HHS Policy for Records Management Employee Departures
January 10, 2006
HHS-OCIO-2007-0003.002
Table of Contents
- 1. Purpose
- 2. Background
- 3. Scope
- 4. Policies
- 5. Roles and Responsibilities
- 6. Applicable Laws/Guidance
- 7. Information and Assistance
- 8. Effective Date/Implementation
- 9. Approved
- Attachment 1 - Dept. of Health and Human Services - Documentary Materials Removal/Non-Removal Certification and Non-Disclosure Agreement
1. Purpose
The purpose of this Department of Health and Human Services (HHS) Information Technology (IT) Policy is to establish the policy for ensuring that all material created, received or maintained during an employee’s employment or appointee’s tenure with the Federal Government that meets the criteria for a Federal record remains in Federal custody when an employee or appointee departs the Agency. It also reiterates the special consideration given to Presidential Records Retention requirements (44 U.S.C. 22).
This Policy is a first issuance.
Government employees/appointees create and maintain Federal records as part of their official responsibilities. In addition to Federal records, Senior Executives can create and accumulate other documentary materials including Presidential records and personal records while in the work place. The National Archives and Records Administration (NARA) has issued guidance for Federal agencies regarding the management of records and other types of documentary material. Because of the different possible interpretations that could be made, these guidelines have been consolidated and applied to the HHS work place under this policy.
This Policy applies to all Department Operating Divisions (OPDIVs) and Staff Divisions (STAFFDIVs), including the Office of the Secretary, and organizations conducting business for and on behalf of the Department through contractual relationships. This Policy does not supersede any other applicable law or higher level agency directive, or existing labor management agreement in effect as of the effective date of this policy.
Agency officials shall apply this policy to employees, contractor personnel, interns, and other non-government employees by incorporating references in contracts or memorandums of agreement as conditions for establishing Government policy documents, under the instruction and direction of Government management.
OPDIV/STAFFDIVs shall use this policy or may create a more restrictive policy, but not one that is less restrictive, less comprehensive or less compliant with this Department Policy.
The Department of Health and Human Services must account for decisions, communications, and processes taken to protect the health of all Americans and to account for the essential human services provided to those in need. This standard applies to all Federal employees, regardless of type of appointment. In addition, high-level officials and appointees may be required to account for records that could be classified as documentary and/or Presidential records. It is the policy that within the first 30 days of employment, all employees including senior level officials or political appointees be briefed regarding the types of records they will be required to protect and the different methods for meeting the Federal guidelines. Officials upon departure from HHS will follow the steps outlined in 4.7 Departure Process.
4.1 Federal Records
Federal Records areall documentary materials, regardless of physical form, formats
and types of media, made or received by an agency under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation as evidence of HHS functions, organizations, decisions, studies and activities.
4.2 Documentary Materials
According to 36 CFR 1222.12b(1), “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.
4.3 Records and Other Documentary Materials
These are relevant HHS operational records and non-record materials, in all media (regardless of physical form, formats and types of media), that may constitute evidence in a particular lawsuit, administrative proceeding, audit, investigations or historic reference.
4.3.1 Operational records
Operational records are those records created or maintained by HHS staff while conducting HHS business.
4.3.2 Non-record Materials
Non-record materials are those Government-owned documentary materials that do not meet the statutory definition of “records” (44 U.S.C. 3301) or that have been excluded from coverage by the definition. Non-record materials expressly excluded from the statutory definition of records are:
4.3.2.1 library and museum materials made or acquired and preserved solely for reference or exhibition purposes,
4.3.2.2 extra copies of documents kept only for convenience of reference, and
4.3.2.3 stocks of publications and processed documents.
4.3.3 Working Files and Similar Materials
Working files and similar materials include preliminary drafts, rough notes, worksheets, correspondence and memos, reports, and other similar materials (see 36 CFR 1222.34[c]), which fall within the scope of “documentary materials”, regardless of whether such materials qualify as HHS operational records.
4.4 Personal Records
Personal records are those materials that belong to an individual, not the agency. Certain files are clearly personal, such as those that are not used in the transaction of agency business. Personal records may contain references to or comments on agency business, but they are considered personal if they are not used in the conduct of business.
4.4.1 Business or Professional Records
Records created before entering Government service; files created during or relating to previously held positions, political materials, and reference files.
4.4.2. Private Records
Records brought into, created, or received in the office; family and personal correspondence and materials documenting professional activities and outside business or political pursuits, including manuscripts and drafts for articles and books and volunteer and community service records that are considered personal, even if created or received while in office, because they do not relate to agency business.
4.4.3 Personal Files
Work-related personal files including diaries, journals, notes, and personal calendars and appointment schedules; though work-related, they may be personal if they are used only as reminders and personal observations on work-related topics, not for the transaction of Government business or as documentary reference for legal issues.
4.5 Presidential Records (44 U.S.C.22)
Any documentary materials, or any reasonably separable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.
4.5.1 Includes any documentary materials relating to the political activities of the President or members of his staff, but only if such activities related to or had a direct effect upon the carrying out constitutional, statutory, or other official ceremonial duties of the President.
4.5.2 Records do not include official records of an agency, personal records; stock of publications and stationery or extra copies of documents produced only for convenience of reference, when such copies are clearly so identified.
4.6 Maintenance
Federal Records, Personal Records and Presidential Records will not be intermixed. Each group will be clearly marked and maintained separately.
4.6.1 Federal Records will be created and maintained in accordance with the HHS guidelines.
4.6.2 Personal records will be created and maintained in accordance with the HHS guidelines.
4.6.3 Presidential records will be created and maintained in accordance with 44 U.S.C. 22 and HHS guidelines.
4.7 Departure Process
All employees shall clearly designate as personal, and maintain separately from the records of the office, those papers of a private or nonofficial nature that pertain to their personal affairs. If information about private matters and Department business appears in the same document, the document should be copied at the time of receipt, with the personal information deleted. If the private or nonofficial papers of a Health and Human Services (HHS) official are kept in the official's office, they shall be filed separately from the official records of the office. For electronic information it means saving the private information in a separate electronic file without Federal documentation; and for the paper information it means placing the information in a separate physical folder.
4.7.1 Responsibilities.
Records Officers shall:
- ensure that nonrecord material being removed by a departing employee or official is examined by the HHS reviewing official for the purpose of providing the appropriate protection for information that is restricted from release under the Privacy Act or other statutes, regulations or executive orders;
- obtain signed form: "Documentary Material Removal/Non-Removal Certification and Non-Disclosure Agreement;”
- ensure that the signed forms, and related documentation are retained in a centralized file for at least 10 years within the Personnel or Records Management office; and ensure that no departing official or employee shall remove records or nonrecord materials relating to any pending or contemplated civil, criminal, or administrative proceeding or other program activity when the information, if released, would impair or prejudice the outcome of the proceeding or Government policy determinations, decisions, or other actions.
4.7.2 Procedures for Removal of Papers
- All records, originals and copies, are under the control of HHS regardless of how and by whom they were created or obtained. Removal of documentary material must be approved by the Freedom of Information Act (FOIA) official in accordance with the provisions of this policy to ensure HHS’ ability to claim privileges in litigation, to claim FOIA exemptions and to protect sensitive and classified information.
- No documentary material, even though judged to be nonrecord material, shall be withdrawn if this will create such a gap in the files as to impair the completeness of essential documentation. Indexes, or other finding aids, necessary for the use of the official files may not be removed.
- Personal diaries, which are really private records of public activities, are private property and may be removed. When the matters dealt with in such work aids as office diaries, logs, calendars, memoranda of conferences and telephone calls are covered elsewhere by adequate records, such work aids may be removed provided they do not contain information otherwise prohibited from removal. This applies to personal papers created and/or maintained on paper as well as in electronic format.
- Extra copies (photocopies, etc.) of records may be removed under certain circumstances. Prior to removal, it must be determined that no legal or policy reason exists that would prevent removal and that the record copy, or other necessary copies, are available in the Department. If the copy is of a document originating with another agency, the requirements of the originating agency must be determined.
- Any violation of the statutory and regulatory limitations placed on removal of documentary material by HHS officials who resign or retire will be forwarded to the HHS Office of Physical Security, who shall confer with the Inspector General regarding such violations.
- Records will not be disposed of while they are the subject of a pending request, appeal, subpoena, or lawsuit under the Freedom of Information Act or the Privacy Act, as provided for in General Records Schedule (GRS) 14.
4.7.3 Review of Papers
An HHS Records Officer shall be consulted prior to removing personal papers and the Records Officer will, in turn, consult with the Department (HHS OCIO) Records Officer and NARA if questions arise. The Office of Presidential Libraries is interested in the private papers of high level officials because these papers are an invaluable adjunct to the public records of an Administration. A retiring official may place restrictions on access to papers as deemed necessary if the official decides to make use of these archival depositaries.
5.1 The Deputy Assistant Secretary for Information Technology/HHS Chief Information Officer
The Deputy Assistant Secretary for Information Technology (DASIT)/HHS CIO, under the authority delegated by the Assistant Secretary for Resources and Technology (ASRT), shall:
5.1.1 ensure the Department compliance and conformance with Public Laws, NARA regulations, OMB and GAO regulations, policies, standards, procedures, and instructions concerning agency operations and reviews;
5.1.2 ensure development of Department Records Management (RM) policy;
5.1.3 disseminate the HHS RM policy for OPDIV review, comment, and
5.1.4 disseminate the approved HHS RM policy.
5.2 Department (HHS OCIO) Records Office
The Department (HHS OCIO) Records Officer shall brief the Secretary, Deputy Secretary and Assistant Secretaries regarding their Records Management responsibilities within the first 30 days of their arrival.
5.3 Operating Division Chief Information Officers
Operating Division (OPDIV) Chief Information Officers (CIOs) are responsible for:
5.3.1 approving, disseminating and implementing HHS RM policy within their respective organizations;
5.3.2 developing and approving, when needed, OPDIV RM policies that are more restrictive than the HHS (Department issued) policies but not less restrictive or less comprehensive or compliant with the Department policy;
5.3.3 training all employees on RM policies (Department policy and/or OPDIV/STAFFDIV policy), as appropriate; and
5.3.4 implementing security controls required by RM policy.
5.4 OPDIV Records Management Officers
5.4.1 Identify and establish records management standards when needed, that are more restrictive than the HHS (Department issued) policies but not less restrictive, less compliant or less comprehensive;
5.4.2 conducting periodic inspections for approved certifications of record removal;
5.4.3 evaluating and measuring compliance with Federal and HHS records management guidelines; and,
5.4.4 providing Records Management training.
5.5 Freedom of Information Act (FOIA) Official
Provide approval to remove copies of Federal records if appropriate for release to the general public.
5.6 Management Officials
Management officials, in their supervisory role, are responsible for:
5.6.1 ensuring employees participate in the development of and the timely review of HHS RM policy and adhere to said HHS RM policy;
5.6.2 ensuring employees attend records management training; and
5.6.3 informing users (employees, contractors, interns, etc.) of their rights and responsibilities, including the dissemination of the information in policy.
5.7 HHS Employees
Users, including employees, contractors, interns, etc., are responsible for:
5.7.1 participating in the development of policy or initiating OPDIV RM policy that is not less restrictive, less comprehensive or less compliant with the Department policy;
5.7.2 responding timely to comments made regarding policy during the policy Review Process;
5.7.3 adhering to the HHS Records Management Policies;
5.7.4 working collaboratively to address issues with the Records Officer;
5.7.5 seeking guidance from their supervisors when in doubt about the implementation of a specific policy;
5.7.6 familiarizing themselves with any special requirements for accessing, protecting and utilizing data, including Privacy Act and Section 508 requirements, copyright requirements, and procurement sensitive data; and
5.7.7 adhering to all conditions set forth in chapter 4, Policy.
Authorities include:
a. 44 U.S.C 22 Presidential records.
b. 44 U.S.C. 29 Records Management by the Archivist of the United States and by the Administrator of General Services.
c. 44 U.S.C 31 Records Management by Agency Head.
Direct questions, comments, suggestions or requests for further information to the HHS Records Officer at (202) 205-8548.
The effective date of this policy is the date the policy is approved.
These policies and procedures will not be implemented in any recognized bargaining unit until the union has been provided notice of the proposed changes and given an opportunity to fully exercise its representational rights.
The HHS policies contained in this issuance shall be exercised in accordance with Public Law 93-638, the Indian Self-Determination and Education Assistance Act, as amended, and the Secretary's policy statement dated August 7, 1997, as amended, titled "Department Policy on Consultation with American Indian/Alaska Native Tribes and Indian Organizations." It is
HHS' policy to consult with Indian people to the greatest practicable extent and to the extent permitted by law before taking actions that affect these governments and people; to assess the impact of the Department's plans, projects, programs and activities on tribal and other available
resources; and to remove any procedural impediments to working directly with tribal governments or Indian people.
__________ /s/____________________ _____September 24, 2007___
Michael W. Carleton DATE
HHS Chief Information Officer
Attachment 1 - Department of Health and Human Services - Documentary Materials Removal/Non-Removal Certification and Non-Disclosure Agreement
Name: ____________________________ Office: ___________________________
Telephone Number: ___________________ Planned Departure Date: ____________
1. Records that May Not be Removed.
(1) Any material, regardless of the media, that meets the definition of a Federal Record. (2) Any information not normally released to the general public, unless prior approval has been obtained from the Records Officer and the Freedom of Information Act (FOIA) Officer.
2. Documentary Materials that May Be Removed: Personal Papers.
Examples of personal papers include: papers accumulated by an official before joining Government service that are not used subsequently in the transaction of Government business; 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; diaries, journals, personal correspondence, or other personal notes that are not prepared or used for, or circulated or communicated in the course of transacting Government business (36 C.F.R., Section 1222.36(a), (b), and (c)). Copies of Federal Records if appropriate for release to the general public as determined by the FOIA Officer.
3. Penalties for Unlawful Removal of Records.
Criminal penalties are provided for the unlawful removal or destruction of Federal records (18 U.S.C. 641 and 2071) and for the unlawful disclosure of certain information pertaining to national security (18 U.S.C. 793, 794, 798 and 952).
4. Are you removing any nonrecord documents, such as extra copies of agency records, from the Department Of Health and Human Services? If yes, go to a. If no, go to b.
a. YES ____ Complete the below certification with the Reviewing Official (an HHS Records Officer).
Initials
CERTIFICATION
I certify that the documents that I am removing from the Department of Health and Human Services have been reviewed and approved for removal. They do not include any documents relating to any pending or contemplated civil, criminal, or administrative proceeding or other program information, if released, would impair or prejudice the outcome of the proceeding or Government policy determinations, decisions, or other actions (Examples: classified documents; record copies; documents, even though judged to be a nonrecord, that will create a gap in the files; and indexes and finding aids necessary to use the official files). These documents are briefly described in the attachment.
I agree to keep all nonpublic materials absolutely confidential and will not disclose their contents or existence without prior permission from the appropriate Department of Health and Human Services Reviewing Official.
_______________________________________________________ ___________
Sign and Print your Name Date
____________________________________________________ _________________
Organization and Title of HHS Reviewing Official Telephone Number
_____________________________________________________ _______________
Signature of HHS Reviewing Official Date
Attachment: Description of documents.
Name: ____________________________ Office: ___________________________
Telephone Number: ___________________ Planned Departure Date: ____________
b. NO ___________________ Complete the certification below.
Initials
CERTIFICATION
By my signature below, I certify that I am not removing any documents from the Department of Health and Human Services.
________________________________________________________ __________
Signature Date
_________________________________________________________
Print your Name