Common Questions About Federal Records and Related Agency Requirements

Wendy Ginsberg
Analyst in American National Government

Federal departments and agencies create federal records in the course of their daily operations. Congress first enacted the Federal Records Act (FRA; 44 U.S.C. Chapters 21, 29, 31, and 33) in 1950. Congress deemed federal records worthy of preservation for their “informational value,” and also because they document “the transaction of public business” and the “organization, functions, policies, decisions, procedures, operations, or other activities of the Government.” The FRA requires executive branch departments and agencies to collect, retain, and preserve these records.

This report provides an introduction to federal records. It describes the scope and requirements of the FRA and its associated regulations. Among the questions this report addresses are the following:

• What is a federal record? 
• What is not a federal record? 
• Which agencies are required to comply with the Federal Records Act? 
• How do agencies transfer or dispose of federal records? 

This report focuses on the executive branch’s federal recordkeeping laws, regulations, and policies. This report does not address the recordkeeping requirements of Congress, the Supreme Court, or the President. Additional information on presidential records is available in CRS Report R40238, The Presidential Records Act: Background and Recent Issues for Congress, by Wendy Ginsberg.

This report does not address the laws and policies that govern access to and protection of federal records, which is governed largely by the Freedom of Information Act (FOIA). Background and analysis of federal information access and protection is available in CRS Report 97-71, Access to Government Information In the United States: A Primer, by Wendy Ginsberg and CRS Report R41933, The Freedom of Information Act (FOIA): Background and Policy Options for the 113th Congress, by Wendy Ginsberg. This report also does not address the protection of classified information. More information on federal classification policies are available in CRS Report R41528, Classified Information Policy and Executive Order 13526, by Kevin R. Kosar.

This report will be updated at the beginning of each new Congress or the in the event of significant legislative activity.


Date of Report: May 15, 2013
Number of Pages: 12
Order Number: R43072
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Same-Sex Marriage: Legislation and Litigation Resources

Eva M. Tarnay
Law Librarian

On September 10, 1996, the Senate passed H.R. 3396, the Defense of Marriage Act (DOMA), which had been cleared on July 12 by the House. On September 21, 1996, President Clinton signed DOMA and it became P.L. 104-199.

On November 4, 2008, California citizens passed Proposition 8, which added new Section 7.5 to Article I of the California Constitution that reads “Only marriage between a man and a woman is valid or recognized in California.”

Petitions of certiorari have been granted by the United States Supreme Court in two cases resulting from these events.

This report contains resources for retrieving legislative and background information for the Defense of Marriage Act, as well as the Proposition 8 ballot initiative in California. It also contains selected legal materials relevant to the cases. In addition, it includes information on CRS products and experts to assist in understanding the related legislative, legal, and policy issues.


Date of Report: May 13, 2013
Number of Pages: 23
Order Number: R43019
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Membership of the 113th Congress: A Profile

Jennifer E. Manning
Information Research Specialist

This report presents a profile of the membership of the 113th Congress (2013-2014). Statistical information is included on selected characteristics of Members, including data on party affiliation, average age, occupation, education, length of congressional service, religious affiliation, gender, ethnicity, foreign births, and military service.

As of May 2013, in the House of Representatives, there are 233 Republicans, 207 Democrats (including 5 Delegates and the Resident Commissioner), and 1 vacant seat. The Senate has 45 Republicans, 53 Democrats, and 2 Independents, who caucus with the Democrats.

The average age of Members of the House at the beginning of the 113th Congress was 57.0 years; and of Senators, 62.0 years. The overwhelming majority of Members of Congress have a college education. The dominant professions of Members are public service/politics, business, and law. Most Members identify as Christians, and Protestants collectively constitute the majority religious affiliation. Roman Catholics account for the largest single religious denomination, and numerous other affiliations are represented.

The average length of service for Representatives at the beginning of the 113th Congress was 9.1 years (4.6 terms); for Senators, 10.2 years (1.7 terms).

One hundred one women (a record number) serve in the 113th Congress: 81 in the House, including 3 Delegates, and 20 in the Senate. There are 43 African American Members of the House and 2 in the Senate. This House number includes 2 Delegates. There are 38 Hispanic or Latino Members (a record number) serving: 34 in the House, including 1 Delegate and the Resident Commissioner, and 4 in the Senate. Thirteen Members (10 Representatives, 2 Delegates, and 1 Senator) are Asian American or Pacific Islanders. Two American Indians (Native Americans) serve in the House.

The portions of this report covering political party affiliation, gender, ethnicity, and vacant seats will be updated as events warrant. The remainder of the report will not be updated.


Date of Report: May 17, 2013
Number of Pages: 12
Order Number: R42964
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Search and Seizure Cases in the October 2012 Term of the Supreme Court

Charles Doyle
Senior Specialist in American Public Law

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. Amend. IV. 

This term, the Supreme Court decided that (1) deploying a drug-detecting dog at the front door of a house qualifies as a Fourth Amendment search (Florida v. Jardines); (2) the positive reaction of a trained, drug-detecting dog constitutes probable cause per se (Florida v. Harris); (3) the rationale which permits the warrantless, suspicionless detention of individuals found in a place covered by a search warrant also permits the warrantless, suspicionless off-site apprehension and return of individuals who have recently left a place covered by a search warrant (Bailey v. United States); and (4) the body’s capacity to absorb blood alcohol, without more, does not constitute a “destruction of evidence” exigency justifying a per se exception to the warrant requirement (Missouri v. McNeely).

The Supreme Court has said in the past that walking a drug-detecting dog around a car pulled over on the highway or around luggage in an airport is not a Fourth Amendment search. Nevertheless, the Court in Jardines noted that those cases were decided under the “expectation of privacy” rationale. Under the alternative “property intrusion” rationale, a Fourth Amendment search occurred when police used a trained dog to test for the smell of marijuana on Jardines’s porch.

Probable cause exists when there is a fair probability that contraband or evidence of a crime will be found in the place to be searched. The Supreme Court has held that informers’ tips, used to establish probable cause, need not be subjected to uniform, rigid reliability standards. The Florida Supreme Court in Harris held that the prosecution had not established the existence of probable cause because it had failed to satisfy court-mandated standards for the reliability of drugdetecting dogs and their handlers. The U.S. Supreme Court declared in Harris that the Florida court was in error for failure to apply the traditional common sense, totality-of-the-circumstances standard.

In order to minimize the risk of harm to the officers, the destruction of evidence, or the flight of suspects, officers executing a search warrant for contraband may detain individuals found on the premises to be searched. They may do so though they have no probable cause to arrest the individuals. The Supreme Court in Bailey held that this exception to the Fourth Amendment’s usual requirements does not permit officers to allow individuals to leave the premises to be searched before apprehending them off-site and returning them to the place being searched.

Exigent circumstances will sometimes excuse strict compliance with Fourth Amendment requirements. One such instance arises when the evidence sought will likely be lost by the time officers secure a search warrant. The Supreme Court in McNeely held destruction of the evidence exceptions are judged using a totality of the circumstances standard. The natural dissipation of alcohol from the blood, by itself, does not permit warrantless blood tests in drunk driving cases. .


Date of Report: May 15, 2013
Number of Pages: 18
Order Number: R42697
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Government Procurement in Times of Fiscal Uncertainty

Kate M. Manuel
Legislative Attorney


Erika K. Lunder
Legislative Attorney

When confronted with actual or potential funding gaps, funding shortfalls, or budget cuts, the federal government has a number of options as to prospective and existing procurement contracts. Many of these options arise from contract law and, in particular, certain standard clauses included in federal procurement contracts. Among other things, these clauses may allow the government to (1) unilaterally change certain terms of the contract, such as the specifications or the method and manner of performing the work; (2) delay, suspend, or “stop work” on the contract; and (3) terminate the contract for the government’s convenience. However, courts have also found that the government has certain rights because it is the government, regardless of whether the contract provides for these rights. Such rights are commonly described as “inherent rights,” and include the right to terminate the contract for convenience and, according to one tribunal, the right to suspend work.

The government’s rights are broadest where prospective contracts are concerned. Prospective contractors generally do not have a right to a government contract, and the government, like private persons, is generally free to determine whether to enter a contract to procure goods or services. This is true even if the agency has issued a solicitation for a proposed procurement, and prospective contractors have expended time and money in responding to that solicitation. Agencies have broad discretion in canceling solicitations prior to contract award, and contractors must generally show that cancellation was in bad faith or otherwise unreasonable in order to recover the costs of preparing bids or proposals for canceled solicitations. The exercise of an option is, similarly, a unilateral right of the government.

The extent of the government’s rights where existing contracts are concerned depends upon the type of contract (e.g., indefinite-quantity), the nature of the goods or services being procured (e.g., construction), and the facts and circumstances of the case. For example, the terms of indefinite-quantity contracts would generally permit the government to cease ordering goods or services from the contractor once the guaranteed minimum has been ordered. Various changes clauses would similarly permit the government to make certain unilateral reductions, or increases, in the work to be performed under the contract, including the quantity of goods and services provided. Other clauses provide for suspension or delay of work by the government, or permit the government to order the contractor to stop work. In addition, the government may terminate all or part of a contract for its convenience, as well as cancel multi-year contracts. When the government exercises these rights, the contractor could potentially be entitled to an equitable or other adjustment, other compensation, or an extension of time in which to perform. The nature of such recourse varies significantly, however, and in some cases, the government could potentially avoid liability for actions that delayed or increased the costs of the contractor’s performance because it acted in its sovereign capacity.

Recent events have prompted significant congressional and public interest in how the government may go about reducing spending on procurement contracts. The prospect of a funding gap and government shutdown in April 2011 was followed by the enactment of legislation (P.L. 112-25) that called for mandatory cuts in federal spending, effective January 2, 2013, if legislation cutting the deficit was not enacted by January 15, 2012. Such legislation was not enacted, and although the mandatory cuts were briefly delayed, sequestration took effect on March 1, 2013. It remains in effect as of this writing. There have also been debates in each of the calendar years 2011, 2012, and 2013 over whether to raise the debt limit.


Date of Report: May 9, 2013
Number of Pages: 34
Order Number: R42469
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