We sometimes hear from FOIA requesters and agency personnel who are confused about why a FOIA request for records at the National Archives and Records Administration (NARA) is not processed by NARA. The answer has to do with whether the federal agency or NARA has legal custody of the records, and requires a brief explanation.
NARA only takes legal custody of records that have been determined to be of permanent historical value. The term of art used by records management staff for the transfer of permanent records to NARA is “accessioning.” “Accession” is the process of transferring legal – and in most cases physical – custody of permanent records from federal agencies to NARA. See 36 C.F.R. § 1235. While the terms “transfer” and “accession” are often used interchangeably, there is an important distinction. “Transfer” refers to moving records into the physical custody of a NARA Federal Records Center (FRC). The transferring agency, however, retains legal custody of the transferred records until final disposition.
The vast majority of records created by the federal government are not kept permanently; they are managed and destroyed according to the agency’s records schedule. To assist agencies in maintaining their records, NARA maintains 16 FRCs throughout the country, as well as National Personnel Records Centers for military and civilian records in Spanish Lake, MO and Valmeyer, IL, respectively. These facilities are fully compliant with regulations that protect records from fire, theft, pests, water damage and natural disasters, and provide high-quality, cost-effective storage for federal agencies. Agencies can pay NARA to store records in the FRCs until final disposition (either destruction in accordance with the agency’s records schedule or accessioning). Records in NARA’s FRCs remain fully in the legal custody of the agency.
What if an agency receives a FOIA request for an agency record that is being stored in an FRC? It is incumbent on that agency to contact NARA and request access to those records. That agency is required to review and process the records, and respond directly to the requester. NARA’s role is limited to assisting the agency with retrieval of the responsive records.