SECTION 1. PURPOSE.

The purpose of this Order is to provide general guidance to officers and employees of the Department regarding the laws, regulations, policies, and approved procedures governing the removal of Department records and other documents. The relevant legal citation, 44 U.S. Code 3105, entitled Safeguards, states:

"The head of each Federal agency shall establish safeguards against the removal or loss of records he determines to be necessary and required by regulations of the Administrator of General Services. Safeguards shall include making it known to officials and employees of the agency --

(1) that records in the custody of the agency are not to be alienated or destroyed except in accordance with Sections 3301-3314 of this title (Disposal of Records), and

(2) the penalties provided by law for the unlawful removal or destruction of records."

SECTION 2. DEFINITIONS.

.01 Records. Records include "all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or receive by any 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 contained in them." (44 U.S.C. 3301)

.02 Nonrecords. "Library materials made or acquired and preserve solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and processed documents are not included" as records. (44 U.S.C. 3301) Nonrecords may be maintained in connection with official duties.

.03 Personal Papers are materials pertaining solely to an individual's private affairs that have been designated as nonofficial and are kept in the office of a Federal official. (Such papers are to be labeled as personal and kept separately from official records.)

.04 Other Documents. For purposes of this Order, the term "other documents" refers to both nonrecord materials and personal papers, as defined in .02 and .03 above, to distinguish them from "records" as defined in .01.

.05 Removal of Records and Other Documents means their removal from the custody, control, or possession of the Department including transfer of title, alienation, destruction.

.06 Records Disposition. "Records disposition means any activity with respect to:

a. disposal of temporary records no longer needed for the conduct of business by destruction or donation;

b. transfer of records to Federal agency storage facilities or records centers;

c. transfer to the National Archives of the United States of records determined to have sufficient historical or other values to warrant continued preservation; or

d. transfer of records from one Federal agency to any other Federal agency." (44 U.S.C. 2901)

.07 Records Disposal. Disposal of useless records as a means of records disposition involves their outright destruction, sale or salvage as waste paper; or, under the limitations imposed by Title 41, CFR 101-11.4, their donation to authorized recipients.

.08 A Records Control Schedule is a document, cleared by the Archivist of the United States and concurred in by the General Accounting Office, if required, that describes each separately identified file of an organization, and which provides, for each file listed, the sole authority as to how long and where the records are to be retained or when they are to be disposed of.

SECTION 3. LEGAL BASIS.

Limitations on the removal of records and other documents are provided by:

.01 Various statutes providing criminal penalties for the unlawful removal, mutilation, concealment, or converting to personal use of records (including 18 U.S. Code 2071 and 18 U.S. Code 641, and other).

.02 Title 44, U.S. Code, Chapter 29, Records Management by Administrator of General Services; Chapter 31, Records Management by Federal Agencies; and Chapter 33, Disposal of Records.

.03 Title 41, Code of Federal Regulations, Part 101-11, Records Management.

.04 Title 8, General Accounting Office Policy and Procedures Manual for Guidance of Federal Agencies covering records management.

.05 Federal Management Circular 74-7, Uniform Administrative Requirements for Grant-in-Aid to State and Local Governments; Appendix C, Retention and Custodial Requirements for Records.

.06 In addition, various statutes and implementing rules provide for the confidential or protected treatment of certain information in the custody of the United States Government, and hence restrict the removal of such recorded information. For example, such statutes include, but are not limited to, 18 U.S. Code 798 governing the disclosure of national security classified information; 18 U.S. Code 1905 prohibiting the unauthorized disclosure of confidential information relating to the business or financial affairs of identifiable businesses; 13 U.S. Code 9 providing for the confidentiality of certain census information; 50 U.S. Code App. 2406 covering confidentiality of certain information obtained under the Export Administrative Act; 5 U.S. Code 552a providing for specified protection of certain personal information about individuals; and others.

SECTION 4. LEGAL REQUIREMENTS.

.01 Lawful disposal or removal of records.

a. In accordance with 44 U.S. Code 3301-3314, records are lawfully disposable only if they have been properly included on a Records Disposition Schedule or List that has been approved by the Archivist of the United States and, if necessary, concurred in by the General Accounting Office.

b. In the Department, typically such records disposition authorizations, received from the National Archives and Records Service, are issued to operating unit or staff office records custodians in the form of a Records Control Schedule. Such a Schedule describes each separately identified file of an organization, and provides for each file listed the sole authority as to how long and where the records covered are to be retained or when they are to be disposed of. See Department Administrative Order 205-1, Records and Other Documents Disposition Management Program, for details.

.02 Removal of records and other documents covered by statutes limiting the disclosure of information contained in them.

a. Limitations have been placed on the removal of records and other documents, which contain either national security information or other information that is afforded confidential or protected government treatment, because they are covered by such statutes s have been enumerated in Section 3 of this Order. Criminal or other penalties are specified in certain statutes for the unauthorized disclosure of such information.

b. Disposition of records, regardless of the restricted nature of the information contained therein, is governed by Records control Schedules prepared in accordance with 44 U.S. Code 3301-3314. Special safeguard are required, however, to insure that during the authorized disposition of records in accordance with the Schedules, or of materials not classed as records but containing various types of restricted information, the information contained in them is adequately protected. The specific procedures required to protect national security classified, confidential commercial, or otherwise protected information during disposition actions will vary with the type of document concerned. Section 6 of this Order lists applicable regulations and Department Orders that specify the appropriate procedures for safeguarding the various types of restricted information during disposition actions.

.03 Legal requirements regarding unlawful removal or loss of records. Specific statutes cover the responsibilities of Federal officers and employees regarding unlawful removal of records and the criminal penalties therefor as follows:

a. 44 U.S. Code 3106 states:

"Unlawful removal, destruction of records

The head of each Federal agency shall notify the Administrator of General Services of any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of the agency of which he is the head that shall come to his attention, and with the assistance of the Administrator shall initiate action through the Attorney General for the recovery of records he knows or has reason to believe have been unlawfully removed from his agency or from another Federal agency whose records have been transferred to his legal custody."

b. 18 U.S. Code 2071 states:

"Concealment, removal, or mutilation generally

(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined not more than $2,000 or imprisoned not more then three years, or both.

(b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully, and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined not more than $2,000 or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States."

c. Under 44 U.S. Code 2905, The Administrator of General Services Is required to inform the head of a Federal agency of nay finding or actual unlawful removal of records that has come to the attention of the Administrator so that the records can be recovered and for other redress provided by law.

SECTION 5. POLICY.

.01 All officers and employees shall comply strictly with the requirements, policy, and procedures set forth in this Order.

.02 All officers and employees shall cause to be made and preserved records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the Department, and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the Department's activities. No records shall be removed except as authorized by this Order.

.03 All officers and employees shall, to the greatest extent practicable, file separately from records (as defined by 44 U.S. Code 3301 in Section 2 of this Order), nonrecord materials as defined in that Section.

.04 All officers and employees shall clearly designate as personal those papers of a private or nonofficial nature pertaining to their personal affairs kept in an office, and they shall be filed separately from the records of the office. In cases where matters requiring the transaction of official business are received in private or personal correspondence, the portion of such correspondence that pertains to official business will be extracted and made a part of the office records.

.05 Determinations as to what materials constitute records, as defined by 44 U.S. Code 3301, will be made on request by the Office of Administrative Services and Procurement (OASP) in consultation as necessary with the Office of General Counsel.

.06 No officer or employee shall allow a record or other document of the Department to leave the custody or control of the Department, even on the temporary basis, other than as authorized by this Order or DAO 205-12, Public Information. This restriction does not apply to the authorized release of records or other documents in the conduct of official business.

.07 No departing officer or employee shall remove any materials, whether classed as records or not, which contain national security information or other information of a confidential nature and which is afforded confidential or protected treatment under various statutes or regulations. Any questions concerning the protection of national security information should be discussed with the Office of Investigations and Security. Questions as to whether other types of information in records or other documents is or is not subject to special Government protection should be discussed with the General Councel's Office.

.08 No departing officer or employee shall remove any documentary information relating to any pending or contemplated civil, criminal, or administrative proceeding or other program activity when the information, if used or released on the outside, would impair or prejudice the outcome of the proceeding or Governmental policy determinations, decisions, or other action.

.09 Departing officers or employees may not remove nonrecord materials (including collected reference publications, extra copies, working papers, drafts, and the like maintained in connection with the official business of the Department) or personal papers of an unofficial nature (such as office diaries, logs, or personal correspondence), if their removal would:

a. impose substantial handicaps on the efficient, continued functioning of an office or of the successors of an officer or employee,

b. diminish the records or other documentary information needed for the official business of the Department,

c. violate the confidentiality required by national security, privacy, or other interests protected by law, of

d. exceed normal administrative economies.

.10 Conversely, nonrecord materials maintained in connection with the official business of the Department tor personal papers of a nonofficial nature may be removed by departing officers and employees, in accordance with DAO 202-299, if their removal does not meet the criteria or conditions listed in Item .09 above.

.11 Records authorized for disposal under an approved Records Disposition Schedule or List may be removed only in accordance with the procedures set forth in Section 6 of DAO 205-1, Records and Other Documents Disposition Management Program.

SECTION 6. REFERENCES.

.01 GSA Directives. GSA Bulletin FPMR B-65, Archives and Records, November 15, 1976, Disposition of Personal Papers and Official Records serves as a valuable reference on the laws and regulations governing the removal of official records and other documents.

.02 Commerce Directives. The following Department Administrative Orders and other issuances are relevant and should be consulted as practicable:

a. DAO 201-2, Committee Management, together with he supplementary Department of Commerce Committee Management Handbook provides guidance on the maintenance of records of committees, commissions, boards, and the like.

b. DAO 202-293, Official Personnel Folders, provides instructions for maintaining and disposing of personnel records.

c. DAO 202-299, Clearance of Employee Accountability, and supplementary issuances including General Counsel's opinion on Disposition of Materials by Department Officials, provide policies on removal of records, nonrecord materials, and personal papers by departing officials and employees.

d. DAO 205-1, Records and Other Documents Disposition Management Program, provides instructions for scheduling, transferring, preserving, and disposing of records no longer needed for current operations.

e. DAO 205-2, Files Management Program, provides instructions on the policy, responsibilities, and procedures for carrying out the Department's files management program.

f. DAO 205-12, Public Information, provides policies covering the release of information to the public, including conformance with 5 U.S. Code 552, the Freedom of Information Act and amendments.

g. DAO 205-14, Processing Requests Under the Freedom of Information Act, covering the rules for processing Freedom of Information request.

h. DAO 205-15, Implementing the Privacy Act of 1974, provides specific guidance on implementing the Privacy Act, 5 U.S. Code 552a. and the Department policies and procedures regarding systems of records under the Act.

i. DAO 207-2, Regulations and Procedures for the Protection of National Security Information together with the supplementary Handbook of Security Regulations and Procedures, provide policies and procedures for safeguarding classified files.

j. DAO 210-2, Vital Records Program, provides instructions for selecting, protecting, and reporting records that are essential for continuing operations of the Department if emergency situations.

SECTION 7. SUPPLEMENTARY REGULATIONS.

Heads of Department's operating units may issue such regulations or instructions as are necessary to carry out the purpose of this Order.

Signed by: Assistant Secretary for Administration

Office of Primary Interest: Office of Administrative Services and Procurement