[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



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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

                              ----------                              
                                                                   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

                              ----------                              


                       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.]

                                 
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