FOIA Bulletin Number: 21-01
Subject: Collecting Text Messages Responsive to Freedom of Information Act Requests
1. Purpose. This FOIA Bulletin outlines the methods records custodians may use to collect text
messages that are responsive to Freedom of Information Act (FOIA) requests.
2. Effective Date. This policy is effective October 2, 2020.
3. Authorities.
• Title 5 of the United States Code, Section 552
• National Archives Bulletin 2015-02, “Guidance on Managing Electronic Messages,”
issued July 29, 2015
• Secretary’s Order No. 3378, “Improving the Department of the Interior Freedom of
Information Act Program,” issued January 7, 2020
• Secretary’s Order No. 3371, “The Department of the Interior Freedom of Information Act
Program,” issued November 20, 2018
• Office of Information Policy FOIA Update, “‘Agency Records’ vs. ‘Personal Records,’”
issued January 1, 1984
4. Coverage. This policy applies to all Department employees and supersedes any conflicting
Departmental or bureau/office policies or procedures. Bureaus/offices may issue implementing
procedures consistent with this policy after receiving written approval from the Departmental
FOIA Office (DFO).
5. Policy. Text messages (including the contextual information such as the sender, recipient,
date, and time) that are sent or received by Department employees with government-issued or
personally-owned devices must be collected and processed for potential release under the FOIA
if they pertain to agency business and are responsive to a pending FOIA request. The protocol
for retention of text messages generally is addressed in the Office of the Chief Information
Officer’s “Guidance for Managing Text Messages under the Federal Records Act” (see
Attachment). Record custodians (or their designees) may choose from the methods of collection
and transmission outlined below, subject to any requirements or limitations prescribed by their
bureau/office information technology (IT) office:
A. Screenshots
When utilizing the screenshot approach, the record custodian identifies the text messages that are
responsive to the FOIA request; takes screenshots of those responsive text messages directly
from the mobile device; and transmits the screenshots to the responsible FOIA office for
processing, for example through email from the device itself.
B. Full Data Back-Up
When utilizing the full data back-up approach, the record custodian coordinates with their
bureau/office IT office to physically collect the relevant mobile device. The IT office performs a
full data back-up, isolates all text message files, converts them to a portable document format
(PDF), and provides the PDF of the messages to the responsible FOIA office for processing.
C. Print-to-File
Print-to-File means printing physical copies of only the relevant text messages. Record
custodians may coordinate with their bureau/office IT office to transfer copies of the text
messages on their mobile device to a computer; identify the text messages that are responsive to
the FOIA request; print the messages to paper; and transmit them to the responsible FOIA
office for processing, either in hard copy, or after scanning to an electronic format. The print-
to-file approach may also be accomplished via an application on the custodians’ mobile device,
provided any such application has been approved in advance by the Department’s Chief
Information and Security Officer.
6. Responsibilities. Record custodians are responsible for collecting text messages in response
to search requests from their FOIA offices by coordinating, as necessary, with the FOIA office
and bureau/office IT office to implement the appropriate method of collection.
7. Distribution. This policy will be distributed to all FOIA personnel upon issuance. Bureau
FOIA Officers are responsible for distributing it to all FOIA personnel new to the Department as
part of their orientation materials. This policy will also be made available to all FOIA personnel
on the Department’s FOIA website accessible at https://www.doi.gov/foia/news/guidance/,
which provides additional FOIA resources.
8. Rights and Benefits. This policy is not intended to, and does not, create any right or benefit,
substantive or procedural, enforceable at law or equity by a party against the United States, its
departments, agencies, instrumentalities or entities, its officers or FOIA personnel, or any other
person.
Prepared by David Alspach, Departmental Records Officer, Office of the Chief Information
Officer, August 7, 2020.
Guidance for Managing Text Messages under the Federal Records Act
Text message created or received in the course of agency business may be Federal records and
if so, agencies must manage them in accordance with Federal records management laws,
regulations, and policies. The Frequently Asked Questions (FAQs) below provide general
guidance for managing your text messages. Please consult with your Bureau Records Officer on
specific questions and Federal record retention guidelines for your bureau.
FAQs
Q1. Can I conduct government business using text messages on a mobile device?
A. Yes. However, unlike emails, it is important to note that text messages are not
automatically archived. Accordingly, as employees, we are responsible for retaining and
archiving text messages and conversations that are evidence of the conducting of
government business pursuant to the requirements of the Federal Records Act (44 USC
§ 3301). Therefore, it is recommended that text messaging be used only for brief
notifications or non-substantive communications. When engaging in more
comprehensive and substantive communications it is STRONGLY recommended that
employees rely on email since all email sent and received from DOI.GOV email
addresses is automatically archived, ensuring both retention and accessibility to meet
the Department’s legal and operational requirements.
Q2. Do I have to retain text messages that are Federal records?
A. Yes. Text messages, like anything else that meets the definition of a Federal Record,
need to be retained according to an approved records schedule. Most text messages
that meet this definition are likely to be classified as transitory records, which have
limited retention periods. For additional information regarding Transitory Records, see
Q3 below.
Federal Records (44 USC § 3301) are defined as follows:
(A) includes all recorded information, regardless of form or characteristics, made
or received by a Federal agency 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 United
States Government or because of the informational value of data in them; and
(B) does not include—
Prepared by David Alspach, Departmental Records Officer, Office of the Chief Information
Officer, August 7, 2020.
(i) library and museum material made or acquired and preserved solely
for reference or exhibition purposes; or
(ii) duplicate copies of records preserved only for convenience.
Recorded Information: includes all traditional forms of records, regardless of physical
form or characteristics, including information created, manipulated, communicated, or
stored in digital or electronic form.
Q3. Can I remove any text messages or conversations from my mobile devices?
A. Yes, you may remove text messages and conversations that are not federal records or
are federal records that are authorized for disposition, unless they are subject to an
independent preservation obligation (such as a litigation hold or an active unfulfilled
FOIA request). If an independent preservation obligation applies, then the message
should be retained, regardless of its status as a federal record, until the preservation
obligation no longer applies.
Under the Federal Records Act, personal messages that do not deal with the transaction
of government business can be deleted. In addition, text messages that constitute
transitory or intermediary records can also be deleted if you are confident the
information in the text messages is no longer required. If you are unsure, consult your
Bureau Records Officer before deleting.
Transitory Records: Records required to be preserved only for a short time (generally
less than 180 days) and that are not required to meet legal or fiscal obligations, or to
initiate, sustain, evaluate, or provide evidence of decision-making, which may be
dispositioned when no longer needed for business use. Transitory Records include, but
are not limited to:
o messages coordinating schedules, appointments, and events
o transmittal documents such as e-mail, letters, cover memos, and facsimile cover
sheets that do not provide evidence of approval, concurrence, or decision-
making, or include substantive comments
o received copies of circulated internal information such as agency instructions,
notifications, circulars, newsletters, and email blasts to employees
o messages received from agency distribution lists or listservs
o “to-do” or task lists and assignments
Intermediary Records: Records of an intermediary nature, meaning that they are
created or used in the process of creating a subsequent record. To qualify as an
Prepared by David Alspach, Departmental Records Officer, Office of the Chief Information
Officer, August 7, 2020.
intermediary record, the record must also not be required to meet legal or fiscal
obligations, or to initiate, sustain, evaluate, or provide evidence of decision-making.
Records include:
o non-substantive working files: collected and created materials not coordinated
or disseminated outside the unit of origin that do not contain information
documenting significant policy development, action, or decision making. These
working papers do not result directly in a final product or an approved finished
report. Included are such materials as rough notes and calculations and
preliminary drafts produced solely for proof reading or internal discussion,
reference, or consultation, and associated transmittals, notes, reference, and
background materials.
o audio and video recordings of meetings that have been fully transcribed or that
were created explicitly for the purpose of creating detailed meeting minutes
(once the minutes are created)
o input or source records, which agencies create in the routine process of creating,
maintaining, updating, or using electronic information systems and which have
no value beyond the input or output transaction: hardcopy input source
documents where all information on the document is incorporated in an
electronic system
o ad hoc reports, including queries on electronic systems, whether used for one-
time reference or to create a subsequent report
o data files output from electronic systems, created for the purpose of information
sharing or reference
Q4. Do I only have to produce those items that qualify as Federal Records for FOIA and/other
information or document requests?
A. No. Under the FOIA you must produce any "agency records” that are responsive to the
request, regardless of whether they are officially considered a Federal record or not and
regardless of whether they could have been dispositioned. Courts generally consider
recorded information to be an agency record if it is (1) either created or obtained by an
agency, and (2) under agency control at the time of the FOIA request.
The legal basis for other valid requests for information or documents, such as in the
discovery process in litigation, Congressional oversight, or OIG investigations, similarly
do not rely on the Federal Records Act to define the scope of what may be requested or
must be produced.
Prepared by David Alspach, Departmental Records Officer, Office of the Chief Information
Officer, August 7, 2020.
Please consult your FOIA Officer, the Office of the Solicitor, or the Office of
Congressional and Legislative Affairs for additional information regarding any specific
requests.
Q5. What messaging applications are approved for use on my Government issued mobile
device?
Currently only the native IOS or Android messaging applications that come factory installed on
your device, and messaging applications like Microsoft Outlook and Teams mobile applications
which are deployed in conjunction with the implementation of Office 365, are authorized for
use within DOI. No other messaging applications, such as “Snapchat” or “WhatsApp,” are
authorized for use on a DOI-issued mobile device.
Q6. Can I send government business related messages and other information using my personal
mobile device?
A. It is STRONGLY recommended to avoid doing any government related business on your
personal computer or personal mobile devices. This is not only a Federal record keeping
best practice but can also help prevent discovery being performed on personal devices
in the event an action goes to litigation. Rare exceptions can be made as necessary for
continuity of operations or other emergency needs. Any business conducted on a
personal device must be forwarded back to government account as indicated in OCIO
Directive 2015-003: Notice of Disclosure Requirements for Official Business Conducted
Using Non-Official Electronic Messaging Accounts
