Appendix 1: OGC Litigation Files (Permanent Records)
Appendix 2: OGC FOIA Files (Temporary Records)
Appendix 3: OGC Administrative and Other Files (Temporary Records)
Appendix 4: Standard Form 115: Request for Records Disposition Authority
Appendix 5: Standard Form 135: Records Transmittal and Receipt
Appendix 6: Standard Form 135-A: Records Transmittal and Receipt (Continuation)
Appendix 7: Optional Form 11: Reference Request - Federal Records Centers
Appendix 8: Standard Form 258: Agreement to Transfer Records to the National Archives of the United States
EEOC Order 201.001, Records Management, dated December 3, 2003, sets forth procedures governing the creation and receipt, maintenance and use, as well as preservation or destruction of EEOC records. Subsection 1 sets forth the authority for EEOC’s records management program. Subsection 2 defines “record” and subsections 3 and 4 explain requirements for creation, maintenance, preservation, or destruction of various types of OGC records. Subsections 5 and 6 summarize procedures for transmitting records to and retrieving records from a Federal Records Center (FRC). Subsection 7 gives procedures for transmitting records to the Washington National Archives. Subsection 8 sets forth the penalties for unauthorized destruction of federal records. Finally, subsection 9 has links to related information on the Internet.
Authority for the EEOC’s records management program derives from the Federal Records Act and from regulations promulgated thereunder.
In an amendment to the Federal Records Act, Pub. L. 98-497, Congress created the National Archives and Records Administration (NARA) and in so doing transferred responsibility for preservation and management of federal government records to NARA from the General Service Administration’s National Archives and Records Service. 44 U.S.C. § 2102. Congress charged NARA with promulgating “standards, procedures, and guidelines” to assist federal agencies in their records management and disposition practices. 44 U.S.C. §2904 (a), (b), and (c)(1). NARA’s regulations are codified at 36 C.F.R. Chapter XII. Part 1220 of the regulations concern records management programs by federal agencies. NARA has also promulgated extensive General Records Schedules, available on NARA’s Web page. General Records Schedules provide disposal authorization for temporary administrative records common to several or all agencies of the federal government.
The Federal Records Act also spells out federal agencies’ duties to “establish and maintain an active, continuing program for the economical and efficient management of the records of the agency.” 44 U.S.C. § 3102. The Office of the Chief Financial Officer and Administrative Services (OCFO/AS) is responsible for administering the EEOC’s records management program. Under this authority, the EEOC’s Chief Financial Officer issued revised EEOC Order 201.001, Records Management, on December 3, 2003. The revised Order responds to NARA’s directive that EEOC preserve significant records for historical purposes.1 The Order also reflects the new reality that many Commission “records” are now electronic.
The Federal Records Act and its implementing regulations define “record” and “nonrecord material,” as well as “permanent record.” Since the definitions are not enumerated in EEOC’s Records Management Order, they are set forth below:
The Federal Records Act defines “record” at 44 U.S.C. 3301 to include:
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 Government or because of the informational value of data in them. Library and museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of processed documents are not included.
NARA’s regulations, at 36 C.F.R. § 1220.14, define “nonrecord materials” as:
those Federally owned informational materials that do not meet the statutory definition of records (44 U.S.C. 3301) or that have been excluded from coverage by the definition. Excluded materials are extra copies of documents kept only for reference, stocks of publications and processed documents, and library or museum materials intended solely for reference or exhibit.
NARA’s regulations, at 36 C.F.R. § 1220.14, define “permanent record” as:
any Federal record that has been determined by NARA to have sufficient value to warrant its preservation in the National Archives of the United States. Permanent records include all records accessioned by NARA into the National Archives of the United States and later increments of the same records, and those for which the disposition is permanent on [Standard Form 115]2, Request for Records Disposition Authority, approved by NARA on or after May 14, 1973.
After a specified period of time, all permanent records are transferred to NARA for permanent retention. The EEOC’s Records Management Order classifies litigation files as permanent records.
While not defined in NARA’s regulations, materials that are classified as records but not as permanent records are temporary records. After a specified period of time, all temporary records are to be destroyed. The EEOC’s Records Management Order classifies most of OGC’s administrative and other files as temporary records.
EEOC’s Records Management Order sets forth some general records management requirements applicable to all headquarters and field offices. These are summarized briefly below.
EEOC’s Records Management Order sets forth some general records management requirements applicable to all headquarters and field offices. One is that offices are to maintain all files on a calendar year basis (except for litigation and charge files and some financial and accounting records). Order at 3. When files are deemed “inactive” (see subsection 4, below), offices are to move them to a separate file drawer, shelf, or cabinet for storage until it is time to destroy them. Order at 3. The Order requires offices to annually inventory their files and report the volume of records held, disposed of, or retired to OCFO/AS.3 Order at 4.
The Records Management Order has instructions for electronic records that are subject to the Order. They are to be printed in hard copy and stored using the procedures summarized above, copied to a network share drive for backup and storage, stored on CDs or other electronic media format, or “[s]tored as data within an EEOC information system (database, document management system) which automates EEOC’s record retention policies and schedules.” Order at 4.
The Order also has instructions regarding personal papers. Personal papers are not “records” covered by the Federal Records Act. Personal papers are to be maintained in an employee’s office and filed separately from Commission records. When the same document contains both private matters and Commission business, extract or copy the portion of the file that relates to Commission business and store it with other Commission records. Extra copies of Commission records kept for reference are not personal papers. Employees may keep extra copies of documents that they drafted, reviewed, or acted upon, unless doing so will diminish the official records of the Commission or violate confidentiality. Order at 8.
Appendix A to EEOC Order 201.001, Matrix by Office of Primary Responsibility for Commission Program Records, Including Administrative Records Common to All Offices (appendix A to the Order), “establishes individual office records management responsibility on a record-by-record basis among the headquarters and their subordinate field offices.” Order at 5. In other words, appendix A to the Order sets forth requirements for each EEOC office governing the creation and receipt of records, their maintenance and use, the length of time that particular records may be stored at EEOC, disposal authority, and retirement of temporary and permanent records. Offices may recommend changes to their responsibilities under the Order by submitting a justification memorandum along with a Standard Form 115 (SF 115), Request for Records Disposition Authority, to OCFO/AS. Order at 9. (See appendix 4, hereto, for a copy of SF 115).
For the purposes of this discussion, the OGC files enumerated in appendix A to the Order have been categorized as litigation files, Freedom of Information Act (FOIA) files, and administrative and other files. Each type is described below.
OGC-HQ and the Regional Attorneys are responsible for 3 categories of litigation files. They are general litigation files, EEOC defendant case files, and EEOC plaintiff case files. These files are described in more detail in appendix 1 to this section of the Manual and in the EEOC’s Records Management Order, at A-7 through A-9.
OGC is responsible for creating and maintaining the Commission’s general litigation file, which is to be arranged by issue or subject matter. Each field office litigation program as well as Systemic Litigation in OGC-HQ is responsible for creating and maintaining EEOC plaintiff case files, while OGC Internal Litigation bears responsibility for setting up and maintaining EEOC defendant case files. EEOC plaintiff and defendant case files are to consist of one (or more) folder for each case, organized alphabetically by defendant name. (Order at A-8 - A-9).
All OGC litigation file folders are subject to the same retention and storage requirements. For the first year after the final court or Commission action in a case, its folders are to remain with the active files. Thereafter, the case is considered inactive and its folders may be moved to locked filing cabinets specifically designated for the Commission’s closed files. Alternatively, OGC may move them to a Federal Records Center (FRC) with concurrence of OCFO/AS. Two years after the final action in the case, OGC should transfer all of the folders to NARA (through OCFO/AS) for permanent storage.
Appendix A to the Records Management Order describes 4 categories of FOIA files. While one category is in the exclusive domain of the Office of Legal Counsel (OLC), Regional Attorneys as well as OLC are responsible for maintaining and disposing of FOIA files in the 3 remaining categories: FOIA requests file, FOIA control file, and FOIA administrative file. These files are described in more detail in appendix 2 to this section of the Manual and in the EEOC‘s Records Management Order at A-14 through A-15.
Each folder in the FOIA requests file consists of the original request for information under FOIA, a copy of the reply thereto, and all related supporting files, including copies of withheld or redacted records. The FOIA control file is a master list of FOIA requests that the office has handled. The FOIA administrative file consists of records related to implementation of FOIA. The EEOC’s Records Management Order explains what documents should be stored in each type of FOIA file, but does not give particulars about how the files are to be organized.
Requirements for retention and destruction of FOIA files vary depending upon the type of file. The EEOC Order requires offices to destroy FOIA requests files 2 years after the Commission’s reply if: (a) the Commission granted access to all documents requested, (b) the documents did not exist, (c) the requester’s descriptions were inadequate, or (d) the requester failed to pay reproduction costs. On the other hand, if the Commission denied the request and the requester did not file an appeal, OGC may not destroy the documents until 6 years after the Commission’s reply. OGC should destroy the FOIA control file 6 years after the date of last entry or 6 years after the final action by the Commission. Finally, OGC should destroy any records in the FOIA administrative file that are 2 years old.
Appendix A to the EEOC’s Records Management Order lists 8 broad categories of administrative files and other materials that OGC-HQ and the Regional Attorneys are responsible for. These are: (i) general correspondence files; (ii) office administrative files; (iii) schedules of daily activities; (iv) suspension (or “tickler”) files; (v) transitory files; (vi) tracking and control records; (vii) finding aids (or indexes) for records authorized for destruction by NARA; and (viii) electronic mail and word processing system copies. These materials are described in more detail in appendix 3 to this section of the Manual and in the EEOC’s Records Management Order at A-6 and A-140 through A-143.
OGC’s general correspondence files should contain all of the original incoming communications and initialed record copies of outgoing and interoffice correspondence arising from the functions for which OGC exists. Material in this file is to be arranged chronologically and alphabetically by issue and subject matter. The general correspondence files do not include material that is part of an official case file. In contrast to the general correspondence files, OGC’s administrative files should consist of copies of records created and received by OGC relating to its internal administration or housekeeping activities instead of the functions for which it exists. Examples of OGC’s administrative files include files regarding travel, training, budget reports, supply requests, staffing records, and facsimile machine logs. For details on creating and maintaining additional OGC files, see appendix 3 to this section of the Manual and the Order at A-6 and A-140 through A-143.
OGC’s general correspondence and administrative files can be destroyed after 3 years and after 2 years, respectively. For the first year, the files must remain with OGC’s active files. After the first year, OGC may destroy all unofficial files and copies that are no longer needed for reference and may move the record file folders to locked filing cabinets specifically designated for OGC’s closed files. Alternatively, with concurrence of OCFO/AS, OGC may move the general correspondence and administrative files to a FRC until their respective destruction dates. Schedules of daily activities and tracking and control records are also scheduled to be destroyed after 2 years. Electronic copies of records may be deleted from hard disks and network drives 180 days after the record was produced. Transitory files may be destroyed after 3 months. Records in the suspense (or “tickler”) file may be destroyed as soon as the action to which the record relates has been taken. Finally, finding aids for records that have been sent to NARA pending destruction may be destroyed when the related records are destroyed.
NARA operates FRCs nationwide. According to the EEOC’s Records Management Order, use of these FRCs play an important role in records management by save space and equipment costs. Order at 6. The Order directs offices to select files for transfer if: “(1) they are no longer needed to carry out day-to-day office operations and (2) they are ineligible for destruction for at least three (3) years from the date of transfer.” Order at 6.
After selecting appropriate files for transfer, the legal unit should prepare a Standard Form 135 (SF 135), Records Transmittal and Receipt, and if necessary, a continuation sheet, SF 135-A. (Copies of SF 135 and 135-A are attached in appendices 5 and 6 to this subsection). The forms will serve as a packing list and to will be used to control the location and disposition of the files at the FRC.
Offices served by the Washington National Records Center, located in Suitland, Maryland, are to forward all copies of the SF 135 to OCFO/AS. OCFO/AS will assign and record accession numbers on all copies of the SF 135 and will return them to the submitting office. The transferring office will then send the original and 2 copies of the SF 135 to the Washington National Records Center. These forms should arrive 2 or more weeks before the records shipment date. The Records Center approves the transfer by returning 2 copies of the SF 135 to the transferring office. Headquarters offices are to notify OCFO/AS to make arrangements to transfer the files to the Washington National Records Center. Non-HQ transferring offices must ship the records (by the lowest cost shipping method possible) to the Records Center within 30 days or will be required to resubmit the paperwork. Offices must also forward an annotated copy of the SF 35 to OCFO/AS for filing. Order at 6-7.
Offices served by 1 of the FRCs in the field are to forward a copy (not the original) of the SF 135 to OCFO/AS. OCFO/AS will review the SF 135 to determine whether the proposed records transfer is appropriate and will notify the office by telephone or e-mail of acceptance or rejection of the request. The transferring office will then send the original and 2 copies of the SF 135 to the FRC. These forms should arrive 2 or more weeks before the records shipment date. The FRC will approve the transfer by recording the accession numbers on the forms and returning 2 copies of the SF 135 to the transferring office. The transferring office then must ship the records (by the lowest cost shipping method possible) to the FRC within 30 days or it will be required to resubmit the paperwork. It must also forward an annotated copy of each SF 135 to OCFO/AS for filing. Order at 7.
For information on what kind of boxes to use for storage, how to pack, label and seal the boxes, and for more information on shipping the records, see the Order at 7.
To retrieve records from a FRC, the requesting office should complete an Optional Form 11 (OF 11), Reference Request - Federal Records Center, identifying the records requested by accession number. (A copy of OF 11 is attached as appendix 7). Requests from HQ offices must be sent to the FRC through OCFO/AS. Field offices may send requests directly to the FRC storing the records, but must send a copy to OCFO/AS for review and approval. Order at 8.
All litigation records, as well as other Commission records of permanent historical or archival value, must be transferred to the National Archives. To initiate the transfer, the transferring office must prepare a Standard Form 258 (SF 258), Agreement to Transfer Records to the National Archives of the United States, and forward the form to OCFO/AS for review, approval, and further instructions. Order at 8. (For a copy of SF 258, see appendix 8).
“The maximum penalty for the willful and unlawful destruction, damage, or alienation of Federal records is [a] $2,000 fine, 3 years in prison, or both (18 U.S.C. 2071).” Order at 10.
|Title||Description and Web Address|
|Form 11||Text of Optional Form 11 (OF 11), Reference Request - Federal Records Center, on:
•NARA’s Web site in pdf http://www.archives.gov/records_center_program
•General Services Administration’s (GSA’s) Web site in Accessible FormNet Version and pdf http://www.gsa.gov/Portal/gsa/ep/formslibrary.do?formType=ALL
|Form 115||Standard Form 115 (SF 115), Request for Disposition Authority on NARA’s Web site:
•text in pdf http://www.archives.gov/records_management
•instructions in html http://www.archives.gov/records_management/policy_and_guidance
|Form 135 and Form 135a||Standard Forms 135 (SF 135) and SF 135a, Records Transmittal and Receipt and continuation sheet
•SF 135 on NARA’s Web site in microsoft word and in pdf, with instructions for the Federal Records Centers and for Washington National Record Center http://www.archives.gov/records_center_program
•SF 135 and 135a on GSA’s Web site in pdf, Accessible FormNet Version, and FormFlow version 1.1 http://www.gsa.gov/Portal/gsa/ep/formslibrary.do?formType=ALL
|Form 258||Text of Standard Form 258, Agreement to Transfer Records to the National Archives of the United States
•on NARA’s Web site in pdf http://www.archives.gov/records_center_program
•on GSA’s Web site in pdf, Accessible FormNet Version, and FormFlow version 1.1 http://www.gsa.gov/Portal/gsa/ep/formslibrary.do
|General Records Schedules||Schedules for retention, preservation, and destruction of documents on National Archives and Records Administration’s Web page http://ardor.nara.gov/grs/index.html|
|GSA Forms Library||GSA Forms Library - main Web page for GSA Forms Library. Has links to Standard, Optional, and GSA Forms, including OF 11, SF 115, SF 135, and SF 258 http://www.gsa.gov/Portal/gsa/ep/formsWelcome.do
|Law on Records Management by Federal Agencies||Law on records management by federal agencies on NARA’s Web site http://www.archives.gov/about_us/basic_laws_and_authorities
|NARA||Main Web page of NARA - contains information on management and disposition of federal records http://www.archives.gov/welcome/index.html|
|NARA Electronic Forms and Resources||NARA’s Web page for electronic forms and resources related to records management, including OF 11, SF 135, and SF 258 http://www.archives.gov/records_center_program
|NARA Law||Law establishing NARA on NARA’s Web site http://www.archives.gov/about_us/basic_laws_and_authorities
|NARA Records Center Program||NARA’s main Web page for Records Center program http://www.archives.gov/records_center_program
|NARA Records Management||NARA’s main Web page for records management information http://www.archives.gov/records_management
|NARA Regulations||NARA regulations on NARA’s Web site http://www.archives.gov/about_us
1 The revised Order replaces Order 201.001, EEOC Records Disposition Program, dated June 17, 1980, EEOC’s Interim Guidance on Records Retention, issued in April 1997, and EEOC Order 201.001, Disposition of Personal Papers and Official Records, dated April 15, 1991.
3 The Order states that offices must report the results of their annual inventory of files to OCFO/AS using EEOC Form 163, Annual Summary of Records Holding. Order at 4. According to OCFO/AS, EEOC Form 163 is now obsolete, due to a change in procedures. The revised process for annual reviews will ensure the proper disposal of agency records.
|Description||Maintenance and Contents||Disposition|
|General Litigation Files
(Order at A-7)
|A litigation folder containing the official record copy of litigation records for each case. [OGC] initiates or coordinates. Arranged by issue/subject.||Retain for 1 year in office after final court or Commission action in the case, at which time files are considered inactive. After 1st year, record copies of the files may be stored elsewhere in agency in locked storage or sent to a federal storage facility. 2 years after final action in case, OGC transfers all folders to NARA (through OCFO/AS) for permanent storage.|
|EEOC Defendant Case File
(Order at A-8)
|Folders containing the official record copy of all the litigation records for all cases where the Commission is the defendant and is represented by OGC (OGC-HQ Internal Litigation). Arranged alphabetically by defendant’s name.|
|EEOC Plaintiff Case File
(Order at A-9)
|Folders containing the official record copy of all the litigation records for all cases where the Commission is the plaintiff and is represented by OGC (OGC-HQ Systemic Litigation and OGC field litigation). Arranged alphabetically by defendant’s name.|
|Description||Maintenance and Contents||Disposition|
|FOIA Requests File
(Order at A-14)
|The original requests for information under FOIA, a copy of the reply thereto, and all related supporting files, including copies of withheld or redacted records.||Destroy 2 years after Commission’s reply if Commission granted access to all documents requested, the documents did not exist, the descriptions were inadequate, or the requester failed to pay reproduction costs.
Destroy 6 years after Commission’s reply if Commission denied the requested and the requester did not appeal.For FOIA appeals see Order at A-14 - A-15.
|FOIA Control File
(Order at A-15)
|Registers and similar records listing date, nature, and purpose of request and name and address of requester.||Destroy 6 years after date of last entry or 6 years after final action by Commission.|
|FOIA Administrative File
(Order at A-15)
|Records of the Commission relating to its implementation of the FOIA, including notices, memoranda, routine correspondence, and related records.||Destroy when file is 2 years old.|
|Description||Maintenance and Contents||Disposition|
|General Correspondence Files
(Order at A-6)
|All of the original incoming communications and initialed record copies of outgoing and interoffice correspondence arising from the functions for which the Office of General Counsel exists. The file does not include material that is part of an official case file, or materials arising from OGC’s internal administration or housekeeping activities. Arranged chronologically and alphabetically by issue/subject.||Retain for 1 year in office, then destroy all unofficial files and copies when no longer needed for reference. After 1st year, record copies of the files may be stored elsewhere in agency in locked storage or sent to a federal storage facility. Destroy when files are 3 years old.|
|Office Administrative Files
(Order at A-140)
|Copies of records created and received by the office related to the internal administration or housekeeping activities of the office rather than the functions for which it exists. Examples include files regarding travel, training, budget reports, supply requests, staffing records, and facsimile machine logs. Excludes any reports or other materials that do not serve as unique documentation of the programs or functions of the office.||Retain for 1 year in office, then destroy all unofficial files and copies when no longer needed for reference. After 1st year, record copies of the files may be stored elsewhere in agency in locked storage or sent to a federal storage facility. Destroy when files are 2 years old.|
|Schedules of Daily Activities
(Order at A-141)
|Calendars, appointment books, schedules, logs, diaries, and other records documenting meetings, appointments, telephone calls, trips, visits, and other activities by office managers, supervisors, and employees while serving in a personal capacity. Excludes personal materials.||Retain for 1 year in office, then destroy all unofficial files and copies when no longer needed for reference. After 1st year, record copies of the files may be stored elsewhere in agency in locked storage or sent to a federal storage facility. Destroy when files are 2 years old.|
|Tracking and Control Records -
(Order at A-143)
|Logs, registers, and other records used to control or document the status of correspondence, reports, or other records authorized for destruction by NARA.||Retain until 2 years old or until 2 years after the last entry, whichever is applicable, then destroy.|
|Electronic Mail and Word Processing System Copies
(Order at A-143)
|Electronic copies of records created on electronic mail and word processing systems and used solely to generate a recordkeeping copy.||Delete electronic copies from hard disks, network drives, shared network drives, etc., 180 days after recordkeeping copy was produced if not of further administrative value.|
(Order at A-142)
|Documents of short-term interest which have no documentary or evidential value. Examples include notices of holidays or bond campaigns.||Destroy after 3 months.|
(Order at A-142)
|Notices or other reminders for office that an action is required by the office on a given date or that a reply to an action is expected and, if not received, should be traced on a given day. Arranged in chronological order.||Destroy records relating to action after action has been taken, as long as suspense copy is a duplicate.|
|Finding Aids (Or Indexes)
(Order at A-143)
|Indexes, lists, registers, and other finding aids used only to provide access to records authorized for destruction by NARA.||Destroy when related records are destroyed.|