National Archives accused of violating Federal Records Act after allegedly deleting CDC correspondence

Last week AFL took legal action against HHS and NARA for allegedly deleting files against the law from CDC employees' emails. In a press release from AFL, the law firm stated that it was suing "Secretary Xavier Becerra, the US Department of Health and Human Services, the Archivist of the United States Colleen Shogan, and the National Archives and Records Administration (NARA) for illegally destroying federal records from the Centers for Disease Control and Prevention (CDC) in violation of the Federal Records Act."

The lawsuit stated that by federal law, government agencies have to “make and preserve records containing adequate and proper documentation of the organization" and other operations "to protect the legal and financial rights of the Government and of persons directly affected by the agency’s activities" as seen in 44 U.S.C. § 3101.

However, NARA and HHS allegedly "have a pattern and practice of removing the emails of employees who separate from employment within as little as thirty days from the date of separation" as stated in the lawsuit brought by AFL.

AFL said it filed a FOIA request to the CDC asking for documents from the agency and the organization reportedly responded in an email saying that "employees' emails are deleted 30 days after they leave the agency." According to the lawsuit, the proper time frame is three years rather than 30 days to stay within the law.

After an investigation into the alleged practice involving the CDC, NARA, and HHS, NARA wrote to AFL in a memo, "NARA acknowledges that the CDC’s policies and procedures prohibit disposing of separated employees’ email accounts without authorization, and specific criteria must be met before the email accounts of separated employees’ are deleted."

"The CDC does not require the preservation of all emails but rather preserves all records from email accounts. CDC’s records management policy instructs all agency personnel to maintain records outside of email accounts in a proper record-keeping system, shared drive, personal drive, or physical format. The CDC instructs individual email account holders to apply retention based on the email’s content value and its applicability to a NARA-approved records schedule," the memo added.

AFL explained in its press release, "If the federal government wants to unlawfully assert that anytime a government employee leaves an agency their records are no longer considered records of the United States, then the same assumption would apply to former Presidents of the United States."

"According to this logic, Special Counsel Jack Smith’s prosecution of President Trump over Presidential records would be voided null as the records in question would effectively no longer be considered records of the United States upon the end of the Trump presidency," AFL added in the release.