44 USC 3301: Two-Part Test, Exclusions, and Penalties

Under 44 USC 3301, a federal record is any recorded information, in any form or medium, that a federal agency makes or receives in connection with the transaction of public business, and that is either preserved or appropriate for preservation as evidence of the agency’s organization, functions, policies, decisions, or activities, or because of the informational value of its data.¹ The definition sweeps in emails, texts, chat messages, social media posts, contractor deliverables, and handwritten notes. Only two narrow categories are excluded.

The Two-Part Test

Something qualifies as a federal record when two conditions are met. It has to be made or received by an agency under federal law or in connection with official government business. And it has to be preserved, or appropriate for preservation, either as evidence of what the agency did or because the data itself has informational value.¹

“Appropriate for preservation” is the phrase that trips people up. It does not mean someone already decided to keep the material. It means the content has value as evidence of agency decisions, policies, procedures, or operations. A memo documenting why an agency chose one contractor over another is appropriate for preservation whether or not anyone filed it properly. The obligation attaches to the nature of the content, not to whether someone got around to saving it.

Section 3301 does not stand alone. A companion provision requires each agency head to make and preserve records that adequately document the agency’s organization, functions, policies, decisions, and essential transactions, and that protect the legal and financial rights of the government and of people affected by its activities.² Section 3301 says what a record is. Section 3101 says agencies must actually create and keep them.

Format Doesn’t Matter

Before 2014, the statute listed specific formats: books, papers, maps, photographs, machine-readable materials. The Presidential and Federal Records Act Amendments of 2014 scrapped the list. In its place, the statute now covers “recorded information” in all traditional forms regardless of physical form, and expressly includes information created, manipulated, communicated, or stored in digital or electronic form.³ The point was to make the definition technology-neutral so it would not need rewriting every time a new communication platform emerged.

Close calls do not stay with the agency. The Archivist of the United States has binding authority to determine whether a particular piece of recorded information qualifies as a record, and every federal agency must follow that determination.¹ That centralized authority prevents agencies from unilaterally deciding that inconvenient material is not a record.

What Section 3301 Excludes

The current statute contains exactly two exclusions. Library and museum materials that an agency acquires and keeps solely for reference or exhibition are not federal records. Neither are duplicate copies of records preserved only for convenience.¹

These exclusions used to be broader. The 2014 amendments removed a former exclusion for “stocks of publications and of processed documents,” meaning mass-produced materials meant for public distribution.³ The convenience-copy exclusion that remains is narrow. An extra copy sitting in a desk drawer is not a record; the original filed in the recordkeeping system is. Where any genuine doubt exists, NARA regulations require agencies to treat the material as a record.⁴

Drafts and Working Files

Preliminary drafts, rough notes, and working files are not automatically outside the definition just because they are unfinished. Under NARA’s regulations, a working file becomes a federal record when both of two conditions are met. It was circulated to other employees for an official purpose such as approval, comment, or follow-up action. And it contains unique information, such as substantive annotations or comments, that adds to an understanding of how the agency reached a decision or carried out a responsibility.⁵

A draft that stays on the author’s desk and is replaced by a final version generally is not a record. Once that same draft circulates with a supervisor’s margin notes explaining why a policy shifted, it documents the agency’s decision-making and has to be treated as a record.

Personal Papers Are Different, But Watch the Rules

Employees sometimes keep journals, calendars, or notes that mix private life with agency work. The regulations require personal files to be clearly designated as personal and kept physically separate from official records. Outgoing agency documents like correspondence and email must not blend personal and agency content.⁶

Two rules catch people out. If a document arrives containing both personal and agency information, the entire document is a federal record; the employee does not get to carve out the personal parts. And labeling something “personal,” “confidential,” or “private” has no legal effect on its status. If the material was used to conduct government business, it is a federal record whatever the label says.⁶

Emails, Texts, Chats, and Social Media

Email is the obvious example, but the reach of the definition is much wider. NARA defines “electronic messages” to include texts, chats, instant messages, and communications on any electronic messaging platform. When those messages are created or received in the course of agency business, they are likely federal records.⁷

Social media follows the same logic. When an agency uses a platform to solicit public comments, respond to inquiries, or otherwise conduct official business, both sent and received messages are federal records. That includes direct messages, comment threads, posted images, and live video streams on agency accounts.⁸ All of it must be covered by an approved records schedule, just like paper.

Government Business on Personal Accounts

Federal law does not outright forbid an employee from using a personal email account, personal phone, or third-party messaging app to discuss agency work. It does impose a strict preservation rule. An employee who creates or sends a record using a non-official electronic messaging account must either copy an official account at the time of creation or forward a complete copy to an official account within 20 days.⁹

Intentional violation is grounds for disciplinary action, up to and including removal from federal service.⁹ The 20-day window is not a suggestion. It is often where records violations surface during investigations and litigation, because the gap between what was said on a personal device and what made it into the official system tends to be wide.

Records Created by Contractors

The definition is not confined to work by federal employees. When a contractor performs agency functions, the data created for government use and delivered to or falling under the legal control of the government are federal records. They carry the same preservation obligations, the same Freedom of Information Act exposure, and the same Privacy Act protections as records created in-house.¹⁰

The contract has to make this work in practice. It must specify government ownership of records and require delivery of all records needed to document the contractor’s activities. For electronic records, the contract must also require enough technical documentation to make the records usable, and background data or supporting materials with reuse value should be built into delivery requirements.¹⁰

Why the Definition Matters: Destroying a Record Is a Crime

Classifying something as a federal record is not academic. Once material qualifies, disposal is restricted to the procedures Chapter 33 prescribes, and those procedures are exclusive.¹¹ Anyone who willfully and unlawfully conceals, removes, destroys, or falsifies a federal record faces a fine, up to three years in prison, or both.¹²

Custodians face more. A custodian who willfully destroys or falsifies records is subject to the same fine and prison term and also forfeits office and is disqualified from holding any office under the United States.¹² That forfeiture applies to anyone with custodial responsibility, not just senior officials.

Agency heads also have a reporting duty. On learning of any actual, impending, or threatened unlawful removal or destruction of records, the agency head must notify the Archivist and work with the Archivist to initiate recovery through the Attorney General. If the agency head fails to act within a reasonable time, or is themselves involved in the unlawful conduct, the Archivist can go directly to the Attorney General and must notify Congress.¹³

1
Office of the Law Revision Counsel. 44 USC Chapter 33 – Disposal of Records
2
Office of the Law Revision Counsel. 44 USC 3101 – Records Management by Agency Heads General Duties
3
GovInfo. Presidential and Federal Records Act Amendments of 2014
4
eCFR. 36 CFR Part 1222 Subpart A – Identifying Federal Records
5
eCFR. 36 CFR 1222.12 – What Types of Documentary Materials Are Federal Records
6
eCFR. 36 CFR 1222.20 – How Are Personal Files Defined and Managed
7
National Archives. NARA Bulletin 2023-02
8
National Archives and Records Administration. Managing Social Media Records Assessment Report
9
Office of the Law Revision Counsel. 44 USC 2911 – Disclosure Requirement for Official Business Conducted Using Non-Official Electronic Messaging Accounts
10
eCFR. 36 CFR 1222.32 – How Do Agencies Manage Records Created or Received by Contractors
11
Office of the Law Revision Counsel. 44 USC 3314 – Procedures for Disposal of Records Exclusive
12
Office of the Law Revision Counsel. 18 USC Chapter 101 – Records and Reports
13
Office of the Law Revision Counsel. 44 USC 3106 – Unlawful Removal Destruction of Records