[House Report 110-709]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 110-709
======================================================================
ELECTRONIC MESSAGE PRESERVATION ACT
_______
June 11, 2008.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Waxman, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 5811]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom was
referred the bill (H.R. 5811) to amend title 44, United States
Code, to require preservation of certain electronic records by
Federal agencies, to require a certification and reports
relating to Presidential records, and for other purposes,
having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 3
Background and Need for Legislation.............................. 4
Legislative History.............................................. 4
Section-by-Section............................................... 5
Explanation of Amendments........................................ 6
Committee Consideration.......................................... 6
Rollcall Votes................................................... 6
Application of Law to the Legislative Branch..................... 6
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 6
Statement of General Performance Goals and Objectives............ 7
Constitutional Authority Statement............................... 7
Federal Advisory Committee Act................................... 7
Unfunded Mandates Statement...................................... 7
Earmark Identification........................................... 7
Committee Estimate............................................... 7
Budget Authority and Congressional Budget Office Cost Estimate... 7
Changes in Existing Law Made by the Bill, as Reported............ 10
Additional Views................................................. 14
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Electronic Message Preservation Act''.
SEC. 2. PRESERVATION OF ELECTRONIC MESSAGES.
(a) Requirement for Preservation of Electronic Messages.--
(1) In general.--Chapter 29 of title 44, United States Code,
is amended by adding at the end the following new section:
``Sec. 2911. Electronic messages
``(a) Regulations Required.--Not later than 18 months after the date
of the enactment of this section, the Archivist shall promulgate
regulations governing agency preservation of electronic messages that
are records. Such regulations shall, at a minimum--
``(1) require the electronic capture, management, and
preservation of such electronic records in accordance with the
records disposition requirements of chapter 33 of this title;
``(2) require that such electronic records are readily
accessible for retrieval through electronic searches;
``(3) establish mandatory minimum functional requirements for
electronic records management systems to ensure compliance with
the requirements in paragraphs (1) and (2);
``(4) establish a process to certify that Federal agencies'
electronic records management systems meet the functional
requirements established under paragraph (3); and
``(5) include timelines for agency compliance with the
regulations that ensure compliance as expeditiously as
practicable but not later than four years after the date of the
enactment of this section.
``(b) Coverage of Other Electronic Records.--To the extent
practicable, the regulations promulgated under subsection (a) shall
also include requirements for the capture, management, and preservation
of other electronic records.
``(c) Compliance by Federal Agencies.--Each Federal agency shall
comply with the regulations promulgated under subsection (a).
``(d) Review of Regulations Required.--The Archivist shall
periodically review and, as necessary, amend the regulations
promulgated under this section.
``(e) Reports on Implementation of Regulations.--
``(1) Agency report to archivist.--Not later than four years
after the date of the enactment of this section, the head of
each Federal agency shall submit to the Archivist a report on
the agency's compliance with the regulations promulgated under
this section.
``(2) Archivist report to congress.--Not later than 90 days
after receipt of all reports required by paragraph (1), the
Archivist shall submit to the Committee on Homeland Security
and Governmental Affairs of the Senate and the Committee on
Oversight and Government Reform of the House of Representatives
a report on Federal agency compliance with the regulations
promulgated under this section.''.
(2) Clerical amendment.--The table of sections for chapter 29
of title 44, United States Code, is amended by adding after the
item relating to section 2910 the following new item:
``2911. Electronic messages.''.
(b) Definitions.--Section 2901 of title 44, United States Code, is
amended--
(1) by striking ``and'' at the end of paragraph (14);
(2) by striking the period at the end of paragraph (15) and
inserting a semicolon; and
(3) by adding at the end the following new paragraphs:
``(16) the term `electronic messages' means electronic mail
and other electronic messaging systems that are used for
purposes of communicating between individuals; and
``(17) the term `electronic records management system' means
a software system designed to manage electronic records within
an information technology system, including by--
``(A) categorizing and locating records;
``(B) ensuring that records are retained as long as
necessary;
``(C) identifying records that are due for
disposition; and
``(D) the storage, retrieval, and disposition of
records.''.
SEC. 3. PRESIDENTIAL RECORDS.
(a) Additional Regulations Relating to Presidential Records.--
(1) In general.--Section 2206 of title 44, United States
Code, is amended--
(A) by striking ``and'' at the end of paragraph (3);
(B) by striking the period at the end of paragraph
(4) and inserting ``; and''; and
(C) by adding at the end the following:
``(5) provisions for establishing standards necessary for the
economical and efficient management of Presidential records
during the President's term of office, including--
``(A) records management controls necessary for the
capture, management, and preservation of electronic
messages;
``(B) records management controls necessary to ensure
that electronic messages are readily accessible for
retrieval through electronic searches; and
``(C) a process to certify the electronic records
management system to be used by the President for the
purposes of complying with the requirements in
subparagraphs (A) and (B).''.
(2) Definition.--Section 2201 of title 44, United States
Code, is amended by adding at the end the following new
paragraphs:
``(5) The term `electronic messages' has the meaning provided
in section 2901(16) of this title.
``(6) The term `electronic records management system' has the
meaning provided in section 2901(17) of this title.''.
(b) Certification of President's Management of Presidential
Records.--
(1) Certification required.--Chapter 22 of title 44, United
States Code, is amended by adding at the end the following new
section:
``Sec. 2208. Certification of the President's management of
Presidential records
``(a) Annual Certification.--The Archivist shall annually certify
whether the records management controls established by the President
meet requirements under sections 2203(a) and 2206(5) of this title.
``(b) Report to Congress.--The Archivist shall report annually to the
Committee on Homeland Security and Governmental Affairs of the Senate
and the Committee on Oversight and Government Reform of the House of
Representatives on the status of the certification.''.
(2) Clerical amendment.--The table of sections for chapter 22
of title 44, United States Code, is amended by adding at the
end the following new item:
``2208. Certification of the President's management of Presidential
records.''.
(c) Report to Congress.--Section 2203(f) of title 44, United States
Code, is amended by adding at the end the following:
``(4) One year following the conclusion of a President's term of
office, or if a President serves consecutive terms one year following
the conclusion of the last term, the Archivist shall submit to the
Committee on Homeland Security and Governmental Affairs of the Senate
and the Committee on Oversight and Government Reform of the House of
Representatives a report on--
``(A) the volume and format of Presidential records deposited
into that President's Presidential archival depository; and
``(B) whether the records management controls of that
President met the requirements under sections 2203(a) and
2206(5) of this title.''.
(d) Effective Date.--The amendments made by this section shall take
effect one year after the date of the enactment of this Act.
Purpose and Summary
H.R. 5811, the Electronic Message Preservation Act of 2007,
was introduced by Rep. Henry A. Waxman, Rep. William Lacy Clay,
the Chairman of the Subcommittee on Information Policy, the
Census, and the National Archives, and Rep. Paul Hodes on April
15, 2008. H.R. 5811 modernizes the requirements of the Federal
Records Act and the Presidential Records Act to ensure the
preservation of e-mails and other electronic messages.
Background and Need for Legislation
Investigations by the Oversight Committee have revealed
significant deficiencies in the preservation of e-mail by the
White House and federal agencies. Committee investigations have
revealed that during the Bush Administration, numerous White
House officials--including Senior Advisor Karl Rove--used e-
mail accounts maintained by the Republican National Committee,
which regularly deleted the e-mails from its servers. E-mails
sent by White House officials over these RNC accounts included
e-mails concerning official government business. In addition,
the White House cannot account for hundreds of days' worth of
official White House e-mails sent and received between 2003 and
2005. At the time of these losses, the White House used an e-
mail archiving system that a former White House information
technology officer described as ``primitive.''
While the problems have been particularly acute under the
Bush Administration, other administrations, including President
Clinton's, have encountered problems preserving e-mail records.
To ensure the retention of these important records, H.R.
5811 directs the archivist to establish standards for the
capture, management, and preservation of White House e-mails
and other electronic messages and to certify that the system
meets the requirements established by the archivist.
Under current law, federal agencies have broad discretion
to determine how electronic records and electronic
communications are preserved. Committee investigations and the
Government Accountability Office have found that many agencies
rely on unreliable ``print and file'' systems for preserving
electronic records, including e-mails. As a result, many e-
mails that should be saved as federal records may be lost.
H.R. 5811 directs the Archivist to issue regulations
requiring agencies to preserve electronic messages that are
records in an electronic format. These regulations must cover,
at a minimum, the capture, management, preservation, and
electronic retrieval of these electronic records, and must be
implemented within four years of the enactment of the Act.
Legislative History
H.R. 5811 was introduced by Reps. Waxman, Clay, and Hodes
on April 15, 2008, and referred to the Committee on Oversight
and Government Reform.
The Subcommittee on Information Policy, the Census, and the
National Archives held a hearing on H.R. 5811 on April 23,
2008. The witnesses were Linda Koontz, Director, Information
Management Issues, U.S. Government Accountability Office; Gary
M. Stern, General Counsel, National Archives and Records
Administration; Paul M. Wester, Director, Modern Records
program, National Archives and Records Administration; and
Patrice McDermott, Director, OpentheGovernment.org. The
Subcommittee also received written testimony from Dr. Anna
Nelson, Distinguished Historian in Residence at American
University representing the National Coalition for History.
The Committee on Oversight and Government Reform held a
business meeting on May 1, 2008, to consider H.R. 5811 and
ordered the bill to be reported as amended by voice vote.
Section-by-Section
Section 1: Short title
The short title of the bill is the Electronic Message
Preservation Act of 2008.
Section 2: Preservation of electronic messages
Section 2(a) mandates the electronic preservation of
electronic messages that are federal records. Subsection (a) of
this new section directs the archivist to promulgate
regulations governing agency preservation of these records no
later than 18 months after the enactment of the act. These
regulations would require, at a minimum, the electronic
capture, management, and preservation of these records in
accordance with the requirements of the Federal Records Act and
the accessibility of these records through electronic searches.
In addition, the regulations would need to establish mandatory
minimum functional requirements for electronic records
management systems to be used by federal agencies for these
purposes and to establish a process to certify that agency
systems meet these functional requirements. The Committee's
intent is that the National Archives could conduct this
certification on its own, or work with other entities that have
developed expertise in this area. And finally, the regulations
would need to establish timelines for agency compliance with
the regulations within four years of the enactment of the Act.
Subsection (b) of the new section directs the Archivist, to
the extent practicable, to include requirements for the
capture, management, and preservation of other electronic
records in these regulations. The Committee recognizes that, at
some future date, federal agencies will be managing all of
their electronic records electronically. While this legislation
focuses on electronic messages, agencies should be encouraged
to implement records management systems that encompass a
broader range of records where appropriate.
Subsection (c) of the new section directs federal agencies
to comply with the regulations promulgated by the Archivist.
Subsection (d) directs the Archivist to periodically review and
amend the regulations promulgated under the section. And
subsection (e) directs each federal agency to report to the
Archivist, and the Archivist to report to Congressional
Committees, on agency compliance with the regulations four
years after the enactment of the Act.
Section 2(b) defines electronic messages and electronic
records management systems.
Section 3: Presidential records
This section directs the Archivist to establish standards
for the management of presidential records during the
president's term of office, including specific standards for
the management and preservation of electronic messages. The
Archivist is further directed to annually certify whether the
records management controls put in place by the president meet
the existing requirements of the Presidential Records Act as
well as the standards developed by the Archivist.
The section calls on the Archivist to report annually to
congressional committees on the status of the certification. In
addition, one year following the end of a president's term, the
Archivist is directed to report to these same congressional
committees on the volume and format of presidential records
provided by that president to the National Archives, and
whether the records management controls of the president met
the requirements of the Presidential Records Act as well as the
standards developed by the Archivist. The one year delay in
filing this report is intended to give the Archivist the
opportunity to review the records received and make an
independent determination of whether the law and the standards
governing records preservation were met.
Explanation of Amendments
Mr. Waxman offered an amendment in the nature of a
substitute. The amendment clarified that the legislation
applies to electronic messages rather than electronic
communications and provided a definition of electronic
messages. Similarly, based on comments from the National
Archives that the term ``electronic records management
applications'' may limit agencies' ability to adapt to changing
technologies, the amendment clarified that agencies and the
White House should rely on broadly defined electronic records
management systems to manage records. In addition, the
amendment corrected a drafting error in the bill as introduced;
it revised Section 2(a) of the bill to add a new section to
Chapter 29 of Title 44, rather than Chapter 31.
The Waxman amendment in the nature of a substitute passed
by voice vote.
Committee Consideration
On Thursday, May 1, 2008, the Committee met in open session
and favorably ordered H.R. 5811 as amended to be reported to
the House by a voice vote.
Rollcall Votes
No rollcall votes were held.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to terms and conditions of
employment or access to public services and accommodations. The
bill does not relate to employment or access to public services
and accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report, including the fact that the e-mail archiving
system was described as ``primitive'' by a former White House
information technology officer.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report, including the need to ensure the preservation
of government e-mails and other electronic messages.
Constitutional Authority Statement
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress to enact the law
proposed by H.R. 5811. Article I, Section 8, Clause 18 of the
Constitution of the United States grants the Congress the power
to enact this law.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Unfunded Mandates Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement on
whether the provisions of the report include unfunded mandates.
In compliance with this requirement the Committee has received
a letter from the Congressional Budget Office included herein.
Earmark Identification
H.R. 5811 does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e), or 9(f) of rule XXI.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 5811. However, clause 3(d)(3)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 5811 from the Director of
the Congressional Budget Office:
June 10, 2008.
Hon. Henry A. Waxman,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5811, the
Electronic Message Preservation Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Peter R. Orszag.
Enclosure.
H.R. 5811--Electronic Message Preservation Act
Summary: H.R. 5811 would amend federal law regarding the
preservation and storage of electronic communications. The
legislation would direct the National Archives and Records
Administration (NARA) to issue regulations governing the
preservation of e-mail and other electronic records in
electronic format. The bill also would require federal agencies
to manage and preserve their e-mail records electronically.
Finally, H.R. 5811 would amend the Presidential Records Act to
give NARA additional oversight of electronic Presidential
records.
CBO estimates that implementing H.R. 5811 would cost $13
million in 2009 and about $155 million over the 2009-2013
period, assuming appropriation of the necessary amounts. The
legislation could also affect direct spending by agencies not
funded through annual appropriations (such as the Tennessee
Valley Authority) or by agencies considered off-budget (such as
the U.S. Postal Service). CBO estimates, however, that any net
increase in spending by those agencies would not be
significant.
H.R. 5811 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would not affect the budgets of state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 5811 is shown in the following table.
The costs of this legislation fall within all budget functions
that contain salaries and expenses.
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------------------
2009-
2009 2010 2011 2012 2013 2013
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level....................... 15 25 35 45 40 160
Estimated Outlays................................... 13 24 34 44 40 155
----------------------------------------------------------------------------------------------------------------
Basis of Estimate: For this estimate, CBO assumes that the
bill will be enacted near the start of fiscal year 2009 and
that spending would follow historical patterns for similar
activities.
Most of the provisions of H.R. 5811 would expand the
current practices of the federal government. Under the Federal
Records Act, each federal agency is required to make and
preserve records of its activities. To accomplish this,
agencies are required to develop programs to ensure that they
have appropriate systems to manage and preserve their records.
The act also gives NARA the responsibility to oversee and issue
guidance on managing federal records, including e-mail
messages. Although current NARA regulations specifically
require that e-mails be stored electronically, NARA allows
agencies to print and file paper copies of e-mail records. H.R.
5811 would require agencies over the next four years to move
exclusively to a system that would electronically manage all e-
mail records.
CBO is unaware of any comprehensive information on the
current status of the electronic recordkeeping capabilities of
the federal government or the costs to create an e-mail records
system. Information from the Office of Management and Budget
(OMB), the Government Accountability Office (GAO), some federal
agencies. and NARA suggests that very few federal agencies
currently archive all e-mail messages electronically as the
bill would require. Most agencies currently maintain a print
and file system of e-mail records.
While most government documents are created in a computer
format, GAO has reported that financial constraints and
technical challenges associated with electronic recordkeeping
have hampered the development of electronic systems to archive
records. GAO also reports that federal agencies generally have
little experience with acquiring and operating an electronic
filing system for e-mail records. The cost to create such a
system would depend upon the current status of each agency's
system, the size of the agency, and the volume of work it
performs.
Currently the federal government spends about $24 billion a
year on information technology, including mission support,
infrastructure, and enterprise architecture and planning. Using
information from GAO, NARA, OMB. selected federal agencies, and
private-sector vendors about the current status of government
e-mail systems and the costs to enhance those systems to
archive e-mail, CBO estimates that implementing H.R. 5811 would
cost $13 million in 2009 and about $155 million over the 2009-
2013 period, assuming appropriation of the necessary amounts.
Those amounts would cover the initial costs of purchasing
software products for archiving and disk-storage devices, and
conducting training. Those initial expenses would total $60
million and would be incurred over the first four years.
Ongoing costs (which would total about $40 million a year when
the new systems would be fully implemented in 2013) would total
about $95 million over the 2009-2013 period, mostly for renewal
of software licenses and additional data storage.
Electronically archiving e-mail could reduce the
administrative costs agencies incur to print and file paper
copies and to perform other retrieval-based tasks, such as
Freedom of Information Act requests. CBO expects that any such
savings over the next five years would be negligible.
Intergovernmental and private-sector impact: H.R. 5811
contains no intergovernmental or private-sector mandates as
defined in UMRA and would not affect the budgets of state,
local, or tribal governments.
Estimate prepared by: Federal costs: Matthew Pickford;
Impact on state, local, and tribal governments: Elizabeth Cove;
Impact on the private-sector: Paige Piper/Bach.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 44, UNITED STATES CODE
* * * * * * *
CHAPTER 22--PRESIDENTIAL RECORDS
Sec.
2201. Definitions.
* * * * * * *
2208. Certification of the President's management of Presidential
records.
Sec. 2201. Definitions
As used in this chapter--
(1) * * *
* * * * * * *
(5) The term ``electronic messages'' has the meaning
provided in section 2901(16) of this title.
(6) The term ``electronic records management system''
has the meaning provided in section 2901(17) of this
title.
* * * * * * *
Sec. 2203. Management and custody of Presidential records
(a) * * *
* * * * * * *
(f)(1) * * *
* * * * * * *
(4) One year following the conclusion of a President's term
of office, or if a President serves consecutive terms one year
following the conclusion of the last term, the Archivist shall
submit to the Committee on Homeland Security and Governmental
Affairs of the Senate and the Committee on Oversight and
Government Reform of the House of Representatives a report on--
(A) the volume and format of Presidential records
deposited into that President's Presidential archival
depository; and
(B) whether the records management controls of that
President met the requirements under sections 2203(a)
and 2206(5) of this title.
* * * * * * *
Sec. 2206. Regulations
The Archivist shall promulgate in accordance with section 553
of title 5, United States Code, regulations necessary to carry
out the provisions of this chapter. Such regulations shall
include--
(1) * * *
* * * * * * *
(3) provisions for notice by the Archivist to the
former President when the disclosure of particular
documents may adversely affect any rights and
privileges which the former President may have; [and]
(4) provisions for establishing procedures for
consultation between the Archivist and appropriate
Federal agencies regarding materials which may be
subject to section 552(b)(7) of title 5, United States
Code[.]; and
(5) provisions for establishing standards necessary
for the economical and efficient management of
Presidential records during the President's term of
office, including--
(A) records management controls necessary for
the capture, management, and preservation of
electronic messages;
(B) records management controls necessary to
ensure that electronic messages are readily
accessible for retrieval through electronic
searches; and
(C) a process to certify the electronic
records management system to be used by the
President for the purposes of complying with
the requirements in subparagraphs (A) and (B).
* * * * * * *
Sec. 2208. Certification of the President's Management of Presidential
records
(a) Annual Certification.--The Archivist shall annually
certify whether the records management controls established by
the President meet requirements under sections 2203(a) and
2206(5) of this title.
(b) Report to Congress.--The Archivist shall report annually
to the Committee on Homeland Security and Governmental Affairs
of the Senate and the Committee on Oversight and Government
Reform of the House of Representatives on the status of the
certification.
* * * * * * *
CHAPTER 29--RECORDS MANAGEMENT BY THE ARCHIVIST OF THE UNITED STATES
AND BY THE ADMINISTRATOR OF GENERAL SERVICES
Sec.
2901. Definitions.
* * * * * * *
2911. Electronic messages.
Sec. 2901. Definitions
As used in this chapter, and chapters 21, 25, 31, and 33 of
this title--
(1) * * *
* * * * * * *
(14) the term ``Federal agency'' means any executive
agency or any establishment in the legislative or
judicial branch of the Government (except the Supreme
Court, the Senate, the House of Representatives, and
the Architect of the Capitol and any activities under
the direction of the Architect of the Capitol); [and]
(15) the term ``Administrator'' means the
Administrator of General Services[.];
(16) the term ``electronic messages'' means
electronic mail and other electronic messaging systems
that are used for purposes of communicating between
individuals; and
(17) the term ``electronic records management
system'' means a software system designed to manage
electronic records within an information technology
system, including by--
(A) categorizing and locating records;
(B) ensuring that records are retained as
long as necessary;
(C) identifying records that are due for
disposition; and
(D) the storage, retrieval, and disposition
of records.
* * * * * * *
Sec. 2911. Electronic messages
(a) Regulations Required.--Not later than 18 months after the
date of the enactment of this section, the Archivist shall
promulgate regulations governing agency preservation of
electronic messages that are records. Such regulations shall,
at a minimum--
(1) require the electronic capture, management, and
preservation of such electronic records in accordance
with the records disposition requirements of chapter 33
of this title;
(2) require that such electronic records are readily
accessible for retrieval through electronic searches;
(3) establish mandatory minimum functional
requirements for electronic records management systems
to ensure compliance with the requirements in
paragraphs (1) and (2);
(4) establish a process to certify that Federal
agencies' electronic records management systems meet
the functional requirements established under paragraph
(3); and
(5) include timelines for agency compliance with the
regulations that ensure compliance as expeditiously as
practicable but not later than four years after the
date of the enactment of this section.
(b) Coverage of Other Electronic Records.--To the extent
practicable, the regulations promulgated under subsection (a)
shall also include requirements for the capture, management,
and preservation of other electronic records.
(c) Compliance by Federal Agencies.--Each Federal agency
shall comply with the regulations promulgated under subsection
(a).
(d) Review of Regulations Required.--The Archivist shall
periodically review and, as necessary, amend the regulations
promulgated under this section.
(e) Reports on Implementation of Regulations.--
(1) Agency report to archivist.--Not later than four
years after the date of the enactment of this section,
the head of each Federal agency shall submit to the
Archivist a report on the agency's compliance with the
regulations promulgated under this section.
(2) Archivist report to congress.--Not later than 90
days after receipt of all reports required by paragraph
(1), the Archivist shall submit to the Committee on
Homeland Security and Governmental Affairs of the
Senate and the Committee on Oversight and Government
Reform of the House of Representatives a report on
Federal agency compliance with the regulations
promulgated under this section.
* * * * * * *
ADDITIONAL VIEWS
I appreciate this opportunity to comment briefly on the
topic of preserving our Nation's history. I could not agree
more with Ms. Anna Nelson, Director of History from American
University about having to rely on unreliable memoirs,
scattered agency records and the New York Times to reconstruct
the history of policymaking records. Our historians should not
rely on events as reported by the New York Times or from
memoirs, whose authors may embellish the facts.
To make federal agencies comply, I believe this legislation
should include enforceable repercussion language. Ms. Patricia
McDermott of OpenTheGovernment.org suggests this is the only
way to make federal agencies comply with the Federal Records
Act. Ms. McDermott states that she does not ``think anyone has
ever been prosecuted for destroying, much less failing to
preserve federal records.'' Just ask former Clinton EPA
Director Carol Browner. She supposedly oversaw the destruction
of her computer files in violation of a judge's order requiring
the agency to preserve its records.
In this bill, however, we seem to be elevating actions by a
small number of staffers, who allegedly deleted private email
accounts years ago, to the level of the former EPA Director.
The purpose of this legislation should be on preserving our
nation's history and not on political gamesmanship. The
American people deserve better from their Representatives.
Bill Sali.