Recent guidance issued by the National Archives and Records Administration says that the use of artificial intelligence platforms “does not, in and of itself, result in the creation of federal records,” although it notes that AI inputs and outputs may still qualify for recordkeeping if they influence broader agency operations.
In an Aug. 21-dated memo to agencies, NARA says that “whether an AI material is a federal record depends on the circumstances surrounding the creation, maintenance, and use of the materials, such as whether the agency relies on it in decision-making, uses it to conduct official business, circulates the material to others, or incorporates it into an agency system.”
Under the Federal Records Act, agencies are mandated to create, maintain and preserve records documenting, in part, their functions, policies, decisions and procedures. As NARA notes in its memo, recorded information “does not become a federal record merely because it is made or received by a federal agency.”
The new guidance says agencies need to look at how the output from AI tools is used to determine whether or not it qualifies as a federal record. NARA says, for instance, that an employee who uses an AI platform to conduct preliminary research for a work-related white paper but does not use the outputted information in their report or circulate the responses is not likely to be covered by the law, even if there is a record of their searches.
“Agencies may decide to maintain an audit trail of all of its employees’ actions on their laptops and other work devices, including actions performed in an AI system,” the memo says, “Mere retention of the audit trail within the AI system does not establish that the audit trail is a federal record. The audit trail would become a record, however, if, for example, the agency decides to capture it and use it to conduct an investigation.”
NARA also notes that uses of commercial AI programs, such as Gemini and ChatGPT, are likely not considered federal records, although the memo says each agency is responsible for ultimately determining whether AI materials or output fall under the law.
The guidance also calls for agencies to incorporate federal records management requirements into their own internal AI policies moving forward.
“Although there is no ‘one size fits all’ solution for agencies to implement policies, processes, and procedures related to the use of AI, NARA recommends agencies adopt formal AI policies in collaboration with legal, information technology, and other relevant stakeholders,” the memo says.
