Senate Committee Holds Hearing on Records Preservation and Management

On Tuesday, March 15, 2022, the Senate Homeland Security and Governmental Affairs Committee held a hearing that could have major implications for the country’s recordkeeping. Entitled, “Correcting the Public Record: Reforming Federal and Presidential Records Management,” the hearing explored a variety of potential reforms to strengthen the Federal Records Act (FRA) and Presidential Records Act (PRA).

The FRA and the PRA are two foundational laws that support the preservation of government records, which is an essential component of government transparency and accountability. Government records are the people’s property and offer the public a direct look into government decision-making. The FRA and the PRA codify exactly which agency and presidential records must be preserved, for how long, and where.

The FRA and the PRA play an important role in keeping our democracy informed, but gaps in the laws threaten to obscure history and obstruct accountability. Some of the law’s weaknesses are the result of changes in the way government works—with records increasingly generated electronically through mediums like email and messaging applications, rather than paper documents—but shortcomings in enforcement mechanisms have also made it far too easy for government officials to flout records preservation without facing meaningful consequences. Presidents and executive branch officials from both political parties have destroyed telephone logsshielded emails from congressional investigations, used private email  servers and private messaging devices, and physically ripped up documents. Without meaningful reform, these violations will only continue. 

Open The Government, alongside coalition partners and other experts, is working to strengthen the FRA and the PRA by identifying and advocating for the most urgently needed reforms to improve accountability and modernize preservation requirements. These reforms would establish a bright-line rule that all presidential records merit preservation; ban the use of private devices and disappearing messaging apps unless there is a system in place to automatically back up content to a federal system; expand the proactive disclosure of records; and provide additional funding and resources to the National Archives and Records Administration to support records collection and preservation, among other objectives. Additional details of OTG’s reform agenda are outlined below in the statement for the record submitted by Lisa Rosenberg, executive director of Open The Government.

Tuesday’s hearing was an important step forward, but Congress must amend the FRA and PRA with stronger enforcement mechanisms and updated language on technological advancements to ensure that the public can always rely on the preservation of a complete and accurate record of government business.



Statement for the record by Lisa Rosenberg, executive director of Open The Government, submitted to the Senate Homeland Security and Governmental Affairs Committee.

Chairman Peters, Ranking Member Portman, and members of the Senate Homeland Security and Governmental Affairs Committee, thank you for the opportunity to submit a statement for the record regarding reforming federal and presidential records management.

Open The Government is an inclusive, nonpartisan coalition that works to strengthen our democracy and empower the public by advancing policies that create a more open, accountable and responsive government. Our broad-based coalition includes more than 100 organizations that, despite their diversity, are united by a belief that transparency is foundational to creating an accountable government.

For the past year and a half, Open The Government has worked with a group of coalition partners and outside experts to identify the most urgently needed legislative improvements to the Federal Records Act (FRA) and the Presidential Records Act (PRA). Our group came together because we are alarmed that current flaws in the FRA and the PRA undermine the creation and preservation of a complete and accurate historical record of government business.

The reforms our group has identified largely aim to address two underlying weaknesses in the FRA and the PRA that merit immediate congressional action. First, Congress must modernize the language in the FRA and the PRA to keep pace with new and emerging technologies that are used to conduct official government business. Second, Congress must strengthen enforcement mechanisms in the FRA and the PRA to ensure that individuals and agencies that violate records preservation and management policies are held accountable.

Existing Weaknesses within the FRA and the PRA

Congress enacted the FRA and PRA to help keep our government open and accountable through the preservation of government records. Government records are the records of the people, and they offer the public a direct look into government decision-making. Despite the vital importance of records preservation, however, presidential administrations from both political parties have taken advantage of both loopholes within the FRA and the PRA, and the lack of enforcement mechanisms that allow misconduct to go unpunished. These violations are a direct threat to our democracy and the public’s right to government records.

History is rife with examples of FRA and PRA violations. The Reagan administration sought to conceal and destroy presidential records related to the Iran/Contra arms deal. During President George H.W. Bush’s administration, the White House destroyed telephone logs and other presidential records that otherwise would have been evidence in an ongoing congressional investigation. White House personnel during the Clinton administration used private emails and even avoided keeping personal diaries after the White House counsel warned staff about PRA disclosure requirements. In the early 2000s, President George W. Bush’s administration disabled an automatic e-mail archive system that would have ensured preservation and went to court to argue unsuccessfully that the majority of Vice President Cheney’s records did not fall under the PRA. During the Obama administration, then-Secretary of State Hillary Clinton used a private server and failed to adequately preserve her records, and White House personnel frequently held official meetings at nearby coffee shops to avoid creating a record of the meeting through White House visitor logs (which the administration had previously agreed to do). During the Trump administration, the president routinely physically destroyed records by hand; senior White House officials used private devices and disappearing messaging apps to conduct official business without preserving those communications; and administration personnel used “burn bags” to destroy records. In the months since former President Trump left office, revelations have continued to emerge about his administration’s failures to properly preserve presidential and federal records. Each of these violations led to minimal, if any, accountability for the perpetrators.

The instances referenced here underscore two important points. First, the FRA and the PRA—initially created during an era when government business was largely conducted on paper—are clearly no match for today’s new and emerging technologies. Second, a lack of effective enforcement and accountability mechanisms leaves presidential administrations free to disregard their records preservation requirements knowing that they will not face any meaningful consequences.

Without congressional action to reform the FRA and the PRA, these violations will only continue, and our democracy will suffer as a result.

Recommendations

Open The Government urges Congress to amend the FRA and the PRA to include updated language on technological advancements and stronger enforcement mechanisms.

Congress must amend both the FRA and the PRA to permit the use of private devices and disappearing messaging applications (apps) only if there is a system in place to automatically back up content to a federal system. Note this is not a statutory ban on the use of messaging apps, but rather a modest but meaningful reform to promote recordkeeping without infringing on individuals’ ability to conduct government business efficiently.

As technology continues to evolve, Congress must ensure that there are regular, thorough reviews of advancements in communications technology that inform updated guidance every five years on approved technologies and how to use them. For presidential records, we recommend that the Office of Science and Technology Policy (OSTP), the Office of Administration or the National Institute of Standards and Technology issue these regular reports. For federal records, we recommend that the National Archives and Records Administration (NARA) lead this review with input from the OSTP.

To support the preservation, management and access to all electronic records, Congress must establish an advisory committee charged with the responsibility of issuing specific recommendations on automating all aspects of electronic recordkeeping.

These reforms will strengthen our recordkeeping practices, but they require additional support for National Archives and Records Administration (NARA). To ensure that NARA is properly equipped to take on these additional responsibilities, Congress must increase funding for NARA to obtain advanced search software for the purpose of more efficiently searching presidential and federal records in their custody, in response to Congressional inquiries, subpoenas, Freedom of Information Act access requests, and other types of reference requests.

We recognize that Congress faces important limitations on what enforcement mechanisms it can impose on the executive branch. We respect those constitutional limitations, but it is essential that Congress take steps to strengthen enforcement and accountability mechanisms in the FRA and the PRA to the extent possible.

As currently written, the FRA relies on the agency head or NARA bringing enforcement actions through referral to the Department of Justice to remedy violations and recover unlawfully removed records. Courts have allowed a narrow Administrative Procedure Act-based claim for private plaintiffs under certain circumstances, but plaintiffs in those cases cannot obtain direct relief from the court ordering the recovery of removed records. Congress must establish a private right of action to allow private parties to bring enforcement actions to remedy FRA violations and give the Act’s requirements teeth, while allowing agencies to set up an administrative process for recovering removed records or otherwise remedying violations.

Although Congress is limited in what enforcement mechanisms it can put forward for PRA violations, increased transparency early on in a presidential administration can help bring potential violations to light before they become systemic issues. We urge Congress to require the White House Office of Administration to monitor and report to NARA and Congress on the Executive Office of the President’s compliance with the PRA. The Office of Administration should produce these reports no less frequently than annually, and these reports should be made available to the public.

These represent just a portion of the reforms that Open The Government and our collaborators feel are necessary to strengthen the FRA and the PRA. A full set of recommendations is enclosed with this testimony.

The FRA and the PRA are the foundation on which our nation’s historical record is built. Presidential administrations from both political parties have demonstrated through their actions that the laws are currently unable to prevent recordkeeping violations or to hold individuals accountable for committing those violations. We know that we cannot rely on a norm-based system, and the courts have made it clear that their hands are tied when it comes to meaningful accountability.[9] It is up to Congress to fix the existing gaps in the FRA and the PRA to ensure there is always a complete and accurate record of history.

Open The Government thanks the committee for holding this important hearing, and we urge you to act to expeditiously strengthen the Federal Records Act and Presidential Records Act. If you have any questions or need additional information, please contact Lisa Rosenberg at lrosenberg@openthegovernment.org.

Sincerely,

Lisa Rosenberg

Executive Director

Open The Government

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