[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4042 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
2d Session
S. 4042
To amend title 44, United States Code, to reform the management of
Federal records, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 21, 2024
Mr. Peters (for himself and Mr. Cornyn) introduced the following bill;
which was read twice and referred to the Committee on Homeland Security
and Governmental Affairs
_______________________________________________________________________
A BILL
To amend title 44, United States Code, to reform the management of
Federal records, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Strengthening
Oversight of Federal Records Act of 2024''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--FEDERAL RECORDS REFORM
Sec. 101. Preservation of Federal electronic records.
Sec. 102. Whistleblower protections.
Sec. 103. Preservation of electronic messages of certain officials.
Sec. 104. Proactive disclosure of records retention schedules.
Sec. 105. Certification regarding preservation of records.
TITLE II--ADDITIONAL REFORMS TO PRESERVE AND PROTECT RECORDS AND
GOVERNMENT INTEGRITY
Sec. 201. Unlawful removal, destruction of records.
Sec. 202. Records management incorporation into performance plans.
Sec. 203. Establishment of an Advisory Committee on Records Automation.
Sec. 204. Regulations.
TITLE I--FEDERAL RECORDS REFORM
SEC. 101. PRESERVATION OF FEDERAL ELECTRONIC RECORDS.
(a) Preservation of Agency Electronic Records.--Section 2911 of
title 44, United States Code, is amended--
(1) by striking subsection (a) and inserting the following:
``(a) In General.--An officer or employee of an executive agency
shall not--
``(1) destroy or delete any record created, sent, or
received using a non-official electronic messaging account,
including through any automatic mechanism, unless the record
has been copied or forwarded to an official electronic
messaging account of officer or employee; or
``(2) create, receive, or send a record using a non-
official electronic messaging account unless--
``(A) the policies and procedures of the executive
agency authorize such use by the officer or employee;
``(B) the account is subject to records management
controls to create and preserve readable records; and
``(C) the officer or employee--
``(i) copies an official electronic
messaging account of the officer or employee in
the original creation or transmission of the
record; or
``(ii) 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.'';
(2) in subsection (b), by inserting ``, unless the
violation involves a disclosure, as defined in section
2302(a)(2) of title 5'' before the period at the end; and
(3) in subsection (c)(1), by inserting ``, including social
media and digital applications and platforms,'' after
``messaging systems''.
(b) Safeguards.--Section 3105 of title 44, United States Code, is
amended, in the matter preceding paragraph (1), by striking ``against''
and inserting ``to ensure the adequate and proper documentation of the
organization, functions, policies, decisions, procedures, and essential
transactions of the Federal agency and to prevent''.
(c) Definitions.--Section 2901 of title 44, United States Code, is
amended--
(1) in paragraph (15), by striking ``and'' at the end;
(2) in paragraph (16)(D), by striking the period at the end
and inserting a semicolon; and
(3) by adding at the end the following:
``(17) the term `complete copy' means a copy of all of the
contents of a record, including the metadata with respect to
the record; and
``(18) the term `readable' means media that is retrievable
and usable for as long as needed to conduct Government business
and to transfer permanent email records to the National
Archives and Records Administration.''.
SEC. 102. WHISTLEBLOWER PROTECTIONS.
(a) Definitions.--In this section the term ``whistleblower
protections'' has the meaning given that term in section 2302(c)(1) of
title 5, United States Code.
(b) Whistleblower Protections.--Nothing in section 2911(a)(2) of
title 44, United States Code, as amended by section 101, shall prevent
or impair an officer or employee of an executive agency from receiving
whistleblower protections.
SEC. 103. PRESERVATION OF ELECTRONIC MESSAGES OF CERTAIN OFFICIALS.
(a) In General.--Chapter 29 of title 44, United States Code, is
amended by adding at the end the following:
``Sec. 2913. Preservation of electronic messages of certain officials
``(a) Regulations Required.--
``(1) In general.--The Archivist shall promulgate
regulations governing Federal agency preservation of electronic
messages of employees, which shall, at a minimum--
``(A) require that the electronic messages of
senior officers or senior employees of Federal agencies
be designated as a permanent record, as defined in
section 1220.18 of title 36, Code of Federal
Regulations, or any successor thereto;
``(B) require that the electronic messages of
senior officers or senior employees--
``(i) be stored in accordance with
guidelines prescribed by the Archivist; and
``(ii) are readily accessible for retrieval
through electronic searches;
``(C) establish general categories of positions in
Federal agencies that constitute senior officers and
employees; and
``(D) allow for the culling of transitory messages,
messages that are not records, and personal messages as
appropriate.
``(2) Scope.--The regulations promulgated under paragraph
(1) shall, at a minimum, apply to electronic messages of--
``(A) the head of each Federal agency;
``(B) the principal assistant to the head of each
Federal agency, including a member of the Armed Forces
serving in a comparable position;
``(C) an officer or employee serving as a deputy,
or equivalent position, of an officer, employee, or
member described in subparagraph (A) or (B);
``(D) an employee serving as a staff assistant to
an officer, employee, or member described in
subparagraph (A) or (B), including a special assistant,
confidential assistant, military assistant, and aide;
``(E) an officer or employee serving in a principal
management position at a Federal agency, including the
Chief Operating Officer, the Chief Information Officer,
the Chief Knowledge Officer, the Chief Technology
Officer, the Chief Financial Officer, and an equivalent
of such an officer;
``(F) the director, or equivalent position, of a
significant program office of a Federal agency;
``(G) a principal regional officer of a Federal
agency, including a regional administrator, or
equivalent position;
``(H) an officer or employee serving in a position
that routinely provide advice to or oversight of a
Federal agency, including advice to or oversight of the
activities of an officer, employee, or member described
in subparagraph (A), (B), (C), (E), (F), or (G),
including an officer or employee serving as a general
counsel, chief of staff, or inspector general;
``(I) an officer or employee appointed by the
President, by and with the advice and consent of the
Senate;
``(J) any other officer or employee serving in a
position that predominantly creates permanent records
related to mission critical functions or policy
decisions of a Federal agency or that are of historical
significance; and
``(K) any officer or employee serving in a position
described in subparagraph (A), (B), (C), (D), (E), (F),
(G), (H), (I), or (J) in an acting capacity.
``(b) Agency Report to Archivist.--
``(1) In general.--Not later than the date specified in
paragraph (2), and every 5 years thereafter, the head of each
Federal agency shall submit to the Archivist a report on the
compliance of the Federal agency with subsection (a), including
statistics on--
``(A) the number of senior officers and senior
employees of the Federal agency whose electronic
messages are being stored as permanent records in
accordance with guidelines prescribed by the Archivist;
``(B) the volume of electronic messages of senior
officers and senior employees of the Federal agency
designated as a permanent record that are held by the
Federal agency; and
``(C) the volume of total electronic messages of
officers and employees of the Federal agency that are
held by the Federal agency.
``(2) Deadline for initial reports.--The date specified in
this paragraph is the earlier of--
``(A) the date that is 210 days after the date on
which the Archivist promulgates regulations under
subsection (a); or
``(B) the date that is 1 year after the date of
enactment of this section.
``(3) Public availability.--Not later than 30 days after
submitting a report required under paragraph (1) to the
Archivist, the head of a Federal agency shall make the report
publicly available in an accessible electronic format on the
website of the Federal agency.''.
(b) Conforming Amendment.--The table of sections for chapter 29 of
title 44, United States Code, is amended by adding at the end the
following:
``2913. Preservation of electronic messages of senior officials.''.
SEC. 104. PROACTIVE DISCLOSURE OF RECORDS RETENTION SCHEDULES.
(a) Proactive Disclosure of Records Retention Schedules.--Section
3303 of title 44, United States Code, is amended--
(1) by striking ``The head'' and inserting ``(a) The
head''; and
(2) by adding at the end the following:
``(b)(1) For each list or schedule of records issued under
subsection (a) that is approved by the Archivist, the Archivist shall--
``(A) not later than 30 days after the date on which the
Archivist approves the list or schedule, make the list or
schedule available for public inspection;
``(B) make available and maintain the list or schedule in
an accessible electronic database on a website of the National
Archives and Records Administration, including the relevant
crosswalk and appraisal memo; and
``(C) ensure the list or schedule, and all related
materials, are organized in such fashion as to--
``(i) facilitate public understanding of the
operations of the records management program of the
Federal agency; and
``(ii) assist the Archivist in cataloging
disposition authorities.
``(2) Not later than 60 days after the date of enactment of the
Strengthening Oversight of Federal Records Act of 2024, the head of
each Federal agency shall submit to the Archivist each list or schedule
of records issued under subsection (a) before such date of enactment
that is in effect on such date of enactment, and all related materials,
for immediate publication in the database described in paragraph (1).
``(3) The database described in paragraph (1) shall be searchable
and maintained as an open Government data asset, as defined in section
3502.''.
(b) Regulation.--Section 3302 of title 44, United States Code, is
amended--
(1) in paragraph (1), by striking the comma at the end and
inserting a semicolon;
(2) in paragraph (2), by striking ``, and'' and inserting a
semicolon;
(3) in paragraph (3), by striking the period at the end and
inserting ``; and''; and
(4) by adding at the end the following:
``(4) procedures and minimum standards of ease-of-use for
public inspection and online maintenance of lists, schedules,
and related materials pursuant to section 3303(b).''.
SEC. 105. CERTIFICATION REGARDING PRESERVATION OF RECORDS.
(a) In General.--Chapter 29 of title 44, United States Code, as
amended by section 103, is amended by adding at the end the following:
``Sec. 2914. Certification regarding preservation of records
``The head of each Federal agency shall establish policies and
procedures under which each employee of the Federal agency shall, prior
to separating from service as an employee of the Federal agency, submit
to the head of the Federal agency a certification indicating whether
the employee has complied with the requirements under this chapter
relating to the preservation of records.''.
(b) Conforming Amendment.--The table of sections for chapter 29 of
title 44, United States Code, as amended by section 103, is amended by
adding at the end the following:
``2914. Certification regarding preservation of records.''.
TITLE II--ADDITIONAL REFORMS TO PRESERVE AND PROTECT RECORDS AND
GOVERNMENT INTEGRITY
SEC. 201. UNLAWFUL REMOVAL, DESTRUCTION OF RECORDS.
Section 3106 of title 44, United States Code, is amended--
(1) by striking subsection (a) and inserting the following:
``(a) Federal Agency Notification of Unlawful Removal or
Destruction of Records.--
``(1) In general.--The head of each Federal agency shall
notify the Archivist if the head of the Federal agency knows or
has reason to believe that there is--
``(A) any actual, impending, or threatened unlawful
failure to create or removal, defacing, alteration,
corruption, deletion, erasure, or other destruction of
records in the custody of the Federal agency; or
``(B) any other repeated non-compliance by any
employee of the Federal agency with Federal record-
keeping requirements that the head of the Federal
agency has been unable to fully address.
``(2) Remedy.--With the assistance of the Archivist, the
head of each Federal agency shall initiate action through the
Attorney General for--
``(A) fully recovering or restoring records
unlawfully removed from the Federal agency, including
records of another Federal agency that have been
transferred to the legal custody of that Federal
agency, or that are defaced, altered, corrupted,
deleted, erased, or destroyed, to the extent
practicable; and
``(B) remedying any other repeated non-compliance
by any employee of the Federal agency with record-
keeping requirements.'';
(2) in subsection (b), by striking ``shall request the
Attorney General'' and all that follows and inserting the
following: ``shall--
``(1) request the Attorney General to initiate such an
action;
``(2) notify the Committee on Homeland Security and
Governmental Affairs of the Senate and the Committee on
Oversight and Accountability of the House of Representatives;
``(3) include with the notification under paragraph (2) any
relevant evidence, analysis, and supporting documentation
pertinent to the incident; and
``(4) in coordination with the Attorney General, make
regular updates to the committees specified in paragraph (2) on
the status of efforts to remedy the unlawful action or
noncompliance.''; and
(3) by adding at the end the following:
``(c) Other Recordkeeping Violations.--
``(1) In general.--If the Archivist becomes aware of an
alleged violation by an employee of a Federal agency of his or
her recordkeeping obligations, the Archivist shall--
``(A) notify the head of the Federal agency and
coordinate with the Federal agency to determine whether
a violation took place; and
``(B) subject to paragraph (2), refer the matter to
the head of the Federal agency for corrective action,
as necessary.
``(2) Agencies with inspectors general.--If the Archivist
makes a referral described in paragraph (1)(B) to a Federal
agency that has an Inspector General (as defined in section 401
of title 5), the Archivist shall make a joint referral to the
head of the Federal agency and to the Inspector General of the
Federal agency.''.
SEC. 202. RECORDS MANAGEMENT INCORPORATION INTO PERFORMANCE PLANS.
Section 4302 of title 5, United States Code, is amended--
(1) by redesignating subsections (c) and (d) as subsections
(d) and (e), respectively; and
(2) by inserting after subsection (b) the following:
``(c) The head of each agency, in consultation with the Director of
the Office of Personnel Management and the Archivist of the United
States, shall develop criteria that incorporates records management
requirements that should be included in employees' performance
standards and reviews.''.
SEC. 203. ESTABLISHMENT OF AN ADVISORY COMMITTEE ON RECORDS AUTOMATION.
(a) Establishment.--There is established within the National
Archives and Records Administration an advisory committee to be known
as the ``Advisory Committee on Records Automation'' (in this section
referred to as the ``Advisory Committee'').
(b) Purposes.--The purposes of the Advisory Committee are--
(1) to encourage the efforts of the Government to manage
records through greater use of automation to make electronic
recordkeeping more efficient;
(2) to encourage the efforts of the Government to more
efficiently respond to access requests for records of executive
agencies;
(3) to issue recommendations relating to records
automation, including on how the Government should use
automated software to--
(A) automatically categorize records in connection
with the issuance of records schedules required under
chapter 33 of title 44, United States Code;
(B) search for responsive records; and
(C) assist in determining whether records may be
exempt from public disclosure; and
(4) to receive expert advice from public and private sector
sources with respect to the use of automated software to make
the management of and access to records of executive agencies
more efficient.
(c) Duties.--The duties of the Advisory Committee include providing
advice and recommendations to the Archivist of the United States (in
this section referred to as the ``Archivist'') and agencies on
strategic, technical, financial, programmatic, and operational matters
regarding records automation.
(d) Membership.--
(1) Composition.--The Advisory Committee shall be composed
of not more than 15 members from the public and private sectors
as follows:
(A) Three members shall be appointed by the
Archivist, 1 of which shall be designated by the
Archivist as the Chairperson of the Advisory Committee.
(B) Three members shall be appointed by the
Director of the Office of Management and Budget.
(C) One member shall be appointed by the Attorney
General of the United States.
(D) One member shall be appointed by the
Administrator of General Services.
(E) Additional members shall appointed by the
Archivist, as determined appropriate by the Archivist,
in consultation with the Director of the Office of
Management and Budget.
(2) Public sector and private sector balance.--The
Archivist shall ensure that the Advisory Committee maintain a
balance between members from the public sector and from the
private sector.
(3) Deadline for appointment.--Each member of the Advisory
Committee shall be appointed not later than 45 days after the
date of enactment of this Act.
(e) Period of Appointment; Vacancies.--
(1) In general.--A member of the Advisory Committee shall
be appointed for the life of the Committee.
(2) Vacancies.--A vacancy in the Advisory Committee--
(A) shall not affect the powers of the Advisory
Committee; and
(B) shall be filled in the same manner as the
original appointment.
(f) Meetings.--
(1) Initial meeting.--Not later than 60 days after the date
on which all members of the Advisory Committee have been
appointed, the Advisory Committee shall hold the first meeting
of the Advisory Committee.
(2) Frequency.--The Advisory Committee shall meet at the
call of the Chairperson, but not less frequently than 3 times
per year, at such time and place as determined by the
Chairperson.
(3) Quorum.--A majority of the members of the Advisory
Committee shall constitute a quorum, but a lesser number of
members may hold hearings.
(4) Rules of procedure.--The Advisory Committee may
establish rules for the conduct of the business of the Advisory
Committee if such rules are not inconsistent with this section
or other applicable law.
(g) Reports.--
(1) In general.--Not later than 2 years after the date of
enactment of this Act, the Advisory Committee shall submit to
the Archivist, the Committee on Homeland Security and
Governmental Affairs of the Senate, and the Committee on
Oversight and Accountability of the House of Representatives a
report providing a detailed statement of the findings and
conclusions of the Advisory Committee, together with any
recommendations of the Advisory Committee for legislation or
administrative actions.
(2) Interim reports.--The Advisory Committee may submit to
the Archivist, the Committee on Homeland Security and
Governmental Affairs of the Senate, and the Committee on
Oversight and Accountability of the House of Representatives
interim reports regarding the activities and findings of the
Advisory Committee, as determined appropriate by the Advisory
Committee.
(h) Powers.--
(1) Information from federal agencies.--The Advisory
Committee may secure directly from a Federal department or
agency such information as the Advisory Committee considers
necessary to carry out this section, consistent with the
protection of classified national security information and
statutorily protected information.
(2) Postal services.--The Advisory Committee may use the
United States mails in the same manner and under the same
conditions as other departments and agencies of the Federal
Government.
(3) Donations.--The Advisory Committee may accept, use, and
dispose of donations of services or property.
(i) Advisory Committee Personnel Matters.--
(1) In general.--A member of the Advisory Committee (other
than a member who is appointed to the Advisory Committee in
connection with another Federal appointment) shall not be
considered an employee of the Federal Government by reason of
any service as such a member, except for the purposes of
section 5703 of title 5, United States Code, relating to travel
expenses.
(2) Pay not permitted.--A member of the Advisory Committee
described in paragraph (1) may not receive pay by reason of
service on the Committee.
(3) Procurement of temporary and intermittent services.--
The Chairperson of the Advisory Committee may procure temporary
and intermittent services under section 3109(b) of title 5,
United States Code, at rates for individuals that do not exceed
the daily equivalent of the annual rate of basic pay prescribed
for level V of the Executive Schedule under section 5316 of
that title.
(j) Termination of Advisory Committee.--The Advisory Committee
shall terminate on the date that is 90 days after the submission of the
report required under subsection (g)(1).
(k) Authorization of Appropriations.--There is authorized to be
appropriated $3,000,000 to carry out this section for each of fiscal
years 2025 and 2026.
(l) Application of FACA.--Chapter 10 of title 5, United States
Code, shall apply to the Advisory Committee.
SEC. 204. REGULATIONS.
Section 2206 of title 44, United States Code, is amended--
(1) by inserting ``(a)'' before ``The Archivist'';
(2) in subsection (a), as so designated--
(A) in paragraph (1), by striking ``2203(f)(3)''
and inserting ``2203(g)(4)'';
(B) in paragraph (3), by striking ``and'' at the
end;
(C) in paragraph (4), by striking the period and
inserting ``; and''; and
(D) by adding at the end the following:
``(5) provisions for establishing procedures for
documenting required metadata.''; and
(3) by adding at the end the following:
``(b) The Archivist shall issue, and shall regularly update,
implementation guidance with respect to the regulations described in
subsection (a)(5).''.
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