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Policy OCIO-2010-0008

1.    Purpose

2.    Background

3.    Scope

4.    Policy

4.1          Definitions

4.2          Circumstances Which May Warrant the Issuance of a Hold

4.3          Records and Other Documentary Materials Subject to Holds

4.4          Ownership, Formats and Media of Records and Other Documentary Materials Covered by this Policy

4.5          Authorization to Issue and Remove a Hold Affecting HHS Operational Records and Other Related Documentary Materials

4.6         HHS Office of General Counsel Notification to HHS Officials and Department Records Officer of Hold

4.7          When a Records Hold Request is Initiated by an HHS Office, other than HHS OGC, HHS FOIA, HHS OIG, or the HHS Department Records Officer

4.8          HHS Department Records Officer Notification Distribution

4.9          HHS Staff Duties in Carrying out a Hold

4.10       Consequences to HHS Staffs When Not Adhering to a Hold

4.11       Consequences to HHS, as an Agency, When Not Adhering to a Hold

4.12       Hold Removal and Notifications

5.    Roles and Responsibilities

5.1          The Deputy Assistant Secretary for Information Technology/HHS Chief Information Officer

5.2          Office of the General Counsel

5.3          Department HHS Department Records Officer

5.4          Operating Division Chief Information Officers

5.5          Operating Division (OPDIV) Records Management Officers

5.6          Freedom of Information Act (FOIA) Official

5.7          Management Officials

5.8          HHS Employees

6.    Applicable Laws/Guidance

7.    Information and Assistance

8.    Effective Date/Implementation

9.    Approved

Glossary of Terms (Source:  ARMA International Glossary of Records and Information Management Terms)

Appendix A: Implementation of a records hold by an HHS office head or staff director in anticipation of a situation warranting a hold

 


1.    Purpose

 The purpose of this Department of Health and Human Services (HHS) Policy is to provide HHS staff with a policy for legal holds and to inform HHS staff about Freedom of Information Act (FOIA), investigatory, and audit matters that require holds on HHS records and other related documentary materials.  FOIA, investigatory, and audit processes are not covered in this Policy.  For the purposes of this Policy, “hold” means the temporary suspension of HHS records disposition actions for all records and documentary materials in the custody of HHS, regardless of physical location and format. 

 

This Policy is a first issuance.

2.       Background

 The Federal Records Act of 1950, as amended, requires all Federal agencies to make and preserve records containing adequate and proper documentation of the organization, function, policies, decisions, procedures, and essential transactions. These records are public property and must be managed according to applicable laws and regulations.

 

 The Federal Records Act also requires agencies to establish a records management program.  This program is defined as a planned, coordinated set of policies, procedures, and activities needed to establish and manage its recorded information. Essential elements include issuing up-to-date records management policies, properly training those responsible for implementation, and carefully evaluating the results to ensure adequacy, effectiveness, and efficiency.  Records management also includes records schedules that provide for the mandatory disposition of federal records where the records are no longer required for the ongoing business of an agency.

 

Numerous situations arise where government records may be required for litigation; an administrative procedure; an audit or an investigation; or to respond to Congressional and public inquiries.  Government records and non-records may be key to the resolution of these matters. Normal records disposition schedules are suspended or held in abeyance and employees are notified that any related materials must be retained until such time that those records are deemed no longer needed for litigation, administrative, audit or investigative purposes and normal disposition may resume.

 

Authorities:

 

  1. 44 U.S.C. Chapter 31 – Records Management by Federal Agencies
  2. 44 U.S.C. Chapter 33 – Disposal of Records
  3. 5 U.S.C. Section 552 – Freedom of Information Act (FOIA)
  4. 36 C.F.R. Chapter XII, subchapter B – Records Management
  5. Federal Rules of Civil Procedure (FRCP) – Govern civil procedure in the United States district courts, or more simply, court procedures for civil suits. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act (28 U.S.C. §§ 2071 – 2077), and then approved by the United States Congress.  Relevant rules from the FRCP include the following.

 

(1) FRCP, Title III, Pleadings and Motions, Rule 16, Pre-Trial Conferences; Scheduling; Management

(2) FRCP, Chapter V, Depositions and Discovery, Rule 26(a), Duty to Disclose, General Provisions Governing Discovery; Required Disclosures

  1. Inspector General Act of 1978 (5 U.S.C., Appendix 3; see § 8G, "Requirements for Federal entities and designated Federal entities")

3.       Scope

This Policy applies to all Department Operating Divisions (OPDIVs), including the Office of the Secretary, and Staff Divisions (STAFFDIVs) 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 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 memoranda of agreement as conditions for employment and contracts with HHS, under the instruction and direction of Government management.

 

Agencies shall use this Policy or may create a more restrictive OPDIV/STAFFDIV policy, but not one that is less restrictive, less comprehensive or less compliant with this Department Policy.

 

This Policy applies to HHS records of all media and in all physical locations (including but not limited to office spaces; agency-specific storage locations; records stored at contractor locations; agency records stored in the Federal Records Centers; agency records stored in electronic mail and voice mail systems, electronic systems, and backup tape operations; agency records stored on portable devices, and Continuity of Operations [COOP] information storage sites).

4. Policy

4.1  Definitions

    1. Hold:  Within the context of records management, a "hold" is an agency's temporary suspension of disposition action(s) and notification to its employees to retain records related to a matter because of legal, administrative, audit, or investigative needs.  Documentary materials, regardless of record status, format, and of physical location, are required to be kept for as long as a hold is in place. Non-compliance with a hold could result in penalties on individual staff and the agency.
    2. Documentary Materials:  According to 36 C.F.R. Chapter XII, Subchapter B, Section 1220.18,  "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. 

     

    1. Federal records – Per 44 U.S.C. 3301, records “includes all books, papers, maps, photographs, machine readable materials, 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. Library and museum material made or acquired 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 documents are not included.  In summary: provides evidence of the organization, functions, policies, decisions, procedures, or operations of the government, regardless of media.

     

    1. Freeze - A "freeze" is essentially a more specific implementation of the broader "hold" concept. A freeze refers to a set of standard procedures whereby the National Archives and Records Administration (NARA) Federal Records Centers (FRCs), upon receipt of notification from a Federal agency or the Department of Justice, temporarily suspend disposition actions of an agency's records and other documentary materials that are in the physical custody of FRCs, but for which legal custody resides with the originating agency. 

    4.2  Circumstances Which May Warrant the Issuance of a Hold

    A hold may be issued when:

     

  1. HHS is a party to a lawsuit that names HHS expressly as a party or in which the United States is participating as a plaintiff or defendant.  The Office of the General Counsel (OGC), working with the Department of Justice (DOJ), acts as attorney for HHS and its officials.
  2. DOJ is investigating a matter and HHS has relevant records in its possession.
  3. An administrative proceeding, such as a case involving an equal employment opportunity (EEO) or a Merit Systems Protection Board (MSPB) matter, may require the preservation of designated records and related documentary materials.
  4. A Freedom of Information Act (FOIA) request that is pending or ongoing.
  5. The Office of the Inspector General (OIG) conducts a financial, performance, or contract or grant audit.

 

  1. OIG leads an administrative (non-criminal) or criminal investigation.

 

4.3 Records and Other Documentary Materials Subject to Holds

This guidance applies to relevant HHS programmatic and operational records and non-record materials, in all media (see par. 4.4 for types of media), that may constitute evidence in a particular lawsuit or administrative proceeding, or serve as supporting information in an audit or investigation.

 

  1. Programmatic and Operational records – Operational records are records created and maintained throughout Federal agencies to conduct the day-to-day business of the Federal government.  Programmatic records are records created and maintained in the course of unique programmatic activities of an agency.
  2. Non-record materials - 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:

 

(1) library and museum materials made or acquired and preserved solely for reference or exhibition purposes,

(2) extra copies of documents kept only for convenience of reference, and

(3) stocks of publications and processed documents.

 

3)  "Working files and similar materials," including preliminary drafts, rough notes, worksheets, correspondence and memos, reports, and other similar materials (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.  

4.4 Ownership, Formats and Media of Records and Other Documentary Materials Covered by this Policy.

  

Records created and maintained by HHS, regardless of physical location and physical format, can be subject to hold/discovery.  Physical locations include but are not limited to audit sites, field offices, headquarters, Federal Records Centers (FRC), the Washington National Records Center (WNRC), individual and central office spaces, agency-specific storage locations, contractor offices, HHS Continuity of Operations [COOP] sites, and electronic information back-up sites.

 

"Formats" and "media" refer to the physical characteristics of documentary materials (see definition of “documentary materials” and definition of “working files and similar materials” in 4.3(3) above).  Particular holds, as each case arises, may call for retention of information in various electronic formats or media to be determined.  After consultation with the HHS Department Records Officer (hereafter, "HHS Department RO"), supervisors and managers must provide to their staffs more specific information regarding formats and media for records and other documentary materials subject to a hold.  Regardless of records classification (Administrative, Mission, or Policy records) and storage medium, types of formats and media may include, but are not limited to:

 

  1. paper/hardcopy
  2. electronic formats and storage media:

(1) e-mail messages

(2) personal electronic devices used to conduct official HHS business, including but not limited to, portable digital assistance/devices (e.g., Blackberry)

(3) word processing files, spreadsheets, and databases

(4) digital images

(5) web pages

(6) network server information, including metadata

(7) voice mail messages

(8) back-up tapes

(9) hard drives

(10) removable computer storage media (e.g., CD-ROMs, tapes, disks, thumb drives, and cards)

  1. photographic prints, negatives, caption lists, etc.
  2. audiovisual (e.g., videotapes and sound recordings)
  3. cartographic (e.g., maps and architectural and engineering drawings)

                              micrographic (e.g., microfilm and microfiche).

 

4.5 Authorization to Issue and Remove a Hold Affecting HHS Operational Records and Other Related Documentary Materials

 

In circumstances 1 and 2 (e.g., HHS is a party to a lawsuit, DOJ is investigating a matter) listed in section 4.2 of this Policy, the HHS OGC is the HHS official authorized to issue and remove, subject to consultation with DOJ, records/documentary materials holds.  However, in the absence of the HHS General Counsel, an acting HHS designee is authorized to issue and remove legal holds in circumstances 1 and 2, including the HHS Department RO. 

 

In circumstance 3 (e.g., an administrative proceeding), the HHS OGC is responsible for notifying the appropriate HHS office(s) to which the administrative matter applies and for the issuance and removal of legal or administrative holds. The HHS Department RO has no role in matters associated with circumstance 3; however; HHS OGC may contact HHS OPDIV Records Officers or STAFFDIV Records Managers if determined by OGC to be appropriate.

In circumstance 4 (e.g., Freedom of Information Act (FOIA) requests), the Department’s FOIA Officer is the HHS official authorized to issue and remove records/documentary materials holds. 

 

In circumstances 5 and 6 (e.g., HHS OIG program review, audit, inspection, or investigation), the Department’s OIG is the HHS official authorized to issue and remove records/documentary materials holds. The Office of Counsel to the Inspector General (OCIG) is the legal representative in administrative proceedings in which the HHS OIG has been cited as a party.  Where appropriate, the OCIG will issue records holds within the OIG.  In FOIA and legal matters where both the HHS OGC and the OIG OCIG are involved, the OGC and OCIG will discuss the issues and reach a consensus on the implementation of a hold and on internal and external communications.

 

4.6 HHS Office of General Counsel Notification to HHS Officials and Department Records Officer of Hold

When HHS is a party to a lawsuit that names HHS expressly as a party, when the United States Government is participating as a plaintiff or defendant, and when DOJ is investigating a matter and HHS has relevant records in its possession (circumstances 1 and 2 of section 4.2 of this Policy), the HHS OGC, working with the Department of Justice, acts as attorney for HHS and its officials.  The HHS OGC notifies by written memo (and by more formal means as necessary) the HHS Executive Secretariat, the HHS Department RO, and the affected heads of HHS OPDIVs and STAFFDIVs. As appropriate and based on advice from HHS OGC, the HHS Department RO notifies the necessary OPDIV Records Officers, STAFFDIV Records Managers, and the HHS CIO Community. These officials will ensure the distribution to staffs of the information contained in the hold order and ensure the prevention of the destruction of records of all media. 

 

In circumstance 3 (administrative proceeding, such as a case involving an equal employment opportunity (EEO) or a Merit Systems Protection Board (MSPB) matter), the HHS OGC notifies the appropriate office(s) affected by the administrative matter.

The Department’s FOIA Officer provides this notification in circumstance 4, and the Department’s OIG provides this notification in circumstances 5 and 6. 

 

The HHS Department RO does not need to be notified in circumstances 3, 4, 5 and 6. 

4.7 When a Records Hold Request is Initiated by an HHS Office, other than HHS OGC, HHS FOIA, HHS OIG, or the HHS Department Records Officer

In those cases where HHS managers are aware of the need for the issuance of a records disposition hold as described in circumstance 3, written information must be submitted to the HHS OGC. 

 

When circumstance 4 is implicated, written information must be submitted to the Department’s FOIA Officer. 

 

When circumstances 5 and 6 are implicated, written information must be submitted to the Department’s OIG.

 

The HHS Department RO does not need to be notified in circumstances 3, 4, 5 and 6. 

 

Appendix A of this Policy provides instructions for the issuance and implementation of a records hold by an office head or a staff director when a situation warranting a hold is anticipated (e.g., a GAO audit, a potential EEO matter, an anticipated FOIA request).

4.8 HHS Department Records Officer Notification Distribution

 

  1. As appropriate and based on advice from HHS OGC, the HHS Department RO notifies the necessary OPDIV Records Officers, STAFFDIV Records Managers, and the HHS CIO Community for circumstances 1 and 2. Each OPDIV Records Officer notifies affected officials to preserve textual records and all other non-electronic records and coordinates with the OPDIV CIO to require the preservation of all electronically stored information (ESI). 

 

  1. For circumstances 1 and 2, the OPDIV Records Officers notify the National Archives and Records Administration (NARA) of a records hold and the NARA implementation of a “freeze.”  This results in a temporary extension of retention period(s):

    

(a) As stated in 36 C.F.R. § 1226.20, Agencies must secure NARA written approval to retain records series or systems that are eligible for destruction under NARA-approved schedules except when: (1) The agency has requested a change in the records schedule in accordance with § 1225.26 of this subchapter, in which case the agency is authorized to retain records eligible for destruction until the new SF 115 [records schedule] is approved; (2) The records will be needed for less than one year; or (3) A court order requires retention of the records.

 

(b) The OPDIV Records Officers notify NARA of records stored at any or all FRCs (including WNRC).  NARA’s Federal Records Center Program (NR) then carries out the hold by placing a "freeze" on disposition actions affecting those subject records and documentary materials stored at the FRC(s).

 

3)  For circumstances 3, 4, 5 and 6, the OPDIV Records Officers, in consultation with OGC, OIG, FOIA, and other functions as appropriate, notify NARA of a records hold.  The HHS Department RO does not need to be notified.

 

4.9 HHS Staff Duties in Carrying out a Hold

Until notice from HHS OGC, HHS FOIA Officer, HHS OIG, or HHS Department RO:

  1. Do not destroy any documentary materials, including working papers and those temporary records that are eligible for destruction in accordance with the HHS Records Retention Schedules and the NARA General Records Schedules.
  2. Follow instructions about maintaining records and other documentary materials subject to the hold (e.g., centralizing or keeping the records and materials in place; sending the records and materials to OGC, OIG, HHS FOIA Officer, etc.).
  3. OPDIVs/STAFFDIVs:  Will not transfer permanent records to the National Archives of the United States, unless a transfer is permitted in accordance with the hold instructions.
  4. OPDIVs/STAFFDIVs:  Will not transfer records to an FRC, unless a transfer is permitted in accordance with the hold instructions.

4.10 Consequences to HHS Staffs When Not Adhering to a Hold

Non-compliance with a hold could result in penalties on individual staff and the agency.

  1. DOJ - Failure to preserve operational records could constitute an unlawful destruction of records that must be referred to the Attorney General under 44 U.S.C. 2905(a) and 3106.
  2. Civil or criminal court - If a HHS staff member fails to comply with a hold that is in place because of a court order, this individual could be individually sanctioned or held in contempt by the court.  Finally, destruction of records under certain circumstances is potentially a criminal violation for which a staff member could be prosecuted under 18 U.S.C. 1519 (see policy for The HHS Records Management Program).

4.11Consequences to HHS, as an Agency, When Not Adhering to a Hold

HHS could be subject to sanctions if records and other documentary materials, deemed as materially relevant to the issues in litigation, are missing. For instance, the court could:

  1. Issue an adverse finding (e.g., a court order) against HHS on the merits of the case;
  2. Instruct a jury to draw an "adverse inference" against HHS, meaning that the judge would rule that the content of the missing records and materials would have supported whatever argument that the opposing party has put forward;
  3. Preclude HHS from introducing certain evidence and/or calling certain witnesses;
  4. Hold individual HHS officials and HHS in contempt; and impose monetary sanctions against HHS.

 

4.12 Hold Removal and Notifications

When the need for the hold has expired, HHS OGC notifies by memo (and by more formal means as necessary) in circumstances 1 and 2 in 4.2 of this Policy the HHS Executive Secretariat, the HHS RO, and the affected heads of HHS OPDIVs and STAFFDIVs. If not already contacted by the HHS OGC, the HHS Department RO informs the HHS CIO Community, OPDIV Records Officers, and STAFFDIV Records Managers, who then inform appropriate offices, units, and IT.  In circumstance 3, OGC notifies by memo and by more formal means as necessary the affected office(s). The HHS FOIA Officer provides the notification in circumstance 4, and the HHS OIG provides the notification in circumstances 5 and 6.  The OPDIV Records Officers notify the National Archives and Records Administration of the removal of the hold.

5. Roles and Responsibilities

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 Administration (ASA), 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 new, and update of existing, 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 Office of the General Counsel

5.2.1. When HHS is a party to a lawsuit or DOJ is investigating a matter (circumstances 1 and 2 of this Policy), the HHS OGC, working with the Department of Justice, acts as attorney for HHS and its officials.  The HHS OGC is the HHS official authorized to issue and remove, subject to consultation with DOJ, records/documentary materials holds.  HHS OGC notifies by written memo (and by more formal means as necessary) the HHS Executive Secretariat, the HHS Department RO, and the affected heads of HHS OPDIVs and STAFFDIVs.

 

5.2.2.  For administrative proceedings (circumstance 3 of this Policy), such as a case involving an equal employment opportunity (EEO) or a Merit Systems Protection Board (MSPB) matter, HHS OGC is responsible for notifying the appropriate HHS office(s) to which the administrative matter applies and for the issuance and removal of legal or administrative holds.

 

5.2.3. In FOIA and legal matters where both the HHS OGC and the Department’s Office of Inspector General (OIG) Office of Counsel to the Inspector General (OCIG) are involved, the OGC and OCIG will discuss the issues and reach a consensus on the implementation of a hold and on internal and external communications.

 

5.3 Department HHS Department Records Officer

 

  5.2.1   The HHS Department RO shall provide records management (RM) entrance briefings to the Secretary, Deputy Secretary and Assistant Secretaries within the first 30 days of their arrival regarding the Records Management roles and responsibilities of these positions;

 

 5.2.2   Develop and present RM awareness training during HHS new employee orientation sessions;

 

5.2.3   Develop mandatory annual RM training for all HHS employees, interns, contractors, etc., and distribute for OPDIVS and STAFFDIVs to conduct their own training; and,

 

5.2.4   Develop RM standards for analysis and dissemination throughout HHS. This includes but is not limited to:

       -Conducting the annual Department RM assessment;

 

       -Reviewing and commenting on draft HHS, NARA, GAO and OMB records and information management regulations, policies and procedures;

 

       -Ensuring the OPDIVs prepare and submit an annual facilities report to NARA, and;

 

       -Review all OPDIV records schedules for legal and technical accuracy prior to submitting them to NARA.

 

5.4 Operating Division Chief Information Officers

 

 OPDIV Chief Information Officers (CIOs) must:

 

5.3.1   Approve, disseminate and implement HHS RM Policy within their respective organizations;

 

5.3.2   Develop and approve, when needed, OPDIV specific RM policies that are consistent with or more restrictive than the HHS (Department issued) policies but not less restrictive, less comprehensive or less compliant with the Department Policy;

 

5.3.3   Ensure Records Officers are adequately trained and remain current on RM policies and procedures;

 

5.3.4    Train all employees and non-Federal staff on RM policies (Department Policy and/or OPDIV/STAFFDIV policy), as appropriate; and,

 

5.3.5    Implement security controls required by the RM Policy.

 

5.5 Operating Division (OPDIV) Records Management Officers

 

5.4.1   Identify and establish records management standards, when there is an OPDIV need for more restrictive policies than the HHS (Department issued) policies.  OPDIV policies shall not be any less comprehensive and shall comply with the Departmental policy;

 

5.4.2        Conduct an annual RM assessment for submission to the Department Records Officer;

5.4.3        Evaluate and measure compliance with Federal and HHS records management Policies; and,

5.4.4        Conduct Records Management training.

5.4.5        Inventory records, develop records dispositions schedules, and implement NARA approved records disposition schedules.

5.4.6        Prepare for and submit to NARA records storage facility reports.

5.4.7        Oversees the authorization for the destruction of records scheduled as temporary and oversees the authorization of the transfer of permanent records to the legal custody of the National Archives.

5.4.8        Assists in communicating the implementation of administrative, operational, and legal holds, as appropriate.

5.6 Freedom of Information Act (FOIA) Official

Approves the release of Federal records to the general public.

5.7 Management Officials

Management officials, in their supervisory role, are responsible for:

 

5.6.1   Ensuring employees and non-Federal staff within their purview participate in the development of and the timely review of HHS RM Policy and are aware of and adhere to HHS RM Policies;

 

5.6.2    Ensuring employees, contractors, etc. attend records management training;

 

5.6.3        Informing users (employees, contractors, interns, etc.) of their rights and responsibilities and disseminating the information in policy; and

5.8 HHS Employees

Users, including employees, contractors, interns, etc., are responsible for:

 

5.7.1  Participating in the development of policy or initiating OPDIV specific RM policy that is not less restrictive, less comprehensive or less compliant with the Department Policy;

 

5.7.2  Responding in a timely manner to comments made regarding policy during the formal HHS-OCIO Policy Three Level Review Process;

 

5.7.3  Adhering to the HHS Records Management Policies;

 

5.7.4  Notifying the OPDIV Records Officer, the STAFFDIV Records Manager, or the office Records Liaison, as appropriate of records issues and working collaboratively to address these issues;

 

5.7.5  Seeking guidance from their supervisors or OPDIV Records Officer, the STAFFDIV Records Manager, or the office Records Liaison, as appropriate when in doubt about the implementation of a specific records management  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;

 

5.7.7  Attending RM training; and,

 

5.7.8  Adhering to all conditions set forth in Chapter 4, Policy.

 

6. Applicable Laws/Guidance

In accordance with 36 CFR §1226.20: Temporary extension of retention periods. 

(a) Agencies must secure NARA written approval to retain records series or systems that are eligible for destruction under NARA-approved schedules except when:

(1) The agency has requested a change in the records schedule in accordance with § 1225.26 of this subchapter, in which case the agency is authorized to retain records eligible for destruction until the new SF 115 is approved;

(2) The records will be needed for less than one year; or

(3) A court order requires retention of the records.

(b) To request an extension, agencies must send a letter to the National Archives and Records Administration, Modern Records Programs (NWM), 8601 Adelphi Road, College Park, MD 20740-6001, phone number (301) 837-1738. Along with a justification, the request must include:

(1) A concise description of the records series for which the extension is requested.

(2) A citation to the agency records schedule or the GRS currently governing disposition of the records;

(3) A statement of the estimated period of time that the records will be required; and

(4) For records in the agency's custody, a statement of the current and proposed physical location of the records.

(c) Agencies must ensure that records in records storage facilities are retained for the duration of the extension.

7. Information and Assistance

For questions regarding this Policy, contact the HHS Department Records Officer, Yvonne K. Wilson at 202-205-8548 or by email at yvonne.wilson1@hhs.gov.

 

8. Effective Date/Implementation

The effective date of this Policy is the date the Policy is approved.

 

Requirements stated in this Policy are consistent with law, regulations and other Department policies applicable at the time of its issuance.  Actions taken through the implementation of this Policy must comply with the requirements of pertinent laws, rules and regulations, as well as the lawful provisions of applicable negotiated agreements for employees in exclusive bargaining units.

 

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.

 

9. Approved

 

 

 

 

 

Michael W. Carleton

 

DATE

HHS Chief Information Officer

 

 

 

 

 

Glossary of Terms (Source:  ARMA International Glossary of Records and Information Management Terms)

administrative record

A record that is related to budget, personnel, supply, and similar administrative or facilitative operations common to all organizations

Continuity of Operations (COOP)

Guidelines that ensure that the government can carry on all essential functions in the event of a natural or manmade disaster.

destruction hold

A hold placed on the scheduled destruction of records due to foreseeable or pending litigation, governmental investigation, audit, or special organizational requirements

disposition

A final administrative action taken with regard to records, including destruction, transfer to another entity, or permanent preservation

electronic mail

transmission of messages, their metadata, and possible attachments over communications networks

electronically stored information (esi)

for the purpose of the Federal Rules of Civil Procedure (FRCP), electronically stored information (esi) is information created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software

Freedom of Information Act (FOIA)

  1. A U.S. federal law created to ensure public access to government records
  2. A term commonly used to refer to this type of legislation

frozen records

A suspension of the records destruction process because of special circumstances such as an audit, court order, or investigation

general records schedule

A records schedule governing specified series of records, generally pertaining to the documentation of administrative activities,  common to several or all agencies or administrative units of a corporate body. These are sometimes characterized as functional retention schedules.

hard copy

Synonymous with paper

hold

A communication issued as a result of current or anticipated litigation, audit, government investigation, or other such matter that suspends the normal disposition or processing of records

Also referred to as:  hold notice, litigation hold, preservation order, and suspension order.

medium

A general term referring to the material onto which business information has been recorded and may subsequently be used for business purposes

Also referred to as media and as storage media.

metadata

Structured information that describes, explains, locates, or otherwise makes it easier to retrieve, use, or manage an information resource

operational record

Records that relate to the day-to-day administrative activities of an organization.  Also referred to as routine, housekeeping, and administrative records. 

policy

A high-level overall plan, containing a set of principles, embracing the general goals of the organization, the specific goals of Public Laws, Presidential, Congressional and oversight mandates and used to base decisions

Programmatic record

Programmatic records are records created and maintained in the course of unique programmatic activities of an agency.  Also referred as business and mission-critical records.

record

Recorded information, regardless of medium or characteristics, made or received by an organization in pursuance of legal obligations or in the transaction of business

records series

A group of related records filed/used together as a unit and evaluated as a unit for retention purposes, e.g., a personnel file consisting of an application, reference letters, benefit forms, etc

retention schedule

A comprehensive list of records series, indicating for each the length of time it is to be maintained and its disposition

Also referred to as:  records retention schedule (RRS) and records schedule.

storage media

various types of storage materials on which information is recorded, such as paper, magnetic, microform, and optical

vital record

Records that are fundamental to the functioning of an organization and necessary to continue operations without delay under abnormal conditions

working file

Documents, such as notes, drafts, and calculations, created and acquired in the process of assembling another document.  Synonymous with working papers.

working papers

Papers, background notes, and reference materials that are used in the preparation and completion of other documents

Appendix A: Implementation of a records hold by an HHS office head or staff director in anticipation of a situation warranting a hold

How does an office head or staff director issue a records hold ?

1)      Scope of hold - The requesting office head or staff director decides on the overall scope of the hold. Specifically, the hold should cover only those operational and programmatic records and other related documentary materials that are responsive to the situation warranting the hold (audits, investigations, FOIA, or EEO matters).

2)      Written request – In coordination with the OPDIV Records Officer, the office head or staff director sends a written request (e-mail, memo, and/or fax) to appropriate officials and staff, with the following information:

a.       Justification for the hold, including copies of relevant supporting documents (e.g., court order, letter from GAO, etc.);

b.      Disposition action(s) to be suspended;

c.       Concise descriptions of series and documentary materials, including information about content (i.e., subject matters and topics), date spans, and volumes;

d.      Disposition instructions cited from the OPDIV Records Schedule or the General Records Schedules (GRS);

e.       Estimated period of time for the hold or event(s) triggering release of the hold;

f.        Physical locations in agency space, including buildings, rooms, and interior areas (i.e., at individuals' workstations, in centralized file cabinets, etc.) and, if applicable, in FRCs. Include copies of any Standard Form (SF) 135s, Records Transmittal and Receipt, for applicable records stored at FRCs; and,

g.       Names of contact person and alternate who are knowledgeable and can answer questions about the records and related documentary materials subject to the requested hold.

3)      OPDIV Records Officer requests a "temporary extension of retention period(s)"

a.       The OPDIV Records Officer submits through the HHS OGC and the HHS Department RO correspondence to the National Archives and Records Administration (NARA).

b.      The OPDIV Records Officer includes a listing of all accession numbers for those administrative/operational records and documentary materials that are subject to the hold and stored at any or all Federal Records Centers (FRCs, including WNRC).

c.       In accordance with 36 CFR 1226.20(b)(1) through (4), correspondence is sent to the NARA Modern Records Programs (NWM), requesting approval of a "temporary extension of retention period(s)."

d.      The Director of NWM then notifies the OPDIV Records Officer by letter regarding the formal extension of the retention period.

e.       The OPDIV Records Officer forwards a copy of the correspondence to OGC and the HHS Department Records Officer.

f.        The OPDIV Records Officer informs the requesting office head or staff director.

4)      Staffs are notified of the hold, concurrent with the procedures in subparagraph a, when relevant operational records and other related documentary materials are maintained in office space by:

a.       A single requesting office - The office head or staff director sends an e-mail or memo to staff, with a copy to the OPDIV records officer, regarding the reasons for the hold, suspended disposition action(s), affected records and materials, and likely duration of the hold. Supervisors and managers issue specific instructions for carrying out the hold within their organizations. They must also inform new employees and should periodically remind staff about the hold requirements.

b.      Two or more offices - The OPDIV Records Officer prepares a notice for signature of the appropriate official, and arranges for distribution to all employees in the affected offices, thereby providing notice of the hold. Supervisors and managers issue specific instructions for carrying out the hold within their organizations. They must also inform new employees and should periodically remind staff about the hold requirements.

 

5)  NARA notifies the Assistant Archivist for Regional Records Services (NR) of the hold – Upon receipt of the written notification from the HHS OPDIV Records Officer, NARA's Federal Records Center Program (NR) carries out the hold by placing a "freeze" on disposition actions affecting those subject records and documentary materials stored at the FRC(s).