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The rule

The five exceptions, explained

Section 35.201 lists five kinds of content that do not have to meet WCAG 2.1 AA (28 CFR § 35.201). Each has specific conditions, and most older material on a public website does not meet them as it sits today. Here is what each one requires, with examples from schools and towns.

1. Archived web content

28 CFR § 35.201(a); definition in 28 CFR § 35.104

“Archived web content” is content that “(1) Was created before the date the public entity is required to comply with subpart H…, reproduces paper documents created before [that date], or reproduces the contents of other physical media created before [that date]; (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.”
28 CFR § 35.201(a); definition in 28 CFR § 35.104

All four conditions must be met. Most websites have no labeled archive area yet, so moving older material into one is often part of the work.

Usually qualifies

  • Town meeting minutes from 2015, moved into a section labeled “Archive” and never edited again.
  • A 2012 school committee packet kept only for the record in a labeled archive.
  • DOJ's example: a 1998 water quality report stored only for research in an “archive” section (DOJ small entity compliance guide).

Does not qualify

  • The same old minutes left in the regular documents library.
  • A policy manual that is still being updated.
  • Anything created after your compliance date.

2. Preexisting documents

28 CFR § 35.201(b)

“Conventional electronic documents that are available as part of a public entity's web content or mobile apps before the date the public entity is required to comply with this subpart, unless such documents are currently used to apply for, gain access to, or participate in the public entity's services, programs, or activities.”
28 CFR § 35.201(b)

The second half is the part that matters. DOJ notes that “whether a PDF document is fillable may be relevant” to whether a document is in current use (89 FR 31364). Any document posted after your compliance date must conform.

Usually qualifies

  • DOJ's examples: a 2018 parade flyer on a town website, or a 2014 sample ballot for a school board election (89 FR 31364).
  • Old annual reports, past budgets and prior-year newsletters.

Does not qualify

  • DOJ's example: a PDF form that must be filled out to renew a driver's license (89 FR 31364).
  • Enrollment and kindergarten registration forms, free and reduced meals applications, bus or parking permit applications.
  • Building permit and dog license forms, current student handbooks, IEP and 504 request forms, athletic clearance forms, even if they were posted years ago.

3. Content posted by a third party

28 CFR § 35.201(c)

“Content posted by a third party, unless the third party is posting due to contractual, licensing, or other arrangements with the public entity.”
28 CFR § 35.201(c)

Usually qualifies

  • A resident's comment on a town forum.
  • A parent's upload to a public comment board.

Does not qualify

  • Documents posted by your website vendor or agenda-management vendor.
  • Files in a learning management system or contracted payment portal you provide.

4. Individualized, password-protected documents

28 CFR § 35.201(d)

Conventional electronic documents that are “(1) About a specific individual, their property, or their account; and (2) Password-protected or otherwise secured.”
28 CFR § 35.201(d)

Usually qualifies

  • DOJ's example: a PDF water bill for a person's home in that person's secure account (28 CFR § 35.201).
  • A student's report card in a parent portal.

Does not qualify

  • A general document behind a login, such as a staff handbook on an intranet. It is not about one person.

5. Preexisting social media posts

28 CFR § 35.201(e)

“A public entity's social media posts that were posted before the date the public entity is required to comply with this subpart.”
28 CFR § 35.201(e)

Usually qualifies

  • Posts made on your social media accounts before your compliance date.

Does not qualify

  • Posts made on or after your compliance date.

An exception is not the end of the duty

Even when content falls under an exception, DOJ cautions that you may still need to provide it in an accessible form when someone asks, under Title II's existing effective-communication requirements (89 FR 31360). Plan for how you will respond to those requests, especially for archived material.

  • Alternate versions are a last resort. A separate “accessible version” is allowed “only where it is not possible to make web content directly accessible due to technical or legal limitations” (28 CFR § 35.202).
  • Undue burden takes a signed, written statement. The head of the entity or a designee must decide, after considering all available resources, and put the reasons in writing. The entity must still do everything short of that burden (28 CFR § 35.204).
  • Minimal impact. Defects with “such a minimal impact on access” that people with disabilities can still use the content with substantially equivalent timeliness, privacy, independence and ease of use are not violations. Anything that actually blocks a reader is (28 CFR § 35.205).