[Senate Hearing 117-562]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 117-562

                    CORRECTING THE RECORD: REFORMING FEDERAL
                     AND PRESIDENTIAL RECORDS MANAGEMENT

=======================================================================

                                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

                                 ------                                
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

                              ----------                              


                        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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