As the deadline to comply with OMB/NARA Memorandum M-19-21 rapidly approaches, it might be helpful for agencies to familiarize themselves with allowable exceptions to its mandates.
While all agencies are expected to comply with M-19-21’s requirements – which, broadly speaking, mandate that federal agencies begin managing virtually all records, both permanent and temporary, in electronic form stored with appropriate metadata – to the fullest extent possible, there are cases where that may just not be possible. In other words, for a variety of reasons, agencies may have no choice but to create, store, manage, and/or transfer some number of analog records even after December 31, 2022. What can they do in that case?
If they qualify under one of the following allowable categories, they can request an exception to M-19-21 from the U.S. National Archives and Records Administration (NARA).
1: When replacing analog records would be “burdensome” to the public
NARA is not clear how it defines “burdensome,” but it recognizes that changing how some agencies interact with the public could cause problems in the execution of official duties. In other words, converting to electronic records management usually saves time and costs, but that may not be universally true. If an agency can make a business case that managing some or all of a type of record would increase time, effort, and resources expended, they can request an exception under this allowance.
2: When the cost would exceed the benefit
Closely related to the first category of exception, if the agency can prove to NARA’s satisfaction that the costs associated with creating and maintaining electronic records would exceed the benefits generated by digital records management, they are welcome to make that case for an exception. One example might be if analog records have “intrinsic value,” an archival term that means the analog record has some physical qualities or characteristics that make it notably superior to an electronic version. Another example might be old records that are so fragile or unusual they cannot be easily digitized, and the process of digitizing them would impose an undue cost burden.
3: When analog records literally cannot be replaced by electronic versions
Finally, there might be times when certain kinds of records cannot be readily digitized. Perhaps the act of digitation would itself strip the record of important information or context, or statutory or regulatory requirements might mandate the creation and maintenance of non-electronic records. These requirements would likely supersede M-19-21. In these cases, agencies can request an exception from NARA provided that they can specify the statute, regulation, or issue that prevents the records from being stored and transferred in electronic form. Note, however, that internal agency requirements for “wet” (ink) signatures are not enough to justify an exception.
To qualify for an exception under one of these categories, agencies must request the exception directly from NARA, which will consider the request relative to the agency’s “overall program for managing their records.” In other words, if the request is submitted simply because the records management program is lagging, NARA may not approve the exception request.
If your agency chooses to request an exception, be prepared to make a comprehensive case for it. The request will likely need to include a plan for a continued transition to full compliance with the requirements of M-19-21, extensive details about the records affected, and the business case supporting the request that can include cost information and legal analysis.
For more information, see NARA Bulletin 2021-01.
About PSL
PSL is a global outsource provider whose mission is to provide solutions that facilitate the movement of business-critical information between and among government agencies, business enterprises, and their partners. For more information, please visit or email info@penielsolutions.com.