House Panel Holds Hearing on Preservation of Electronic Federal Records

On April 23, 2008, the National Coalition for History (NCH) presented testimony to the House Subcommittee on Information Policy, Census and the National Archives on the “Electronic Communications Preservation Act” (H.R. 5811). The legislation addresses both the Federal Records Act and the Presidential Records Act. The bill would direct the National Archives and Records Administration (NARA) to establish standards for the capture, management, and preservation of White House e-mails and other electronic communications. The legislation would also require NARA to issue regulations requiring federal agencies to preserve electronic communications in an electronic format.

NARA would have 18 months to promulgate the regulations and Federal agencies would have no more than four years to comply.

In prepared testimony submitted for the record, NCH’s representative Dr. Anna Nelson, supported the legislation. Although not a perfect solution, she said that all researchers in American history and government would benefit from the bill. Nelson stated that, “The failure to preserve White House electronic records, and indeed all federal records, is based on the assumption that electronic records don’t really count. Accustomed to records being on paper, staffs dismiss their importance and reach for the delete key.” She went on to note “Losing valuable records simply because they are not on paper will leave us to reconstruct the history of policy making from unreliable memoirs, scattered agency records and the New York Times.”

Paul M. Wester, Jr., Director of the Modern Records Program and Gary M. Stern, General Counsel, represented the National Archives and Records Administration (NARA).

Mr. Wester discussed the Federal Record Act sections of the bill. Citing the Federal Records Act and existing NARA regulations requiring agencies to manage their electronic records, he stated that further authority to issue regulations on the subject is not needed. Wester said that the use of the term “electronic communications” in the bill was overbroad and ambiguous. He also stated the legislation’s use of the word “preservation” needed clarification as well. Wester noted it could be inferred that the bill was establishing a mandate that all federal electronic communications records be preserved in perpetuity. Wester concluded that the potential costs of the legislation are enormous and would likely be in the billions of dollars.

Mr. Stern addressed the Presidential Records Act (PRA) sections of the legislation. Stern stated that the PRA had been carefully crafted to preserve the separation of powers balance between Congress and the President. The PRA also ensures the proper level of intrusion by the Archivist into the incumbent President’s affairs. As a result, he felt that any standards established by NARA for the capture, management and preservation of White House e-mails and electronic communications would have to be non-binding, as opposed to the mandatory standards the bill would impose. He also suggested that the committee request the input of the Department of Justice in addressing separation of powers concerns.

Linda Koontz, Director of Information Management Issues at the U.S. Government Accountability Office (GAO) was the next witness. Her testimony presented the preliminary findings of a GAO investigation of how well a small sample of Federal agencies are preserving their electronic records, including e-mails.

Ms. Koontz noted that e-mail, because of its nature, presents unique challenges to records management. First, the information contained in e-mail records is not uniform so that decisions on which e-mail messages are records must be made individually. Second, the transmission data associated with an e-mail record may be crucial to understanding the context of the record. Third, a given message may be part of an exchange of messages between two or more people within or outside an agency. In such cases, agency staff must decide which message or messages should be considered records and who is responsible for storing them in a record-keeping system. Finally, the large number of federal e-mail users and high volume of e-mails increase the management challenge.

Koontz said that preliminary results of GAO’s ongoing review of e-mail records management at four agencies show that not all are meeting the challenges posed by e-mail records. She expressed a particular concern that the regulatory requirements were not always met for the senior officials whose e-mail practices were reviewed. Koontz said the mandates of the bill with regard to the transition to electronic records management of e-mail records could “help agencies improve their record keeping practices.”

Dr. Patrice McDermott, the Director of OpenTheGovernment.org, was the final witness. She cited a report, “Record Chaos: The Deplorable State of Electronic Record Keeping in the Federal Government,” issued recently by Citizens for Responsibility and Ethics (CREW). She said that CREW’s unscientific survey exposed a number of major problems with regard to the preservation of electronic communications.

The CREW report showed there is a lack of consistent policies across federal agencies, that movement towards electronic record systems has been unacceptably slow, and agencies lack training and compliance monitoring, problems that would be easily cured by reforming agency policy and increased NARA involvement.

Dr. McDermott said, “The blame in terms of compliance with electronic record keeping obligations falls most squarely on NARA. . .” She criticized NARA for limiting its role to providing guidance only without conducting annual audits of agency compliance. McDermott said the legislation would send a message that Congress is going to begin taking steps toward addressing the systemic problems with electronic records. However, she said, “I do not think, however, that this bill goes nearly as far as it needs to.”

During the question-and-answer period, Subcommittee Chairman Wm. Lacy Clay (D-MO) asked Ms. Koontz about the fact that some federal agencies preserve electronic records by printing out paper copies. Ms. Koontz responded that agencies recognize devoting significant resources to creating paper records from electronic sources is not a viable long-term strategy. Chairman Clay also asked her if federal agencies would convert to electronic record management without a mandate and she said that it was not a priority for most agencies and would require a mandate.

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