(a) General. To ensure that complete and accurate records are made and retained in the Federal Government, agencies must distinguish between records and nonrecord materials by applying the definition of records (see 44 U.S.C. 3301 and 36 CFR 1220.18 and 1222.10 of this subchapter) to agency documentary materials in all formats and media.
(b) Record status. Documentary materials are records when they meet the conditions specified in § 1222.10(b).
(c) Working files and similar materials. Working files, such as preliminary drafts and rough notes, and other similar materials, are records that must be maintained to ensure adequate and proper documentation 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.
(d) Record status of copies. The determination as to whether a particular document is a record does not depend upon whether it contains unique information. Multiple copies of the same document and documents containing duplicative information may each have record status depending on how they are used in conducting agency business.
Notes of Decisions
Cited in
6
cases, 1991–2020 · leading case:
Rohrbough v. Harris, 549 F.3d 1313 (10th Cir. 2008).
Rohrbough v. Harris, 549 F.3d 1313 (10th Cir. 2008).
· cites it 2× “36 C.F.R. § 1222.12 (b)(4) (emphasis added).”
Scott Armstrong v. George Bush, 924 F.2d 282 (D.C. Cir. 1991).
“We note, moreover, that the Archivist has recently promulgated new regulations defining federal records, 36 C.F.R. § 1222.12 , detailing the agencies' responsibilities in developing records management programs, id.”
Armstrong v. Exec. Off. of the President, 877 F. Supp. 690 (D.D.C. 1995).
· cites it 2× “(36 CFR 1222.12) f. Temporary Record. Any record which has been determined by the Archivist of the United States to have insufficient value (on basis of current standards) to warrant its preservation in the National Archives of the United States.”
Pub. Citizen v. Carlin, 2 F. Supp. 2d 1 (D.D.C. 1997).
“§ 3301 (emphasis added), and NARA has sought to clarify the definition of the term “federal record” by stating that “the medium [of a record] may be paper, film, disk, or other physical type or form; and that the method of recording may be manual, mechanical, photographic,…”
Gerlich v. United States Dep't of Just., 828 F. Supp. 2d 284 (D.D.C. 2011).
“at 6 (quoting 36 C.F.R. § 1222.12 (e)). Plaintiffs object to the characterization of these materials as “random notes” or “scraps of paper.”
Democracy Forward Found. v. Pompeo (D.D.C. 2020).
· cites it 10× “See 36 C.F.R. § 1222.12 (c). First, they must be “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[.”
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