II 118th CONGRESS 2d Session S. 4042 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.

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. I Federal records reform 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. . 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. 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: 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. . 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). . 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: 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. . II Additional reforms to preserve and protect records and Government integrity 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. . 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. . 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. 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). .