Agencies can use some AI without creating records, memo says

Government agencies can use artificial intelligence without creating federal records that must be retained in some cases, the National Archives and Records Administration wrote in a memo this month.

NARA, which regulates records retention across agencies, said the use of AI does not “in and of itself” create federal records, but agencies should determine when that line is crossed by examining the circumstances surrounding the creation, maintenance and use of AI materials.

“Records management is an integral part of properly managing AI materials,” the memo said. “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.”

Specifically, agencies should retain AI usage and results as a record if they rely on it in decision-making, use it to conduct official business, circulate the material to others or incorporate it into an agency system, NARA said.

Overall, records should be preserved if they contain “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,” it said.

“Each agency has principal responsibility for determining whether an AI material is a federal record, based on its business needs and practices,” the memo said. “Agencies may reach out to NARA on a case-by-case basis for specific guidance.”

AI use is “relatively new” and “will likely expand and evolve over time,” the memo said, but as for now, AI used for “personal convenience” like unused query results or private meeting notes does not have to be retained. 

Commercial software applications — like Gemini and ChatGPT — that are not significantly modified, as well as data used but not owned by the government, do not need to be retained either, the memo said. 

Examples of records that must be held onto include algorithms, models or code related to AI use written by or for the agency, and prompts circulated to other employees or used for official purposes, it said.

Agencies should conform to the applicable NARA-approved schedule or agency schedule for the retainable records, the memo said.

The guidance comes as AI use increases across government, partially due to the General Services Administration’s OneGov AI deals, with over 3.4 million users across government in May, an official said. 

Three popular deals — for OpenAI’s ChatGPT, Google’s Gemini and Anthropic’s Claude — expire at the end of September, though the agency has hinted at more deals and extensions to come.