On December 11, 2019, the Archivist of the United States approved a request for disposition authority from the U.S. Immigration and Customs Enforcement (ICE) for Detainee Records (schedule DAA-0567-2015-0013). This schedule was originally proposed to NARA on October 26, 2015. NARA published notice of the pending schedule in the Federal Register on July 14, 2017. The schedule, which covers records related to deaths of detainees and allegations of sexual assault and abuse of detainees, received a record number of public comments.
NARA and ICE made several revisions to the proposed schedule, and NARA published a second notice in the Federal Register and consolidated reply to comments from the first notice on Regulations.gov. Most commenters who commented on individual items objected to records related to detainee deaths and sexual assault and abuse cases having temporary status. In response, NARA recommended one set of Death Review Files, those created by the Office of Professional Responsibility (OPR), for permanent retention. NARA did not change its recommendation that records related to allegations of sexual assault and abuse have a temporary disposition, but did increase the recommended retention period to 25 years
NARA gave the public an additional 45 days to submit comments on the revised schedule. NARA received and considered the additional comments on the schedule and published a final consolidated reply to these comments on Regulations.gov on December 13, 2019. NARA did not require ICE to revise the schedule following the second round of comments. The approved version of the schedule will be available to the public on the ICE records control schedule page of archives.gov.
Even when an approved records disposition schedule is in place, agencies may not dispose of records that are needed for litigation or in response to Freedom of Information Act (FOIA) requests. NARA regulations at 36 CFR §1230.3 treat a disposal of records subject to a FOIA request or a litigation hold as an unlawful or unauthorized destruction of records, which must be reported to NARA.
NARA does not control access to records in the legal custody of ICE or any other agency. The FOIA and agency policy govern the right to access information in these executive branch agency records.