>Actually if I caught Dwight's point correctly, there is no recordkeeping
>requirement for Senators. FOIA certainly doesn't apply; using your example,
>I don't think either party would be required to keep them, though you can
>make a better case for the governor under his/her state FOIA/ORA/SA laws.
>
>Don't get me wrong, I would be absolutely happy to be corrected on this -
>though I need a cite. 

There is a cite on this, but like anything, it is subject to some
interpretation:

First is the requirements posted regarding Management of E-Mail for a
Federal AGENCY, which is in 36CFR 1234.24... 
http://www.archives.gov/about/regulations/part-1234.html

and then the list of Agencies which includes the US Senate 
http://www.archives.gov/records-mgmt/agency/officers-lists.html

So naturally, that means any records of the Senate itself and its business
conducted through e-mail fall into this category.

Where it gets a bit more slippery is the records of the Senators... from
this site:
http://www.archives.gov/great-lakes/agencies/congress.html

it states:

"Records created by Federal agencies belong to the American people. But
papers of Senators and Representatives belong to the individual legislator."

Similar language exists at other NARA Regional sites:
http://www.archives.gov/pacific/laguna/agencies.html

"The facility provides temporary storage for inactive records and personal
papers accumulated by Senators and Representatives during their terms in
Congress. This service is provided to Members as a courtesy, to ensure that
their papers receive the care and protection that they deserve. The papers
are the property of the individual legislator and must be removed from the
facility 90 days after the Member leaves office."

But where it gets tricky is both of these sites speak directly of "personal
papers", which are NOT records in the Federal Arena.   If you read this page, 
http://www.archives.gov/records-mgmt/policy/documenting-your-public-service.html

it cites the requirements for "Documenting Your Public Service" and the
section that describes the differences between Federal Records and Personal
Papers makes it a bit more clear that e-mail that is related to the business
of the Government are NOT personal.

The definition given for what is follows:

"Personal files are those documentary materials maintained in Federal
offices that belong to an individual because they relate solely to an
individual's own affairs or are used exclusively for that individual's
convenience and were not used in the transaction of Government business."

And this checklist
http://www.archives.gov/records-mgmt/policy/documenting-your-public-service.html#appb

Is designed to assist in determining if it should be considered "personal"
or not. 


>Googling brings me one reference to "Records
>Management Handbook for United States Senators and Their Repositories",
>published by the Senate Historical Office under the direction of the
>Secretary of the Senate. But that does NOT equate to a hard recordkeeping
>requirement - after all, requirement suggests consequences for failure to
>comply, no?


As I said, it's subjective... there is a person who speaks prominently to
our profession that has stated in the past "If there is nothing that says
YOU HAVE TO RETAIN IT, then you can discard it."  Every time I hear him say
this, I ask him "If a client of yours makes that decision based on your
counsel, will you represent them and defend their decision in court?" and he
has never said that he would.  He simply says that "it's a decision each
organization has to make for themselves" =)

For me, it's a case of deductive reasoning, through the use of a conditional
argument.  If the e-mail meets the definition of a Federal record and it is
produced by, or received by, a Senator in the conduct of the business of
their office, then it must be retained as a Federal record. And based on the
guidance in 36CFR 1234(a)(4) if that e-mail is produced on an external
system, it still must be preserved.

Nope, I didn't grace the threshold of a Holiday Inn Express last night, and
don't have a sheepskin on the wall that allows me to practice law, but that
doesn't mean this reasoning isn't correct.

Larry

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