What is the role of an agency's Office of General Counsel in records management and litigation holds?

An agency’s Office of General Counsel (OGC) is the legal partner to the records management program. While records officers own the day-to-day mechanics of creating, classifying, scheduling, and disposing of records, OGC interprets the legal obligations that shape those activities and steps in directly when litigation, investigations, or audits are anticipated.

Advising on Records Obligations

OGC helps the agency understand and apply the laws and regulations that govern federal records, including obligations to create adequate documentation, follow approved disposition schedules, and protect information subject to privacy, confidentiality, or access requirements. Counsel typically reviews or clears records schedules, weighs in on questions about what qualifies as a record, and advises on the intersection of records rules with FOIA, the Privacy Act, and discovery. When a retention question carries legal risk, the records officer and OGC resolve it together.

Issuing and Managing Litigation Holds

A litigation hold (or “preservation hold”) is OGC’s most distinctive role. When the agency reasonably anticipates litigation, an audit, or an investigation, the duty to preserve potentially relevant information is triggered, and routine disposition must stop for the affected materials. OGC generally:

• Determines when the duty to preserve attaches and defines the scope of what must be kept.
• Identifies likely custodians and the records systems involved, working with IT and records staff.
• Issues written hold notices instructing recipients not to delete or alter relevant material.
• Suspends automated deletion and normal disposition for the affected records.
• Monitors compliance, reminds custodians, and lifts the hold in writing once it is no longer needed.

Why the Partnership Matters

Records staff usually cannot implement an effective hold alone, and counsel cannot locate and freeze records without the program’s maps of systems and schedules. Failure to preserve can lead to sanctions, adverse inferences, or loss of credibility before a court or oversight body. Clear, documented coordination between OGC and the records program is what makes preservation defensible.

For more on federal recordkeeping duties and how legal review fits into the lifecycle, see the federal records topic hub.