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The archived web content exception

The exception in 28 CFR 35.201 is narrow. It requires that the content be maintained exclusively for reference, research, or recordkeeping, and is disqualified by current use of any kind.

By Levi Whitted Last reviewed: Published:

What "archived web content" means

The archived web content exception is codified at 28 CFR § 35.201 (Source: 28 CFR ยง 35.201 ) . Content qualifies only if all of the following are true:

  • It is maintained exclusively for reference, research, or recordkeeping
  • It is in an archived section of the website (or clearly identified as archived)
  • It has not been altered or updated since it was archived
  • It is not currently used for activities such as applying for, gaining access to, or participating in the entity's programs, services, or activities

All four conditions are required. Missing any one removes the content from the exception. The colloquial meaning of "archived" (old, retired, no longer featured) is much broader than the regulatory meaning.

The exclusive-purpose test

The word "exclusively" in the first condition is doing real work. The content must be maintained for one reason only: reference, research, or recordkeeping. If the entity is maintaining the content for any other reason (because it remains operationally useful, because it is still referenced by current programs, because it is part of a current legal or accreditation process), the exception does not apply.

A 2017 quarterly report that exists solely so a future researcher can find it qualifies. A 2017 quarterly report that is still cited in a current strategic plan does not.

What likely qualifies

Examples of content that commonly satisfies all four conditions:

  • A "News Archive" section containing press releases from 5 to 10 years ago, not linked from any current page, not referenced in any current outreach
  • Historical event pages from past conferences, lecture series, or one-time programs that have concluded and are not being repeated
  • A "Past Years" subsection of an athletics or activities site containing season recaps and schedules from completed prior years
  • Old position papers or white papers superseded by current materials and retained only for historical reference
  • Decommissioned program pages where the program has ended and is not being revived

In each case, the content is genuinely set aside, the entity is not relying on it for current operations, and a future researcher or records reviewer is the realistic audience.

What likely does not qualify

Content that fails one or more conditions, even though it may seem old or archival in everyday use:

Past board minutes still linked from current meeting pages

If the current "Board" landing page links to "previous meetings" with year-by-year archives that include the historical minutes, those minutes are currently used as supporting reference material. The current-link test fails the exception.

Old policies still in effect

A 2014 administrative procedure that has not been updated is preexisting in a colloquial sense, but if it is the current operative policy, it is being currently used. The "not currently used" condition fails. (Note: there is a separate exception for preexisting electronic documents that handles some of these cases; see Preexisting electronic documents.)

Historical pages with active inbound links

An old project page that is linked from current pages elsewhere on the site, from current outreach materials, or from current external references (other government sites, accreditation bodies, news archives) is being used. The exception does not reach it.

Recent content moved to /archive/

Moving recent content into an archive directory does not qualify it for the exception. The exception applies to content that genuinely was set aside, not to content that was relocated for organizational convenience.

Content updated after archival

Updating an archived page (even a minor correction or a styling refresh) breaks the "not altered since archival" condition. The page returns to scope.