Senators Urge White House to Comply with Presidential Records Act

On March 3, Senators Claire McCaskill and Tom Carper wrote to White House Counsel Donald McGahn, voicing their concern about reports of White House officials using personal electronic messaging accounts while conducting official business, and asking that he ensure that President Trump and his staff are complying with the Presidential Records Act (PRA). Representatives Jason Chaffetz and Elijah Cummings followed that letter with their own on March 8, asking McGahn to provide detailed information on White House policies, practices, and trainings regarding the PRA.

These Congressional letters followed weeks of stories about White House staff, including the President, using personal electronic messaging accounts. Some of those accounts are reportedly on encrypted messaging apps, raising concerns that presidential records are being destroyed. The PRA, as amended along with the Federal Records Act in 2014, requires that a White House official may not create or send a presidential record using a non-official electronic messaging account unless they also:

A) Copy an official account when sending the record, OR:

B) Forward a complete copy of the record to an official account within 20 days.

You can read the complete National Archives and Records Administration (NARA) guidance on presidential records here.

Encrypted messaging apps are important for White House employees who want to blow the whistle on government waste, fraud, and abuse, but they also pose serious problems for preserving government records. In particular, apps that can be set to automatically delete messages after they’re read heighten the chance that presidential records are being destroyed before they can be preserved.

There have also been reports of agency officials using encrypted messaging apps for official business – but here, guidance from the National Archives is very clear. Federal records must be transferred to NARA, and “NARA requires agencies to remove all digital identity authentication measures that would impede access to permanent records while not altering the content of the records,” including encryption.

The letters also call attention to concerns that President Trump has deleted tweets that may be presidential records. If the President posts tweets in his official capacity, even if they are sent using his personal Twitter account, it is likely that they are records that must be preserved. The letter from Reps. Chaffetz and Cummings notes that, in order to ensure compliance with the law, the Obama administration set up an auto-archiving system for White House tweets.

Additional Resources

Rise of tweets, self-deleting encrypted messages concern lawmakersFederal News Radio

NARA Guidance:

Guidance on Presidential Records - NARA

Guidance on Managing Digital Identity Authentication Records – NARA

Statutes:

Public Law 113-187: The Presidential and Federal Records Act Amendments of 2014

 

Submitted by emanna on 03/13/2017