[Senate Hearing 117-562]
[From the U.S. Government Publishing Office]
S. Hrg. 117-562
CORRECTING THE RECORD: REFORMING FEDERAL
AND PRESIDENTIAL RECORDS MANAGEMENT
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HEARING
BEFORE THE
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
MARCH 15, 2022
__________
Available via the World Wide Web: http://www.govinfo.gov
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
49-909 PDF WASHINGTON : 2023
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware ROB PORTMAN, Ohio
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona RAND PAUL, Kentucky
JACKY ROSEN, Nevada JAMES LANKFORD, Oklahoma
ALEX PADILLA, California MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
JOSH HAWLEY, Missouri
David M. Weinberg, Staff Director
Zachary I. Schram, Chief Counsel
Matthew T. Cornelius, Senior Professional Staff Member
Emily I. Manna, Professional Staff Member
Jaqlyn E. Alderete, Research Assistant
Pamela Thiessen, Minority Staff Director
Amanda H. Neely, Minority Director of Governmental Affairs
Allen L. Huang, Minority Counsel
Laura W. Kilbride, Chief Clerk
Thomas J. Spino, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Peters............................................... 1
Senator Portman.............................................. 3
Senator Carper............................................... 14
Senator Lankford............................................. 19
Prepared statements:
Senator Peters............................................... 23
Senator Portman.............................................. 25
WITNESSES
Tuesday, March 15, 2022
Jason R. Baron, Professor of the Practice, College of Information
Studies, University of Maryland................................ 4
Anne Weismann, Outside Counsel for Citizens of Responsibility and
Ethics in Washington and the Project on Government Oversight... 6
Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public
Interest Law, The George Washington University Law School...... 8
Alphabetical List of Witnesses
Baron, Jason R.:
Testimony.................................................... 4
Prepared statement........................................... 28
Turley, Jonathan:
Testimony.................................................... 8
Prepared statement........................................... 50
Weismann, Anne:
Testimony.................................................... 6
Prepared statement........................................... 41
APPENDIX
National Coalition for History Statement for the Record.......... 61
Open the Government Statement for the Record..................... 63
CORRECTING THE RECORD:
REFORMING FEDERAL AND PRESIDENTIAL RECORDS MANAGEMENT
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TUESDAY, MARCH 15, 2022
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:15 a.m., via
Webex and in room SD-342, Dirksen Senate Office Building, Hon.
Gary Peters, Chairman of the Committee, presiding.
Present: Senators Peters, Carper, Hassan, Sinema, Ossoff,
Portman, Johnson, Lankford, Scott, and Hawley.
OPENING STATEMENT OF CHAIRMAN PETERS\1\
Chairman Peters. The Committee will come to order.
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\1\ The prepared statement of Senator Peters appears in the
Appendix on page 23.
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I would first like to thank our witnesses for joining us
today to help examine gaps in existing Federal records laws,
and to discuss how lawmakers can ensure the National Archives
and Records Administration (NARA), can adequately maintain and
preserve Presidential and Federal records.
The Federal Government produces and receives an absolutely
enormous volume of documents and records every single day.
These are essential to keeping an accurate account of what
activities the government engages in, as well as ensuring that
Americans, such as former servicemembers, are able to get to
the benefits they have so rightly earned.
Accurate Federal records are also critical to helping
Congress hold the Executive Branch accountable, ensure
appropriate use of taxpayer dollars, and make sure the Federal
Government is working effectively for the American people.
However, officials in previous administrations of both parties
have failed to adhere to current Federal recordkeeping
requirements, and in some cases, have blatantly disregarded
them.
Whether administrations avoided creating records of
meetings, used personal emails and devices, disappearing
message apps, or attempted to obscure their decisionmaking
processes, these failures to appropriately handle Presidential
and Federal records have limited transparency for the American
people, and risked letting critical moments in our nation's
history slip through the cracks. This has left the door wide
open for historical misrepresentations and distortion.
Most recently, we saw alarming reports that Presidential
records from the Trump administration were destroyed inside the
White House, and others were taken to the former President's
private residence, rather than being turned over to NARA.
Although some of these records have been recovered, it is
impossible for Congress to tell whether additional records have
been destroyed or improperly handled, or if NARA has received
all appropriate records from that administration.
This lack of transparency, and other challenges related to
enforcing our existing Federal records laws have made it
difficult for NARA to ensure it is receiving all relevant
Presidential records.
Other challenges, including inadequate resources and
technology, and the rapid proliferation of electronic records,
have also complicated NARA's responsibility to preserve these
essential documents.
For example, the National Personnel Records Center within
NARA, which is responsible for storing military personnel
records, faces a serious backlog of requests from veterans.
This backlog, along with limited accessibility during the
pandemic, has left veterans unable to obtain critical documents
that help them access benefits they depend on each and every
day. This is simply unacceptable, and a key reason that
Congress must urgently reform and modernize this process.
Additionally, the outdated computer systems and outdated
laws that regulate Federal recordkeeping have also made the
mishandling of sensitive and important documents more common.
This can have serious consequences for government transparency
and could conceal fraud, waste, and abuse from Congress as we
work to provide oversight of the Federal Government.
Despite these deficiencies, I remain confident that if this
body works together, on a bipartisan basis, we can work to
improve the Federal recordkeeping process. I am currently
working on legislation that will increase visibility, it will
strengthen existing laws, update regulations, and modernize
this process by using emerging technologies so we can ensure
NARA can adequately preserve, and provide appropriate access to
both Presidential and Federal records.
As we mark the 17th annual Sunshine Week, a nationwide
initiative dedicated to educating the public about the
importance of transparency in government, I look forward to
discussing how Congress can further strengthen Federal records
processes and improve transparency for all Americans. Today, I
am grateful to welcome a panel of experts, who can discuss our
Federal records management in much greater detail, help us
identify gaps in the law as well as its implementation, and
broadly discuss what actions Congress can take to better
protect the public record.
Thank you again for being here. We look forward to a robust
discussion.
Ranking Member Portman, you are now recognized for your
opening comments.
OPENING STATEMENT OF SENATOR PORTMAN\1\
Senator Portman. Thank you, Mr. Chairman, and thanks to our
witnesses for being here. Transparency in government is
obviously a pillar of our democracy and something we should all
ensure continues into the digital age, because it is harder and
harder, in some of the respects that we will talk about today.
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\1\ The prepared statement of Senator Portman appears in the
Appendix on page 25.
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It is an area I have worked on a lot. I have sponsored the
Data Act, the Access to Congressionally Mandated Reports Act,
the Open Courts Act, the Regulatory Accountability Act, and a
lot of others. When I was at the Office of Management and
Budget (OMB) I put all earmarks online, which had an
interesting effect in terms of transparency.
But in order to have that transparency and accountability
we need a record of what the government is doing, day in and
day out, what government is doing right and what government is
doing wrong. That way citizens can learn and hold their
government and officials accountable.
Having a fulsome record of government activity is also
important to the future. It is important to historians. It is
important to media. It is important to citizens to have that.
Think tanks can play an important role only if they have access
to information, as an example.
It is good that we are having this hearing today on how to
look at the Presidential Records Act (PRA) and the Federal
Records Act (FRA). It is a bipartisan issue, by the way. I can
see from the prepared comments that some of our witnesses will
reference our previous Presidential controversies, but will
note, as I do, that administrations of both parties have had
records-related issues, and lack of clarity has caused some of
that.
As a member of this Committee back in 2014, I worked on the
2014 amendments to the Presidential Records Act and Federal
Records Act. Among other things, we tried to streamline the
process for making Presidential records available to the public
after they go to the National Archives. We prohibited the use
of non-official electronic messaging accounts by covered
workers unless they copy or forward communications to official
accounts, clarified the definition of government records so
that it covers them regardless of what format they are in, and
provided an enforcement scheme for violations. In 2014 we went
through this and made a number of amendments, but the world has
actually changed quite a bit since 2014. Records have become
much more digitized. There are apps that make messages
disappear. There is also technology that automatically
categorizes documents.
I agree that we as a Committee should look into these and
other changes and see how the law might need updating to
account for changes since 2014. I am glad these three witnesses
are with us today to help us do just that. I see they have all
spent time dealing with records-related issues, so I want to
thank them in advance for testifying, and I look forward to
hearing what they have to say and engaging in a good dialog
about these issues.
Thank you, Mr. Chairman.
Chairman Peters. Thank you, Senator Portman.
It is the practice of the Homeland Security and Government
Affairs Committee (HSGAC) to swear in witnesses, so if each of
you would please stand and raise your right hand.
Do you swear that the testimony that you will give before
this Committee will be the truth, the whole truth, and nothing
but the truth, so help you, God?
Mr. Baron. I do.
Ms. Weismann. I do.
Mr. Turley. I do.
Chairman Peters. Thank you. You may be seated.
Our first witness is Jason Baron. Mr. Baron serves as the
Professor of the Practice at the University of Maryland's
College of Information Studies, or iSchool, where he taught the
first graduate-level seminar on e-discovery, a form of digital
investigation, here in the United States.
Mr. Baron brings 33 years of experience in public service,
including 13 years as the first appointed director of
litigation at NARA, and previously served as a trial attorney
and senior counsel at the U.S. Department of Justice (DOJ).
Mr. Baron regularly writes and speaks on subjects involving
preservation of and access to electronic records, and he has
also served as co-chair of the Working Group on Electronic
Document Retention and Production at the Second Conference.
Mr. Baron, welcome to the Committee. You may proceed with
your opening comments.
TESTIMONY OF JASON R. BARON,\1\ PROFESSOR OF THE PRACTICE,
COLLEGE OF INFORMATION STUDIES, UNIVERSITY OF MARYLAND
Mr. Baron. Thank you. Chairman Peters, Ranking Member
Portman, Members of the Committee, thank you for the
opportunity to testify here today regarding amending the
Presidential and Federal Records Acts. As the Senator
mentioned, during a 33-year career in Federal service I saw
first-hand the introduction of new communications technologies
that have transformed the way Federal employees create records.
Based on my experience in government and after, I believe that
further amendments to the PRA and the FRA are needed to keep up
with recent changes in technology.
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\1\ The prepared statement of Mr. Baron appears in the Appendix on
page 28.
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As a recent Government Accountability Office (GAO) report
stated, ``Records are the foundation of open government,
supporting the principles of transparency, participation, and
collaboration.''
One form of communications technology now poses what I see
is an existential threat to government recordkeeping, namely
forms of ephemeral messaging which self-destruct after messages
are sent. Such messages, when used by officials on matters
relating to government business simply vanish from history.
As the Committee is well aware, there have been numerous
instances of attention-grabbing headlines involving the use of
WhatsApp, Wickr, Confide, and Signal by White House staff and
other Federal officials. The popularity of these forms of
messaging apps effectively means that anyone in the Federal
Government can communicate in ways that amount to an end run
around the records laws that otherwise require adequate
documentation of government business.
I believe Federal employees, including in both the White
House and throughout the Executive Branch, should be prohibited
from using non-preservable electronic messaging apps to
transact government business. However, employees should still
be able to use messaging apps that are authorized for use by
the White House or by each agency, provided those messages are
captured in an official recordkeeping system.
Beyond that gap in current law, I believe we are at an
inflection point in the history of government recordkeeping.
Starting with the Reagan Administration and going through the
Trump administration, NARA now holds an estimated 600 million
emails, representing 3 billion pages. Can the American people
get access to most of those records? Theoretically yes, but as
a practical matter less than one-tenth of one percent of these
records have been opened.
Pursuant to policies put into effect in 2019, starting on
December 31, 2022, the end of this year, NARA will no longer
take in newly created paper records. All this means NARA should
expect to receive literally billions of electronic records over
the coming decades, a huge challenge that calls for new
advanced search technologies to provide access to the American
people.
Looming perhaps even larger, by the same end of 2022 date,
all Federal agencies will be required to preserve both their
temporary and permanent records in electronic form. Without
employing advanced search technologies and advanced analytics,
agencies are going to be under an increasingly huge burden in
categorizing their records, disposing of their records in
accordance with records schedules, and providing access to
those records to Congress and to the American people.
For these reasons I support two further policy initiatives
to be codified in current law that will assist in
recordkeeping, given the new reality. First, I believe the
current voluntary policy known as Capstone for the archiving of
senior official emails should be codified in statute, not only
to ensure that all agencies preserve these records but that
electronic messaging, including ephemeral apps, also be
captured for permanent preservation.
Second, I believe the government could learn from industry
and academia how machine learning and advanced data analytics
are used in the private sector to manage, categorize, search,
and provide access to electronic records. That is why I believe
a high-level advisory committee consisting of subject matter
experts would be helpful in jump-starting records management
and records access throughout the government. New forms of
communications technology have led us to this moment, and new
forms of advanced artificial intelligence (AI) software can
help address the profound records management challenges the
government faces.
Thank you, and I look forward to the discussion here today.
Chairman Peters. Thank you, Mr. Baron.
Our next witness is Anne Weismann. Ms. Weismann is a public
interest lawyer and the former Chief Counsel and Chief Freedom
of Information Act (FOIA) Counsel at Citizens for
Responsibility and Ethics in Washington (CREW), a nonprofit
organization committed to deterring unethical government
conduct.
Ms. Weismann has handled a wide range of high-profile
litigation lawsuits which sought public access to White House
visitor records and the recovery and restoration of millions of
missing White House emails.
Previously, Ms. Weismann has served as an assistant branch
director at the Department of Justice, where she oversaw the
Department's government information litigation.
Ms. Weismann, welcome to the Committee. You may proceed
with your opening comments.
TESTIMONY OF ANNE WEISMANN,\1\ OUTSIDE COUNSEL FOR CITIZENS FOR
RESPONSIBILITY AND ETHICS IN WASHINGTON AND THE PROJECT ON
GOVERNMENT OVERSIGHT
Ms. Weismann. Thank you. Chairman Peters, Ranking Member
Portman, and Members of the Committee, thank you for the
opportunity to testify today about needed reforms to the
Presidential Records Act and the Federal Records Act. I am
testifying on my own behalf.
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\1\ The prepared statement of Ms. Weismann appears in the Appendix
on page 41.
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I have spent many years seeking to enforce these statutes
through litigation, to ensure the preservation of our nation's
history and the accountability that comes from public access to
government information. In that capacity, I have experienced
the frustrating limitations of these laws. Today I highlight
some proposed reforms to address those limitations and ensure
the statutes' continued vitality in a digital age.
Both the PRA and the FRA fall short in two significant
respects. First, neither contains sufficiently effective
enforcement mechanisms, which has placed the preservation of
our historical record at considerable risk. Second, as products
of an era when the government operated exclusively in paper,
neither has kept pace with changing technologies. Recent events
highlight these problems, but their origins date back decades,
accelerated by the transition to a digital environment.
In my written testimony I outline the disturbing and
ongoing trend of administrations from both political parties of
ignoring or outright flouting their recordkeeping
responsibilities. This is a bipartisan problem that demands a
bipartisan solution.
I also testified in my written testimony about my
unsuccessful attempts through litigation to redress these
recordkeeping violations. In each case the judicial system
provided no relief, believing it lacked any authority to
enforce the terms of the PRA. Why did Congress enact such a
toothless law? It assumed Presidents would voluntarily comply,
both because they would surely recognize the rule of law that
is so fundamental to our democracy and because they would want
to preserve their place in history through a full historical
record.
We now have reason to question the efficacy of the norm-
based system that underlines the PRA. It is, therefore, up to
Congress to transform the PRA to a statute that achieves its
intended purpose--preserving our history.
As a first step, Congress should establish a bright-line
rule that all Presidential records, given their inherent value,
merit preservation by eliminating the disposal provision of the
PRA.
Congress should require the White House Counsel to certify
to the Archivist on a quarterly basis those PRA-covered
employees who are in compliance with the law. Certification
affords a level of accountability and transparency currently
absent in the statute.
Congress should require the Office of Administration to
report to Congress and the Archivist at least annually on
Executive Office of the President (EOPs) implementation of the
recordkeeping laws. This can serve as an early warning system
to avoid learning of recordkeeping violations after an
administration has left office and remediation may not be
possible.
The PRA should impose a mandatory reporting requirement on
the White House Counsel to advise the Archivist and the
Attorney General (AG) about the threatened or actual
destruction of a record or systemic problems, and should charge
the White House Counsel with fixing those problems.
Congress should require the White House Counsel to share
with the Archivist at the beginning of a new administration
recordkeeping guidance for the Executive Office of the
President, to be posted on NARA's website.
Finally, Congress should conform the PRA with the technical
realities of the 21st century by prohibiting the use of any
technology that does not enable the preservation of records
created by that technology.
I will refer to my written testimony for needed reforms to
the Federal Records Act.
But let me close with this. The PRA and the FRA rest on the
central proposition that government records, as the records of
the people, play an essential role in creating a stronger
democracy. But both statutes have proven to be no match for the
advances of technology and individuals intent on operating in
secrecy and without accountability. The recent revelations
raised the concern that this important issue will be dismissed
as nothing more than partisan politics in Washington. I hope
this is not the case. Absent a legislative fix, the gap in our
historical record will continue to widen, and government
officials, including those at the highest levels, will feel
empowered to ignore their recordkeeping obligations at will.
I look forward to working with the Committee on this issue.
Thank you.
Chairman Peters. Thank you, Ms. Weismann.
Our final witness is Jonathan Turley. Mr. Turley is
Professor of Public Interest Law at the George Washington
University (GWU) Law School, and is a nationally recognized
legal scholar who has written extensively in areas ranging from
constitutional law to legal theory to tort law.
Professor Turley is also a recognized legal commentator,
whose articles on legal and policy issues regularly appear in
national newspapers. Professor Turley has also served as
counsel in a variety of national security and terrorism cases.
Professor, welcome to the Committee. We look forward to
hearing your testimony.
TESTIMONY OF JONATHAN TURLEY,\1\ J.B. AND MAURICE C. SHAPIRO
PROFESSOR OF PUBLIC INTEREST LAW, THE GEORGE WASHINGTON
UNIVERSITY LAW SCHOOL
Mr. Turley. Thank you, Chairman Peters, Ranking Member
Portman, and Members of the Homeland Security and Governmental
Affairs Committee. It is a great honor to appear before you to
talk about efforts to reform Federal and Presidential record
management.
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\1\ The prepared statement of Mr. Turley appears in the Appendix on
page 50.
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Twenty years ago, I testified on the Presidential Records
Act and the need, even then, to create reforms to protect and
preserve the records of our country. The FRA and PRA were
transformative laws that guaranteed not only greater
transparency but accountability for the actions taken in the
name of the public. It is said that those who cannot remember
the past are condemned to repeat it. These laws are meant to
stop that from being a reality for this republic.
While I am happy to discuss other proposals, my written
testimony talks about six areas of possible reforms. There is
great overlap with my colleagues on the panel, and I am greatly
honored to appear with them, and particularly Anne Weismann,
who is one of the graduates of George Washington Law School,
one of our more esteemed graduates. I also commend the
Committee for guaranteeing that any panel should have a
majority of people connected to George Washington Law School.
The first area that I address is addressing new technology,
that has been discussed already by some of our panel. The
Congress has attempted to deal with that with the Presidential
and Federal Records Act, and more importantly the Electronic
Message Preservation Act. But ambiguity still exists, and those
ambiguities exacerbate the erosion of the standards in the face
of new social media technology.
That technology is now dominant as a form of communication,
with three billion social media users. Officials in government,
like all citizens, move casually between platforms, and that
creates much of the problems that we are seeing. One of the
problems that I focus on, as do some of my colleagues, is the
use of message-deleting technology--Telegram, WhatsApp, Wickr,
and Confide--those types of platforms that immediately destroy
messaging.
One of the things I suggest is that the use of these apps
should be treated as a disposal decision. Since they
automatically dispose of these messages they should be banned
unless the apps are modified, as noted by Jason.
I also address deterring the use of unofficial accounts and
mandating agency adoption of Capstone policies, another issue
that Jason has taken a lead in. I do not understand why we do
not make the Capstone policies a mandatory obligation on
agencies. I have never heard an explanation why we do not
codify that standard.
I also suggest, and this is consistent with Anne's
testimony, the elimination of disposal discretion in
Presidents. Again, I have never seen a particularly compelling
argument in today's digitized age for leaving that authority
under 2203(c)(e) with the White House. Perhaps one could be
made, but I have not seen it.
It seems to me that given the thrust of our laws, the
Archivist is in an excellent position to make those types of
decisions. It is often the case that you do not realize the
importance of a record until many years later, and it just
seems odd to me that we give that discretion under Section
2203.
I also commend the effort to create certifications regular,
whether annual or quarterly. The importance of that is that it
reminds officials to be cautious and careful. I also commend
the use of citizen lawsuits, although I do have some concerns
with the citizen lawsuit provision in the law. It seems to me
that we have to have a better idea of the standard and basis
for those types of actions to avoid constitutional problems.
Finally, while the first five proposals effectively cut
against the Executive Branch, the sixth one suggests the
possibility of accommodating the Executive Branch. I think that
the basis for overwriting President Trump's privilege
assertions was warranted. It was certainly lawful. The question
is whether we want, in the future, to have a more clear
standard and the possibility of a bicameral solution to
overriding Presidents in those first critical years after they
leave office. I suggest among those standards the one used
under shield laws, to establish a need that cannot be
accomplished elsewhere.
I will end, as a Madisonian scholar, that I will note that
tomorrow is James Madison's birthday. He would be 271, and if
he were alive today we would all be better for it.
But I will also note, as is often talked about, with his
quote, ``The popular government without popular information or
the means of acquiring it is but a prologue to a farce or a
tragedy.'' He was actually referring to public education, not
public access to information, but if you read him more closely
what he is really talking about is an educated and informed
public. Therefore I have no reservations to appropriate his
quote and to say that these laws and these reforms can help us
avoid both that farce and that tragedy.
Thank you very much.
Chairman Peters. Thank you, Mr. Turley.
My first question is going to be to all of you. I will
start with Mr. Baron and then we will work down the table
there.
In all of your testimony you highlighted a number of
challenges that we have with both Presidential and Federal
management records. I want to try to bring this down to what
you think is the most important challenges, each of you, of the
number of things that you have said. If you were going to give
me one or two most important, Mr. Baron, what would that be?
Mr. Baron. I think recordkeeping is all about
accountability. The American people deserve to know what their
government is up to. The way to do that, in 2022, is to update
the law to take into account there are so many new technologies
that are out there, both ones that the government is struggling
to deal with in terms of like ephemeral communications, but
also there are technologies that could help the government in
meeting its challenges. We want to talk about that, in terms of
managing access records, including with artificial intelligence
and machine learning.
Chairman Peters. Great. Ms. Weismann.
Ms. Weismann. I think the lack of an effective and robust
enforcement scheme, in both statutes, is a problem. I have
outlined in my written testimony how we can beef up the
enforcement system in the FRA, which I think is really called
for because the enforcement scheme, as it currently exists,
really is responding to operating in a paper world, and we do
not anymore.
With the PRA, I agree with Professor Turley that there are
potential constitutional problems, but I do not think we have
to go that far, and that is why I placed the emphasis, and
think it needs to be placed, on building in certain guardrails,
whether it is annual or quarterly reporting requirements,
making sure that Congress and the Archivist are up to date
about what is going on in the White House, so we do not have a
situation that after a President leaves office we find that, in
fact, there were systemic violations and records may have been
lost.
Chairman Peters. Thank you, Ms. Weismann. Mr. Turley.
Mr. Turley. Thank you, Mr. Chairman. I guess I would rank
them as, first and foremost, dealing with ephemeral messaging
systems. It seems to me that that has to be a priority. It
should be barred, absent a modified system that allows
recording of that messaging. A simple approach is that the use
of those types of apps should be viewed as a destruction
decision, a disposal decision, on contravention of Federal law.
Second, I would like to see the Capstone system codified. I
do not see why it is not. It is one of those things where I
looked it to see, I must be missing something. But NARA has
pushed for many years for Capstone to be adopted by agencies.
Finally, I do think that this Committee should consider the
recent controversy with the override of President Trump's
privilege assertions, not because that was the wrong decision.
But I am a little worried about overrides in the future, from
President Biden on. Politics has become incredibly bitter and
divided today. It seems to me that there could be an
accommodation by Congress to make sure that we have a bicameral
approach or to have a more detailed standard that pushes
committees to find material by other sources before they take
this critical step.
Chairman Peters. Thank you. I am going to ask all of you
again, and this time I will start with Professor Turley and
work the other way, in fairness.
I think all of you have seen draft language of legislation
that I am working on to deal with this situation, and Professor
Turley, I think you referenced it in your testimony as well. I
would like to go down the panel, what are your thoughts on that
legislation? Does it address some of these key issues? Just
generally, what do you think about the draft as you have seen
it so far? Professor Turley.
Mr. Turley. I think it is an excellent platform to address
many of the issues that we have been talking about. The one
area that I, quite frankly, am a little bit concerned with is
the citizen lawsuit provisions, the private cause of action. I
am a huge advocate of what are called private attorneys general
provisions. It is just that I am a little bit uncertain as to
the standard and how that would be used.
As you know, researchers and historians have sued in the
past, and successfully have brought actions. I like the idea of
empowering that further. It is just that we have to be a little
bit careful with the Nixon case as to how far that would go
without triggering a separation of powers fight and the other
constitutional concerns.
Chairman Peters. The other aspects or the other parts of
the legislation you support?
Mr. Turley. I really like the certification requirements,
particularly, in some ways because it reminds officials not to
use these unofficial platforms and devices. I think there are
two groups of officials we are dealing with, the sort of
clueless and conspiratorial, right. A lot of people are just
clueless. They move so casually between devices, you can
forget. Certification sort of is a shot across the bow saying
``this is not allowed.'' It also is a formal Federal statement
that could be used against you if you say something false.
Chairman Peters. All right. Thank you. Ms. Weismann, your
thoughts.
Ms. Weismann. I think it is an excellent start, and
actually more than a start. I really applaud how comprehensive
it is. I think that it is really dealing with the major issues
that we have seen and we have commented on. I support it
wholeheartedly.
Chairman Peters. Great. Thank you. Mr. Baron.
Mr. Baron. I support the provisions that I have seen. In
particular, though, I think the bill addresses the fact that
ephemeral messaging apps should be prohibited except when they
are captured or archived in what I would hope to be in the same
place that the Capstone email repositories are. I like that a
lot.
I like the codification of Capstone being statutory or
mandatory instead of voluntary. From my written testimony you
know that I am a big advocate of new ways of dealing with
search and with providing access to the American people, and
the only way to do that is what the bill suggests, is have
experts talk to the government. The government could learn from
academia and industry about artificial intelligence, machine
learning, and other analytics. I am a big proponent of that for
the government.
Chairman Peters. Thank you, Mr. Baron.
Ranking Member Portman, you are recognized for your
questions.
Senator Portman. Great. Thanks, Chairman. Thank you to the
witnesses.
We talked about ambiguity a little, and earlier I mentioned
that clarification is needed, and Professor Turley, you talked
about how ambiguity can lead to problems. I think complexity
can too, which is part of ambiguity, I suppose, but
specifically, keeping it as simple as possible.
I was Associate Counsel to the President under President
George H. W. Bush, the first Bush, and one of my jobs was to
try to help interpret the rules at the time, which were
actually far different than they are now. Then I served in the
second Bush Administration as well, including at the Office of
Management and Budget, so I had the same sort of issues with
some of my team, which is just confusion about what the rules
are. People come in and out of the Executive Branch,
particularly at the White House, with some frequency. Maybe in
some of the agencies people stay longer. A lot of them are
younger and a lot of them really do not have an intuitive sense
of what this is about because it does not make sense, given
their private lives and their work lives, where they are free
to be able to destroy records that might be sensitive or even
embarrassing.
What do you all think about that? Maybe start with you
first, Professor Turley, since you talked about ambiguity, and
I would add complexity there as an issue. You talked about the
Capstone system as an example, which is not mandated, and that
is confusing to people, I think. What are your thoughts on
that?
Mr. Turley. Senator Portman, I think that your concern is
more than justified in the sense that real people have to use
these rules, and you do not want rules that only the White
House Counsel and his experts understand. You need rules that
your average official, sitting there, knows where that line is.
It may be one of the most unique hearings of my life. This
actually would simplify things. Usually things get more complex
around here. But we would simplify it in a couple of ways. One
is by codifying Capstone you would have a consistent approach
across the agencies, and it actually takes away a lot of
decisions. It just goes ahead and preserves records.
By getting rid of the disposal authority in the White
House, I do not really think the White House loses much. I have
never understood why it was so necessary to have that, instead
of just preserving it, leaving it for the archives. Then
banning ephemeral systems once again creates a bright-line
rule, as do these regular certifications.
In those terms I think this does create bright lines and
actually simplifies things, because I readily agree with you
that the only way that we will be able to successfully
accomplish this mission is for people to understand where those
lines are.
Senator Portman. Yes, and the other part of this is--and I
understand we are working on some legislation here to try to
create brighter lines. But if the bright lines do not make
sense to people, in other words, if it seems counterintuitive,
that is an issue as well. And so personal communication as an
example, how do you delineate that? Then this broader issue,
that maybe all of the panel can talk about, which is really the
balance of preserving records and the value of public
disclosure, which we talked about, and the importance of
confidentiality of certain sensitive, particularly Presidential
communications. Where is that line?
Maybe Mr. Baron and Ms. Weismann, you could talk about
that.
Mr. Baron. Thank you, Senator. I do want to say that your
point about confusion is well taken, but there is a larger
issue about compliance in the government. One of the reasons
that Capstone is so successful, even though voluntary, on the
part of about 200 Federal agencies, is because it automates the
process. It takes the burden away from people so that the
computer system, can basically take senior-level officials'
emails and put them into an archive without anybody having to
manually do anything. That is that point.
The rules of confidentiality, well, in one sense it is very
important at the White House for every record is going to be
permanently preserved, and so FOIA does not apply. But FOIA
does apply five years after a President leaves office, and so
subject to restrictions. Records are confidential in some
sense, but they need to be made. They need to be created. If
ephemeral communications are essentially acting as an end run
around normal recordkeeping, at the White House or in the
Executive Branch, those records will not be preserved.
Senator Portman. Yes. By ``ephemeral'' you mean using the
apps that destroy the message after it is sent?
Mr. Baron. That is right.
Senator Portman. Ms. Weismann.
Ms. Weismann. On the issue of confidentiality, we have a
rich history and tradition of protecting that through the
assertion of executive privilege, and in this respect I
respectfully disagree with Professor Turley. I think the recent
example with the assertion by former President Trump and the
refusal of President Biden to recognize that assertion
illustrates exactly that we have the right processes in place.
President Trump had the ability to fully explain his
position and assert his interest in several courts, as did the
President, and several courts weighed those assertions and made
a decision, and they did so based on, a well-developed body of
case law. Privilege claims are really the bread and butter of
what courts do.
I think there are definitely protections already in place
to ensure confidentiality. The PRA itself has those protections
in place by providing for confidentiality for a set number of
years. But we also now know that there are processes that a
former President can use in order to protect interests that
they believe need to be protected.
I am of the view that there are adequate protections
already in the judicial system that we have.
Senator Portman. Mr. Turley, a response to that?
Mr. Turley. I would respectfully disagree, and I do not
think we are that far apart. I think we share many of the same
values with regard to these laws, and I think we share the same
conclusion as to this particular controversy.
What I was suggesting in my testimony is that there is an
ambiguity here. I do not agree that the standard is so clear
for Presidents that when they go to court that they can really
address the full scope of the concerns here. If you
procedurally are correct in the use of this act, the only thing
that really a court can balance is a type of Nixon criteria as
to separation of powers, and that is a standard that is largely
still favoring disclosure in many of these cases.
All I am suggesting is that Congress can consider, in
addition to these other proposals that cut back on the
Executive Branch, it can consider articulating a clearer
standard. It seems to me the standard on the shield laws fits
sort of nicely with these issues. That if you take, for
example, the Trump controversy and the override, I expect you
could have gotten a bicameral vote to get access.
But putting that aside, the standard itself is simply
suggesting that if you can get this information from another
source, as we do under shield laws, that should be the first
course that you would case. Because I think there is room for
mischief in the future, and I am worried, because we see the
terrible divisions in our politics today. I am worried about
President Biden and other successors in being able to feel
confident that their communications will be confidential,
particularly for that period immediately after they leave
office.
Senator Portman. Yes. I think that is a good point.
My time has expired, but if you all could make sure all
three of you give us your specific views on the private right
of action issue and whether there is a necessary standard and
basis that you would think would be necessary in order for
people to be able to pursue a private right of action. I have
concerns about that, but I want to hear from each of you. If
you could provide your written comments on that, that would be
great.
Thank you, Mr. Chairman.
Chairman Peters. Thank you, Ranking Member Portman.
Senator Carper, you are recognized for your questions.
OPENING STATEMENT OF SENATOR CARPER
Senator Carper. Thanks so much, Mr. Chairman, and to our
witnesses, good morning and thank you all for joining us today.
I have three questions I am going to try to get to. One of
those deals with the importance of Federal records management
for accountability and transparency, and the second one deals
with how the Presidential and Federal Records Act amendments of
2014 helped to improve transparency across the Executive
Branch, and the gaps that still remain. The third question will
focus on improving our role in records management through
enhanced support.
I will start off, for each of our three witnesses, on the
importance of Federal records management for accountability and
transparency. Ms. Weismann, Professor Baron, and Mr. Turley.
I was fortunate enough to be Chairman of this Committee in
2014. Our Ranking Member was Tom Culvert. He and I took on the
very important issue of modernizing the Presidential and
Federal records to try to capture and archive electronic
records, among other things. The legislation was bipartisan,
and I am proud to say it was bicameral, because we all
recognized that as public servants our duty was to provide
transparency and to deliver results to the American people, for
whom we work.
Ms. Weismann, followed by Professor Baron and Mr. Turley,
for some the issue of Federal record reform can be pretty dry
or even boring, in fact. Briefly, can you provide more context
as to why every American should pay attention to this
conversation? Why is this important?
Ms. Weismann. It is important because this is our history.
These records tell our story, as a Nation. We cannot possibly
understand how to chart a course forward if we do not
understand what happened in the past.
They are also important for accountability. This Committee
and other committees depend on the availability of records that
explain what happened and why it happened. It is important for
public accountability. Laws like the Freedom of Information Act
would have no utility whatsoever if there were no records.
Journalists would not be able to do their job if there were no
records.
So, information is really the cornerstone of our democracy,
and that is why it is so critical that this Committee act to
take steps to ensure that records are preserved.
Senator Carper. OK, great. Thanks so much. Professor Baron,
the same question, if you would please. Why is this important
to the American people?
Mr. Baron. Sure. Thank you, Senator. We are talking today
about the Presidential Records Act and the Federal Records Act,
when it was enacted in 1978, it made clear that the President's
records, records of the White House, are not owned by a
President. They are owned by the American people. That is the
first point about accountability.
Second, with the Federal Records Act, ever since 1950,
there has been a requirement that every agency in the
government adequately document its activities. Ms. Weismann is
exactly right. You have to create records and manage the
records, preserve the records so that you can provide access to
the American people of those records, and the Freedom of
Information Act has been with us since 1966.
The problem in 2022, is that we are literally talking about
billions of records in electronic form, something that agencies
have not dealt with and the National Archives has not dealt
with on that scale. It is a very timely hearing here, to be
able to discuss what to do to move forward in the next decade
so that we can continue to have accountability for the American
people.
Senator Carper. Good. Thank you, Mr. Baron. Mr. Turley,
please.
Mr. Turley. Thank you, Senator. There is, as usual, much
agreement between the three of us. Notably outside of the
National Archives is a statute that says the past is prologue,
and that is the premise of much of these laws, that we will
repeat the errors of the past if we do not understand them, and
we will not understand them unless we preserve the record of
what has been done in the public's name. That is the reason, I
think, all three of us share a natural default for preservation
and a faith in the archives to make proper decisions.
But I also wanted to note that as we look at how these
things work interstitially, between these laws, there are
significant differences, surprisingly so, between the FRA and
the PRA, on issues like disposal policies, that we can simply.
I agree with Mr. Baron that by some of the things that all
three of us are supporting here would actually bring greater
clarity, and to Senator Portman's view, greater simplicity in
we deal with these issues. I am a huge advocate for simplifying
these rules so that people understand them.
Senator Carper. OK, great. Thank you. My second question
will be for Ms. Weismann and for Professor Baron. Former
Senator Coburn and I set out to reform the Presidential Records
Act, eight years ago, to establish a clear process by which
incumbent and former Presidents could review Presidential
records prior to their release and to improve the Federal
Government's ability to capture and archive electronic records.
What are some lessons learned from these reform efforts,
both Federal and Presidential recordkeeping, and what did
Congress miss that we should prioritize addressing now? Two
questions. What are some lessons learned from these reform
efforts for Federal and Presidential recordkeeping, and second,
what did Congress miss that we should prioritize addressing
now? That would be for Ms. Weismann and Professor Baron. Ms.
Weismann, go ahead.
Ms. Weismann. I think one of the lessons learned is the
need to keep pace with technology. Technology, as Jason Baron
has been emphasizing, is both our savior and could eventually
be the downfall of us all. We cannot keep pace with it.
I think the amendments that Congress has already made have
been an important first step but they are a first step only. We
need to deal in a more comprehensive and decisive way,
especially with ephemeral messages.
Senator Carper. Thank you. Professor Baron, same question,
please.
Mr. Baron. I think the 2014 amendment did some important
things. It modernized the definition of a Federal record in
acknowledging expressly digital or electronic records were part
of the world of recordkeeping.
But the lesson learned, I think, especially in the
provisions related to non-official accounts and using them, is
that there is a very difficult problem with compliance in
government. If you leave individuals to copy or forward their
electronic messages, they are very busy. You all understand
that. Not everybody can copy or forward 100 messages a day.
That is why I have been advocating for a long time that we
automate the process. So between 2014 and 2022, because of
compliance concerns, I think it is time to spend a moment here
to talk about automation of recordkeeping and moving forward in
that way.
Senator Carper. All right. Thank you very much.
My time has expired, Mr. Chairman. I want to mention my
third question, for the record. What does the National Archives
and records administration require to ensure that agency can
fulfill its mission, particularly in the digital age. I will
ask that one for the record.
Again, our thanks to all of you for being with us today and
helping us take up the issue that was important eight years ago
when Senator Coburn and I led the effort on this, and it is
important still today. Thank you very much.
Chairman Peters. Thank you, Senator Carper.
Senator Lankford, you are recognized for your questions.
Senator Lankford. Mr. Chairman, thank you. Thanks to all of
our witnesses in this conversation. Let me get to the human
side of this as well, because the more you pull on people to
say you have to give us every scrap of every piece, the more
you incentivize people to work off the record, because they
want to have private conversations. These are human beings as
well.
Regardless of the administration or the perspective, every
administration is looking for a way that we can actually just
talk to each other without having to have everything that we
have get pulled into this record, whether hit is Hillary
Clinton and her private server, whether it is others that are
trying to be able to pull into it and say, ``I have to find
some way to be able to have off-the-record conversations for
things,'' or whether it was Gmail originally, with multiple
administrations now, or now messaging apps, to be able to make
messages disappear.
My question to you is a larger, broader question. How do we
process through a private conversation, that is a purely
private conversation between two peers or two individuals, or
even the President and his staff that is a private conversation
and a public conversation, or would you define it as you are
the President, you are on the President's staff, and everything
you have should be actually gathered, you have no such thing as
a private life?
Ms. Weismann, do you want to start with that? Mr. Turley,
do you want to jump in?
Ms. Weismann. Yes. The Presidential Records Act itself
defines Presidential record very broadly, and essentially you
are correct--the President has no private life. That is as long
as the President is acting in an official, constitutional, or
ceremonial capacity, the records that are generated must be
preserved.
Now I think the degree to which a President or an agency
official can have a private conversation or keep certain
records confidential is a separate issue that should be kept
separate from the issue of preservation, because if you do not
even have preservation, issues about potential privileges fall
out altogether.
But I think the Presidential Records Act, at its heart,
recognizes that because someone is the President, everything
they do and say is relevant and important and needs to be
preserved, unless they are acting in a purely personal
capacity--a letter to a grandchild, for example--or in a purely
political way--they are head of their political party. Those
records are not preserved under the PRA, but otherwise it is
all fair game.
Senator Lankford. Right. Mr. Turley, my question. Is this
defined overly broad and it actually encourages people to be
able to push outside the box?
Mr. Turley. It is exceptionally broad, but it is designed
to be broad to have the natural default toward preservation.
But I think your point is well taken, and more importantly, the
Supreme Court views your point as well taken. The Supreme Court
has repeatedly said that there is a danger when you chill
communications in the White House. This is not for personal
stuff. This is on official material, that you can have a
chilling effect on people being willing to be open about
issues.
When it comes to personal matters, my colleagues is
correct, that technically, on a purely personal matter, it is
not an official record. But because you are President of the
United States there are very few things that people consider to
be entirely personal.
The real gatekeeper there, for the White House, is the fact
of the White House Counsel and the Archivist, who can help sort
of delineate those lines, to create some breathing space.
I do think that it is important not to discount this, that
is, yes, Presidents are political animals, but living in a
fishbowl, on every level of your life, is not healthy. This
goes back to what Senator Portman was talking about as well,
that is we have to try, at least, to create these bright-line
rules.
But I think the key role here is with the White House
Counsel and the Archivist to make that as clear as possible, of
what subjects can be done without that falling under the PRA.
Senator Lankford. Right. The clearest example of that is
Congress does not live under that same rule. None of us here
have the rule that we have no document, no scrap of paper, no
anything that we have that cannot be destroyed and has to be
preserved. Congress gets to choose what they are doing as far
as what is private and what is public on that, and that does
not seem to be so with the Executive Branch.
What I am trying to figure out is how do we create a system
where we are incentivizing the preservation of records, because
people want to know, they want to study it, they want to look
back on the history. All of us are still upset with Martha
Washington for burning every one of those papers, 250 years
ago. We get that. But there is a whole series of things that
are also dealing with the humanity of people that we also have
to acknowledge on this and try to figure out how to be able to
create a system where we are incentivizing keeping records
rather than incentivizing actually trying to be able to work
outside the system by a long term.
We have a challenge here with Congress as well in trying to
be able to get documents from agencies, period, on this. For
some reason, of late, it is faster to FOIA a record than it is
for Congress to actually request a record. That has become a
very significant issue where administrations are saying, ``Yes,
we have those records but we are not going to turn those
over,'' but if there is a FOIA record, amazingly, of late, the
records get turned over to Congress the same day the FOIA is
released to an outside entity. That is a separate issue that we
have to be able to determine what happens.
I have seen this even in requests that we made. Agencies
are creating a new standard for religious accommodation for the
vaccines. This has existed in agencies before, and so they
released, out on the Federal Register, we are going to keep
track of people that work in the Federal Government, what their
religious preference is, and we are going store that in their
records. We are going to request that from individuals and
store it in their records. Suddenly now we have a record that I
would assume would be FOIA-able at some point, or it would
become a permanent part of record that people could actually
get access to, that has personal information on their religious
preferences. That gets into the mix of this. That is a
different issue on records, but it becomes a pretty significant
issue.
Professor Turley, do you have a comment on that?
Mr. Turley. No. I think that is absolutely true. I have
another default, as a Madisonian scholar, and that is I tend to
favor Congress and fights like this. I totally agree with you
that there continues to be a lack of responsiveness, and this
is not a Republican or Democratic issue. I do not know how many
times I have testified about this.
Congress can do more to be aggressive enforcing
disclosures. When they have gone to court they have largely
prevailed, asserting their right to information. I do think
that is something we have to look at very closely.
I also want to note something else. When you raised the
fact that these laws can encourage, give sort of perverse
incentive for people to go offline, that is well documented. We
have previous administrations where officials admitted that
they were meeting at Starbucks and finding ways to avoid
creating paper records. Your concern is well founded, I think,
in history.
Senator Lankford. Mr. Chairman, thank you.
Chairman Peters. Thank you, Senator Lankford.
OPENING STATEMENT OF SENATOR LANKFORD
Mr. Baron, as you mentioned in your testimony, after 2022,
NARA is going to no longer accept Executive Branch records in
paper form. Could you explain to this Committee the magnitude
of this policy change and the challenges it is going to pose to
NARA and, quite frankly, the rest of the Executive Branch?
Mr. Baron. Senator, it is transformative. The fact that
NARA will no longer take paper but only digital or electronic
records means that over the course of this decade and beyond
there will be tremendous amounts of records--I have said
billions--that are coming. I am afraid that because of personal
information in those records it is going to be very difficult
to use current processes for the American people to get access
to them. That is a very big challenge.
But the 2022 mandate from Archivist and OMB also means that
after this year every Executive Branch agency is also going
electronic. They are transitioning so that all of their records
are being managed electronically, and that means that they need
to categorize them in a certain way, and they need to dispose
of them, and they need to search them for FOIA purposes. All of
that is very difficult if you have tremendous amounts of
electronic records that are there. We already see that in
Capstone repositories, which I support wholeheartedly because
it is an archive of emails that otherwise would never have been
printed out and saved as government files.
We have to orient ourselves. We have to reimagine Federal
recordkeeping to deal with these volumes that are coming.
Chairman Peters. You talked about, in some of your previous
technology, about technological advances in resources. Could
you tell us more exactly what we are going to need to do and
what sort of resources may be necessary to be able to get a
handle around these documents?
Mr. Baron. Senator, as I stated in my written testimony, I
have been a lawyer involved in e-discovery, electronic
discovery, for the last couple of decades. The legal community
knows what state-of-the-art machine learning can do for finding
responsive documents and filtering them for privilege.
There seems to be a gap. There is the private sector that
has some experience now with really state-of-the-art artificial
intelligence, and not so much in government. There are some
agencies that know about these tools from a litigator's
perspective, but no one in the FOIA community and no one in the
records management community are using machine learning for
records management purposes, or if they do, they are very small
numbers throughout the government.
We really need to have a conversation and have experts lead
that conversation so that recordkeeping can deal with these
large volumes of records. There are ways. There are tools that
I know well about and lawyers know about in the community I
practice in that can really be helpful to the government. Why
not use them?
Chairman Peters. Mr. Baron, NARA has sometimes been unable
to keep up with the pace necessary to digitize records in a
timely way, and certainly the pandemic has exacerbated this
problem. The agency has struggled to reopen research rooms all
across the country and has amassed considerable backlogs of
requests as a result of that.
One particularly glaring example that I have noticed is the
backlog of requests for veterans' records from the National
Personnel Records Center. My question to you, sir, is, from
your perspective, what is the primary reason behind these
extensive backlogs and delays?
Mr. Baron. I could tell you that I am not at NARA anymore
and so I cannot speak for them. But my understanding is that
this is, as you say, a very big challenge, especially with
veterans' records. Because of what NARA has done, which is to
follow the Center for Disease Control and Prevention (CDC)
guidelines on Coronavirus Disease 2019 (COVID-19), they have
essentially not been able to get to the backlog, and that is
unfortunate.
I do have good news about researchers and research rooms. I
heard Archivist David Ferriero say, last week, that NARA is
essentially giving limited appointments to researchers to come
in to do their research, and hopefully that will expand to
both, on a larger scale for research rooms to be open and for
citizens be able to use NARA. We all want that.
I hear you. I understand that it is a large problem, but I
think NARA is working on it.
Chairman Peters. Ms. Weismann, current law does not set any
requirements for the transfer of Presidential records to NARA
at the end of the administration, beyond making NARA
responsible for the records at the end of the President's term.
My question for you, does this lack of requirement around
the transfer of Presidential records to NARA create some real
problems for both preservation and access?
Ms. Weismann. Absolutely, and I think recent events really
highlight this. From public reporting I can identify at least
two problems that occurred at the end of the Trump presidency.
First, according to public reports, because the President
refused to accept the results of the election he delayed
implementing the transfer of his records to NARA. This is not a
job that can be kept to the last minute.
I think, in fact, what this Committee should consider
legislatively is mandating that at the beginning of an
administration the White House work with the Archivist to
develop an accession plan with specific timeframes and
goalposts in place, and that the Archivist be charged with
monitoring that, the White House's compliance with such a plan,
and that it advise Congress when there are problems.
The second very well documented or well-reported-on problem
at the end of the Trump presidency was the fact that the
President took with him we now know at least 15 boxes of
Presidential records, some classified at the highest levels.
Now because of the volume of Presidential material that an
individual President leaves behind, it is my understanding that
quite commonly a lot of Presidential records remain at the
White House, even though the President has left, but they are
still considered to be under the legal custody and control of
the Archivist.
Again, through legislation, Congress could make it clear
that no record that is under the legal custody and control of
the Archivist can leave the White House unless it has the
express approval of the Archivist.
Those are two problems that we have recently experienced
and two proposed fixes that I offer.
Chairman Peters. Thank you, Ms. Weismann.
I would like to thank Ranking Member Portman for holding
this hearing with me here today, and I would certainly like to
thank each of our witnesses for joining us today in this
important discussion and for providing your expert insights as
to how we improve Federal records management.
The preservation of Presidential and Federal records is
critical to preserving transparency and ensuring the Federal
Government is working efficiently and effectively for the
American people, and protecting our nation's historical record
as well. I think as we heard from today's panel, the laws and
the systems we count on to preserve these important documents
are incredibly outdated, and Congress needs to take action not
only to strengthen the records preservation process but to also
ensure that Americans get timely and appropriate access to
these important resources.
As I mentioned in my opening comments I am continuing to
work on legislation that will modernize our recordkeeping
practices, strengthen enforcement of our records laws, and
bring the law up to date with the emerging technologies that we
see on the horizon.
While NARA and the entire Federal Government have faced
some serious challenges due to the lack of resources and
accessibility, I certainly remain confident that we can address
these challenges and increase transparency for every American.
Again, thank you to our witnesses for helping us walk down that
very important road to accomplish these ends.
With that the record for this hearing will remain open for
15 days, until 5 p.m. on March 30, 2022, for the submission of
statements and questions for the record.
This hearing is now adjourned.
[Whereupon, at 11:09 a.m., the hearing was adjourned.]
A P P E N D I X
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