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Archives Law and
Machine-readable

Data Files:

A Look at the

United States

files. How these corporate records — regardless

of media — are created, maintained, preserved

and accessed is specified in the organization's

official policy statements. Such policies will

generally specify who in the organization has

responsibility for each of these activities relating

to the organization's official records. When the

organization is a government entity, these

policies are embodied in the laws or statutes of

the govenmienL Such laws are of obvious

importance to government employees concerned

with records since the statutes specify the basis

for the activities relating to records by each

agency and its personnel. Individuals wanting

information from a government agency should

also be aware of these laws because they have

direct impact on the accessibility of the

informatioa This paper will review the

provisions of the laws relating to archives in the

United States, relate them to machine-readable

data files in the Federal Government, and then

will use the records of the Bureau of the

Census to illustrate the legislatively mandated

approaches.

by Thomas Elton Brown'

National Archives and Records Administration

Washington, D.C., United States of America

Within the United States, the Federal

Government primarily controls the creation and

disposition of record material through the

Federal Records Act of 1950 as amended. This

statute defines records as:

Introduction

In the strict sense of the word, archivists have

responsibility for the official records of an

organization, in contrast with manuscript curators

who collect private documents accumulated by

an individual person, or librarians who manage

publications. The organizational records which

the archivist is to manage may include a variety

of materials, including machine-readable data

'Presented at lASSIST/IFDO International

Conference May 1985, Amsterdam.

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 Goverrmient or

because of the informational value of data

in them. [44 U.S.C. 3301]

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One should note that the definition of the

records in this statute specifically includes

"machine-readable materials."

The Federal Records Act also includes a

provision that states:

The head of each Federal agency shall

make and preserve records containing

adequate and proper documentation of the

organization, functions, policies, decisions,

procedures, and essential transactions of

the agency and designed to ftunish

information necessary to protect the legal

and financial rights of the Government

and of persons directly affected by the

agency's activities. [44 U.S.C. 3101]

It is this provision that grants to the head of

each agency the authority to determine what

records the agency will create. Thus it is the

Federal agency that determines what

machine-readable information will be collected

and processed.

Once an agency has created machine-readable

records, they cannot be destroyed without the

approval of the Archivist of the United States.

If the Archivist determines that the

machine-readable record has archival value and

should not be destroyed, then disposition of the

data involves their transfer to the National

Archives for continued preservation.

When will the data be transfened? The timing

of the transfer may best be described as a date

negotiated between the agency and the Archives.

For all records regardless of media, the

Archivist:

may direct and effect the transfer to the

National Archives of the United States of

records of a Federal agency that have

been in existence for more than thirty

years and determined by the Archivist of

the United States to have sufTicient

historical or other value to warrant their

continued preservation by the United

States Government, imless the head of

the agency which has custody of them

certifies in writing to the Archivist that

they must be retained in his custody for

use in the conduct of the regular current

business of the agency. [44 U.S.C. 2107]

Because of the fragile nature of

machine-readable records, a special provision for

information on this medium has been added to

the regulations which all Federal agencies must

follow:

When the National Archives and Records

Service [Administration] has determined

that a file is worthy of preservation, the

agency should transfer the file to the

National Archives as soon as it becomes

inactive or whenever the agency can not

provide proper care and handling of the

tapes to guarantee the preservation of the

information they contain. [41 C.F.R.

101-11.411-6]

In addition, the National Archives has the

authority to establish the procedures which

constitute proper care and handling. [41 C.F.R.

101-36.12]

Access by the public is governed by the

Freedom of Information Act, the Federal

Records Act, and individual statutes governing

specific programs or data collection activities.

The Freedom of Information Act generally

provides that a:ny person has the right of access,

enforceable in court, to Federal agency records

except to the extent that such records (or parts

of those records) are protected from disclosure

by any one of nine exemptions. This statutory

guarantee to access Federal information applies

equally to all record material — whether in the

custody of the creating agency or in the

National Archives. Thus the act of transferring

the information to the National Archives neither

expands or limits the right to access the

information. The limitations on access stem not

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from the physical location of the material but

from the nine exemptions. One of these nine

exemptions is "all matters specifically exempted

from disclosure by statute." [5 U.S.C. 552]

According to the Federal Records Act, all

statutory limitations and restrictions on the

examination and use of the records while in

agency custody are transferred with the records

when they go to the National Archives. Again

the physical custody of the records does not

afTect any restricitons on access. These statutory

restrictions:

shall remain in force until the records

have been in existence for thirty years

unless the Archivist by order, having

consulted with the head of the

transferring Federal agency or his

successor in function, determines, with

respect to specific bodies of records, that

for reasons consistent with standards

established in relevant statutory law, such

restrictions shall remain in force for a

longer period.[44 U.S.C. 2108]

Thus the statutory restrictions acknowledged in

the Freedom of Information Act expire after

thirty years unless extended by the Archivist of

the United States in consultation with the

agency.

responsibility to "provide guidance and

assistance to Federal agencies with respect to

ensuring adequate and proper documentation of

the policies and transactions of the Federal

Government". [44 U.S.C. 2904] With regard to

the Census Bureau, the National Archives would

intepret this provision as authorizing the

National Archives to provide advice on how to

document how the census or siuA-ey collected

the information. It would not include advice on

what information the census or survey should

collecL However, if the Census Bureau

determines that it will collect information which

the National Archives determines to have

archival value, then the Archives will advise the

Census Bureau on how to process and maintain

the information to ensure that the information

is retained in a format that can be transferred

to the National Archives.

Tide 13 of the United States Code is the

legislation which authorizes the Census Bureau

to collect and process its data and imposes three

restrictions on the information gathered by the

Census Bureau. The Census Bureau may not:

use the information furnished under the

provisions of this title for any purpose

other than the statistical purposes for

which it is supplied; or

The machine-readable records of the Bureau of

the Census can serve as an illustration of the

management of Federal records even though a

specific provision of the Federal Records Act

governs access to some records in the Census

Bureau. First the Census Bureau determines

what material it will collect as part of its census

and survey activities. In making its

determination of what information to collect and

how, the Census Bureau actively seeks advice

from a variety of sources including other

Federal agencies. The National Archives does

not ofTer advice to the Census Bureau on what

questions should be asked or on how the

censuses and sur\'eys should be conducted. The
National Archives does have the statutory

make any publication whereby the data

furnished by any particular establishment

or individual -under this title can be

identified;

permit anyone other than sworn officers

and employees of the Department [of

Commerce] or bureau or agency thereof

to examine the individual reports. [13

U.S.C. 9]

To comply with these limitations and yet to

provide users with needed data, the Census

Bureau creates public use files, either extracts or

microaggregations. In this way, the Census

Bureau can release information which will not

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identify a respondent — whether an individual

person or economic establishment The National

Archives has the responsibility for determining

which information has archival value and which

information may be destroyed when no longer

needed by the agency. This determination is

what the archivist refers to as "appraisal." Such

appraisal of machine-readable information is

done separately for microdata files with

individually identifiable records, for public use

extracts, and for microaggregations. The Federal

Records Act would normally limit Title 13's

restriction on the release of individual

information to thirty years unless extended by

the Archivist However a provision in the

Federal Records Act stipulates that:

[w]ith regard to the census and survey

records of the Bureau of the Census

containing data identifying individuals

enumerated in population censuses, any

release pursuant to this section of such

identifying information contained in such

records shall be made by the Archivist

pursuant to the specifications and

agreements set forth in the exchange of

correspondence on or about the date of

October 10, 1952, between the Director of

the Bureau of the Census and the

Archivist of the United States... [44

U.S.C. 2108]

The key to this agreement is that:

[a] fter the lapse of seventy-two years

from the enumeration date of a decennial

census, the National Archives and Records

Service [Administration] may disclose

information contained in these records for

use in legitimate historical, genealogical or

other worthwhile research. [H.R. Report

95-1522, August 21. 1978]

The statute that makes reference to this

exchange of correspondence also grants the two

agencies the authority to amend the agreement,

provided that they publicize the change in the

Federal Register .

The statutory clause which makes reference to

the exchange of letters specifies "census and

survey records of the Bureau of the Census

containing data identifying individuals

enumerated in population censuses". Thus, this

statute and the seventy-five year provision apply

only to demographic information dealing with

individual persons. They do not apply to the

economic censuses and surveys which gather

information from business establishments.

What laws do apply to identifiable information

on business establishments? Under the authority

of the Federal Records Act, the Archivist has

appraised most of the microdata from the

economic censuses and surveys as having

sufficient value, primarily for economic time

series studies, to wanant continued preservation

in the National Archives. However, Title 13

restricts access to this information to Census

Bureau employees only. As discussed earlier,

the Federal Records Act limits statutory

restrictions to thirty years unless extended by

the Archivist of the United States. This statute

also empowers the Archivist of the United

States to direct and effect the transfer of any of

these records which not used in the regular,

current business of the Census Bureau.

Since such old economic information is not

needed in the regular current business of the

Bureau of the Census, the agency has agreed to

transfer the information to the National

Archives when the information is thirty years

old. The mere transfer of material to the

National Archives for continued preservation

does not necessarily mean that the information

is available to the public; the National Archives

routinely accessions material to which access is

denied for a period of time. Of course, any

such restriction on access must be sanctioned by

one of the exemptions of the Freedom of

Information Act A statutory restriction can be

extended beyond thirty years by the Archivist in

consultation with the agency "for reasons

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consistent with standards established in relevant

statutory law." Because of the permissiveness of

this authority. Census and Archives personnel

have from time to time discussed when the

National Archives would be able to release

Census-gathered machine-readable information

concerning individual economic entities. To
date, however, no agreement has been reached.

This review can allow one to draw some

conclusions about records administration within

the United States government The legal

provisions which relate to records and archives

are "media non-specific" in that the statutes

relate to all record material regardless of

medium. However, as seen in the 1952

agreement regarding Census material, these

policies and responsibilities generally have been

developed to deal with human-readable records

and have later been applied to all record

material. The statutes divided responsibility for

the administration of the record material. But

in this division of responsibility, the Archivist

has significant powers which have an impact on

access to the information. The first of these

powers is the exclusive authority to sanction the

destruction of record material. Obviously, the

destruction of a

document or a machine-readable data file

effectively limits access to iL The Archivist has

the authority to direct the transfer of

non-current material to his custody after the

records are thirty years old. Finally, the

Archivist has primary responsibility to determine

whether statutory restrictions will be extended

past the thirty-year statutory limiL While only

having a minimal impact on current or

contemporary records, these latter powers can be

decisive in determining access to older

information. Yet, because of this division of

authority, disagreements are possible among
those sharing records management
responsibilities. Until these differences are

resolved, open questions — such as the ones

about access to microdata from the economic

census — will remain."

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