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H.R. 5811, THE ELECTRONIC COMMUNICATIONS

PRESERVATION ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON INFORMATION POLICY,

CENSUS, AND NATIONAL ARCHIVES

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

SECOND SESSION

ON

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 TO PRESIDENTIAL

RECORDS, AND FOR OTHER PURPOSES

APRIL 23, 2008

Serial No. 110–171

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.oversight.house.gov

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

HENRY A. WAXMAN, California, Chairman

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

JOHN A. YARMUTH, Kentucky

BRUCE L. BRALEY, Iowa

ELEANOR HOLMES NORTON, District of

Columbia

BETTY MCCOLLUM, Minnesota

JIM COOPER, Tennessee

CHRIS VAN HOLLEN, Maryland

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

JOHN P. SARBANES, Maryland

PETER WELCH, Vermont

——— ———

TOM DAVIS, Virginia

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

VIRGINIA FOXX, North Carolina

BRIAN P. BILBRAY, California

BILL SALI, Idaho

JIM JORDAN, Ohio

PHIL SCHILIRO, Chief of Staff

PHIL BARNETT, Staff Director

EARLEY GREEN, Chief Clerk

LAWRENCE HALLORAN, Minority Staff Director

SUBCOMMITTEE ON INFORMATION POLICY, CENSUS, AND NATIONAL ARCHIVES

WM. LACY CLAY, Missouri, Chairman

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

JOHN A. YARMUTH, Kentucky

PAUL W. HODES, New Hampshire

MICHAEL R. TURNER, Ohio

CHRIS CANNON, Utah

BILL SALI, Idaho

(III)

C O N T E N T S

Page

Hearing held on April 23, 2008 .............................................................................. 1

Text of H.R. 5811 ..................................................................................................... 8

Statement of:

Koontz, Linda, Director, Information Management Issues, Government

Accountability Office; Gary Stern, General Counsel, National Archives

and Records Administration; Paul Wester, Jr., Director, Modern

Records Program, National Archives and Records Administration; and

Patrice McDermott, Director, OpenTheGovernment.org ........................... 16

Koontz, Linda ............................................................................................ 16

McDermott, Patrice ................................................................................... 53

Stern, Gary ................................................................................................ 35

Wester, Paul, Jr. ........................................................................................ 36

Letters, statements, etc., submitted for the record by:

Clay, Hon. Wm. Lacy, a Representative in Congress from the State of

Missouri:

Prepared statement of ............................................................................... 3

Prepared statement of Professor Anna Nelson ....................................... 48

Koontz, Linda, Director, Information Management Issues, Government

Accountability Office, prepared statement of ............................................. 18

McDermott, Patrice, Director, OpenTheGovernment.org, prepared statement of ........................................................................................................... 56

Stern, Gary, General Counsel, National Archives and Records Administration, and Paul Wester, Jr., Director, Modern Records Program, National Archives and Records Administration, prepared statement of ....... 39

(1)

H.R. 5811, THE ELECTRONIC

COMMUNICATIONS PRESERVATION ACT

WEDNESDAY, APRIL 23, 2008

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON INFORMATION POLICY, CENSUS, AND

NATIONAL ARCHIVES,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 2 p.m., in room

2154, Rayburn House Office Building, Hon. Wm. Lacy Clay, Jr.

(chairman of the subcommittee) presiding.

Present: Representatives Clay, Hodes, and Sali.

Staff present: Darryl Piggee, staff director/counsel; Jean Gosa,

clerk; Charisma Williams, staff assistant; Michelle Mitchell, legislative assistant, Office of Wm. Lacy Clay; and Charles Phillips, minority counsel.

Mr. CLAY. The committee will come to order.

In today’s legislative hearing we will examine the Electronic

Communication Preservation Act H.R. 5811. It will modernize Federal recordkeeping by requiring agencies to begin preserving electronic records more effectively.

The bill requires electronic preservation for electronic communications such as e-mails and recommends to the extent practicable

that regulations are required of Federal agencies to capture, manage, and preserve other electronic records.

In addition, H.R. 5811 creates oversight of the maintenance and

preservation of Presidential Records, including e-mails sent and received by Presidential advisors.

We will hear from witnesses who will testify concerning this

issue and offer recommendations that they believe will improve the

act. Without objection the Chair and ranking minority member will

have 5 minutes to make opening statements followed by opening

statements not to exceed 3 minutes by any other Member who desires recognition.

Without objection, Members and witnesses may have five legislative days to submit a written statement or extraneous materials for

the record. I will begin with an opening statement and welcome everyone to today’s hearing on H.R. 5811.

This bill will modernize Federal recordkeeping by requiring Federal agencies to preserve all electronic records such as e-mails more

effectively. In addition, H.R. 5811 will establish necessary oversight

of the maintenance and preservation of Presidential Records, including e-mails sent and received by Presidential advisors.

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Under current law, Federal agencies have broad discretion to determine how electronic records and electronic communications are

preserved. Guided by existing regulations and court decisions, few

agencies have moved to an electronic recordkeeping system for the

preservation of e-mails. This bill calls on the Archivist to issue regulations requiring agencies to preserve electronic communications

in an electronic format.

In addition, the Archivist would establish testing and certification standards for any electronic records management systems

implemented in Federal agencies. Committee investigations revealed deficiencies in White House preservation of e-mails under

the Presidential Records Act, including a lack of proper systems for

ensuring the preservation of these records. Congress passed the

Presidential Records Act to clarify that the records of the President

belong to the United States, not to the individual President.

Concerns have been raised over the past 2 years about White

House compliance with the Presidential Records Act during the

Bush administration. Investigations reveal that numerous White

House officials, including Senior Advisor Karl Rove, used political

e-mail accounts to conduct official business. Many of these e-mails

were deleted according to Republican National Committee policy,

and none were preserved as Presidential records.

In addition, the White House cannot account for hundreds of

days’ worth of official White House e-mails sent and received from

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. Under the Presidential

Records Act, the President has sole authority over the management

of records during his term of office.

The oversight mechanism created in H.R. 5811 establishes standards for the preservation of these records. In particular, these

standards would cover those records management controls necessary to capture, manage, preserve, and retrieve electronic communications.

The bill further requires that the Archivist annually certify

whether the records management controls established by the President meet these standards and biannually report to Congress on

the results of the certification.

I would like to thank Chairman Waxman and Mr. Hodes for

their leadership on this issue and for introducing this bill aimed at

safeguarding electronic records with me this week. I look forward

to today’s testimony and further review of H.R. 5811.

I would like to recognize Mr. Sali for an opening statement, if

you have one.

[The prepared statement of Hon. Wm. Lacy Clay and the text of

H.R. 5811 follow:]

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Mr. SALI. Well, thank you, Mr. Chairman. 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

for American University about having to rely on unreliable memoirs, scattered agency records, or the New York Times to reconstruct the history of policymaking records. Our historian should not

rely on events as reported by the New York Times or from memoirs

whose authors may embellish the facts.

This hearing seems to be focusing on only the Presidential

Records Act portion of this possible legislation. The focus should

not only be on these important records, but records from all of the

Federal agencies. 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.

Today, however, we seem to be elevating actions by a small number

of staffers who, allegedly, deleted private e-mail accounts years ago

to the same level as that of a former EPA director.

The purpose of this subcommittee hearing should be on preserving our Nation’s history and not on political gamesmanship. The

American people deserve better from their representatives.

Thank you, Mr. Chairman.

Mr. CLAY. I thank Mr. Sali for that opening statement and also

look forward to working with you and those on your side. As we

go through the bill I think you will see that it is more comprehensive than what you described, and it does cover Federal agencies

as well as the White House.

Mr. SALI. Great.

Mr. CLAY. Thank you.

Now I would like to recognize Mr. Hodes for an opening statement.

Mr. HODES. Thank you, Mr. Chairman, and I thank you for your

leadership on this very important bill. I look forward to the testimony and to working on this bill which really is, I think, of a discussion of how to bring our recordkeeping into the modern age.

Things are changing very, very quickly in the way we communicate, the way we keep our records, and I appreciate the various

concerns that I have seen in the written testimony.

I look forward to the oral testimony as we engage in this dialog

with the goal of preserving history, preserving records, and making

sure that the people of this country have access to the records that

are necessary to an effective Government.

So I thank you, Mr. Chairman, and yield back.

Mr. CLAY. Thank you so much.

Now we will receive testimony from the witnesses before us

today, and I want to start by introducing our panel.

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Our first witness, with whom this subcommittee is very familiar,

is Ms. Linda Koontz, Director of Information Management Issues

at the U.S. Government Accountability Office. She is responsible

for issues concerning the collection, use, and dissemination of Government information in an era of rapidly changing technology. Welcome back to the subcommittee, Ms. Koontz.

Next, representing the National Archives Records Administration, we will hear from Mr. Gary M. Stern, General Counsel of the

Archivist, and Mr. Paul Wester, Director of the Modern Records

Program. Welcome to both of you today.

And apparently the fourth witness is on her way. When she gets

in, we will swear her in, also.

Thank you all for appearing before the subcommittee today. It is

the policy of the Oversight Committee to swear in all witnesses before they testify. I would like to ask each witness to please stand

and raise your right hands.

[Witnesses sworn.]

Mr. CLAY. Thank you, you may be seated. Let the record reflect

that the witnesses have answered in the affirmative, and I ask that

now each witness give a brief summary of their testimony and to

keep this summary under 5 minutes in duration.

Ms. Koontz, you may proceed.

STATEMENTS OF LINDA KOONTZ, DIRECTOR, INFORMATION

MANAGEMENT ISSUES, GOVERNMENT ACCOUNTABILITY OFFICE; GARY STERN, GENERAL COUNSEL, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION; PAUL WESTER,

JR., DIRECTOR, MODERN RECORDS PROGRAM, NATIONAL

ARCHIVES AND RECORDS ADMINISTRATION; AND PATRICE

MCDERMOTT, DIRECTOR, OPENTHEGOVERNMENT.ORG

STATEMENT OF LINDA KOONTZ

Ms. KOONTZ. Thank you, Mr. Chairman, and members of the

subcommittee. I appreciate the opportunity to discuss critical

issues surrounding the Federal Government’s management of electronic mail messages.

As you know, Federal agencies are increasingly using e-mail for

essential communications and, in doing so, they are potentially creating messages that have the status of Federal records. My remarks today are based on ongoing work requested by you and the

full committee.

E-mail by its very nature presents significant records management challenges. First, information contained in e-mail records

may contain any subject or function and document various types of

transactions. As a result, in many cases decision on which e-mail

messages are records must be made individually.

Second, the context of an e-mail which includes the sender’s and

receiver’s date and time and attachments may be crucial to understanding its content and needs to be maintained.

Third, a message may be part of an exchange of messages between two or more people or even a string of many messages.

Finally, the large number of Federal e-mail users and the high

volume of e-mails increase the management challenge. Despite

these challenges, managing records, including e-mail records, is

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vital. If these records are not managed effectively, individuals

might lose access to benefits for which they are entitled, the Government could be exposed to unwarranted legal liabilities, and historical records could be lost forever.

In addition, agencies with poorly managed records risk increased

costs when attempting to search records in response to FOIA requests or litigation-related discovery actions.

Our ongoing review of e-mail management at four agencies illustrates these challenges. Although the agencies, generally with few

exceptions, have put in place policies that contain the appropriate

elements. Senior officials were not consistently following these policies. Specifically, for 8 out of 15 officials we are reviewing e-mail

messages that qualified as records were not being appropriately

identified and preserved. Instead, e-mail messages including

records were generally being maintained in e-mail systems that

lacked recordkeeping features that would permit easy and timely

retrieval of the information.

Key factors contributing to this practice were the sheer volume

of e-mails involved, and the agencies generally relied on paperbased processes to manage e-mail records rather than on electronic

recordkeeping systems, although several of them are in the process

of planning for or implementing such systems. In addition, awareness of Federal records requirements is an ongoing concern.

In regard to the draft bill, the Electronic Communications Preservation Act would encourage agencies to transition to electronic

records management. This has the potential to improve e-mail

management in the Federal Government by taking advantage of

the efficiencies of automation and limiting expenditure on cumbersome manual processes.

In addition, although agencies are moving toward electronic

records management, the 4-year deadline could help expedite this

transition but also allow agencies time to do the planning required

to implement those systems effectively.

Finally, the development of minimum functional requirements by

NARA should reduce the development risks that could have resulted from multiple agencies concurrently developing similar systems.

Mr. Chairman, that concludes my statement. I would be happy

to answer questions at the appropriate time.

[The prepared statement of Ms. Koontz follows:]

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Mr. CLAY. Thank you very much for that.

Mr. Stern.

STATEMENT OF GARY STERN

Mr. STERN. Chairman Clay, members of the committee, on behalf

of the Archivist of the United States, Allen Weinstein, I want to

thank you for providing the National Archives with this opportunity to share our views on H.R. 5811, the Electronic Communications Preservation Act.

I am Gary Stern, the General Counsel of the Archives, and with

me, as you know, is Paul Wester, who directs our Modern Records

Program which oversees records management policy under the Federal Records Act. The two substantive sections of the bill address

two very distinct statutes and entities that are governed by the

statutes. The Federal Records Act applies to all Federal agencies

across all three branches of the Government, and the Presidential

Records Act applies solely to the President and the Vice President,

and certain entities within the Executive Office of the President.

I will address the PRA section of the Bill, and then Mr. Wester

will discuss the FRA section.

Now, the Presidential Records Act was enacted in 1978 to establish public ownership of the Presidential administration’s records

and establish procedures governing the preservation and public

availability of those records. The House report on the bill noted the

need for the President to implement sound records management

practices, and it is worth noting that, in fact, the White House has

been at the forefront of trying to manage e-mail records electronically.

All the way back in 1994, largely in response to then long-running litigation about White House e-mails that began at the end of

the Reagan administration, the Clinton administration built a comprehensive e-mail archiving recordkeeping system known as the

Automated Records Management System [ARMS].

Now, while there were serious technical issues with ARMS toward the end of that administration, including the need to restore

approximately 2 million e-mails that were missing from ARMS, restore from backup tapes, this system nonetheless achieved a very

important result of preserving roughly 20 million Presidential

Record e-mails as well as 12 million Federal record e-mails from

the Federal agency components of the EOP, and all of those records

are now part of the National Archives preserved as permanent electronic records.

The ARMS system did carry over into the Bush administration

and to which, then, the committee has been looking into issues that

have resulted. The PRA was crafted after very careful consideration concerning the delicate separation of powers balance between

the Congress and the President, and the proper level of intrusion

by the Archivist into the incumbent President’s affairs.

For example, although the FRA authorizes the Archivist to promulgate guidelines and binding regulations to assist agencies in

the development of their records management systems, the PRA

lacks any such provision. Similarly, the Archivist lacks authority

under the PRA to formally inspect the President’s records while in

office or survey the President’s records management practices.

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Given this history of the PRA in this Constitutional dimension,

we believe it is highly appropriate for the committee to seek the

views of the Department of Justice regarding the separation of

powers issues raised by Section 3 of the bill. As the committee is

aware from the prior full committee hearing in February, there are

efforts underway by the White House to review and ensure its

issues relating to, allegedly, missing White House e-mails, including the possible need to restore e-mails from backup tapes, which

NARA certainly hopes will be completed before the end of this administration.

The Archivist also noted at that hearing that he did support the

EOP’s efforts, continuing efforts, to put in place a new electronic

recordkeeping system to replace the ARMS system that would better conform to best practices in both the public and private sector.

These more recent efforts by the EOP are, in our view, consistent

with the goals of the proposed bill to ensure effective records management controls are in place at the White House.

So along these lines, NARA believes that it is not unreasonable

to presume that an incumbent President should and would want to

adopt best practices in the area of electronic records management

that parallel the efforts that are or would be under this Bill required for Federal agencies.

So to the extent the standards required under Section 3(a) would

generally attract the new regulations that would be required under

Section 2, NARA believes this provision is consistent with the overall aims of the PRA. However, because of the Constitutional concerns already mentioned, these standards would likely need to be

non-binding on the incumbent President.

The provisions of Section 3(b) of the legislation requiring NARA

to make an annual certification that the records management controls established by the incumbent President meet newly established standards would best be implemented through the type of

oversight authority, including inspection authority, that we are empowered to conduct under the Federal Records Act, which would

normally include access by NARA to the processes, procedures in

place, and possibly even to the records being managed by the system. However, we note again that such authority would be unprecedented and defer once again to the Department of Justice on how

this would work as a formal matter.

Finally, Section 3(c) of the legislation would require a report by

the Archivist after the President leaves office regarding the volume

and format of Presidential records that have been transferred to

the National Archives. We do not believe that this reporting requirement raises any Constitutional issues, and NARA should,

therefore, be able to provide the Congress with such a report, if required.

I would now like to turn it over to Mr. Wester to discuss Section

2 on the FRA.

Mr. CLAY. Thank you. Mr. Wester, you may proceed.

STATEMENT OF PAUL WESTER, JR.

Mr. WESTER. Again, thank you for the opportunity to testify

today.

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Although the Federal Government’s work processes still operate

in a mixed media environment, paper and electronic, the Government’s records are increasingly and overwhelmingly ‘‘born digital.’’

This proposed legislation reflects the new paradigm. NARA conceptually supports managing electronic records within electronic recordkeeping systems in the Federal Government. We also firmly believe that electronic communications as well as other forms of electronic records need to be managed in accordance with sound

records management and archival principles.

In NARA, strategic directions for Federal records management

we state that NARA will partner with stakeholders to ensure that

Federal agencies can economically and effectively create and manage records necessary to meet business needs, that records are kept

long enough to protect rights and assure accountability, and that

records of archival value are preserved and made available for future generations.

We believe the intent of this proposed legislation supports these

broad goals. However, we have four areas of concern regarding the

intended scope and effect of the legislation. The four areas are:

One, NARA has issued guidance on the management of e-mail

records, and the term ‘‘electronic communications’’ may be too

broad and ambiguous. This may be especially the case since the

term is also used in other legislation of a decidedly different scope,

the Electronic Communications Preservation Act.

Two, the meaning of the term ‘‘preservation’’ should also be clarified. The proposed legislation suggests all electronic communications that are Federal records as defined by Section 3301 shall be

captured, managed, and preserved electronically. NARA’s view is

that, as is true for all Federal records, these types of records should

only be captured, managed, and preserved consistent with the

dispositional requirements outlined in Section 3302 and 3303 of

Title 44 of the U.S. Code.

Three, the potential cost of this proposed legislation are enormous. The costs of managing all Federal electronic communications

and electronic records management in electronic management applications would likely be in the billions of dollars. This legislation

also would require other financial and personnel investments by

Federal agencies to keep electronic records usable or readily accessible for retrieval through electronic searches over a long period of

time. These costs are separate for procuring electronic records applications for agencies across the Government. And four, while certified electronic RMAs are one method for managing electronic communication records in a recordkeeping system, there are likely to

be a variety of other technological solutions. Department of Defense

5015.2, Standard Certified Records Management Applications,

which NARA endorses as a standard for civilian agencies, in which

DOD has for their own agencies certified, are not the only way to

attractively manage electronic communication. Alternative technological approaches that can carry out the intent of the proposed legislation should be allowed.

It is also important to note that technological solutions may not

always be the most effective means for ensuring the management

and preservation of electronic communications and other electronic

records. In agencies where the work processes are not currently enVerDate 11-MAY-2000 16:04 Jul 06, 2009 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6633 U:\DOCS\50094.TXT KATIE PsN: KATIE
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tirely electronic, paper-based or perhaps a hybrid approach may be

the right solution. In this and other similar cases, agencies should

have the flexibility to determine the appropriate solution after analyzing business needs and, if needed, in consultation with NARA.

A full explanation of NARA’s concerns is contained in our full

testimony, but the National Archives of Records Administration

does believe the proposed legislation can ensure electronic communications that constitute thorough records are effectively managed

and accessible throughout their life cycle.

Thank you for considering NARA’s views on this important issue,

and we look forward to answering questions.

[The prepared statement of Mr. Stern and Mr. Wester follows:]

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Mr. CLAY. Thank you so much, Mr. Wester.

Without objection the committee will include in the record the

written testimony of Professor Anna Nelson, distinguished historian and resident at American University.

[The prepared statement of Ms. Nelson follows:]

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Mr. CLAY. We have also been joined by our fourth witness, Ms.

Patrice McDermott. Ms. McDermott, can I ask you to stand and

raise your right hand in order to be sworn in?

[Witness sworn.]

Mr. CLAY. Thank you, and let the record reflect the witness answered in the affirmative. Ms. McDermott, you may proceed with

your 5-minute opening statement.

STATEMENT OF PATRICE MCDERMOTT

Ms. MCDERMOTT. Thank you for accommodating me. I had a

board meeting that I had to participate in.

So thank you, Chairman Clay, Mr. Hodes, and members of the

subcommittee for the opportunity to speak today on the proposed

legislation that would require the executive branch to make concrete and documented progress toward the preservation of electronic records, including e-mail and electronic communications.

My name is Patrice McDermott. I am Director of

OpenTheGovernment.org, a coalition of consumer and good government groups, library associations, journalists and environmentalists, labor organizations, and others united to make the Federal

Government a more open place in order to make us safer, strengthen public trust in Government and support our democratic principles.

In 1982, 26 years ago now, the Committee on the Records of Government proclaimed that the United States is in danger of losing

its memory. They were talking, of course, about paper records. Our

memory is at much greater risk now, and this loss is not just of

family photos, as it were, but of that information necessary for accountability. Across the Federal Government we do not know with

any certainty that all of the documents and information that we

need to write our history, to understand policy development and

implementation to trace who knew what, read and edited, what

documents are being preserved.

Why is our memory in danger? Because the vast majority, if not

all, of our documentary and information history is being created

electronically, but not necessarily well-managed and preserved

electronically. Those of us outside of Government understand that

the common policy is to only preserve the final policy document, for

instance. That is important but not sufficient.

Some of us who have been around for more than a few years remember the days of carbon copies and complete paper files. In the

Government, the paper copies were annotated and initialed by

those who saw and commented on them. It was not just the final

version of the policy or memo that was filed away but a documentary history of that policy’s development. This is the stuff of what

did you know, and when did you know it, it is the stuff of history

and accountability.

The various reasons given for not preserving at all are ones we

have heard before. The volume is too great, we don’t have the resources to manage all this. It is not important to the leadership of

our agency.

Another reason, frankly, is that Congress has been lax at holding

agencies accountable and for ensuring that records management is

seen as part of the mission critical component of every department

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and agency. The loss of documents and information through indifference should be viewed with as much alarm as their loss through

a system breach. The end result is the same except that with indifference or intentional failure to preserve, we will not necessarily

know what has been taken from us. We will not be able to restore

our history to the previous status.

A report of which you have a copy, Record Chaos: The Deplorable

State of Recordkeeping in the Federal Government, issued last

week by Citizens for Responsibility and Ethics in Washington in

which OpenTheGovernment.org offered some assistance, gives us a

good indication of the state we are in with electronic records generally and electronic communications in particular. In general, our

admittedly unscientific survey which was part of this report exposed a number of major problems.

First, there is a lack of consistent policies, as evidenced by the

fact that so many respondents—and the details are in my submitted testimony—use multiple techniques to preserve e-mail records

at their agencies. Second, movement toward electronic records systems has been unacceptably slow. They are by far from universal

across the Government, and I think it would be safer to say they

are almost universal in not existing across the Government.

Third, agencies are exposing themselves to legal and litigation

sanctions, particularly in regard to the lack of care for metadata

if this is not corrected. Fourth, agencies lack training and compliance monitoring, two problems that could be easily cured by reforming agency policy and increased NARA involvement. Even

knowledgeable agency employees lack a basic understanding of

their recordkeeping obligations and how they can be satisfied.

Fifth, senior level agency management needs to realize the serious problems with their agency’s electronic records management

and take steps to correct them. The legislation under discussion at

this hearing is an important step in terms of announcing that Congress is going to pay attention to this serious issue and of taking

some beginning steps toward addressing the systemic problems

with electronic records, in general, and electronic communications

records in particular, your caveat notwithstanding.

We appreciate this initiative. I do not think, however, that this

bill goes nearly as far as it needs to. I am focusing my remarks

only on the Federal Records Act section of the bill, as I know others, well, I thought others were going to be addressing the Presidential Records Act portion.

As I noted in my submitted testimony, NARA has been talking

since at least 1996 about working ‘‘with agencies on the design of

recordkeeping systems for creating and maintaining records of

value.’’ We know from the CREW report and from what I understand of the GAO report to date that, in essence, little has concretely occurred, and therefore agencies have done little. NARA

and the agencies don’t need another 18 months to ‘‘establish mandatory minimal functional requirements and a software certification testing process to certify electronic record management applications.’’

NARA endorsed, and as Mr. Wester indicated, DOD 5015.2 in

November 1998, and there are records management applications

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that are available off the shelf. They need some adjusting, but they

are off the shelf.

Nor do the agencies need 3 more years beyond the 18 months to

comply with the requirement to implement the regulations in a

electronic records management system. This is an issue that has

been under discussion for more than 10 years. What are needed are

some enforceable repercussions for failure to meet obligations

under the Federal Records Act. I do not think that anyone has ever

been criminally prosecuted for destroying, much less failing to preserve, Federal records.

Records management is not a priority in agencies, as evidenced

by our survey. Unless Congress makes it a priority, including

through funding, we will likely be having this same discussion in

years to come. Congress must make the agencies answerable, and

agencies must make employees answerable. Reporting is not going

to be enough; although, unfortunately, I don’t have a specific remedy to offer to you today.

The partners in OpenTheGovernment.org look forward to opportunities to work on this bill and to ensure that strong legislation

begins to move the executive branch forward on this critical aspect

of Government management and accountability.

Thank you for the opportunity to speak to you on this important

issue, and I am happy to answer any questions you might have.

[The prepared statement of Ms. McDermott follows:]

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Mr. CLAY. Thank you very much, Ms. McDermott, for your testimony, and we will start the first round of questioning with the gentleman from New Hampshire.

Mr. Hodes, you are recognized for 5 minutes.

Mr. HODES. Thank you, Mr. Chairman. I thank the panelists for

their testimony.

I grew up during a period when Rosemary Woods stretched her

foot out and somehow lost 18 crucial minutes, as I recall, of tape.

When I pick up my Blackberry now, there is something that comes

up on the bottom, a message that says, please don’t print this out,

save the trees.

So here we are with agencies in this vast bureaucracy of our Federal Government using different means, methods, standards apparently, to preserve the people’s records because these records belong

to the people of this country. It is vital in terms of performing our

function of accountability and oversight to have access to records.

As we have seen in our investigation of the White House in recent

times, somehow millions of e-mails, hundreds of days disappeared.

So we have both the Federal records side, and we now have the

Presidential side.

Mr. Wester, I saw you nodding your head while Ms. McDermott

testified that NARA doesn’t need more time, the agencies don’t

need another 18 months to establish mandatory minimum functional requirements, and we don’t need 4 years following enactment

for compliance. Do you agree?

Mr. WESTER. I may have been nodding my head, but I am not

in complete agreement with Ms. McDermott.

Mr. HODES. You mean you were politely listening?

Mr. WESTER. I was politely listening.

Mr. HODES. OK. So do you agree with Ms. McDermott that more

time is not necessary, the kind that we have put in the Bill for

time periods?

Mr. WESTER. I think more time is needed for a couple of reasons

because of the cost associated with implementing records management applications. They are not insignificant, as we have in our

testimony talked about.

There are also issues related to, aside from purchasing the RMA

software, there is a lot of training which Ms. McDermott did talk

about in her testimony that would have to be done within agencies

to get both the records staff up to speed as well as folks who would

actually be using these kinds of software applications. It would

take a long time to be able to stand up these sorts of things.

Mr. HODES. And consistent with the testimony that I heard

about the need for perhaps varying methods, depending on the

agency, do you believe that NARA could develop the kind of standard that would allow for the flexibility that we heard testimony

may be required?

Mr. WESTER. Yes, sir.

Mr. HODES. A couple of specific questions, Mr. Wester, about

your testimony. You were concerned about the definition of electronic communication.

Mr. WESTER. Yes.

Mr. HODES. May I ask, and without taking up our time today,

I am certain, would you be able to provide this committee your sugVerDate 11-MAY-2000 16:04 Jul 06, 2009 Jkt 000000 PO 00000 Frm 00066 Fmt 6633 Sfmt 6633 U:\DOCS\50094.TXT KATIE PsN: KATIE
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gestion for a definition which you believe would be comprehensive

enough and forward thinking enough to be of a right definition in

the bill, so we would have the benefit of that thinking?

Mr. WESTER. Yes, sir.

Mr. HODES. Similarly, in terms of the word preservation and the

definition, clearly our goal is to be able to preserve, maintain, keep,

and have access to electronic records in whatever form they may

now be or will be in the future, and enable us to go back. Now,

without engaging in a long discussion about particulars, will you

also make available to us your thinking on the word preservation?

Mr. WESTER. Yes, sir.

Mr. HODES. I understand the concern about the costs. I think it

is a legitimate concern that we have to consider. Ultimately, we are

going to have to balance the costs of implementation against the

necessity for maintenance preservation and accountability.

Mr. WESTER. Yes.

Mr. HODES. And I also appreciate the technological flexibility required, and as I say, I think your thoughts on that and examples

will be important because our goal is to make sure that our Federal

Government is effective. And these days, with new kinds of communication that may be coming and that we have now that the acts

don’t seem to be working with as well as we would like, we really

need to make sure that we have both flexibility, but that we have

a Federal Government which is serious about preserving and maintaining its electronic records. Do you agree?

Mr. WESTER. I do agree, yes, sir.

Mr. HODES. And do you also agree that up to now, as Ms.

McDermott has laid out in her testimony with this recent survey,

although not completely scientific, it seems that there has been uneven compliance?

Mr. WESTER. Yes.

Mr. HODES. OK.

Mr. WESTER. But I was nodding at some parts of the——

Mr. HODES. That is the part where you were nodding.

Mr. WESTER. Right.

Mr. HODES. Mr. Stern, in your testimony you seem to agree with

the concept of developing standards for electronic record management controls at the White House, but you are concerned that

there are Constitutional impediments or concerns about the way

the Archives would interface with the White House about enforcing

standards?

Mr. STERN. That is correct. Up to now under the Presidential

Records Act, we have always worked closely with Presidential administrations on their records management issues, but we have

had no formal authority or responsibility. We have done it in an

informal way, and we have used the analogy, as has White House

counsel and records people in the White House, of the Federal

Records Act.

So again, to the extent that the bill says establish standards, in

our view standards would probably be the same records management standards you would want to have for Federal agencies, and

if it is formally non-binding, we would think nonetheless the White

House, given it has been at the forefront of preserving its e-mails

electronically, it should be willing to go along with those best pracVerDate 11-MAY-2000 16:04 Jul 06, 2009 Jkt 000000 PO 00000 Frm 00067 Fmt 6633 Sfmt 6633 U:\DOCS\50094.TXT KATIE PsN: KATIE
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tice standards that already exist or would exist under the Federal

Records Act.

Mr. HODES. You have some concern, I take it, about the power

and how it would be exercised by an agency like yours in dealing

with the White House, let’s just say hypothetically, that was interested in asserting some privilege to avoid compliance with the revelation or the recordkeeping or accountability that you were trying

to exercise if given the power we are planning to give you?

Mr. STERN. When the PRA was passed in 1978, I think there was

a fair amount of consideration given to what role could the Archivist as well as the Congress have in legislating specific requirements on the President himself and Vice President and his close

advisors. And the Congress, ultimately, sort of left that alone, so

the President is responsible for his own records management, and

that is where it has been.

And so the question is to the extent that the bill would in certain

aura in a formal way in overseeing records management within the

White House over the President, it is not clear, given the past history in enacting the statute whether that would be permissible

under the Constitution. Again, we think you should talk to the Department of Justice who has studied this issue for a long time to

get their views on how that could work.

Mr. HODES. Mr. Chairman, I see my time is up, but may I have

one last question?

Mr. CLAY. Certainly.

Mr. HODES. Thank you, Mr. Chairman.

Ms. McDermott, in your testimony you suggest that we are not

being tough enough.

Ms. MCDERMOTT. Right.

Mr. HODES. You want the White House security chief hauled off

in handcuffs when the e-mails are lost? How tough do you want us

to be, and how should we get tough?

Ms. MCDERMOTT. Well, I understand the Constitutional issues,

and I don’t have a good answer. But one of the concerns for the

public interest community is that there is no way to enforce accountability, to enforce records management in the White House,

and that is not NARA’s fault. It is a delicate issue.

We would like to have, and it is probably not possible, but we

would like to have a private right of action. Our community would

like to be able to sue the Office of Administration directly, not just

through the Archivist for failures like the current one to adequately manage their electronic records and, particularly, their email.

That doesn’t exist in the legislation, and it is something that

would be on our wish list, but we understand that the Presidential

Records Act portion of it is a difficult dance, and it has been a difficult dance. I used to work for NARA, so I know that it is a difficult dance for them with the White House, that they are sort of

there at the invitation of the White House in many cases.

So I think some way for the outside community, for non-government people to hold the White House accountable, but whether

Congress can do that, it is I don’t have a good answer.

Mr. HODES. All right, just a quick followup. You believe that

some kind of private right of action for outside groups would be an

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inspiration to the White House to comply with whatever standards?

Not really?

Ms. MCDERMOTT. No.

Mr. HODES. But it is on your far-extended wish list, right?

Ms. MCDERMOTT. Yes. Some of the partners in my coalition are

suing the Archives under the Federal Records Act, but they are

suing them under the Federal Records Act about White House emails because they cannot sue under the Presidential Records Act.

And it is a way of getting some attention from the White House,

but it doesn’t get their full attention.

Mr. HODES. What you want is, you want attention must be paid?

Ms. MCDERMOTT. Yes.

Mr. HODES. Thank you, I yield back. Thank you, Mr. Chair.

Mr. CLAY. Thank you, Mr. Hodes.

Ms. Koontz, in your written statement, you note that Federal

agencies recognize that it takes significant resources to create

paper records from electronic records, and that this is not a viable

long-term strategy for records management, is that correct?

Ms. KOONTZ. That is absolutely correct.

Mr. CLAY. You also testified that the four agencies that are part

of your study are all still using a print and file approach to preserving e-mail records. Are these agencies making any progress toward electronic preservation of e-mail records?

Ms. KOONTZ. Yes. One of the four agencies, EPA, is in the midst

of implementing a electronic solution. Two other agencies are

thinking about or considering electronic recordkeeping systems for

the future, and the last is not moving in that direction. So it is

quite mixed.

Mr. CLAY. Which agency is the one that is not?

Ms. KOONTZ. Federal Trade Commission is not currently considering it.

Mr. CLAY. OK. Based on the work that GAO has done in these

issues in recent years, do you believe that agencies will convert to

electronic preservation without a mandate to do so?

Ms. KOONTZ. I think a mandate is necessary to encourage agencies to move in this direction. I think, as some of the other witnesses have said on the panel, records management in general is

afforded a rather low priority across the Government, and without

a mandate to invest the money in it to improve it, I think that we

won’t get too far.

Mr. CLAY. Thank you for that response.

Ms. McDermott, in your testimony you referenced a new survey

of agency records managers that was released last week by a group

called CREW. Based on your experience with these issues and the

results of your survey, do you believe that agencies will implement

electronic preservation of these records in the absence of a mandate?

Ms. MCDERMOTT. Absolutely not, and I also think that part of

the problem has been a general records schedule, GRS–20 that

NARA issued—it is almost 10 years ago or more than 10 years ago

now—that allows agencies to treat all their e-mails as the same.

They don’t have to schedule the e-mails of a departmental secretary any differently than they schedule a GS–5 e-mails. They

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eral record schedule says they can print and then destroy the electronic version.

So I think no. I think agencies are going to have to be forced,

and there is a cost. Some agencies have been looking at this and

no off the shelf product suits every agency, and they all have to be

adjusted. But I think Mr. Hodes’ comment about, we have to weigh

the cost of doing it over against the cost of not doing it, and the

cost to accountability and history of not doing it, is correct.

Mr. CLAY. Now, in your testimony you talked about the time period involved in the bill, and I am just curious, do you agree with

this group called CREW that H.R. 5811 is woefully inadequate?

That is kind of how they characterized it. When should the bill

take effect, and the way the bill is drafted now, won’t it force agencies to implement the law?

Ms. MCDERMOTT. It will force them to implement it, but it puts

it off for a minimum of 41⁄2 years. My biggest concern is that I don’t

believe that NARA needs 18 months to develop a standard that has

existed for 12 years that may need some tweaking, but it has been

revisited and rejiggered over the years. The DOD standard is accepted throughout the Government, so I don’t think they need 18

months to do this.

The agencies may need a couple years after that to get this up

and running, but I think the amount of time overall that is given

takes us well into the administration, and I think that is just too

long, given that this has been an issue. The Government moved to

electronics creation of its records, documents, its memos, its policies in the 1980’s, at the latest, so we are talking a long time that

this information is not being appropriately preserved that we know

for sure.

Mr. CLAY. Which brings me to my next question. You began your

testimony by quoting from a 1982 statement by the committee on

records of Government.

Ms. MCDERMOTT. Right.

Mr. CLAY. That the United States is in danger of losing its memory. You stated that this quote remains true today, and the records

may be more at risk now than they were 26 years ago.

Interestingly, another witness who was unable to join us today

but submitted written testimony regarding the Presidential

Records Act, Dr. Anna Nelson, quoted the same passage and made

the same point about the risk to Presidential Records that you

made regarding Federal Records.

What do the non-governmental groups you represent fear losing

if agency e-mail records are not adequately preserved?

Ms. MCDERMOTT. We are losing our history. We are losing the

trail of, as I said in my testimony, who knew what when.

Mr. CLAY. Sure.

Ms. MCDERMOTT. E-mail is the way that people communicate

now, e-mail and other electronic communications, and I understand

your concern about the Electronic Communications Preservation

Act and not getting into that. But I think the language has to be

broader than just e-mail because it is an evolving field.

But that is how Government conducts its business now, and if

the e-mail and the electronic communications of the Government

officials who are creating policy and implementing policy are not

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preserved, it is like we went in and destroyed all the letters and

memos that had been written over our history, just went in and

wiped them out, if they were paper files if we just went in and destroyed them. We are losing accountability, and we are losing the

ability of our historians to write histories in the future.

Mr. CLAY. How about the clamor now in this Presidential campaign seeking the records of the former First Lady Hillary Clinton,

and really there may be a logistical issue here with them standing

in line and waiting for previous records from the President himself,

Bill Clinton?

Ms. MCDERMOTT. Right. Right.

Mr. CLAY. And, then, prioritizing whether the First Lady’s

records come now or should they wait in line for it? How do open

Government groups view that issue?

Ms. MCDERMOTT. Having actually worked in a Presidential library at one point, I understand how slow the archival and how detailed the archival processing of Presidential records are, and First

Lady records, so I am sympathetic, actually, with what the Clinton

Presidential Library is saying.

I think in terms of review of aides and all, there might have been

some delay. I don’t have any insider knowledge on that. But it is

a, of necessity, a detailed and painstaking process because you

have to look at the documents to make sure they don’t contain privacy-implicated information, classified information that got in

there inadvertently, or confidential information. So I am sympathetic.

And in terms of e-mail, I think that we are looking at the same

sort of volume issues, and that is why I think that it is important

that agencies treat e-mail like they would treat print letters that

they are scheduled, based on the office and the program, and not

according to a general records schedule; that they have to be treated just like the print letters, the ones that were typed out back

when I worked in Government, just if those were and continued to

be.

These are important records. They are records of the business of

government, and they need to be treated as such, and they have

to be scheduled. Not all of it is permanent; not all of it is archival

quality. Five percent, maybe, needs to be preserved, but those 5

percent need to be managed and archived.

Mr. CLAY. Ms. McDermott, thank you so much for your input on

this legislation, and the subcommittee looks forward to working

with you on improving it. Thank you, and I recognize the gentleman from New Hampshire for a second round of questions.

Mr. HODES. Thank you, Mr. Chairman. I appreciate the testimony and the suggestions I have heard.

Ms. Koontz, both you and the witnesses from the Archives acknowledge that a mandate on all Federal agencies to preserve communications is going to be expensive, certainly, in the short term.

But you also have indicated that you think there is some long-term

cost savings that will result. Could you tell us how you see that?

Ms. KOONTZ. I think that we will get some corresponding cost

savings, but most of those are very difficult to quantify. But when

we went into agencies and we looked at senior official practices, we

found in a lot of cases they had one or more administrative people

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reviewing the voluminous e-mail that they received and printing

and filing it.

We had one case in an agency where they actually printed out

e-mail and then scanned it into another system. These kinds of

cumbersome processes, you can’t help but get some cost-savings if

we have records management systems that are integrated with our

e-mail systems.

And I think also, when you look more broadly at what are we

spending on something like FOIA across Government. I have been

before this panel a number of times testifying on FOIA, and when

you think about the time that goes into searching for responsive

records through lots and lots of paper files, there are going to be

savings if we have better means of identifying those records.

Mr. HODES. So, on balance, in your view, is the investment in

creating the mandate that we are contemplating and doing it in a

way that will lead to preservation, is the investment going to be

worth it if we take a longer-term view of the payback?

Ms. KOONTZ. I think we do need to take a longer-term view. I

think the cost benefit, of course, will differ according to the agency

and the kinds of workers that they have and the business processes

that they have. But that will be part of the planning process that

I think that the bill allows for is for people to study that and determine the appropriate solution that will get a return on investment.

Mr. HODES. Thank you, Mr. Chairman. I yield back at this time.

Mr. CLAY. Thank you so much.

Let me get to Mr. Wester real quickly. Mr. Wester, the National

Archives expresses understandable concerns about the short-term

cost to agencies of a requirement to preserve electronic communications, electronically. These records management systems can be

costly, and it will take resources to train agency staff and officials

to use them correctly. But I wonder if the Archivist is sensitive to

the cost of not taking these steps.

We have heard today about the cost of paper preservation of

these records, including the loss of some important data and the

loss of efficiency. Does the Archives share GAO’s concerns about

the losses of data inefficiency from paper preservation of these

records?

Mr. WESTER. I think we do share the same concerns that Ms.

Koontz talked about. One of the concerns that we also were worried

about with electronic recordkeeping systems or electronic approaches to these issues where you are gathering all the electronic

communications separate from the regular recordkeeping systems

in an organization, that you are going to lose the context of those

records. And that is more of a detailed Archival Records Management kind of issue that we are concerned about.

I think what we are focused on with the agencies is that they

have good records management practices, they are able to deal

with all types of records and all types of electronic records, and I

guess our concern is if you mandate a specific type of application

and a specific way of doing this kind of work, you could open the

door to other issues that would be harder to deal with from an Archival Records Management perspective over time to document the

activities and the business processes of a particular Federal agency.

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Mr. CLAY. Without a Federal mandate about law, how do we get

the agencies to conform to preserving these records electronically?

Mr. WESTER. What we have to do is to continue the kinds of

work that we have done in the past years in developing a body of

regulations and guidance that agencies can follow and can actually

apply within their organizations to get this kind of work done.

On the legislation that is proposed, notwithstanding the cost

issues, does drive that issue in a legal way into the agencies where

they would have to be in compliance with electronic recordkeeping

in dealing with electronic communications.

Mr. CLAY. Mr. Stern.

Thank you for your answers.

Mr. WESTER. Thank you.

Mr. CLAY. Mr. Stern, the Presidential Records Act seems to put

the National Archives in a difficult spot with regard to the preservation of Presidential Records. The Archives is required to accept

all Presidential Records from a President on the last day of his

term. The Archives is then required to manage and preserve these

records and, eventually, make them available to the public.

However, the Archives has no official role with regard to these

records during the President’s term. Is that correct?

Mr. STERN. That is correct.

Mr. CLAY. OK. Prior to taking possession of these records on the

last day of a President’s term, what role does the Archives play in

ensuring that a complete record of the presidency is preserved?

Mr. STERN. Well, we attempt to work, and, generally are able to

work cooperatively with the White House, especially in the last

year of an administration to manage, literally, the physical transfer

of the records as part of the transition from one president to the

other. So that is what we are doing now with this administration.

Eight years ago we worked closely with the Clinton administration to do the physical transfer, which includes understanding an

electronics system and what types of records those are, what formats, and also we can have a way to bring them in to our systems.

So we are able to work cooperatively, and that is the only way

we have been able to work is to on sort of a voluntary cooperative

basis, because, of course, it is not only required by law but it is in

the President’s interest to get the records to us. Then we will be

managing and running the Presidential Library where all former

presidents have been very active and very interested in having

their records there, and once they become former presidents, and

making them open and available to the public.

Mr. CLAY. Would the National Archives and the Presidential Libraries benefit by having a clear understanding of how the White

House is preserving records prior to the end of an administration?

Would it be helpful if you all could come in and advise on the format and just the entire concept of preserving electronic records?

Mr. STERN. Absolutely. It would help us, and it has helped us to

be able to work with the White House closely throughout the administration. And I noted we worked most closely in the last year

on transition. We have, in fact, with this administration and the

prior ones, worked cooperatively throughout the administration on

records management issues.

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Again, we do it, essentially, at their invitation in a cooperative

way and a voluntary way, but they do—all administrations have

looked to us because we have the institutional, historical, and professional experience that a brand new administration doesn’t have.

And so for the most part, it works well overall, and the more information we can get and understanding we can have of their records,

their systems, and all throughout the course of the administration,

the better it works.

Mr. CLAY. Thank you for that response, and the legislation we

are discussing today would ensure that the National Archives is

kept informed at a minimum about the records management systems used by the White House to preserve Presidential records.

And it seems clear that with such information, it would be useful

to the Archives, as it prepares to accept Presidential records at the

end of a President’s term.

Let me say that this has been quite helpful, this hearing, to this

subcommittee. And I look forward to working with the panelists on

this legislation. And I will conclude this hearing and say the subcommittee now stands adjourned, and that concludes this hearing.

Thank you.

[Whereupon, at 3:07 p.m., the subcommittee was adjourned.]

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