[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
H.R. 5811, THE ELECTRONIC COMMUNICATIONS PRESERVATION ACT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON INFORMATION POLICY,
CENSUS, AND NATIONAL ARCHIVES
of the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
ON
H.R. 5811
TO AMEND TITLE 44, UNITED STATES CODE, TO REQUIRE PRESERVATION OF
CERTAIN ELECTRONIC RECORDS BY FEDERAL AGENCIES, TO REQUIRE A
CERTIFICATION AND REPORTS TO PRESIDENTIAL RECORDS, AND FOR OTHER
PURPOSES
__________
APRIL 23, 2008
__________
Serial No. 110-171
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.oversight.house.gov
U.S. GOVERNMENT PRINTING OFFICE
50-094 PDF WASHINGTON : 2009
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
HENRY A. WAXMAN, California, Chairman
EDOLPHUS TOWNS, New York TOM DAVIS, Virginia
PAUL E. KANJORSKI, Pennsylvania DAN BURTON, Indiana
CAROLYN B. MALONEY, New York CHRISTOPHER SHAYS, Connecticut
ELIJAH E. CUMMINGS, Maryland JOHN M. McHUGH, New York
DENNIS J. KUCINICH, Ohio JOHN L. MICA, Florida
DANNY K. DAVIS, Illinois MARK E. SOUDER, Indiana
JOHN F. TIERNEY, Massachusetts TODD RUSSELL PLATTS, Pennsylvania
WM. LACY CLAY, Missouri CHRIS CANNON, Utah
DIANE E. WATSON, California JOHN J. DUNCAN, Jr., Tennessee
STEPHEN F. LYNCH, Massachusetts MICHAEL R. TURNER, Ohio
BRIAN HIGGINS, New York DARRELL E. ISSA, California
JOHN A. YARMUTH, Kentucky KENNY MARCHANT, Texas
BRUCE L. BRALEY, Iowa LYNN A. WESTMORELAND, Georgia
ELEANOR HOLMES NORTON, District of PATRICK T. McHENRY, North Carolina
Columbia VIRGINIA FOXX, North Carolina
BETTY McCOLLUM, Minnesota BRIAN P. BILBRAY, California
JIM COOPER, Tennessee BILL SALI, Idaho
CHRIS VAN HOLLEN, Maryland JIM JORDAN, Ohio
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
JOHN P. SARBANES, Maryland
PETER WELCH, Vermont
------ ------
Phil Schiliro, Chief of Staff
Phil Barnett, Staff Director
Earley Green, Chief Clerk
Lawrence Halloran, Minority Staff Director
Subcommittee on Information Policy, Census, and National Archives
WM. LACY CLAY, Missouri, Chairman
PAUL E. KANJORSKI, Pennsylvania MICHAEL R. TURNER, Ohio
CAROLYN B. MALONEY, New York CHRIS CANNON, Utah
JOHN A. YARMUTH, Kentucky BILL SALI, Idaho
PAUL W. HODES, New Hampshire
C O N T E N T S
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Page
Hearing held on April 23, 2008................................... 1
Text of H.R. 5811................................................ 8
Statement of:
Koontz, Linda, Director, Information Management Issues,
Government Accountability Office; Gary Stern, General
Counsel, National Archives and Records Administration; Paul
Wester, Jr., Director, Modern Records Program, National
Archives and Records Administration; and Patrice McDermott,
Director, OpenTheGovernment.org............................ 16
Koontz, Linda............................................ 16
McDermott, Patrice....................................... 53
Stern, Gary.............................................. 35
Wester, Paul, Jr......................................... 36
Letters, statements, etc., submitted for the record by:
Clay, Hon. Wm. Lacy, a Representative in Congress from the
State of Missouri:
Prepared statement of.................................... 3
Prepared statement of Professor Anna Nelson.............. 48
Koontz, Linda, Director, Information Management Issues,
Government Accountability Office, prepared statement of.... 18
McDermott, Patrice, Director, OpenTheGovernment.org, prepared
statement of............................................... 56
Stern, Gary, General Counsel, National Archives and Records
Administration, and Paul Wester, Jr., Director, Modern
Records Program, National Archives and Records
Administration, prepared statement of...................... 39
H.R. 5811, THE ELECTRONIC COMMUNICATIONS PRESERVATION ACT
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WEDNESDAY, APRIL 23, 2008
House of Representatives,
Subcommittee on Information Policy, Census, and
National Archives,
Committee on Oversight and Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 2 p.m., in
room 2154, Rayburn House Office Building, Hon. Wm. Lacy Clay,
Jr. (chairman of the subcommittee) presiding.
Present: Representatives Clay, Hodes, and Sali.
Staff present: Darryl Piggee, staff director/counsel; Jean
Gosa, clerk; Charisma Williams, staff assistant; Michelle
Mitchell, legislative assistant, Office of Wm. Lacy Clay; and
Charles Phillips, minority counsel.
Mr. Clay. The committee will come to order.
In today's legislative hearing we will examine the
Electronic Communication Preservation Act H.R. 5811. It will
modernize Federal recordkeeping by requiring agencies to begin
preserving electronic records more effectively.
The bill requires electronic preservation for electronic
communications such as e-mails and recommends to the extent
practicable that regulations are required of Federal agencies
to capture, manage, and preserve other electronic records.
In addition, H.R. 5811 creates oversight of the maintenance
and preservation of Presidential Records, including e-mails
sent and received by Presidential advisors.
We will hear from witnesses who will testify concerning
this issue and offer recommendations that they believe will
improve the act. Without objection the Chair and ranking
minority member will have 5 minutes to make opening statements
followed by opening statements not to exceed 3 minutes by any
other Member who desires recognition.
Without objection, Members and witnesses may have five
legislative days to submit a written statement or extraneous
materials for the record. I will begin with an opening
statement and welcome everyone to today's hearing on H.R. 5811.
This bill will modernize Federal recordkeeping by requiring
Federal agencies to preserve all electronic records such as e-
mails more effectively. In addition, H.R. 5811 will establish
necessary oversight of the maintenance and preservation of
Presidential Records, including e-mails sent and received by
Presidential advisors.
Under current law, Federal agencies have broad discretion
to determine how electronic records and electronic
communications are preserved. Guided by existing regulations
and court decisions, few agencies have moved to an electronic
recordkeeping system for the preservation of e-mails. This bill
calls on the Archivist to issue regulations requiring agencies
to preserve electronic communications in an electronic format.
In addition, the Archivist would establish testing and
certification standards for any electronic records management
systems implemented in Federal agencies. Committee
investigations revealed deficiencies in White House
preservation of e-mails under the Presidential Records Act,
including a lack of proper systems for ensuring the
preservation of these records. Congress passed the Presidential
Records Act to clarify that the records of the President belong
to the United States, not to the individual President.
Concerns have been raised over the past 2 years about White
House compliance with the Presidential Records Act during the
Bush administration. Investigations reveal that numerous White
House officials, including Senior Advisor Karl Rove, used
political e-mail accounts to conduct official business. Many of
these e-mails were deleted according to Republican National
Committee policy, and none were preserved as Presidential
records.
In addition, the White House cannot account for hundreds of
days' worth of official White House e-mails sent and received
from 2003 and 2005. At the time of these losses, the White
House used an e-mail archiving system that a former White House
Information Technology officer described as primitive. Under
the Presidential Records Act, the President has sole authority
over the management of records during his term of office.
The oversight mechanism created in H.R. 5811 establishes
standards for the preservation of these records. In particular,
these standards would cover those records management controls
necessary to capture, manage, preserve, and retrieve electronic
communications.
The bill further requires that the Archivist annually
certify whether the records management controls established by
the President meet these standards and biannually report to
Congress on the results of the certification.
I would like to thank Chairman Waxman and Mr. Hodes for
their leadership on this issue and for introducing this bill
aimed at safeguarding electronic records with me this week. I
look forward to today's testimony and further review of H.R.
5811.
I would like to recognize Mr. Sali for an opening
statement, if you have one.
[The prepared statement of Hon. Wm. Lacy Clay and the text
of H.R. 5811 follow:]
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Mr. Sali. Well, thank you, Mr. Chairman. I appreciate this
opportunity to comment briefly on the topic of preserving our
Nation's history.
I could not agree more with Ms. Anna Nelson, Director of
History for American University about having to rely on
unreliable memoirs, scattered agency records, or the New York
Times to reconstruct the history of policymaking records. Our
historian should not rely on events as reported by the New York
Times or from memoirs whose authors may embellish the facts.
This hearing seems to be focusing on only the Presidential
Records Act portion of this possible legislation. The focus
should not only be on these important records, but records from
all of the Federal agencies. To make Federal agencies comply, I
believe this legislation should include enforceable
repercussion language. Ms. Patricia McDermott of
OpenTheGovernment.org suggests this is the only way to make
Federal agencies comply with the Federal Records Act. Ms.
McDermott states that she does not, ``think anyone has ever
been prosecuted for destroying, much less failing to preserve,
Federal records.''
Just ask former Clinton EPA Director Carol Browner. She
supposedly oversaw the destruction of her computer files in
violation of a judge's order requiring the agency to preserve
its records. Today, however, we seem to be elevating actions by
a small number of staffers who, allegedly, deleted private e-
mail accounts years ago to the same level as that of a former
EPA director.
The purpose of this subcommittee hearing should be on
preserving our Nation's history and not on political
gamesmanship. The American people deserve better from their
representatives.
Thank you, Mr. Chairman.
Mr. Clay. I thank Mr. Sali for that opening statement and
also look forward to working with you and those on your side.
As we go through the bill I think you will see that it is more
comprehensive than what you described, and it does cover
Federal agencies as well as the White House.
Mr. Sali. Great.
Mr. Clay. Thank you.
Now I would like to recognize Mr. Hodes for an opening
statement.
Mr. Hodes. Thank you, Mr. Chairman, and I thank you for
your leadership on this very important bill. I look forward to
the testimony and to working on this bill which really is, I
think, of a discussion of how to bring our recordkeeping into
the modern age. Things are changing very, very quickly in the
way we communicate, the way we keep our records, and I
appreciate the various concerns that I have seen in the written
testimony.
I look forward to the oral testimony as we engage in this
dialog with the goal of preserving history, preserving records,
and making sure that the people of this country have access to
the records that are necessary to an effective Government.
So I thank you, Mr. Chairman, and yield back.
Mr. Clay. Thank you so much.
Now we will receive testimony from the witnesses before us
today, and I want to start by introducing our panel.
Our first witness, with whom this subcommittee is very
familiar, is Ms. Linda Koontz, Director of Information
Management Issues at the U.S. Government Accountability Office.
She is responsible for issues concerning the collection, use,
and dissemination of Government information in an era of
rapidly changing technology. Welcome back to the subcommittee,
Ms. Koontz.
Next, representing the National Archives Records
Administration, we will hear from Mr. Gary M. Stern, General
Counsel of the Archivist, and Mr. Paul Wester, Director of the
Modern Records Program. Welcome to both of you today.
And apparently the fourth witness is on her way. When she
gets in, we will swear her in, also.
Thank you all for appearing before the subcommittee today.
It is the policy of the Oversight Committee to swear in all
witnesses before they testify. I would like to ask each witness
to please stand and raise your right hands.
[Witnesses sworn.]
Mr. Clay. Thank you, you may be seated. Let the record
reflect that the witnesses have answered in the affirmative,
and I ask that now each witness give a brief summary of their
testimony and to keep this summary under 5 minutes in duration.
Ms. Koontz, you may proceed.
STATEMENTS OF LINDA KOONTZ, DIRECTOR, INFORMATION MANAGEMENT
ISSUES, GOVERNMENT ACCOUNTABILITY OFFICE; GARY STERN, GENERAL
COUNSEL, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION; PAUL
WESTER, JR., DIRECTOR, MODERN RECORDS PROGRAM, NATIONAL
ARCHIVES AND RECORDS ADMINISTRATION; AND PATRICE MCDERMOTT,
DIRECTOR, OPENTHEGOVERNMENT.ORG
STATEMENT OF LINDA KOONTZ
Ms. Koontz. Thank you, Mr. Chairman, and members of the
subcommittee. I appreciate the opportunity to discuss critical
issues surrounding the Federal Government's management of
electronic mail messages.
As you know, Federal agencies are increasingly using e-mail
for essential communications and, in doing so, they are
potentially creating messages that have the status of Federal
records. My remarks today are based on ongoing work requested
by you and the full committee.
E-mail by its very nature presents significant records
management challenges. First, information contained in e-mail
records may contain any subject or function and document
various types of transactions. As a result, in many cases
decision on which e-mail messages are records must be made
individually.
Second, the context of an e-mail which includes the
sender's and receiver's date and time and attachments may be
crucial to understanding its content and needs to be
maintained.
Third, a message may be part of an exchange of messages
between two or more people or even a string of many messages.
Finally, the large number of Federal e-mail users and the
high volume of e-mails increase the management challenge.
Despite these challenges, managing records, including e-mail
records, is vital. If these records are not managed
effectively, individuals might lose access to benefits for
which they are entitled, the Government could be exposed to
unwarranted legal liabilities, and historical records could be
lost forever.
In addition, agencies with poorly managed records risk
increased costs when attempting to search records in response
to FOIA requests or litigation-related discovery actions.
Our ongoing review of e-mail management at four agencies
illustrates these challenges. Although the agencies, generally
with few exceptions, have put in place policies that contain
the appropriate elements. Senior officials were not
consistently following these policies. Specifically, for 8 out
of 15 officials we are reviewing e-mail messages that qualified
as records were not being appropriately identified and
preserved. Instead, e-mail messages including records were
generally being maintained in e-mail systems that lacked
recordkeeping features that would permit easy and timely
retrieval of the information.
Key factors contributing to this practice were the sheer
volume of e-mails involved, and the agencies generally relied
on paper-based processes to manage e-mail records rather than
on electronic recordkeeping systems, although several of them
are in the process of planning for or implementing such
systems. In addition, awareness of Federal records requirements
is an ongoing concern.
In regard to the draft bill, the Electronic Communications
Preservation Act would encourage agencies to transition to
electronic records management. This has the potential to
improve e-mail management in the Federal Government by taking
advantage of the efficiencies of automation and limiting
expenditure on cumbersome manual processes.
In addition, although agencies are moving toward electronic
records management, the 4-year deadline could help expedite
this transition but also allow agencies time to do the planning
required to implement those systems effectively.
Finally, the development of minimum functional requirements
by NARA should reduce the development risks that could have
resulted from multiple agencies concurrently developing similar
systems.
Mr. Chairman, that concludes my statement. I would be happy
to answer questions at the appropriate time.
[The prepared statement of Ms. Koontz follows:]
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Mr. Clay. Thank you very much for that.
Mr. Stern.
STATEMENT OF GARY STERN
Mr. Stern. Chairman Clay, members of the committee, on
behalf of the Archivist of the United States, Allen Weinstein,
I want to thank you for providing the National Archives with
this opportunity to share our views on H.R. 5811, the
Electronic Communications Preservation Act.
I am Gary Stern, the General Counsel of the Archives, and
with me, as you know, is Paul Wester, who directs our Modern
Records Program which oversees records management policy under
the Federal Records Act. The two substantive sections of the
bill address two very distinct statutes and entities that are
governed by the statutes. The Federal Records Act applies to
all Federal agencies across all three branches of the
Government, and the Presidential Records Act applies solely to
the President and the Vice President, and certain entities
within the Executive Office of the President.
I will address the PRA section of the Bill, and then Mr.
Wester will discuss the FRA section.
Now, the Presidential Records Act was enacted in 1978 to
establish public ownership of the Presidential administration's
records and establish procedures governing the preservation and
public availability of those records. The House report on the
bill noted the need for the President to implement sound
records management practices, and it is worth noting that, in
fact, the White House has been at the forefront of trying to
manage e-mail records electronically.
All the way back in 1994, largely in response to then long-
running litigation about White House e-mails that began at the
end of the Reagan administration, the Clinton administration
built a comprehensive e-mail archiving recordkeeping system
known as the Automated Records Management System [ARMS].
Now, while there were serious technical issues with ARMS
toward the end of that administration, including the need to
restore approximately 2 million e-mails that were missing from
ARMS, restore from backup tapes, this system nonetheless
achieved a very important result of preserving roughly 20
million Presidential Record e-mails as well as 12 million
Federal record e-mails from the Federal agency components of
the EOP, and all of those records are now part of the National
Archives preserved as permanent electronic records.
The ARMS system did carry over into the Bush administration
and to which, then, the committee has been looking into issues
that have resulted. The PRA was crafted after very careful
consideration concerning the delicate separation of powers
balance between the Congress and the President, and the proper
level of intrusion by the Archivist into the incumbent
President's affairs.
For example, although the FRA authorizes the Archivist to
promulgate guidelines and binding regulations to assist
agencies in the development of their records management
systems, the PRA lacks any such provision. Similarly, the
Archivist lacks authority under the PRA to formally inspect the
President's records while in office or survey the President's
records management practices.
Given this history of the PRA in this Constitutional
dimension, we believe it is highly appropriate for the
committee to seek the views of the Department of Justice
regarding the separation of powers issues raised by Section 3
of the bill. As the committee is aware from the prior full
committee hearing in February, there are efforts underway by
the White House to review and ensure its issues relating to,
allegedly, missing White House e-mails, including the possible
need to restore e-mails from backup tapes, which NARA certainly
hopes will be completed before the end of this administration.
The Archivist also noted at that hearing that he did
support the EOP's efforts, continuing efforts, to put in place
a new electronic recordkeeping system to replace the ARMS
system that would better conform to best practices in both the
public and private sector. These more recent efforts by the EOP
are, in our view, consistent with the goals of the proposed
bill to ensure effective records management controls are in
place at the White House.
So along these lines, NARA believes that it is not
unreasonable to presume that an incumbent President should and
would want to adopt best practices in the area of electronic
records management that parallel the efforts that are or would
be under this Bill required for Federal agencies.
So to the extent the standards required under Section 3(a)
would generally attract the new regulations that would be
required under Section 2, NARA believes this provision is
consistent with the overall aims of the PRA. However, because
of the Constitutional concerns already mentioned, these
standards would likely need to be non-binding on the incumbent
President.
The provisions of Section 3(b) of the legislation requiring
NARA to make an annual certification that the records
management controls established by the incumbent President meet
newly established standards would best be implemented through
the type of oversight authority, including inspection
authority, that we are empowered to conduct under the Federal
Records Act, which would normally include access by NARA to the
processes, procedures in place, and possibly even to the
records being managed by the system. However, we note again
that such authority would be unprecedented and defer once again
to the Department of Justice on how this would work as a formal
matter.
Finally, Section 3(c) of the legislation would require a
report by the Archivist after the President leaves office
regarding the volume and format of Presidential records that
have been transferred to the National Archives. We do not
believe that this reporting requirement raises any
Constitutional issues, and NARA should, therefore, be able to
provide the Congress with such a report, if required.
I would now like to turn it over to Mr. Wester to discuss
Section 2 on the FRA.
Mr. Clay. Thank you. Mr. Wester, you may proceed.
STATEMENT OF PAUL WESTER, JR.
Mr. Wester. Again, thank you for the opportunity to testify
today.
Although the Federal Government's work processes still
operate in a mixed media environment, paper and electronic, the
Government's records are increasingly and overwhelmingly ``born
digital.'' This proposed legislation reflects the new paradigm.
NARA conceptually supports managing electronic records within
electronic recordkeeping systems in the Federal Government. We
also firmly believe that electronic communications as well as
other forms of electronic records need to be managed in
accordance with sound records management and archival
principles.
In NARA, strategic directions for Federal records
management we state that NARA will partner with stakeholders to
ensure that Federal agencies can economically and effectively
create and manage records necessary to meet business needs,
that records are kept long enough to protect rights and assure
accountability, and that records of archival value are
preserved and made available for future generations.
We believe the intent of this proposed legislation supports
these broad goals. However, we have four areas of concern
regarding the intended scope and effect of the legislation. The
four areas are:
One, NARA has issued guidance on the management of e-mail
records, and the term ``electronic communications'' may be too
broad and ambiguous. This may be especially the case since the
term is also used in other legislation of a decidedly different
scope, the Electronic Communications Preservation Act.
Two, the meaning of the term ``preservation'' should also
be clarified. The proposed legislation suggests all electronic
communications that are Federal records as defined by Section
3301 shall be captured, managed, and preserved electronically.
NARA's view is that, as is true for all Federal records, these
types of records should only be captured, managed, and
preserved consistent with the dispositional requirements
outlined in Section 3302 and 3303 of Title 44 of the U.S. Code.
Three, the potential cost of this proposed legislation are
enormous. The costs of managing all Federal electronic
communications and electronic records management in electronic
management applications would likely be in the billions of
dollars. This legislation also would require other financial
and personnel investments by Federal agencies to keep
electronic records usable or readily accessible for retrieval
through electronic searches over a long period of time. These
costs are separate for procuring electronic records
applications for agencies across the Government. And four,
while certified electronic RMAs are one method for managing
electronic communication records in a recordkeeping system,
there are likely to be a variety of other technological
solutions. Department of Defense 5015.2, Standard Certified
Records Management Applications, which NARA endorses as a
standard for civilian agencies, in which DOD has for their own
agencies certified, are not the only way to attractively manage
electronic communication. Alternative technological approaches
that can carry out the intent of the proposed legislation
should be allowed.
It is also important to note that technological solutions
may not always be the most effective means for ensuring the
management and preservation of electronic communications and
other electronic records. In agencies where the work processes
are not currently entirely electronic, paper-based or perhaps a
hybrid approach may be the right solution. In this and other
similar cases, agencies should have the flexibility to
determine the appropriate solution after analyzing business
needs and, if needed, in consultation with NARA.
A full explanation of NARA's concerns is contained in our
full testimony, but the National Archives of Records
Administration does believe the proposed legislation can ensure
electronic communications that constitute thorough records are
effectively managed and accessible throughout their life cycle.
Thank you for considering NARA's views on this important
issue, and we look forward to answering questions.
[The prepared statement of Mr. Stern and Mr. Wester
follows:]
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Mr. Clay. Thank you so much, Mr. Wester.
Without objection the committee will include in the record
the written testimony of Professor Anna Nelson, distinguished
historian and resident at American University.
[The prepared statement of Ms. Nelson follows:]
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Mr. Clay. We have also been joined by our fourth witness,
Ms. Patrice McDermott. Ms. McDermott, can I ask you to stand
and raise your right hand in order to be sworn in?
[Witness sworn.]
Mr. Clay. Thank you, and let the record reflect the witness
answered in the affirmative. Ms. McDermott, you may proceed
with your 5-minute opening statement.
STATEMENT OF PATRICE MCDERMOTT
Ms. McDermott. Thank you for accommodating me. I had a
board meeting that I had to participate in.
So thank you, Chairman Clay, Mr. Hodes, and members of the
subcommittee for the opportunity to speak today on the proposed
legislation that would require the executive branch to make
concrete and documented progress toward the preservation of
electronic records, including e-mail and electronic
communications.
My name is Patrice McDermott. I am Director of
OpenTheGovernment.org, a coalition of consumer and good
government groups, library associations, journalists and
environmentalists, labor organizations, and others united to
make the Federal Government a more open place in order to make
us safer, strengthen public trust in Government and support our
democratic principles.
In 1982, 26 years ago now, the Committee on the Records of
Government proclaimed that the United States is in danger of
losing its memory. They were talking, of course, about paper
records. Our memory is at much greater risk now, and this loss
is not just of family photos, as it were, but of that
information necessary for accountability. Across the Federal
Government we do not know with any certainty that all of the
documents and information that we need to write our history, to
understand policy development and implementation to trace who
knew what, read and edited, what documents are being preserved.
Why is our memory in danger? Because the vast majority, if
not all, of our documentary and information history is being
created electronically, but not necessarily well-managed and
preserved electronically. Those of us outside of Government
understand that the common policy is to only preserve the final
policy document, for instance. That is important but not
sufficient.
Some of us who have been around for more than a few years
remember the days of carbon copies and complete paper files. In
the Government, the paper copies were annotated and initialed
by those who saw and commented on them. It was not just the
final version of the policy or memo that was filed away but a
documentary history of that policy's development. This is the
stuff of what did you know, and when did you know it, it is the
stuff of history and accountability.
The various reasons given for not preserving at all are
ones we have heard before. The volume is too great, we don't
have the resources to manage all this. It is not important to
the leadership of our agency.
Another reason, frankly, is that Congress has been lax at
holding agencies accountable and for ensuring that records
management is seen as part of the mission critical component of
every department and agency. The loss of documents and
information through indifference should be viewed with as much
alarm as their loss through a system breach. The end result is
the same except that with indifference or intentional failure
to preserve, we will not necessarily know what has been taken
from us. We will not be able to restore our history to the
previous status.
A report of which you have a copy, Record Chaos: The
Deplorable State of Recordkeeping in the Federal Government,
issued last week by Citizens for Responsibility and Ethics in
Washington in which OpenTheGovernment.org offered some
assistance, gives us a good indication of the state we are in
with electronic records generally and electronic communications
in particular. In general, our admittedly unscientific survey
which was part of this report exposed a number of major
problems.
First, there is a lack of consistent policies, as evidenced
by the fact that so many respondents--and the details are in my
submitted testimony--use multiple techniques to preserve e-mail
records at their agencies. Second, movement toward electronic
records systems has been unacceptably slow. They are by far
from universal across the Government, and I think it would be
safer to say they are almost universal in not existing across
the Government.
Third, agencies are exposing themselves to legal and
litigation sanctions, particularly in regard to the lack of
care for metadata if this is not corrected. Fourth, agencies
lack training and compliance monitoring, two problems that
could be easily cured by reforming agency policy and increased
NARA involvement. Even knowledgeable agency employees lack a
basic understanding of their recordkeeping obligations and how
they can be satisfied.
Fifth, senior level agency management needs to realize the
serious problems with their agency's electronic records
management and take steps to correct them. The legislation
under discussion at this hearing is an important step in terms
of announcing that Congress is going to pay attention to this
serious issue and of taking some beginning steps toward
addressing the systemic problems with electronic records, in
general, and electronic communications records in particular,
your caveat notwithstanding.
We appreciate this initiative. I do not think, however,
that this bill goes nearly as far as it needs to. I am focusing
my remarks only on the Federal Records Act section of the bill,
as I know others, well, I thought others were going to be
addressing the Presidential Records Act portion.
As I noted in my submitted testimony, NARA has been talking
since at least 1996 about working ``with agencies on the design
of recordkeeping systems for creating and maintaining records
of value.'' We know from the CREW report and from what I
understand of the GAO report to date that, in essence, little
has concretely occurred, and therefore agencies have done
little. NARA and the agencies don't need another 18 months to
``establish mandatory minimal functional requirements and a
software certification testing process to certify electronic
record management applications.''
NARA endorsed, and as Mr. Wester indicated, DOD 5015.2 in
November 1998, and there are records management applications
that are available off the shelf. They need some adjusting, but
they are off the shelf.
Nor do the agencies need 3 more years beyond the 18 months
to comply with the requirement to implement the regulations in
a electronic records management system. This is an issue that
has been under discussion for more than 10 years. What are
needed are some enforceable repercussions for failure to meet
obligations under the Federal Records Act. I do not think that
anyone has ever been criminally prosecuted for destroying, much
less failing to preserve, Federal records.
Records management is not a priority in agencies, as
evidenced by our survey. Unless Congress makes it a priority,
including through funding, we will likely be having this same
discussion in years to come. Congress must make the agencies
answerable, and agencies must make employees answerable.
Reporting is not going to be enough; although, unfortunately, I
don't have a specific remedy to offer to you today.
The partners in OpenTheGovernment.org look forward to
opportunities to work on this bill and to ensure that strong
legislation begins to move the executive branch forward on this
critical aspect of Government management and accountability.
Thank you for the opportunity to speak to you on this
important issue, and I am happy to answer any questions you
might have.
[The prepared statement of Ms. McDermott follows:]
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Mr. Clay. Thank you very much, Ms. McDermott, for your
testimony, and we will start the first round of questioning
with the gentleman from New Hampshire.
Mr. Hodes, you are recognized for 5 minutes.
Mr. Hodes. Thank you, Mr. Chairman. I thank the panelists
for their testimony.
I grew up during a period when Rosemary Woods stretched her
foot out and somehow lost 18 crucial minutes, as I recall, of
tape. When I pick up my Blackberry now, there is something that
comes up on the bottom, a message that says, please don't print
this out, save the trees.
So here we are with agencies in this vast bureaucracy of
our Federal Government using different means, methods,
standards apparently, to preserve the people's records because
these records belong to the people of this country. It is vital
in terms of performing our function of accountability and
oversight to have access to records. As we have seen in our
investigation of the White House in recent times, somehow
millions of e-mails, hundreds of days disappeared. So we have
both the Federal records side, and we now have the Presidential
side.
Mr. Wester, I saw you nodding your head while Ms. McDermott
testified that NARA doesn't need more time, the agencies don't
need another 18 months to establish mandatory minimum
functional requirements, and we don't need 4 years following
enactment for compliance. Do you agree?
Mr. Wester. I may have been nodding my head, but I am not
in complete agreement with Ms. McDermott.
Mr. Hodes. You mean you were politely listening?
Mr. Wester. I was politely listening.
Mr. Hodes. OK. So do you agree with Ms. McDermott that more
time is not necessary, the kind that we have put in the Bill
for time periods?
Mr. Wester. I think more time is needed for a couple of
reasons because of the cost associated with implementing
records management applications. They are not insignificant, as
we have in our testimony talked about.
There are also issues related to, aside from purchasing the
RMA software, there is a lot of training which Ms. McDermott
did talk about in her testimony that would have to be done
within agencies to get both the records staff up to speed as
well as folks who would actually be using these kinds of
software applications. It would take a long time to be able to
stand up these sorts of things.
Mr. Hodes. And consistent with the testimony that I heard
about the need for perhaps varying methods, depending on the
agency, do you believe that NARA could develop the kind of
standard that would allow for the flexibility that we heard
testimony may be required?
Mr. Wester. Yes, sir.
Mr. Hodes. A couple of specific questions, Mr. Wester,
about your testimony. You were concerned about the definition
of electronic communication.
Mr. Wester. Yes.
Mr. Hodes. May I ask, and without taking up our time today,
I am certain, would you be able to provide this committee your
suggestion for a definition which you believe would be
comprehensive enough and forward thinking enough to be of a
right definition in the bill, so we would have the benefit of
that thinking?
Mr. Wester. Yes, sir.
Mr. Hodes. Similarly, in terms of the word preservation and
the definition, clearly our goal is to be able to preserve,
maintain, keep, and have access to electronic records in
whatever form they may now be or will be in the future, and
enable us to go back. Now, without engaging in a long
discussion about particulars, will you also make available to
us your thinking on the word preservation?
Mr. Wester. Yes, sir.
Mr. Hodes. I understand the concern about the costs. I
think it is a legitimate concern that we have to consider.
Ultimately, we are going to have to balance the costs of
implementation against the necessity for maintenance
preservation and accountability.
Mr. Wester. Yes.
Mr. Hodes. And I also appreciate the technological
flexibility required, and as I say, I think your thoughts on
that and examples will be important because our goal is to make
sure that our Federal Government is effective. And these days,
with new kinds of communication that may be coming and that we
have now that the acts don't seem to be working with as well as
we would like, we really need to make sure that we have both
flexibility, but that we have a Federal Government which is
serious about preserving and maintaining its electronic
records. Do you agree?
Mr. Wester. I do agree, yes, sir.
Mr. Hodes. And do you also agree that up to now, as Ms.
McDermott has laid out in her testimony with this recent
survey, although not completely scientific, it seems that there
has been uneven compliance?
Mr. Wester. Yes.
Mr. Hodes. OK.
Mr. Wester. But I was nodding at some parts of the----
Mr. Hodes. That is the part where you were nodding.
Mr. Wester. Right.
Mr. Hodes. Mr. Stern, in your testimony you seem to agree
with the concept of developing standards for electronic record
management controls at the White House, but you are concerned
that there are Constitutional impediments or concerns about the
way the Archives would interface with the White House about
enforcing standards?
Mr. Stern. That is correct. Up to now under the
Presidential Records Act, we have always worked closely with
Presidential administrations on their records management
issues, but we have had no formal authority or responsibility.
We have done it in an informal way, and we have used the
analogy, as has White House counsel and records people in the
White House, of the Federal Records Act.
So again, to the extent that the bill says establish
standards, in our view standards would probably be the same
records management standards you would want to have for Federal
agencies, and if it is formally non-binding, we would think
nonetheless the White House, given it has been at the forefront
of preserving its e-mails electronically, it should be willing
to go along with those best practice standards that already
exist or would exist under the Federal Records Act.
Mr. Hodes. You have some concern, I take it, about the
power and how it would be exercised by an agency like yours in
dealing with the White House, let's just say hypothetically,
that was interested in asserting some privilege to avoid
compliance with the revelation or the recordkeeping or
accountability that you were trying to exercise if given the
power we are planning to give you?
Mr. Stern. When the PRA was passed in 1978, I think there
was a fair amount of consideration given to what role could the
Archivist as well as the Congress have in legislating specific
requirements on the President himself and Vice President and
his close advisors. And the Congress, ultimately, sort of left
that alone, so the President is responsible for his own records
management, and that is where it has been.
And so the question is to the extent that the bill would in
certain aura in a formal way in overseeing records management
within the White House over the President, it is not clear,
given the past history in enacting the statute whether that
would be permissible under the Constitution. Again, we think
you should talk to the Department of Justice who has studied
this issue for a long time to get their views on how that could
work.
Mr. Hodes. Mr. Chairman, I see my time is up, but may I
have one last question?
Mr. Clay. Certainly.
Mr. Hodes. Thank you, Mr. Chairman.
Ms. McDermott, in your testimony you suggest that we are
not being tough enough.
Ms. McDermott. Right.
Mr. Hodes. You want the White House security chief hauled
off in handcuffs when the e-mails are lost? How tough do you
want us to be, and how should we get tough?
Ms. McDermott. Well, I understand the Constitutional
issues, and I don't have a good answer. But one of the concerns
for the public interest community is that there is no way to
enforce accountability, to enforce records management in the
White House, and that is not NARA's fault. It is a delicate
issue.
We would like to have, and it is probably not possible, but
we would like to have a private right of action. Our community
would like to be able to sue the Office of Administration
directly, not just through the Archivist for failures like the
current one to adequately manage their electronic records and,
particularly, their e-mail.
That doesn't exist in the legislation, and it is something
that would be on our wish list, but we understand that the
Presidential Records Act portion of it is a difficult dance,
and it has been a difficult dance. I used to work for NARA, so
I know that it is a difficult dance for them with the White
House, that they are sort of there at the invitation of the
White House in many cases.
So I think some way for the outside community, for non-
government people to hold the White House accountable, but
whether Congress can do that, it is I don't have a good answer.
Mr. Hodes. All right, just a quick followup. You believe
that some kind of private right of action for outside groups
would be an inspiration to the White House to comply with
whatever standards? Not really?
Ms. McDermott. No.
Mr. Hodes. But it is on your far-extended wish list, right?
Ms. McDermott. Yes. Some of the partners in my coalition
are suing the Archives under the Federal Records Act, but they
are suing them under the Federal Records Act about White House
e-mails because they cannot sue under the Presidential Records
Act. And it is a way of getting some attention from the White
House, but it doesn't get their full attention.
Mr. Hodes. What you want is, you want attention must be
paid?
Ms. McDermott. Yes.
Mr. Hodes. Thank you, I yield back. Thank you, Mr. Chair.
Mr. Clay. Thank you, Mr. Hodes.
Ms. Koontz, in your written statement, you note that
Federal agencies recognize that it takes significant resources
to create paper records from electronic records, and that this
is not a viable long-term strategy for records management, is
that correct?
Ms. Koontz. That is absolutely correct.
Mr. Clay. You also testified that the four agencies that
are part of your study are all still using a print and file
approach to preserving e-mail records. Are these agencies
making any progress toward electronic preservation of e-mail
records?
Ms. Koontz. Yes. One of the four agencies, EPA, is in the
midst of implementing a electronic solution. Two other agencies
are thinking about or considering electronic recordkeeping
systems for the future, and the last is not moving in that
direction. So it is quite mixed.
Mr. Clay. Which agency is the one that is not?
Ms. Koontz. Federal Trade Commission is not currently
considering it.
Mr. Clay. OK. Based on the work that GAO has done in these
issues in recent years, do you believe that agencies will
convert to electronic preservation without a mandate to do so?
Ms. Koontz. I think a mandate is necessary to encourage
agencies to move in this direction. I think, as some of the
other witnesses have said on the panel, records management in
general is afforded a rather low priority across the
Government, and without a mandate to invest the money in it to
improve it, I think that we won't get too far.
Mr. Clay. Thank you for that response.
Ms. McDermott, in your testimony you referenced a new
survey of agency records managers that was released last week
by a group called CREW. Based on your experience with these
issues and the results of your survey, do you believe that
agencies will implement electronic preservation of these
records in the absence of a mandate?
Ms. McDermott. Absolutely not, and I also think that part
of the problem has been a general records schedule, GRS-20 that
NARA issued--it is almost 10 years ago or more than 10 years
ago now--that allows agencies to treat all their e-mails as the
same. They don't have to schedule the e-mails of a departmental
secretary any differently than they schedule a GS-5 e-mails.
They may do it, but they are not required to do it, and part of
that general record schedule says they can print and then
destroy the electronic version.
So I think no. I think agencies are going to have to be
forced, and there is a cost. Some agencies have been looking at
this and no off the shelf product suits every agency, and they
all have to be adjusted. But I think Mr. Hodes' comment about,
we have to weigh the cost of doing it over against the cost of
not doing it, and the cost to accountability and history of not
doing it, is correct.
Mr. Clay. Now, in your testimony you talked about the time
period involved in the bill, and I am just curious, do you
agree with this group called CREW that H.R. 5811 is woefully
inadequate? That is kind of how they characterized it. When
should the bill take effect, and the way the bill is drafted
now, won't it force agencies to implement the law?
Ms. McDermott. It will force them to implement it, but it
puts it off for a minimum of 4\1/2\ years. My biggest concern
is that I don't believe that NARA needs 18 months to develop a
standard that has existed for 12 years that may need some
tweaking, but it has been revisited and rejiggered over the
years. The DOD standard is accepted throughout the Government,
so I don't think they need 18 months to do this.
The agencies may need a couple years after that to get this
up and running, but I think the amount of time overall that is
given takes us well into the administration, and I think that
is just too long, given that this has been an issue. The
Government moved to electronics creation of its records,
documents, its memos, its policies in the 1980's, at the
latest, so we are talking a long time that this information is
not being appropriately preserved that we know for sure.
Mr. Clay. Which brings me to my next question. You began
your testimony by quoting from a 1982 statement by the
committee on records of Government.
Ms. McDermott. Right.
Mr. Clay. That the United States is in danger of losing its
memory. You stated that this quote remains true today, and the
records may be more at risk now than they were 26 years ago.
Interestingly, another witness who was unable to join us
today but submitted written testimony regarding the
Presidential Records Act, Dr. Anna Nelson, quoted the same
passage and made the same point about the risk to Presidential
Records that you made regarding Federal Records.
What do the non-governmental groups you represent fear
losing if agency e-mail records are not adequately preserved?
Ms. McDermott. We are losing our history. We are losing the
trail of, as I said in my testimony, who knew what when.
Mr. Clay. Sure.
Ms. McDermott. E-mail is the way that people communicate
now, e-mail and other electronic communications, and I
understand your concern about the Electronic Communications
Preservation Act and not getting into that. But I think the
language has to be broader than just e-mail because it is an
evolving field.
But that is how Government conducts its business now, and
if the e-mail and the electronic communications of the
Government officials who are creating policy and implementing
policy are not preserved, it is like we went in and destroyed
all the letters and memos that had been written over our
history, just went in and wiped them out, if they were paper
files if we just went in and destroyed them. We are losing
accountability, and we are losing the ability of our historians
to write histories in the future.
Mr. Clay. How about the clamor now in this Presidential
campaign seeking the records of the former First Lady Hillary
Clinton, and really there may be a logistical issue here with
them standing in line and waiting for previous records from the
President himself, Bill Clinton?
Ms. McDermott. Right. Right.
Mr. Clay. And, then, prioritizing whether the First Lady's
records come now or should they wait in line for it? How do
open Government groups view that issue?
Ms. McDermott. Having actually worked in a Presidential
library at one point, I understand how slow the archival and
how detailed the archival processing of Presidential records
are, and First Lady records, so I am sympathetic, actually,
with what the Clinton Presidential Library is saying.
I think in terms of review of aides and all, there might
have been some delay. I don't have any insider knowledge on
that. But it is a, of necessity, a detailed and painstaking
process because you have to look at the documents to make sure
they don't contain privacy-implicated information, classified
information that got in there inadvertently, or confidential
information. So I am sympathetic.
And in terms of e-mail, I think that we are looking at the
same sort of volume issues, and that is why I think that it is
important that agencies treat e-mail like they would treat
print letters that they are scheduled, based on the office and
the program, and not according to a general records schedule;
that they have to be treated just like the print letters, the
ones that were typed out back when I worked in Government, just
if those were and continued to be.
These are important records. They are records of the
business of government, and they need to be treated as such,
and they have to be scheduled. Not all of it is permanent; not
all of it is archival quality. Five percent, maybe, needs to be
preserved, but those 5 percent need to be managed and archived.
Mr. Clay. Ms. McDermott, thank you so much for your input
on this legislation, and the subcommittee looks forward to
working with you on improving it. Thank you, and I recognize
the gentleman from New Hampshire for a second round of
questions.
Mr. Hodes. Thank you, Mr. Chairman. I appreciate the
testimony and the suggestions I have heard.
Ms. Koontz, both you and the witnesses from the Archives
acknowledge that a mandate on all Federal agencies to preserve
communications is going to be expensive, certainly, in the
short term. But you also have indicated that you think there is
some long-term cost savings that will result. Could you tell us
how you see that?
Ms. Koontz. I think that we will get some corresponding
cost savings, but most of those are very difficult to quantify.
But when we went into agencies and we looked at senior official
practices, we found in a lot of cases they had one or more
administrative people reviewing the voluminous e-mail that they
received and printing and filing it.
We had one case in an agency where they actually printed
out e-mail and then scanned it into another system. These kinds
of cumbersome processes, you can't help but get some cost-
savings if we have records management systems that are
integrated with our e-mail systems.
And I think also, when you look more broadly at what are we
spending on something like FOIA across Government. I have been
before this panel a number of times testifying on FOIA, and
when you think about the time that goes into searching for
responsive records through lots and lots of paper files, there
are going to be savings if we have better means of identifying
those records.
Mr. Hodes. So, on balance, in your view, is the investment
in creating the mandate that we are contemplating and doing it
in a way that will lead to preservation, is the investment
going to be worth it if we take a longer-term view of the
payback?
Ms. Koontz. I think we do need to take a longer-term view.
I think the cost benefit, of course, will differ according to
the agency and the kinds of workers that they have and the
business processes that they have. But that will be part of the
planning process that I think that the bill allows for is for
people to study that and determine the appropriate solution
that will get a return on investment.
Mr. Hodes. Thank you, Mr. Chairman. I yield back at this
time.
Mr. Clay. Thank you so much.
Let me get to Mr. Wester real quickly. Mr. Wester, the
National Archives expresses understandable concerns about the
short-term cost to agencies of a requirement to preserve
electronic communications, electronically. These records
management systems can be costly, and it will take resources to
train agency staff and officials to use them correctly. But I
wonder if the Archivist is sensitive to the cost of not taking
these steps.
We have heard today about the cost of paper preservation of
these records, including the loss of some important data and
the loss of efficiency. Does the Archives share GAO's concerns
about the losses of data inefficiency from paper preservation
of these records?
Mr. Wester. I think we do share the same concerns that Ms.
Koontz talked about. One of the concerns that we also were
worried about with electronic recordkeeping systems or
electronic approaches to these issues where you are gathering
all the electronic communications separate from the regular
recordkeeping systems in an organization, that you are going to
lose the context of those records. And that is more of a
detailed Archival Records Management kind of issue that we are
concerned about.
I think what we are focused on with the agencies is that
they have good records management practices, they are able to
deal with all types of records and all types of electronic
records, and I guess our concern is if you mandate a specific
type of application and a specific way of doing this kind of
work, you could open the door to other issues that would be
harder to deal with from an Archival Records Management
perspective over time to document the activities and the
business processes of a particular Federal agency.
Mr. Clay. Without a Federal mandate about law, how do we
get the agencies to conform to preserving these records
electronically?
Mr. Wester. What we have to do is to continue the kinds of
work that we have done in the past years in developing a body
of regulations and guidance that agencies can follow and can
actually apply within their organizations to get this kind of
work done.
On the legislation that is proposed, notwithstanding the
cost issues, does drive that issue in a legal way into the
agencies where they would have to be in compliance with
electronic recordkeeping in dealing with electronic
communications.
Mr. Clay. Mr. Stern.
Thank you for your answers.
Mr. Wester. Thank you.
Mr. Clay. Mr. Stern, the Presidential Records Act seems to
put the National Archives in a difficult spot with regard to
the preservation of Presidential Records. The Archives is
required to accept all Presidential Records from a President on
the last day of his term. The Archives is then required to
manage and preserve these records and, eventually, make them
available to the public.
However, the Archives has no official role with regard to
these records during the President's term. Is that correct?
Mr. Stern. That is correct.
Mr. Clay. OK. Prior to taking possession of these records
on the last day of a President's term, what role does the
Archives play in ensuring that a complete record of the
presidency is preserved?
Mr. Stern. Well, we attempt to work, and, generally are
able to work cooperatively with the White House, especially in
the last year of an administration to manage, literally, the
physical transfer of the records as part of the transition from
one president to the other. So that is what we are doing now
with this administration.
Eight years ago we worked closely with the Clinton
administration to do the physical transfer, which includes
understanding an electronics system and what types of records
those are, what formats, and also we can have a way to bring
them in to our systems.
So we are able to work cooperatively, and that is the only
way we have been able to work is to on sort of a voluntary
cooperative basis, because, of course, it is not only required
by law but it is in the President's interest to get the records
to us. Then we will be managing and running the Presidential
Library where all former presidents have been very active and
very interested in having their records there, and once they
become former presidents, and making them open and available to
the public.
Mr. Clay. Would the National Archives and the Presidential
Libraries benefit by having a clear understanding of how the
White House is preserving records prior to the end of an
administration? Would it be helpful if you all could come in
and advise on the format and just the entire concept of
preserving electronic records?
Mr. Stern. Absolutely. It would help us, and it has helped
us to be able to work with the White House closely throughout
the administration. And I noted we worked most closely in the
last year on transition. We have, in fact, with this
administration and the prior ones, worked cooperatively
throughout the administration on records management issues.
Again, we do it, essentially, at their invitation in a
cooperative way and a voluntary way, but they do--all
administrations have looked to us because we have the
institutional, historical, and professional experience that a
brand new administration doesn't have. And so for the most
part, it works well overall, and the more information we can
get and understanding we can have of their records, their
systems, and all throughout the course of the administration,
the better it works.
Mr. Clay. Thank you for that response, and the legislation
we are discussing today would ensure that the National Archives
is kept informed at a minimum about the records management
systems used by the White House to preserve Presidential
records. And it seems clear that with such information, it
would be useful to the Archives, as it prepares to accept
Presidential records at the end of a President's term.
Let me say that this has been quite helpful, this hearing,
to this subcommittee. And I look forward to working with the
panelists on this legislation. And I will conclude this hearing
and say the subcommittee now stands adjourned, and that
concludes this hearing.
Thank you.
[Whereupon, at 3:07 p.m., the subcommittee was adjourned.]