By: FEDweek Staff

In the first such guidance of its kind, federal agencies have been told that material generated by artificial intelligence does not necessarily fall under record-keeping requirements, although various factors must be taken into consideration in making that determination.

“Agencies’ use of AI platforms does not, in and of itself, result in the creation of federal records,” under the Federal Records Act, says a memo to agencies from the National Archives and Records Administration. However, “Subsequent use of AI-generated materials in agency business may result in the creation of federal records.”

Relevant factors include “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,” it says.

“AI software, specifically, is a federal record when an agency creates it, pays a contractor to create it on the agency’s behalf; or significantly modifies a commercial, off-the-shelf product, so that the coding is unique,” it adds.

Similarly, for purposes of disposing of records, “when agencies create federal records while using AI, these records may be ‘transitory’ records that can be destroyed when no longer needed or ‘intermediary’ records that may be destroyed upon creation of the subsequent record.” A transitory record is one that is needed for less than 180 days and that is not needed to satisfy financial or legal obligations; an intermediary record is one that is used in the creation of a subsequent record.

The destruction of certain AI records not meeting those definitions also might be allowed, it says, depending on “the nature of the resultant work product, and whether that record is covered by an existing schedule. If, for example, AI is used to create an email, the applicable schedule is the one that applies to emails. If AI is used to create a final report, the relevant schedule is the one that would apply to that report. The fact that AI was used is secondary.”