Upholding the Right-to-Know in the Digital Age

Hillary Clinton’s use of personal email on a private server to conduct official government business sparked a storm of controversy. The email debate has served as a pivotal moment for the public to pressure the government to examine the way officials manage, preserve, and release information in the digital age. It also represents an important challenge for the openness community to channel the attention towards the fundamentally important questions relating to government openness and accountability, particularly around the government’s electronic record-keeping practices.

The issues raised by the Clinton emails are not new, but the political climate and ongoing wave of media attention to the issue has led to a heightened public attention to the government’s digital records preservation policies – an area that OpenTheGovernment.org and our partners have been working on for years.

The controversy began following the revelations that Hillary Clinton used a private email server during her tenure as Secretary of State. In December 2014, Clinton handed over more than 30,000 email records (55,000 pages) from her private email server spanning from 2009-2013, which are currently under review for declassification by the Department of State.

The long road to electronic records preservation

In April, OTG Director Patrice McDermott participated on a panel at the National Press Club with other open government experts to discuss the policy implications of Hillary Clinton’s use of a private server to conduct government business. During the panel, Dr. McDermott pointed out that, while this is far from a new issue, Hillary Clinton has now become the poster child for the necessity to preserve government emails. While this case has shock value, it is not isolated, and has been a problem for decades. The case exposed the government-wide problems stemming from the fact that agencies do not systematically manage their email in a standardized record keeping system. It has been an issue in every administration that has used email, and relates to all electronic records preservation practices, not only email correspondence. 

Other issues addressed by the National Press Club panel included the Capstone policy for email management developed by the National Archives and Records Administration (NARA) (discussed in more detail below); and the challenges that the government faces in meeting the Archivist’s 2012 Managing Government Records Directive, which sets out 2 deadlines -- December 31, 2016 for federal agencies to manage email records in an accessible electronic form, and December 31, 2019 for federal agencies to preserve all permanent electronic records of the U.S. government in a digital or electronic form.

Records management policies and practice

In March, OTG published a round-up of a set of the records management policies in play to help clarify some of the confusion surrounding the Clinton emails and the government’s approach to managing and preserving email generally. These include NARA’s guidance on the management of email and the updates to the Presidential and Federal Records Act.

The Federal Records Act requires government agencies to preserve records documenting the “organization, functions, policies, decisions, procedures and essential transactions of the multi-agency environment.” The FRA was amended in November 2014, when President Obama signed into law H.R. 1233, the Presidential and Federal Records Act Amendments of 2014. The amendments explicitly state that federal officials can only use personal email addresses if they also copy or send the emails to their official account:

"§ 2911. Disclosure requirement for official business conducted using non-official electronic messaging accounts

(a) IN GENERAL. - An officer or employee of an executive agency may not create or send a record using a non-official electronic messaging account unless such officer or employee— (1) copies an official electronic messaging account of the officer or employee in the original creation or transmission of the record; or (2) forwards a complete copy of the record to an official electronic messaging account of the officer or employee not later than 20 days after the original creation or transmission of the record."

Openness experts point out that Clinton was operating under the old guidelines prior to the 2014 amendments. As Dr. McDermott told The Hill in March, “What she did was not technically illegal…[but] it was highly inappropriate and it was inappropriate for the State Department to let this happen.”

Tom Blanton has emphasized that, according to the FRA, even before the amendments, the head of every federal agency is responsible for making sure that records of that agency’s business are saved in that agency’s record systems -- and a server in Clinton’s New York home does not meet that requirement. He has noted that the separation of personal or non-record material in Clinton’s mail should have been done by a professional records manager or professional archivist:  “Leaving it to the government official who wrote the e-mail to decide what’s public is not adequate.”

Modernizing electronic records retention policies

The National Archives has undertaken a number of initiatives in an attempt to address the challenges associated with electronic records management. Beginning with the current Archivist, NARA highlighted the shortcomings of agency practices with regard to electronic record preservation. In its report on 2009 self-assessments issued to 242 federal agencies, NARA emphasized that “agencies’ e-mail policies lack information on one or more of the basic requirements,” governing the disposition of Federal Records, adding “E-mail training is also a significant weakness, with only half of agencies providing it to their employees.”

As part of its commitments to the Open Government Partnership (OGP), the Obama Administration has specifically addressed the need for better email records management. In the 2nd OGP National Action Plan (NAP) in 2014, NARA committed to work with federal agencies to implement new guidance for managing email, as well as to implement the 2011 Presidential Memorandum on Managing Government Records, enacted as a result of the first NAP and implemented by the Archivist’s 2012 Managing Government Records Directive. The 3rd NAP, released on October 27th, includes new commitments on improving email records management (see below).     

The Memorandum and Directive give a December 31, 2016 deadline for Federal agencies to manage all email records in an appropriate electronic system that supports records management and litigation requirements. In August 2013, NARA initiated a “Capstone” model approach for agencies to manage email, which recommends agencies save as permanent records all email from high-level officials and policymakers, and encourages agencies to develop a rational, practical approach to email management. Capstone is voluntary, and is one approach agencies can use to accomplish the required email preservation.

The Capstone model leaves some room for interpretation in terms of which officials’ emails are saved permanently or for extended periods. The initial lack of rigor in NARA’s model became a serious issue of concern for openness groups when in April 2014 the CIA requested authority, under Capstone guidance, to delete emails from all but 22 officials (out of a work force of over 20,000 employees and an unknown number of contractors) immediately upon their departure from the agency.

NARA tentatively approved the CIA’s proposal, based on the CIA’s assurances that other officials’ accounts would be unlikely to contain unique, historically-valuable information not preserved elsewhere. This prompted an outcry, and OTG organized a coalition campaign to voice objection to the CIA’s proposed Capstone approach. OTG notified staff on the Senate Judiciary Committee and Senate Select Committee on Intelligence; a bipartisan group of seven Senators sent letters to NARA expressing their concern over the CIA’s proposal. In response to the pressure, NARA informed the CIA that it needed to “reassess” the CIA’s proposal, because “[b]ased on comments from Members of the U.S. Senate Select Committee on Intelligence and a number of public interest groups, we are concerned about the scope of the proposed schedule and the proposed retention periods.”  NARA has also indicated it is looking at whether the intelligence agencies will be permitted to adopt Capstone as the program for securing and preserving email documenting the work of the agencies.

In an effort to ensure that Capstone is not used to increase agency authority to destroy electronic records, civil society has recommended that NARA issue more detailed guidance on whose email should be permanently retained. NARA has responded to such concerns, and this year issued revised guidance with further details on what government officials qualify for permanent email retention (see the September 2015 memo for newly revised portions of the General Records Schedules, GRS).

OTG and our civil society partners additionally developed a number of specific recommendations on electronic records management policies for the Administration’s 3rd National Action Plan. The Plan includes some important commitments, such as an initiative to release a public dataset of positions of government officials whose email will be transferred to the National Archives for permanent preservation under the Capstone approach. NARA also committed to report on agency progress in managing email and to work with civil society to improve access to the data contained within its records control schedule repository. These initiatives, if fully implemented, could lead to measurable improvements in the preservation of electronic records across government.

OTG continues to monitor NARA’s initiatives, and contribute to the debate on government email preservation in order to promote policies that advance government transparency and accountability. 

 

 

Submitted by jfranzblau on 11/23/2015