House Passes “Electronic Message Preservation Act”

On July 9, 2008, the House of Representatives passed the “Electronic Message Preservation Act” (H.R. 5811) by a vote of 286-137, despite a threatened veto by the White House. The bill would direct the National Archives and Records Administration (NARA) to establish standards for the capture, management, preservation and retrieval of federal agency and presidential electronic messages that are records in an electronic format.

The National Coalition for History endorsed the passage of H.R. 5811.

NARA would have 18 months to promulgate the regulations to implement the bill’s requirements. Federal agencies and the White House would then have no more than four years to comply. NARA would then be required to report to Congress on White House and Federal agency compliance.

There would be an additional requirement for presidential records. One year following the completion of a President’s term in office, NARA would be required to report to Congress on the status of the transition of that President’s records into his or her archival depository.

During floor consideration, the House approved one amendment to the bill offered by Representative Tom Davis (R-VA). The amendment would prohibit anyone from viewing classified records in any room that is not secure unless under video surveillance or in the presence of NARA personnel. In addition, no person, other than NARA personnel, can be left alone with classified records unless under video surveillance. Persons viewing the records cannot be in the possession of a cell phone or other personal communications device, must consent to a search of their belongings upon leaving the facility and any notes prepared while viewing the records shall be retained by NARA.

The second part of the amendment would require the Archivist of the United States to deny access to original presidential records to any designated representative of a former president if the designee had been convicted of a crime relating to the review, retention, removal or destruction of records of the Archives. The amendment was inspired by the well-publicized theft of documents from the National Archives by President Clinton’s former National Security Advisor Samuel R. (Sandy) Berger. On April 1, 2005, Berger pled guilty to one misdemeanor count of Unauthorized Removal and Retention of Classified Documents.

On July 8, 2008, the U.S. Government Accountability Office (GAO) issued a report critical of the National Archives saying the agency was not aggressive enough in exercising its oversight of federal agency e-mail policies and holding agencies accountable. The GAO found that despite the fact NARA has the authority to conduct inspections of agencies’ record keeping programs, it has not conducted any since 2000. Moreover, the GAO felt that NARA has been reluctant to use its authority under the Federal Records Act to report agency problems to Congress and the Office of Management and Budget. GAO also found that four agencies studied during its investigation generally printed out e-mail records instead of using electronic record keeping.

“Agency practices for preserving e-mails are antiquated and woefully inadequate,” said House Oversight and Government Reform Committee Chairman Henry A. Waxman, the sponsor of H.R 5811. “Serious deficiencies exist across government and in the White House, which frustrate accountability and deny historians an invaluable source for understanding the motivations and decisions of top government officials.”