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# Legislative Bulletin.....................................................July 9, 2008

**Contents**:

**H.R. 5811---**Electronic Message Preservation Act

H.R. 5811--- Electronic Message Preservation Act (*Waxman, D-CA*)

**[Order of Business]{.underline}**: The bill is scheduled to be
considered on Wednesday, July 9, 2008, subject to a closed rule ([H.Res.
1318](http://thomas.loc.gov/cgi-bin/query/z?c110:H.Res.1318:)), allowing
no amendments. The rule provides one hour of debate equally divided by
the chairman and ranking minority member of the Committee on Oversight
and Government Reform. The rule waives all points of order against
consideration of the bill (except those for PAYGO and earmarks). The
rule provides for one motion to recommit the bill, with or without
instructions, and allows the Chair to postpone consideration at any
time.

**[Summary]{.underline}**: H.R. 5811 amends the Federal Records Act
(FRA) and the Presidential Records Act (PRA) to increase regulations
regarding the collection, storage, and preservation of electronic
messages generated by federal agencies and the White House.
Specifically, the bill would require the National Archives and Records
Administration (NARA) to promulgate new regulations regarding the
capture and preservation of e-mail and other electronic records. The
bill would also require federal agencies to preserve all electronic
records and emails electronically within four years. The specific
provisions of the bill are below.

*[Preservation of Federal Agencies' Electronic Messages]{.underline}*:
H.R 5811 would require NARA, within 18 months of the bill's enactment,
to issue new regulations regarding federal agencies' preservation of
electronic messages. The bill would stipulate that the regulations, at a
minimum, require the following:

-   That the capture, management, and preservation of agencies'
    electronic message records meet the requirements of the FRA;

-   That agency electronic message records are readily searchable
    through electronic searches;

-   The establishment of mandatory functional requirements for agency
    "electronic management systems" in order to ensure that agencies
    meet the collection and searchability standards;

-   The establishment of a process to certify that the agencies'
    electronic management systems meet their functionality requirements;

-   The agencies to establish a timeline to meet the new regulations
    within four years.

H.R 5811 would require every federal agency to comply with the
regulations issued by NARA. The bill would also stipulate that the
Archivist would make periodic reviews of the regulations and amend them
"as necessary."

*[Presidential Records]{.underline}*: H.R. 5811 would require NARA to
issue regulations regarding presidential records for the purpose of
establishing "standards necessary for the economical and efficient
management of presidential records during the president's term of
office." The bill would require that these standards, at a minimum,
include:

-   Records management controls necessary to capture, manage, and
    preserve electronic messages;

-   Records management controls necessary to ensure that electronic
    messages are readily accessible for retrieval through electronic
    searches;

-   A process to certify that the president complies with the previous
    two requirements.

H.R 5811 would require the Archivist to annually certify whether the
president's electronic management controls meet the standards required
by the bill. In addition, the Archivist would be directed to report to
Congress annually on the status of the president's records management
standards and controls.

Finally, the measure would require the Archivist to report to Congress
one year following a president's final term in office concerning the
volume and format of presidential records that were handed over to NARA.
The report would also include a determination by NARA as to whether the
president met the preservation standards established by NARA under this
legislation.

**[Additional Background]{.underline}**: The [Federal Records Act of
1950](http://www.archives.gov/records-mgmt/laws/) (FRA) establishes the
legal structure for how federal agency records are collected, stored and
managed. The law, as amended over the past 58 years, places regulatory
and oversight authority of agency records preservation and management in
the hands of the National Archives and Records Administration (NARA).
NARA, which is administered by the Archivist of the United States, has
the power to assess the importance of agency records, regulate how
agency records are deposited, and preserve all federal agencies' records
via the Federal Records Centers. Under the law, NARA issues a "records
schedule" that describes common federal records and stipulates how
agencies treat each different kind of record. Federal agencies may not
destroy any records, unless it is stipulated by NARA's [General Record
Schedule](http://www.archives.gov/records-mgmt/ardor/records-schedules.html).

The Presidential Records Act of 1978 (PRA) established the procedures to
be used by the president and vice president when dealing with official
presidential records. Most notably, the law changed legal ownership of
presidential records. Prior to PRA, a president's records were legally
considered private, however, the law was changed to make all official
presidential documents public. As such, presidential documents, with
various exceptions, are now subject to the Freedom of Information Act.
Under the law, the president is responsible for the collection,
preservation, and management of their records while they are in office
and they may limit public access to official records for up to 12 years
after their term for security reasons.

Currently, electronic records produced by agencies and the
Administration are subject to two separate regulatory statutes---the FRA
and the PRA respectively. H.R. 5811 amends both laws in order to address
perceived records preservation deficiencies. According to the Government
Accountability Office, many of the electronic files that are required to
be saved by agencies under the FRA are saved as printed, hard copies
rather than being stored in an electronic database. H.R. 5811 would
require all federal agencies to store all of their electronic records,
including messages, in a searchable, electronic manner. The bill would
require each federal agency to establish a plan to switch from their
print and file system to a fully electronic storage system within four
years.

H.R. 5811 also fundamentally changes the regulatory requirements placed
on the White House, under the PRA. According to the Committee on
Oversight and Government Reform, in [House Report
110-709](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr709)),
recent investigations have indicated that, during the Bush
Administration, there have been "significant deficiencies in the
preservation of e-mail by the White House and federal agencies."
According to the report, top White House officials (namely, Karl Rove)
used email accounts that were operated by the Republican National
Committee (RNC) to conduct official Administration business. As the RNC
is not subject to the PRA, their emails are not considered public and
may be deleted at any time. In addition, the Committee states that the
White House lost "hundreds of days' worth of e-mails sent and received
between 2003 and 2005." The Committee also says that a former Bush
Administration technology officer described the White House's e-mail
archiving and preservation system at the time as "primitive." In an
effort to address these accusations, H.R. 5811 would subject the White
House to standards imposed by the Archivist.

In a [Statement of Administration
Policy](http://www.whitehouse.gov/omb/legislative/sap/110-2/saphr5811-r.pdf)
(SAP) regarding H.R. 5811, the White House argues that current laws
offer a sufficient avenue for collecting and preserving government
records and that this legislation would "unwisely overturn the
longstanding framework governing the management of an incumbent
President's records." The bill would alter the current structure of
presidential record preservation from the statutes established by the
PRA by requiring the White House to be subject to the regulation and
oversight of the Archivist and the NARA. Essentially, the bill would
require the Administration to be subject to the same standards as
federal agencies are under the FRA. In addition, H.R. 5811 would require
the NARA to submit annual reports to Congress certifying that the
Administration is adhering to electronic record collection and
preservation standards established by the Archivist. According to the
SAP, "Such authority is unprecedented and would mark a significant
departure from accepted and longstanding practice."

The Administration also expressed concerns with provisions in H.R. 5811
that amend the FRA to require federal agencies to preserve all of their
e-mail and records electronically. According to the SAP, the requirement
"could impose enormous unfunded costs on agencies." The Administration
also questions the Congressional Budget Office's (CBO) estimate of the
cost of the bill. According to CBO, the bill would cost a total \$13
million in FY 2009 and \$155 million over the FY 2009---FY 2013 period,
subject to appropriation. However, the SAP cites testimony by NARA in
which they estimate that the cost of complying with the new regulations
would be in the billions. In addition, the White House argues that the
language of the bill "does not provide sufficient clarity" and, as a
result, may give the NARA broad freedom to encroach on the activities of
an incumbent president.

In additional views included in [House Report
110-709](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr709)),
Rep. Bill Sali (R-ID) expressed his concern that without "enforceable
repercussion language," H.R. 5811 does not give Congress or the NARA the
authority to force agencies to comply with preservation standards. As a
result, regulations issued by the Archivist would be toothless and the
bill would do little to preserve important historical government
records. Rep. Sali goes on to quote testimony citing the fact that no
one has ever been prosecuted for failing to preserve federal records.
Rep. Sali's additional views conclude by suggesting that without
enforceable consequences for destroying federal documents this
legislation is tantamount to "political gamesmanship" aimed at "a small
number of staffers, who allegedly deleted private e-mail accounts years
ago."

**[Committee Action]{.underline}**: On April 15, 2008, H.R. 5811 was
introduced and referred to the Committee on Oversight and Government
Reform, which, on May 1, 2008, marked up the bill and ordered it
reported to the full House by voice vote.

**[Possible Conservative Concerns]{.underline}**: Some conservatives may
be concerned that H.R. 5811 would require the National Archives and
Records Administration (NARA) to issue regulations, and conduct
oversight, concerning presidential e-mails and electronic records. Under
the Presidential Records Act of 1978 (PRA), presidential records (which
are considered public) are collected, preserved, and managed by the
incumbent president. Some conservatives may be concerned that H.R. 5811
could alter the balance between the Legislative and Executive branches
that was established by the PRA, by requiring outside regulation and
Congressional review of the White House's records management systems.

Some conservatives may be concerned that H.R. 5811 has no provision that
allows federal agencies to enforce new electronic record preservation
regulations with any legal or professional repercussions. As such, some
conservatives may be concerned that H.R. 5811 is unenforceable, and
thus, merely a costly way to reprimand the Bush Administration for its
part in a politically charged dispute regarding the public availability
of White House e-mails.

Finally, some conservatives may be concerned that there is no agreement
on the actual cost of requiring federal agencies to record and store all
electronic messages and documents in a searchable, electronic manner.
Though CBO estimates that the legislation would cost \$13 million in FY
2009 and \$155 million over the FY 2009---FY 2013 period, their estimate
readily admits that, "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." In
a [Statement of Administration
Policy](http://www.whitehouse.gov/omb/legislative/sap/110-2/saphr5811-r.pdf)
(SAP) regarding H.R. 5811, the White House cites NARA testimony that
estimates the cost would more likely be in the billions. Some
conservatives may be concerned that H.R. 5811 may result in unfunded and
unenforceable requirements for federal agencies at an undetermined cost.

**[Administration Position]{.underline}**: According to a [Statement of
Administration
Policy](http://www.whitehouse.gov/omb/legislative/sap/110-2/saphr5811-r.pdf)
(SAP) regarding H.R. 5811, if presented to the President in its current
form, [the President's senior advisors would recommend he veto the
bill]{.underline}.

**[Cost to Taxpayers]{.underline}**: According to CBO, H.R. 5811 would
cost \$13 million in FY 2009 and \$155 million over the FY 2009---FY
2013 period. However, in its estimate of the cost of the bill CBO states
that it "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."

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}** No.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}** No.

**[Does the Bill Comply with House Rules Regarding Earmarks/Limited Tax
Benefits/Limited Tariff Benefits?]{.underline}** According to the
Committee on Oversight and Government Reform, in [House Report
110-709](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr709)),
"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."

**[Constitutional Authority]{.underline}**: The Committee on Oversight
and Government Reform, in [House Report
110-709](http://www.congress.gov/cgi-lis/cpquery/R?cp110:FLD010:@1(hr709)),
cites constitutional authority in Article I, Section 8, Clause 18 (the
"necessary and proper" clause).

**[RSC Staff Contact]{.underline}**: Andy Koenig;
<andy.koenig@mail.house.gov>; 202-226-9717.