[House Report 111-406]
[From the U.S. Government Publishing Office]
111th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 111-406
======================================================================
ELECTRONIC MESSAGE PRESERVATION ACT
_______
January 27, 2010.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Towns, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 1387]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 1387) 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.............................................. 2
Background and Need for Legislation.............................. 2
Legislative History.............................................. 3
Section-by-Section............................................... 4
Explanation of Amendments........................................ 6
Committee Consideration.......................................... 6
Roll Call 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
Minority Views................................................... 14
The amendment is as follows:
At the end of the bill, add the following new sections:
SEC. 4. PROCEDURES TO PREVENT UNAUTHORIZED REMOVAL OF CLASSIFIED
RECORDS FROM NATIONAL ARCHIVES.
(a) In General.--The Archivist of the United States shall prescribe
internal procedures to prevent the unauthorized removal of classified
records from the National Archives and Records Administration or the
destruction or damage of such records, including when such records are
accessed or searched electronically. The procedures shall include the
following prohibitions:
(1) No person, other than personnel of the National Archives and
Records Administration (in this section hereafter referred to as ``NARA
personnel''), shall view classified records in any room that is not
secure except in the presence of NARA personnel or under video
surveillance.
(2) No person, other than NARA personnel, shall at any time be left
alone with classified records, unless that person is under video
surveillance.
(3) No person, other than NARA personnel, shall conduct any review of
documents while in the possession of any cell phone or other personal
communication device.
(4) All persons seeking access to classified records, as a
precondition to such access, must consent to a search of their
belongings upon conclusion of their records review.
(5) All notes and other writings prepared by persons during the
course of a review of classified records shall be retained by the
National Archives and Records Administration in a secure facility.
(b) Definition of Records.--In this section, the term ``records'' has
the meaning provided in section 3301 of title 44, United States Code.
SEC. 5. RESTRICTIONS ON ACCESS TO PRESIDENTIAL RECORDS.
Section 2204 of title 44, United States Code (relating to
restrictions on access to presidential records) is amended by adding at
the end the following new subsection:
``(f) The Archivist shall not make available any original
presidential records to any individual claiming access to any
presidential record as a designated representative under section
2205(3) of this title if that individual has been convicted of a crime
relating to the review, retention, removal, or destruction of records
of the Archives.''.
Purpose and Summary
H.R. 1387, the Electronic Message Preservation Act, was
introduced by Rep. Paul Hodes, Rep. Edolphus Towns, and Rep.
Wm. Lacy Clay on March 9, 2009. H.R. 1387 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
The Federal Records Act requires federal agencies to make
and preserve records that document ``the organization,
functions, policies, decisions, procedures, and essential
transactions of the agency'' and provide the ``information
necessary to protect the legal and financial rights of the
government and of persons directly affected by the agency's
activities.''\1\ The Federal Records Act requires that all
records be preserved, regardless of format. But agencies have
broad discretion to determine how to preserve electronic
communications and other electronic records.
---------------------------------------------------------------------------
\1\44 U.S.C. Sec. 3101.
---------------------------------------------------------------------------
Committee investigations and the Government Accountability
Office (GAO) have found that many agencies rely on unreliable
``print and file'' systems for preserving electronic records,
including e-mails.\2\ As a result, many e-mails that should be
saved as federal records may be lost. A witness from GAO
testified at a Committee hearing that if federal records,
including e-mail records, are not adequately managed,
``individuals might lose access to benefits for which they are
entitled, the government could be exposed to unwarranted legal
liabilities, and historical records of vital interest could be
lost forever.''\3\
---------------------------------------------------------------------------
\2\See Government Accountability Office, Federal Records: National
Archives and Selected Agencies Need to Strengthen E-Mail Management
(June 2008) (GAO-08-742).
\3\Government Accountability Office, Federal Records: Agencies Face
Challenges in Managing E-Mail (Apr. 23, 2008) (GAO-08-699T).
---------------------------------------------------------------------------
H.R. 1387 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 electronic records, and must be
implemented within four years of enactment.
The Federal Records Act applies to federal agencies while
the Presidential Records Act applies to the President, the Vice
President, and certain entities within the Executive Office of
the President. The Presidential Records Act requires the
President to:
Take all steps as may be necessary to assure that the
activities, deliberations, decisions, and policies that
reflect the performance of his constitutional,
statutory or other official or ceremonial duties are
adequately documented and that such records are
maintained as presidential records pursuant to the
requirements of this section and other provisions of
law.\4\
\4\44 U.S.C. Sec. 2203.
Like the Federal Records Act, the Presidential Records Act
requires that records be preserved and maintained regardless of
whether the records are in paper or electronic form. But
standards are needed to ensure that each administration has the
controls needed to effectively manage the unique challenges of
e-mails and other electronic messages that are presidential
records.
Investigations by the Oversight Committee revealed
significant deficiencies in the preservation of e-mail by the
White House during the Bush Administration. Committee
investigations revealed that numerous White House officials
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 could not account for
some official White House e-mails. Other administrations,
including President Clinton's, also encountered problems
preserving e-mail records.
H.R. 1387 directs the Archivist to establish standards for
the capture, management, and preservation of electronic
messages that are presidential records. The bill requires the
Archivist to annually certify whether the records management
controls established by the President meet these standards.
Legislative History
H.R. 1387 is substantially similar to H.R. 5811 which
passed the House on July 9, 2008.
The Subcommittee on Information Policy, Census, and
National Archives held a hearing on H.R. 5811 on April 23,
2008. The witnesses were Linda Koontz, Director, Information
Management Issues, 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.
H.R. 5811 passed the House on July 9, 2008, by a vote of 286-
137.
H.R. 1387 was introduced by Reps. Hodes, Towns, and Clay on
March 9, 2009, and referred to the Committee on Oversight and
Government Reform. The Committee held abusiness meeting on
March 10, 2009, 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.
Section 2. Preservation of electronic messages
Subsection (a) mandates the electronic preservation of
electronic messages that are federal records. This subsection
directs the Archivist to promulgate regulations governing
agency preservation of these records within 18 months after
enactment. The bill requires that the regulations include, at a
minimum, the electronic capture, management, and preservation
of electronic messages that are records in accordance with the
requirements of the Federal Records Act. The regulations must
require that electronic records are accessible through
electronic searches.
The Archivist's regulations must establish mandatory
minimum functional requirements for electronic records
management systems to be used by federal agencies for these
purposes and must establish a process to certify that agency
systems meet these functional requirements. The Committee's
intent is that the National Archives and Records Administration
(NARA) could conduct this certification on its own, or work
with other entities that have developed expertise in this area.
The regulations would need to establish timelines requiring
agency compliance no later than four years from enactment.
The Archivist is also directed, 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.
This subsection requires federal agencies to comply with
the regulations promulgated by the Archivist. The Archivist
must periodically review and amend the required regulations.
The head of each federal agency is required under this
subsection to report to the Archivist on the agency's
compliance with the required regulations within four years of
enactment. The Archivist must in turn report to the House
Committee on Oversight and Government Reform and the Senate
Committee on Homeland Security and Governmental Affairs on
agency compliance within 90 days of receiving the reports from
agencies.
Section 2(b) defines ``electronic messages'' as electronic
mail and other electronic messaging systems that are used for
purposes of communicating between individuals. This subsection
defines ``electronic records management system'' as a software
system designed to manage electronic records within an
information technology system, including by categorizing and
locating records, ensuring that records are retained as long as
necessary, identifying records that are due for disposition,
and providing for the storage, retrieval, and disposition of
records.
Section 3. Presidential records
Subsection (a) directs the Archivist to establish standards
for the management of presidential records during the
President's term of office, including specific standards to
ensure electronic messages are properly captured, managed and
preserved and accessible through electronic searches. The
Archivist is directed to annually certify the electronic
records management system used by the President for managing
electronic messages.
Subsection (b) requires the Archivist to annually certify
that the records management controls put in place by the
President meet existing requirements of the Presidential
Records Act as well as the standards developed by the
Archivist. This subsection calls on the Archivist to report
annually to the House Committee on Oversight and Government
Reform and the Senate Committee on Homeland Security and
Governmental Affairs on the status of the certification.
Under subsection (c), one year after a President leaves
office, the Archivist must report to the House Committee on
Oversight and Government Reform and the Senate Committee on
Homeland Security and Governmental Affairs on the volume and
format of presidential records provided by that President to
NARA, 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.
Subsection (d) provides that the amendments made by this
section will take effect one year after enactment.
Section 4. Procedures to prevent unauthorized removal of classified
records from National Archives
Subsection (a) requires the Archivist to prescribe internal
procedures to prevent the unauthorized removal of classified
records from NARA or the destruction or damage of such records,
including when such records are accessed or searched
electronically. The procedures are required to include the
following prohibitions: (1) no person, other than NARA
personnel, shall view classified records in any room that is
not secure except in the presence of NARA personnel or under
video surveillance; (2) no person, other than NARA personnel,
shall at any time be left alone with classified records without
video surveillance; (3) no person, other than NARA personnel
shall conduct any review of documents while in the possession
of any cell phone or other personal communication device; (4)
all persons seeking access to classified records, as a
precondition to such access, must consent to a search of their
belongings upon conclusion of their records review; (5) all
notes and other writings prepared by persons during the course
of a review of classified records shall be retained by the NARA
in a secure facility.
Subsection (b) defines the term ``records'' as the meaning
provided in the Federal Records Act.
Section 5. Restrictions on access to presidential records
This section prohibits the Archivist from making available
any original presidential records to any individual claiming
access to any presidential record as a designated
representative of the President if that individual has been
convicted of a crime relating to the review, retention,
removal, or destruction of records of the Archives.
Explanation of Amendments
Mr. Issa offered an amendment, which was adopted by
unanimous consent, which added sections four and five discussed
above.
Committee Consideration
On Tuesday, March 10, 2009, the Committee met in open
session and favorably ordered H.R. 1387, as amended, to be
reported to the House by a voice vote.
Roll Call Votes
No roll call 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 inconsistencies by the executive branch
in preserving e-mails that are federal and presidential
records.
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 records.
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. 1387. 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 meaning 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. 1387 does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(e), 9(f), or 9(g) 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. 1387. 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. 1387 from the Director of
the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 13, 2009.
Hon. Edolphus Towns,
Chairman, Committee on Oversight and Government Affairs,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1387, 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,
Douglas W. Elmendorf.
Enclosure.
H.R. 1387--Electronic Message Preservation Act
Summary: H.R. 1387 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 and establish procedures to prevent the
unauthorized removal of classified records from NARA
facilities. The bill also would require federal agencies to
manage and preserve their e-mail records electronically.
Finally, H.R. 1387 would amend the Presidential Records Act to
give NARA additional authority to oversee management of
electronic records of the President, including the authority to
restrict access to those records.
CBO estimates that implementing H.R. 1387 would cost $156
million over the 2010-2014 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 to be 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. 1387 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. 1387 is shown in the following table.
The costs of this legislation fall within most budget functions
that contain salaries and expenses.
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------------
2010 2011 2012 2013 2014 2010-2014
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level........................... 15 25 35 45 40 160
Estimated Outlays....................................... 14 24 34 44 41 156
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted near the end of fiscal year 2009 and that
spending will follow historical patterns for similar
activities.
Most of the provisions of H.R. 1387 would expand 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.
1387 would require agencies, over the next four years, to
implement systems that would manage all e-mail records
electronically.
CBO is unaware of any comprehensive information on the
current capabilities of the federal government to manage
records electronically 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 for 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 specifications 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, enterprise architecture, and planning. Using
information from selected federal agencies and private-sector
vendors about the current status of government e-mail systems
and the cost to enhance those systems to archive e-mail, CBO
estimates that implementing H.R. 1387 would cost $14 million in
2010 and about $156 million over the 2010-2014 period, assuming
appropriation of the necessary amounts. Those amounts would
cover the initial costs of training and purchasing software
products for archiving and disk-storage. Those initial expenses
would total $60 million and would be incurred over four years,
beginning in 2010. Ongoing costs would total about $100 million
over the 2011-2014 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 small.
Intergovernmental and private-sector impact: H.R. 1387
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
Delisle; 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. 2204. Restrictions on access to Presidential records
(a) * * *
* * * * * * *
(f) The Archivist shall not make available any original
presidential records to any individual claiming access to any
presidential record as a designated representative under
section 2205(3) of this title if that individual has been
convicted of a crime relating to the review, retention,
removal, or destruction of records of the Archives.
* * * * * * *
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.
* * * * * * *
MINORITY VIEWS
The Electronic Message Preservation Act (H.R. 1387) is
intended to modernize and improve the Federal Records Act and
the Presidential Records Act to ensure the preservation of
emails and other electronic messages. H.R. 1387 directs the
Archivist to issue regulations requiring agencies to preserve
electronic messages that are records in an electronic format.
These regulations are intended to provide clear guidance to the
agencies and the Executive Office of the President in
establishing standards for the capture, management,
preservation, and electronic retrieval of these electronic
records.
However, a series of recent losses at various National
Archives and Records Administration (NARA) installations cast
doubt on the agency's ability to manage the responsibilities
that would be assigned by H.R. 1387. NARA has pledged to change
the culture that allowed systemic asset management problems to
develop and fostered an institutional disregard for security.
Subsequent to the markup of this bill, the Committee's
investigation of the loss of a drive from NARA's College Park
facility in 2009 revealed troubling flaws. The missing hard
drive contained one terabyte of record data from the Clinton
presidency. One terabyte of data is the approximate equivalent
of millions of books, according to the Inspector General. Data
on the drive included more than 100,000 social security numbers
(including Al Gore's daughter), contact information (including
addresses) for various Clinton administration officials, Secret
Service and White House operating procedures, event logs,
social gathering logs, political records and other highly-
sensitive information. The full extent of the contents of the
drive is still being investigated.
The hard drive was moved from a ``secure'' storage area to
a workspace while in use as part of the conversion of Clinton
Administration records to digital files. The drive was left
unsecured on a shelf above a workstation. NARA IG Paul
Brachfeld characterized the personally-identifying information
violation as ``the greatest loss ever and troubling and
amazing.''
The loss appears to stem from a systemic lack of internal
controls at this NARA facility. At least 100 ``badge-holders''
had access to the area where the drive was left unsecured. In
addition to those with official access to sensitive material,
the IG claims that janitors, visitors, interns and others
passed through the area where the drive was being kept. The IG
described the workspace as an area that Archives employees pass
through on their way to the restroom.
This is just the most recent example of carelessness at the
agency. In 2007, an annual inventory identified as missing
approximately 559 equipment items with memory storage
capability and the potential for storing sensitive personal
identifying information. A report published in 2006 revealed
the CIA and other federal agencies had to re-classify over
55,000 pages of records taken from the open shelves at the
Archives. In 2005, President Clinton's former National Security
Advisor Sandy Berger pled guilty to unlawfully removing
documents from the Archives. Ranking Member Issa offered an
amendment to this bill, which was accepted by unanimous
consent, to ensure this type of breach will not occur again.
In addition, the Majority's stated rationale for H.R. 1387
mischaracterizes the Committee's investigative record from the
110th Congress relating to White House email records. Between
2002 and 2004, the White House Office of Administration
migrated the White House email system from Lotus Notes to
Microsoft Exchange. During the course of this migration certain
email records were temporarily archived. The arrangement under
this temporary system led to some records being misfiled and
otherwise difficult to access. These records were retrieved
later using back up recovery tapes. The Committee has no
evidence that any email records went missing.
Electronic recordkeeping issues are not new to the
Presidency. During the Clinton Administration this Committee
held hearings on whether emails pertinent to the Lewinsky
investigation had been intentionally destroyed. The Clinton-era
inquiry involved allegations that White House staff were
participating in a cover-up to destroy potentially
incriminating emails.
We are concerned that NARA, which has had difficulty
preserving and protecting its own records, will be able to
establish regulations for all federal agencies. The Committee
must continue to closely oversee NARA as its new leadership
works to remedy internal problems. Unless and until there are
signs of improvement, however, we are reluctant to support any
legislation imposing additional responsibilities on the agency.
Darrell Issa,
Ranking Member.