEMORANDUM E p . .. -.- -- MORANDUM FOR: :-_- Deputy Director for Administration,-.
1. On several recent occasions I have been asked questions about
how long we should keep records and what records can be disposed of..
Accordingly, I asked to look at the law on records reten-
tion and disposal, its applicability to the Agency and our compliance
therewith. A copy of his memorandum. is attached.
2. Generally, he found that legally the Agency is subject to the
same law on this subject as other-agencies, Title 44, Chapter 33 U.S. Code.
He also suggests our peculiar interests, such as classification anal, protec-
tion of intelligence sources and methods, should be realized through secure,
classified arrangements with the responsible officers of GAO and the National
Archives. We do not believe these interests or charges have the effect of
exempting the Agency from the law.
3. During his inquiry Gary dealt with the CIA Records Management
Officer and found the people' in that office exceptionally well-versed on the
GAO records procedures and regulations. He also found that this Office
acts more in the nature of giving guidance to the directorate records offices
than in actually controlling Agency records and that our records program
was a diffused one with each, directorate operating pretty much independently.
He was told for example, that, within the directorates, decisions to destroy
records may be made without recourse to the Agency Records Officer. In
short, it appears the Agency may not be in full compliance with the law..
4. I bring this to your attention for whatever action you deem necessary.
1 S.
General Counsel
Att
GMB: sc
Distribution:
Original - Addressee w/att~ ~c 7 -G 7 5 ,
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1 - GMB Signer
1 - Chrn~,n
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CONFIDENTIAL
OGC 75-0756
3 March 1975
MEMORANDUM FOR: General Counsel
SUBJECT: Records Retention and Disposal
1. The following is in response to your request for a memorandum
concerning the law applicable to the Agency in the area of records retention
and disposal. My general conclusion is that the Agency is bound to follow
and not exempt from the general law applicable to retention and disposal of
records as contained in Title 44, Chapter 33, and the regulations issued
by the Administrator of the General Services Administration. The Director's
responsibility to protect intelligence sources and methods must be viewed
as working in consonance with, and not as amendatory to, the provisions
thereof. Two recent opinions of this Office have arrived at essentially the
same conclusion. OGC 73-1170, dtd 19 June 1973, and OGC 73-2006, dtd.
24 October 1973.
2. This conclusion means that Agency records can only be destroyed
pursuant to GSA General Records Schedules or by virtue of special schedules
or lists submitted by the Director to GSA for approval and the approval of
the Congress. In practice, the approval of GSA is given by the Archivist
of the United States (one copy of an approval is attached). The Agency has
a staff of people who work on such matters and I have visited with them
generally in this regard. In doing so, I discovered a few things which
caused concern. For example, the Agency's record program is a decentralized
one and some- directorates, particularly the DDO, may operate their disposal,
program without recourse to the Agency-wide staff. In addition, I am advised
the Agency does not submit its own disposal schedules to GSA for approval,
presumably on the theory of protecting intelligence sources and methods..
The only submissions to GSA involve shortening an established GSA schedule
on a particular type of record, i.e., an insurance record, and for special
approval on certain other records. Thus, the Agency may not be complying
fully with the law.
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3. At the time the Agency was created the records disposal law
applicable to all agencies was a 1943 statute (57 Stat. 380) which established
a procedure for records disposal, vested the regulatory authority in a
National Archives Council (subject to the approval of the President), and
provided the same, very broad definition of records which is codified at
44 U . S . C .A . 3301. The procedure established directed the head of an
agency to provide the Archivist of the United States lists of records to be
destroyed as well as proposed schedules for destroying certain specific
types of records. The Archivist was then, if he agreed, to submit the lists
or schedules to Congress for the approval of a joint committee. Section 15
of the act provided, "(t)he procedures herein prescribed are exclusive and
no records of the United States Government shall be alienated or destroyed
except in accordance with the provisions of this Act. 25X1
CONFIDENTIAL
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4a 1"E TEAL
6. A 1950 amendment to the Federal Property and Administrative
Services Act (P .L . 81-754) specifically preserved the earlier provision
barring impairment of the Agency's authority. However, just five years
later, the proviso appears to have been erroded by a supplemental
appropriations act:
SURVEY OF GOVERNMENT RECORDS, RECORDS
MANAGEMENT, AND DISPOSAL PRACTICES
For necessary expenses, including not to exceed
$25,000 for administrative expenses, in connection with
conducting surveys of Government records, and records
creation, maintenance, management and disposal practices
in Federal agencies, pursuant to sections 505 and 506 of
the Federal Property and Administrative Services Act of
1949, as amended, $300,000. Provided, That notwithstanding
any other provision of said Act, the Administrator shall
have final authori in all matters involving the conduct
of surveys and the implementation of recommendations
based on such surveys .... (Emphasis added,)
Thus, because there has been no direct statutory repeal of the saving pro-
vision it apparently remains valid and stands as good law with respect to
those matters within the 1949 Federal Property and Administrative Services
Act which are not related to records. This is borne out by fact that a part
of the present codification of the 1949 Act as it relates to "Management and
Disposal of Government Property" (Title 40 U . S . C .A . , Chapter 10) retains
the saving provision. 40 U .S .C .A . 474(17). However, by its terms that
codified portion does not pertain to records: "The term 'property' means
any interest in property except ... (3) the records of the Federal Govern-
ment." 40 U .S .C .A . 471(d). In addition, the present code chapter on
records disposal (Title 44, Chapter 33) contains the same exclusive state-
ment as contained in the 1943 Act -- " (t)he procedures prescribed by this
chapter are exclusive, and records of the United States Government may
not be alienated or destroyed except under this chapter. " 44 U . S .C .A . 3314,
Neither this chapter nor regulations issued thereunder contains an exemption
for the Agency.
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CO HHDENTIAL
7. What is a Record? The statutory definition of records for disposal
purposes is couched both in terms of what is, and what is not, a record
and its breadth appears all-inclusive. Within Title 44 U .S . Code, Chapter
33, is the following description of a record.
As used in this chapter, 'records' includes all books,
papers, maps, photographs, or other documentary materials,
regardless of physical form or characteristics, made or
received by an agency of the United States Government 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 Government or because
of the informational value of data in them. 44 U . S . C .A . 3301..
The regulation based on this section is found at 41 C .F .R . 101-11.101-3 wherein
the statutory definition is simply quoted and then followed by a paragraph
stating that the definition pertains to records generally, not just to records,
for disposal purposes.
8. Nonrecords are defined by Section 3301 as:
Library and museum material made or required and
preserved solely for reference or exhibition purposes, extra
copies of documents preserved only for convenience of
reference, and stocks of publications and of processed docu-
ments are not included... (within the definition of records).
Further amplification is contained within the regulation:
Nonrecord materials, such as extra copies of
documents preserved for convenience of reference, stocks
of processed documents, preliminary worksheets, and
similar papers that need not be made a matter of record,
shall not be incorporated in the official files of the agency.
To the maximum extent possible, material not required
for record purposes shall be disposed of; it should not
be sent to file. In cases where transitory files of such
materials are established and maintained in filing equip-
ment, such files shall be controlled by means of instructions
in the records control schedule. 41 C .F .R . 101-11.401-3(d).
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9. Although not specifically applicable to the question of records
retention and disposal there are, within 41 C .F .R . , other definitions which
assist in understanding "records. "
ADP Records Management --
ADP records management includes the documentation
of computer programs, machine readable records,
functional and operational flow charts, job specifica-
tions, records showing the basic coding structure,
record layouts, printout plans (formats), and basic
run instructions (run books) . 101-11.210-2 .
b. Correspondence -
Correspondence is a generic term including letters,
form letters, telegrams, memorandums, endorsements,
summary sheets, postal cards, memo routing slips,
and other written communications. 101-11.206-2.
c. Directives -
i. A directive is a written communication which
initiates or governs action, conduct, or procedure.
Directives are usually printed as circulars, notices,
regulations, orders, and handbooks, and include
material for insertion in policy, administrative, and
operations manuals.
ii. Certain materials normally are exempted from
agency directives management programs. These
include public information materials such as professional
publications, news releases and announcements of
programs, catalogs, and pricelists.
iii . Both internal and external directives are
included in a directives management program.
101-11.209-2,
CON R DE NTIIAL
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A file is basically a paper or folder of papers, but the
term is used to denote papers, photographs, photo-
graphic copies, maps, or other recorded information
regardless of physical form or characteristics,
accumulated or maintained in filing equipment, boxes,
or on shelves, and occupying office or storage space.
Stocks of publications and blank forms are excluded.
101-11.305-2.
e. Forms
A form is any document, including letters, post cards,
and memorandums, printed or otherwise reproduced
with space for filling in information, descriptive
material, or addresses. Certain printed items without
fill-in-space, such as contract provisions, instruction
sheets, notices, tags, labels, and posters, may be
considered as forms when it is advantageous to identify
and control them as forms for purposes of reference,
printing, stocking, distribution, and use with other
forms. 101-11.208-2.
f. Mail -
Mail consist of letters, telecommunications, memorandums,
post cards, documents, packages, publications, and other
communications received for distribution or dispatch.
101-11.304-2.
g. Reports -
i. A report is data or information, generally
summarized, transmitted for use in determining policy;
planning, controlling, and evaluating operations and
performance; and preparing other reports. The data or
information may be in narrative, statistical, graphic,
or other form .
COI D yTIAL
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ii. Most reports of an agency can be classified
as belonging to one of several well defined families
or groups of reports. Each group of related reports
is generally the product of an information system
serving a specific administrative or operational area,
such as personnel, budget, or procurement. Con-
sequently, the analysis of reports on a systems basis
provides the best means of establishing reports relation-
ships and evaluating information need and adequacy.
iii. Certain categories of reports normally are
exempted from review and clearance in an agency
reports management program. These usually include:
inspection and audit reports; security classified docu-
ments; copies of operating documents such as individual
supply and procurement transactions; and information
presentations such as research findings, technical
summaries, special studies, and surveys. Reports to
be exempted should be determined by an analysis of
agency information requirements
iv. Reports to and from other agencies, as well as
those for internal management, are included in agency
review and clearance procedures. 101-11.207-2.
Under a regulatory subpart relating to microfilming is a definition of a
"permanent record. "
Permanent record. Any record (see 44 U .S . C .
3301) that has been determined by the Archivist of the
United States to have sufficient historical or other value
to warrant its continued preservation by the Government.
Such determinations take the form of approved agency
records retention plans or an approved offer to transfer
records to the National Archives. A determination is not
made merely by NARS approval of a comprehensive records
disposal schedule that also lists records that are identified
as 'permanent' or 'retain' by the agency but are not clearly
certified as permanent by NARS. 101-11.502(a).
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10. Copies of OGC Opinions, the law and regulations, GSA General
Schedules, CIA Schedules, and an approval by the Archivist are attached
for your information or further review.
Assi tart G neral Counsel
GMB: sc
Distribution:
Original VECORDS
1 - DDA as att to OGC 75-0811
1 - GMB Signer
1 - Chrono
CONFIDENTIAL
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