What the archived content exception is
The archived content exception lets a town leave qualifying old web content as it is, without bringing it up to WCAG 2.1 Level AA. It sits in 28 CFR 35.201(a) and points to a definition in 28 CFR 35.104 that has four conditions. If any one condition fails, the exception does not apply.
The requirements of § 35.200 do not apply to the following: (a) Archived web content. Archived web content as defined in § 35.104.
The Department’s fact sheet explains the reason: government websites “often include a lot of content that is not currently used.” The exception lets a town put its effort into current documents. It is not a way to skip them. For the rule as a whole, see the pillar guide.
The four conditions
The four conditions are: the content was created before your compliance date, it is retained only for reference, research or recordkeeping, it is not altered after archiving, and it is stored in an area clearly identified as archived. They are joined by “and,” so all four must be true at once.
Archived web content means web content that … (1) Was created before the date the public entity is required to comply with subpart H of this part, reproduces paper documents created before the date the public entity is required to comply with subpart H, or reproduces the contents of other physical media created before the date the public entity is required to comply with subpart H; (2) Is retained exclusively for reference, research, or recordkeeping; (3) Is not altered or updated after the date of archiving; and (4) Is organized and stored in a dedicated area or areas clearly identified as being archived.
1. Created before your compliance date
For a town under 50,000, the date is currently April 26, 2028. Scans of older paper count, because the definition covers content that “reproduces paper documents” made before the date. Minutes written after the date do not qualify, even inside an archive.
2. Kept only for reference, research or recordkeeping
The key word is “exclusively.” The Department said content that states current policies, or contains or interprets laws that apply to the town, “is unlikely to be covered by the exception” (89 FR 31340). A current fee schedule or ordinance does not qualify, however old the file.
3. Not altered after archiving
Any change ends the exception. The fact sheet’s example is a spreadsheet that is edited and reposted in the archive; it would probably no longer qualify.
4. Stored in a clearly labeled archive area
The rule does not prescribe a structure. An archive can be its own page or a clearly marked section of a page. What matters, in the Department’s words, is that the label “must be clear so that individuals with disabilities are able to detect when there is content they may not be able to access” (89 FR 31340).
A label is not enough on its own
A label is not enough on its own. The Department warned that towns may not avoid their obligations by merely labeling content as archived, or by refusing to fix anything old. Each document inside the archive has to meet all four conditions; the name of the folder does not decide it.
The Department emphasizes that under this exception, public entities may not circumvent their accessibility obligations by merely labeling their web content as “archived” or by refusing to make accessible any content that is old.
A worked example: an old minutes PDF
A worked example makes the test concrete. Picture a hypothetical town of 1,500 people with a council minutes PDF from 2019, scanned from the signed paper copy. We run it through the four conditions as it sits in 2029, then again after changes a busy clerk might reasonably make.
As it sits. The PDF is on a page titled “Archived council minutes, before April 26, 2028.” It was created in 2019. Nobody uses it to apply for anything; it is kept as a record. It has not been touched since it was moved there. All four conditions hold, so it likely qualifies. It was also posted before the date, so the preexisting documents exception may cover it too.
After a correction. In 2029 the clerk notices a wrong vote count and replaces the file with a corrected version. Condition three now fails, because the content was altered after archiving. The corrected minutes generally need to meet WCAG 2.1 Level AA.
After a new upload. The clerk also drops the 2029 minutes onto the same page. Condition one fails for that file, because it was created after the compliance date. The label on the page does not change that.
What the exception does not change
The exception does not change the duty to communicate effectively. It only means archived content need not meet WCAG 2.1 Level AA ahead of time. When a resident asks for an archived document in a form they can use, the town still has to respond, and the right response depends on that person’s needs.
For example, archived town meeting minutes from 2011 might be covered by an exception from the requirement to conform to WCAG 2.1 Level AA. But if a person with low vision, for example, requests an accessible version, then the town would still need to address the person’s request under its existing effective communication obligations in 28 CFR 35.160.
The path to the archive matters as well. The First Steps guide says a library “still has to make sure that users with disabilities can search through the archive and determine what materials are in the archive.”
Archived and preexisting are different tests
Archived and preexisting are different tests, and it helps to check both. The preexisting documents exception covers PDFs and other documents posted before your date that nobody currently uses for a service. The archived exception covers any kind of web content, but it needs all four conditions, including the labeled area.
Colorado adds a wrinkle. The state’s technology accessibility rules define archived content with three conditions and no creation date test, according to the OIT plain language guide. If you are in Colorado, read our guide to HB21-1110 as well.
What we do about it
What we do about it is keep the test honest. When our monthly scan finds an older document, we check it against the four conditions and write down the result and the reason. New documents get fixed, and every decision goes into your Readable Record with a date; see how it works.
This guide explains the rule in plain language. It is not legal advice. For decisions about your town, talk to your attorney.
Questions
Can we just label our old documents page as an archive?
A label alone is not enough. The Justice Department said towns may not avoid their obligations by merely labeling content as archived. The content must also have been created before the compliance date, be kept only for reference, research or recordkeeping, and stay unaltered after archiving. All four conditions must hold, or the exception does not apply.
Does the archive page itself have to be accessible?
The archive page itself generally does have to be accessible. The exception covers the archived content, not the pages and menus that lead to it. The Department's First Steps guide says a library must still make sure users with disabilities can search its archive and find out what materials it holds. Clear labels and working navigation matter.
What happens if we fix a typo in an archived PDF?
Fixing a typo in an archived PDF is an alteration, and the third condition requires that archived content is not altered or updated after the date of archiving. Once changed, the document generally no longer qualifies and would need to meet WCAG 2.1 Level AA. If a correction matters, plan to make the corrected version accessible.
Is archived content the same as a preexisting document?
Archived content and preexisting documents are two different exceptions. The preexisting documents exception turns on when a PDF or other document was posted and whether people still use it. The archived exception turns on four conditions, including a dedicated archive area. An old PDF may qualify under one, both or neither, depending on the facts.
What if a resident asks for an archived document?
Answer the request. The exception only means the document does not have to meet WCAG 2.1 Level AA in advance. The effective communication duty still applies. The Justice Department's own example is archived town meeting minutes from 2011: if a person with low vision asks, the town must respond, perhaps with large print or an accessible electronic copy.
Sources
- 28 CFR 35.104, Definitions, including archived web content (eCFR)
- 28 CFR 35.201, Exceptions (eCFR)
- 28 CFR 35.200, Requirements for web and mobile accessibility (eCFR)
- 28 CFR 35.160, Communications (eCFR)
- Final rule and appendix, 89 FR 31320, April 24, 2024 (Federal Register)
- Fact sheet on the web rule (ADA.gov)
- First steps toward complying with the web rule (ADA.gov)
- Plain language guide to the Colorado technology accessibility rules, 8 CCR 1501-11 (Colorado OIT)