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[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4042 Introduced in Senate (IS)]

<DOC>

118th CONGRESS
  2d Session
                                S. 4042

  To amend title 44, United States Code, to reform the management of 
                Federal records, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             March 21, 2024

Mr. Peters (for himself and Mr. Cornyn) introduced the following bill; 
which was read twice and referred to the Committee on Homeland Security 
                        and Governmental Affairs

_______________________________________________________________________

                                 A BILL

 
  To amend title 44, United States Code, to reform the management of 
                Federal records, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Strengthening 
Oversight of Federal Records Act of 2024''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
                    TITLE I--FEDERAL RECORDS REFORM

Sec. 101. Preservation of Federal electronic records.
Sec. 102. Whistleblower protections.
Sec. 103. Preservation of electronic messages of certain officials.
Sec. 104. Proactive disclosure of records retention schedules.
Sec. 105. Certification regarding preservation of records.
   TITLE II--ADDITIONAL REFORMS TO PRESERVE AND PROTECT RECORDS AND 
                          GOVERNMENT INTEGRITY

Sec. 201. Unlawful removal, destruction of records.
Sec. 202. Records management incorporation into performance plans.
Sec. 203. Establishment of an Advisory Committee on Records Automation.
Sec. 204. Regulations.

                    TITLE I--FEDERAL RECORDS REFORM

SEC. 101. PRESERVATION OF FEDERAL ELECTRONIC RECORDS.

    (a) Preservation of Agency Electronic Records.--Section 2911 of 
title 44, United States Code, is amended--
            (1) by striking subsection (a) and inserting the following:
    ``(a) In General.--An officer or employee of an executive agency 
shall not--
            ``(1) destroy or delete any record created, sent, or 
        received using a non-official electronic messaging account, 
        including through any automatic mechanism, unless the record 
        has been copied or forwarded to an official electronic 
        messaging account of officer or employee; or
            ``(2) create, receive, or send a record using a non-
        official electronic messaging account unless--
                    ``(A) the policies and procedures of the executive 
                agency authorize such use by the officer or employee;
                    ``(B) the account is subject to records management 
                controls to create and preserve readable records; and
                    ``(C) the officer or employee--
                            ``(i) copies an official electronic 
                        messaging account of the officer or employee in 
                        the original creation or transmission of the 
                        record; or
                            ``(ii) forwards a complete copy of the 
                        record to an official electronic messaging 
                        account of the officer or employee not later 
                        than 20 days after the original creation or 
                        transmission of the record.'';
            (2) in subsection (b), by inserting ``, unless the 
        violation involves a disclosure, as defined in section 
        2302(a)(2) of title 5'' before the period at the end; and
            (3) in subsection (c)(1), by inserting ``, including social 
        media and digital applications and platforms,'' after 
        ``messaging systems''.
    (b) Safeguards.--Section 3105 of title 44, United States Code, is 
amended, in the matter preceding paragraph (1), by striking ``against'' 
and inserting ``to ensure the adequate and proper documentation of the 
organization, functions, policies, decisions, procedures, and essential 
transactions of the Federal agency and to prevent''.
    (c) Definitions.--Section 2901 of title 44, United States Code, is 
amended--
            (1) in paragraph (15), by striking ``and'' at the end;
            (2) in paragraph (16)(D), by striking the period at the end 
        and inserting a semicolon; and
            (3) by adding at the end the following:
            ``(17) the term `complete copy' means a copy of all of the 
        contents of a record, including the metadata with respect to 
        the record; and
            ``(18) the term `readable' means media that is retrievable 
        and usable for as long as needed to conduct Government business 
        and to transfer permanent email records to the National 
        Archives and Records Administration.''.

SEC. 102. WHISTLEBLOWER PROTECTIONS.

    (a) Definitions.--In this section the term ``whistleblower 
protections'' has the meaning given that term in section 2302(c)(1) of 
title 5, United States Code.
    (b) Whistleblower Protections.--Nothing in section 2911(a)(2) of 
title 44, United States Code, as amended by section 101, shall prevent 
or impair an officer or employee of an executive agency from receiving 
whistleblower protections.

SEC. 103. PRESERVATION OF ELECTRONIC MESSAGES OF CERTAIN OFFICIALS.

    (a) In General.--Chapter 29 of title 44, United States Code, is 
amended by adding at the end the following:
``Sec. 2913. Preservation of electronic messages of certain officials
    ``(a) Regulations Required.--
            ``(1) In general.--The Archivist shall promulgate 
        regulations governing Federal agency preservation of electronic 
        messages of employees, which shall, at a minimum--
                    ``(A) require that the electronic messages of 
                senior officers or senior employees of Federal agencies 
                be designated as a permanent record, as defined in 
                section 1220.18 of title 36, Code of Federal 
                Regulations, or any successor thereto;
                    ``(B) require that the electronic messages of 
                senior officers or senior employees--
                            ``(i) be stored in accordance with 
                        guidelines prescribed by the Archivist; and
                            ``(ii) are readily accessible for retrieval 
                        through electronic searches;
                    ``(C) establish general categories of positions in 
                Federal agencies that constitute senior officers and 
                employees; and
                    ``(D) allow for the culling of transitory messages, 
                messages that are not records, and personal messages as 
                appropriate.
            ``(2) Scope.--The regulations promulgated under paragraph 
        (1) shall, at a minimum, apply to electronic messages of--
                    ``(A) the head of each Federal agency;
                    ``(B) the principal assistant to the head of each 
                Federal agency, including a member of the Armed Forces 
                serving in a comparable position;
                    ``(C) an officer or employee serving as a deputy, 
                or equivalent position, of an officer, employee, or 
                member described in subparagraph (A) or (B);
                    ``(D) an employee serving as a staff assistant to 
                an officer, employee, or member described in 
                subparagraph (A) or (B), including a special assistant, 
                confidential assistant, military assistant, and aide;
                    ``(E) an officer or employee serving in a principal 
                management position at a Federal agency, including the 
                Chief Operating Officer, the Chief Information Officer, 
                the Chief Knowledge Officer, the Chief Technology 
                Officer, the Chief Financial Officer, and an equivalent 
                of such an officer;
                    ``(F) the director, or equivalent position, of a 
                significant program office of a Federal agency;
                    ``(G) a principal regional officer of a Federal 
                agency, including a regional administrator, or 
                equivalent position;
                    ``(H) an officer or employee serving in a position 
                that routinely provide advice to or oversight of a 
                Federal agency, including advice to or oversight of the 
                activities of an officer, employee, or member described 
                in subparagraph (A), (B), (C), (E), (F), or (G), 
                including an officer or employee serving as a general 
                counsel, chief of staff, or inspector general;
                    ``(I) an officer or employee appointed by the 
                President, by and with the advice and consent of the 
                Senate;
                    ``(J) any other officer or employee serving in a 
                position that predominantly creates permanent records 
                related to mission critical functions or policy 
                decisions of a Federal agency or that are of historical 
                significance; and
                    ``(K) any officer or employee serving in a position 
                described in subparagraph (A), (B), (C), (D), (E), (F), 
                (G), (H), (I), or (J) in an acting capacity.
    ``(b) Agency Report to Archivist.--
            ``(1) In general.--Not later than the date specified in 
        paragraph (2), and every 5 years thereafter, the head of each 
        Federal agency shall submit to the Archivist a report on the 
        compliance of the Federal agency with subsection (a), including 
        statistics on--
                    ``(A) the number of senior officers and senior 
                employees of the Federal agency whose electronic 
                messages are being stored as permanent records in 
                accordance with guidelines prescribed by the Archivist;
                    ``(B) the volume of electronic messages of senior 
                officers and senior employees of the Federal agency 
                designated as a permanent record that are held by the 
                Federal agency; and
                    ``(C) the volume of total electronic messages of 
                officers and employees of the Federal agency that are 
                held by the Federal agency.
            ``(2) Deadline for initial reports.--The date specified in 
        this paragraph is the earlier of--
                    ``(A) the date that is 210 days after the date on 
                which the Archivist promulgates regulations under 
                subsection (a); or
                    ``(B) the date that is 1 year after the date of 
                enactment of this section.
            ``(3) Public availability.--Not later than 30 days after 
        submitting a report required under paragraph (1) to the 
        Archivist, the head of a Federal agency shall make the report 
        publicly available in an accessible electronic format on the 
        website of the Federal agency.''.
    (b) Conforming Amendment.--The table of sections for chapter 29 of 
title 44, United States Code, is amended by adding at the end the 
following:

``2913. Preservation of electronic messages of senior officials.''.

SEC. 104. PROACTIVE DISCLOSURE OF RECORDS RETENTION SCHEDULES.

    (a) Proactive Disclosure of Records Retention Schedules.--Section 
3303 of title 44, United States Code, is amended--
            (1) by striking ``The head'' and inserting ``(a) The 
        head''; and
            (2) by adding at the end the following:
    ``(b)(1) For each list or schedule of records issued under 
subsection (a) that is approved by the Archivist, the Archivist shall--
            ``(A) not later than 30 days after the date on which the 
        Archivist approves the list or schedule, make the list or 
        schedule available for public inspection;
            ``(B) make available and maintain the list or schedule in 
        an accessible electronic database on a website of the National 
        Archives and Records Administration, including the relevant 
        crosswalk and appraisal memo; and
            ``(C) ensure the list or schedule, and all related 
        materials, are organized in such fashion as to--
                    ``(i) facilitate public understanding of the 
                operations of the records management program of the 
                Federal agency; and
                    ``(ii) assist the Archivist in cataloging 
                disposition authorities.
    ``(2) Not later than 60 days after the date of enactment of the 
Strengthening Oversight of Federal Records Act of 2024, the head of 
each Federal agency shall submit to the Archivist each list or schedule 
of records issued under subsection (a) before such date of enactment 
that is in effect on such date of enactment, and all related materials, 
for immediate publication in the database described in paragraph (1).
    ``(3) The database described in paragraph (1) shall be searchable 
and maintained as an open Government data asset, as defined in section 
3502.''.
    (b) Regulation.--Section 3302 of title 44, United States Code, is 
amended--
            (1) in paragraph (1), by striking the comma at the end and 
        inserting a semicolon;
            (2) in paragraph (2), by striking ``, and'' and inserting a 
        semicolon;
            (3) in paragraph (3), by striking the period at the end and 
        inserting ``; and''; and
            (4) by adding at the end the following:
            ``(4) procedures and minimum standards of ease-of-use for 
        public inspection and online maintenance of lists, schedules, 
        and related materials pursuant to section 3303(b).''.

SEC. 105. CERTIFICATION REGARDING PRESERVATION OF RECORDS.

    (a) In General.--Chapter 29 of title 44, United States Code, as 
amended by section 103, is amended by adding at the end the following:
``Sec. 2914. Certification regarding preservation of records
    ``The head of each Federal agency shall establish policies and 
procedures under which each employee of the Federal agency shall, prior 
to separating from service as an employee of the Federal agency, submit 
to the head of the Federal agency a certification indicating whether 
the employee has complied with the requirements under this chapter 
relating to the preservation of records.''.
    (b) Conforming Amendment.--The table of sections for chapter 29 of 
title 44, United States Code, as amended by section 103, is amended by 
adding at the end the following:

``2914. Certification regarding preservation of records.''.

   TITLE II--ADDITIONAL REFORMS TO PRESERVE AND PROTECT RECORDS AND 
                          GOVERNMENT INTEGRITY

SEC. 201. UNLAWFUL REMOVAL, DESTRUCTION OF RECORDS.

    Section 3106 of title 44, United States Code, is amended--
            (1) by striking subsection (a) and inserting the following:
    ``(a) Federal Agency Notification of Unlawful Removal or 
Destruction of Records.--
            ``(1) In general.--The head of each Federal agency shall 
        notify the Archivist if the head of the Federal agency knows or 
        has reason to believe that there is--
                    ``(A) any actual, impending, or threatened unlawful 
                failure to create or removal, defacing, alteration, 
                corruption, deletion, erasure, or other destruction of 
                records in the custody of the Federal agency; or
                    ``(B) any other repeated non-compliance by any 
                employee of the Federal agency with Federal record-
                keeping requirements that the head of the Federal 
                agency has been unable to fully address.
            ``(2) Remedy.--With the assistance of the Archivist, the 
        head of each Federal agency shall initiate action through the 
        Attorney General for--
                    ``(A) fully recovering or restoring records 
                unlawfully removed from the Federal agency, including 
                records of another Federal agency that have been 
                transferred to the legal custody of that Federal 
                agency, or that are defaced, altered, corrupted, 
                deleted, erased, or destroyed, to the extent 
                practicable; and
                    ``(B) remedying any other repeated non-compliance 
                by any employee of the Federal agency with record-
                keeping requirements.'';
            (2) in subsection (b), by striking ``shall request the 
        Attorney General'' and all that follows and inserting the 
        following: ``shall--
            ``(1) request the Attorney General to initiate such an 
        action;
            ``(2) notify the Committee on Homeland Security and 
        Governmental Affairs of the Senate and the Committee on 
        Oversight and Accountability of the House of Representatives;
            ``(3) include with the notification under paragraph (2) any 
        relevant evidence, analysis, and supporting documentation 
        pertinent to the incident; and
            ``(4) in coordination with the Attorney General, make 
        regular updates to the committees specified in paragraph (2) on 
        the status of efforts to remedy the unlawful action or 
        noncompliance.''; and
            (3) by adding at the end the following:
    ``(c) Other Recordkeeping Violations.--
            ``(1) In general.--If the Archivist becomes aware of an 
        alleged violation by an employee of a Federal agency of his or 
        her recordkeeping obligations, the Archivist shall--
                    ``(A) notify the head of the Federal agency and 
                coordinate with the Federal agency to determine whether 
                a violation took place; and
                    ``(B) subject to paragraph (2), refer the matter to 
                the head of the Federal agency for corrective action, 
                as necessary.
            ``(2) Agencies with inspectors general.--If the Archivist 
        makes a referral described in paragraph (1)(B) to a Federal 
        agency that has an Inspector General (as defined in section 401 
        of title 5), the Archivist shall make a joint referral to the 
        head of the Federal agency and to the Inspector General of the 
        Federal agency.''.

SEC. 202. RECORDS MANAGEMENT INCORPORATION INTO PERFORMANCE PLANS.

    Section 4302 of title 5, United States Code, is amended--
            (1) by redesignating subsections (c) and (d) as subsections 
        (d) and (e), respectively; and
            (2) by inserting after subsection (b) the following:
    ``(c) The head of each agency, in consultation with the Director of 
the Office of Personnel Management and the Archivist of the United 
States, shall develop criteria that incorporates records management 
requirements that should be included in employees' performance 
standards and reviews.''.

SEC. 203. ESTABLISHMENT OF AN ADVISORY COMMITTEE ON RECORDS AUTOMATION.

    (a) Establishment.--There is established within the National 
Archives and Records Administration an advisory committee to be known 
as the ``Advisory Committee on Records Automation'' (in this section 
referred to as the ``Advisory Committee'').
    (b) Purposes.--The purposes of the Advisory Committee are--
            (1) to encourage the efforts of the Government to manage 
        records through greater use of automation to make electronic 
        recordkeeping more efficient;
            (2) to encourage the efforts of the Government to more 
        efficiently respond to access requests for records of executive 
        agencies;
            (3) to issue recommendations relating to records 
        automation, including on how the Government should use 
        automated software to--
                    (A) automatically categorize records in connection 
                with the issuance of records schedules required under 
                chapter 33 of title 44, United States Code;
                    (B) search for responsive records; and
                    (C) assist in determining whether records may be 
                exempt from public disclosure; and
            (4) to receive expert advice from public and private sector 
        sources with respect to the use of automated software to make 
        the management of and access to records of executive agencies 
        more efficient.
    (c) Duties.--The duties of the Advisory Committee include providing 
advice and recommendations to the Archivist of the United States (in 
this section referred to as the ``Archivist'') and agencies on 
strategic, technical, financial, programmatic, and operational matters 
regarding records automation.
    (d) Membership.--
            (1) Composition.--The Advisory Committee shall be composed 
        of not more than 15 members from the public and private sectors 
        as follows:
                    (A) Three members shall be appointed by the 
                Archivist, 1 of which shall be designated by the 
                Archivist as the Chairperson of the Advisory Committee.
                    (B) Three members shall be appointed by the 
                Director of the Office of Management and Budget.
                    (C) One member shall be appointed by the Attorney 
                General of the United States.
                    (D) One member shall be appointed by the 
                Administrator of General Services.
                    (E) Additional members shall appointed by the 
                Archivist, as determined appropriate by the Archivist, 
                in consultation with the Director of the Office of 
                Management and Budget.
            (2) Public sector and private sector balance.--The 
        Archivist shall ensure that the Advisory Committee maintain a 
        balance between members from the public sector and from the 
        private sector.
            (3) Deadline for appointment.--Each member of the Advisory 
        Committee shall be appointed not later than 45 days after the 
        date of enactment of this Act.
    (e) Period of Appointment; Vacancies.--
            (1) In general.--A member of the Advisory Committee shall 
        be appointed for the life of the Committee.
            (2) Vacancies.--A vacancy in the Advisory Committee--
                    (A) shall not affect the powers of the Advisory 
                Committee; and
                    (B) shall be filled in the same manner as the 
                original appointment.
    (f) Meetings.--
            (1) Initial meeting.--Not later than 60 days after the date 
        on which all members of the Advisory Committee have been 
        appointed, the Advisory Committee shall hold the first meeting 
        of the Advisory Committee.
            (2) Frequency.--The Advisory Committee shall meet at the 
        call of the Chairperson, but not less frequently than 3 times 
        per year, at such time and place as determined by the 
        Chairperson.
            (3) Quorum.--A majority of the members of the Advisory 
        Committee shall constitute a quorum, but a lesser number of 
        members may hold hearings.
            (4) Rules of procedure.--The Advisory Committee may 
        establish rules for the conduct of the business of the Advisory 
        Committee if such rules are not inconsistent with this section 
        or other applicable law.
    (g) Reports.--
            (1) In general.--Not later than 2 years after the date of 
        enactment of this Act, the Advisory Committee shall submit to 
        the Archivist, the Committee on Homeland Security and 
        Governmental Affairs of the Senate, and the Committee on 
        Oversight and Accountability of the House of Representatives a 
        report providing a detailed statement of the findings and 
        conclusions of the Advisory Committee, together with any 
        recommendations of the Advisory Committee for legislation or 
        administrative actions.
            (2) Interim reports.--The Advisory Committee may submit to 
        the Archivist, the Committee on Homeland Security and 
        Governmental Affairs of the Senate, and the Committee on 
        Oversight and Accountability of the House of Representatives 
        interim reports regarding the activities and findings of the 
        Advisory Committee, as determined appropriate by the Advisory 
        Committee.
    (h) Powers.--
            (1) Information from federal agencies.--The Advisory 
        Committee may secure directly from a Federal department or 
        agency such information as the Advisory Committee considers 
        necessary to carry out this section, consistent with the 
        protection of classified national security information and 
        statutorily protected information.
            (2) Postal services.--The Advisory Committee may use the 
        United States mails in the same manner and under the same 
        conditions as other departments and agencies of the Federal 
        Government.
            (3) Donations.--The Advisory Committee may accept, use, and 
        dispose of donations of services or property.
    (i) Advisory Committee Personnel Matters.--
            (1) In general.--A member of the Advisory Committee (other 
        than a member who is appointed to the Advisory Committee in 
        connection with another Federal appointment) shall not be 
        considered an employee of the Federal Government by reason of 
        any service as such a member, except for the purposes of 
        section 5703 of title 5, United States Code, relating to travel 
        expenses.
            (2) Pay not permitted.--A member of the Advisory Committee 
        described in paragraph (1) may not receive pay by reason of 
        service on the Committee.
            (3) Procurement of temporary and intermittent services.--
        The Chairperson of the Advisory Committee may procure temporary 
        and intermittent services under section 3109(b) of title 5, 
        United States Code, at rates for individuals that do not exceed 
        the daily equivalent of the annual rate of basic pay prescribed 
        for level V of the Executive Schedule under section 5316 of 
        that title.
    (j) Termination of Advisory Committee.--The Advisory Committee 
shall terminate on the date that is 90 days after the submission of the 
report required under subsection (g)(1).
    (k) Authorization of Appropriations.--There is authorized to be 
appropriated $3,000,000 to carry out this section for each of fiscal 
years 2025 and 2026.
    (l) Application of FACA.--Chapter 10 of title 5, United States 
Code, shall apply to the Advisory Committee.

SEC. 204. REGULATIONS.

    Section 2206 of title 44, United States Code, is amended--
            (1) by inserting ``(a)'' before ``The Archivist'';
            (2) in subsection (a), as so designated--
                    (A) in paragraph (1), by striking ``2203(f)(3)'' 
                and inserting ``2203(g)(4)'';
                    (B) in paragraph (3), by striking ``and'' at the 
                end;
                    (C) in paragraph (4), by striking the period and 
                inserting ``; and''; and
                    (D) by adding at the end the following:
            ``(5) provisions for establishing procedures for 
        documenting required metadata.''; and
            (3) by adding at the end the following:
    ``(b) The Archivist shall issue, and shall regularly update, 
implementation guidance with respect to the regulations described in 
subsection (a)(5).''.
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