Bill targets messy e-records

What the bill would do

The Electronic Communications Preservation Act (H.R. 5811) that House members are considering would standardize agency procedures for maintaining electronic records.

The proposed law has these requirements.

1. Electronic records would be captured, managed and preserved.

2. Electronic records would be accessible and searchable.

3. The government’s Archivist would set mandatory minimal functional requirements for electronic records management systems.

— Ben Bain

A bill introduced by House Democrats would preserve e-mail messages whose loss could create gaps in the country’s historical record and leave agencies vulnerable to legal actions, some policy observers say.

The legislation introduced last month would require federal agencies to preserve electronic communications in an electronic format and put the National Archives and Records Administration in charge of overseeing compliance.

The measure, the Electronic Communications Preservation Act, has been referred to the House Oversight and Government Reform Committee.

Electronic communications pose enormous challenges for the federal government, which has records management practices that are still wedded to paper. NARA and others organizations are working on the problem, but no one has figured out a foolproof way to bring agencies’ records management into the 21st century.

Paul Wester, director of NARA’s modern records program, said the agency supports the goals of the proposed Electronic Communications Preservation Act but has some concerns about the legislation. 

Under current practice, NARA works with an administration to coordinate the transfer of official records on the president’s final day in office. The transfer is mandatory under the Presidential Records Act (PRA), but NARA has no authority over how presidents maintain records during their tenure. NARA oversees federal agencies’ recordkeeping, but its policies do not require agencies to preserve e-mail messages and other electronic records in their native format.

“Our concern is if you mandate a specific type of an application and a specific way of doing this kind of work, you could open the door to other issues that will be harder to deal with from an archival or record management perspective over time,” Wester said in testimony last month before a congressional panel.

Wester and NARA General Counsel Gary Stern urged lawmakers to consult with the Justice Department about a provision of the bill that would amend the PRA to require NARA’s approval of the records management system that White House officials maintain during a president’s term. That provision would give NARA authority that Stern and Wester said would be unprecedented, and possibly could be unconstitutional.

The legislation has its origins in Democratic lawmakers’ frustration with the Bush administration and its e-mail recordkeeping practices. Some House members question whether having an outgoing administration hand over its records to NARA on its last day in office is still the best practice. Litigation brought by George Washington University’s National Security Archive and Citizens for Ethics and Responsibility in Washington contends the Bush administration violated the PRA by failing to archive millions of e-mail messages between March 2003 and October 2005.

“Too often over the past several years, our investigations have revealed weaknesses in government preservation of e-mail that could leave substantial gaps as future historians examine White House and agency decision-making,” Rep. Henry Waxman (D-Calif.) said when he introduced the bill that would give NARA more oversight over White House recordkeeping.

Another supporter of the measure, Rep. Paul Hodes (D-N.H.), said it would “ensure that this administration and future administrations’ actions are transparent, and they can be held accountable.”
Some watchdog groups say the proposal doesn’t go far enough. Patrice McDermott, director of OpenTheGovernment.org, said agencies need prodding to make them get serious about storing electronic records. NARA has been working with agencies on preserving those records, and the additional 18 months the law would allow for establishing minimum functional requirements for electronic records management systems are unnecessary, McDermott said in testimony before a subcommittee  of the Hou se Oversight and Government Reform Committee.

“The loss of documents through indifference should be viewed with as much alarm as their loss through a system breach,” McDermott said. “The end result is the same except with indifference or intentional failure to preserve, we will not necessarily know what’s been taken from us.”

Others say the bill’s proposed requirements for standardizing and certifying agencies’ electronic records management systems are necessary. Linda Koontz, director of information management issues at the Government Accountability Office, told House members that having standards for how agencies capture, manage, preserve and retrieve electronic communications could save money in the long run.

However, NARA officials testified that implementing the legislation could be too expensive. Maintaining electronic communications — including instant messages, e-mail, wikis and blogs — in electronic records management systems would likely cost billions, they said. 

Last month, GAO released preliminary findings from a survey of electronic record storage practices at four agencies. All were complying with NARA’s requirements to preserve e-mail records by printing and storing paper copies. GAO auditors also found that agencies were not consistently preserving the e-mail records of senior officials.

The organizations suing the Bush administration released their own survey results last month on agencies’ electronic record storage.

Their report describes “an appalling lack of progress in moving toward electronic recordkeeping” and confusion among managers about agency policies.

About the Author

Ben Bain is a reporter for Federal Computer Week.

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