Agencies must retain substantive records but may claim FOIA exemptions

Plain-English summary

Counsel advised that federal agencies have record-keeping obligations under the Federal Records Act of 1950. Agencies must retain records reflecting the evolution of a process, including drafts, emails, or meeting notes containing substantive ideas or thought processes, but may dispose of drafts limited to typo corrections or logistics. Counsel also advised that records required to be retained can still qualify for FOIA exemptions, particularly the deliberative-process privilege for material reflecting the agency's thought process leading to a final product.

Ruling snapshot

• Question: What records must be retained, and can retained records still be protected from FOIA disclosure?
• Outcome: Advice given
• Key authorities: Federal Records Act of 1950; Freedom of Information Act; deliberative-process privilege

Full text (IRS public release)

ID: CCA-831184-09 Number: 200945039
Release Date: 11/6/2009
Office: ----------
UILC: 37.00.00-00

From: -----------
Sent: Monday 8/31/2009 6:42 PM
To: -------------------------
Cc: ----------------------------
Subject: Re: FOIA question re discount rate project

No. We have certain record keeping requirements under the Federal Records Act of 1950. I'll provide you with further information shortly -- the rules are quite detailed. The bottom line, however, is that federal agencies are legally obligated to retain "records" that reflect the evolution of a process. That does not mean that we have to keep everything, but we do need to retain the important or substantive stuff. For instance, drafts, e-mails or meeting notes reflecting substantive ideas or thought process require retention. On the other hand, drafts reflecting typo corrections or mere logistics (such as setting up a meeting date) can be disposed of.

HOWEVER, we are still entitled to claim exemptions under FOIA for the records that we are required to retain. In particular, we can usually protect this material under the deliberative process privilege. That privilege protects material reflecting our thought process leading up to the final product.

More later.