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Legacy Content / ONLINE EXCLUSIVE

National Archives Wary About Policing Presidential Records

April 24, 2008

National Archives officials sound lukewarm about accepting new powers that House Democrats want to give them to inform Congress about how well future presidential administrations are carrying out electronic recordkeeping.

Some lawmakers want to strengthen oversight of the executive branch’s compliance with legal requirements and electronic records retention by requiring federal archivists to supervise, “certify” and make frequent public reports about how executive agencies and the White House are managing records, including e-mails. At an April 23 House hearing, archivists expressed worry about becoming politicized pariahs if future presidents and their teams see them as internal affairs investigators who report transgressions to the legislative branch.

A bill introduced April 15 would expand the duties of the National Archives and Records Administration, which has responsibilities under existing law for preservation of some executive branch and presidential records, but the bill would create no new enforcement mechanisms beyond the risk of public exposure.

 

The legislation is aimed squarely at failures within the Bush administration to adequately collect and preserve federal and presidential records -- including electronic records. Lawmakers from both parties are unhappy about missing, deleted and off-line e-mails created by officials in the Bush White House, plus haphazard records preservation described [PDF] by the Government Accountability Office and outside advocacy groups taking place in many agencies and departments. Privately, National Archives experts have expressed similar worries, but they warn that the complex electronic and constitutional terrain is littered with land mines.

NARA officials cautioned during a House Oversight and Government Reform subcommittee hearing that the Electronic Communications Preservation Act [PDF] could cost taxpayers billions of dollars if all its technical and procedural requirements were enacted government-wide. They also suggested the bill could jeopardize a delicate, cooperative relationship between presidents and the independent federal archivists who advise chief executives and their staffs while they’re in office but do not technically work for them.

“Such authority is unprecedented and would mark a significant departure from accepted and long-standing practice,” said NARA’s modern records program director, Paul Wester. “It would likely be deemed intrusive to White House records management processes and an encroachment on the internal administration by the White House of records management compliance with the [Presidential Records Act].”

As Gary Stern, NARA’s general counsel, put it during the hearing, “the president is responsible for his own records management” under the act, and Congress should ask the Justice Department for advice about how far it can go beyond that.

Committee Chairman Henry Waxman, D-Calif., and ranking member Rep. Tom Davis, R-Va., have held frequent meetings with NARA and White House representatives to discuss records management issues. Lawmakers are searching for a way to intervene without going too far. Trying to amend the Federal Records Act, said one committee source, would be too big a leap. Legislation to strip away a controversial 2001 Bush executive order attached to the Presidential Records Act cleared the House more than a year ago by a vote of 333-93. It has lingered on the Senate calendar since June. Sen. Jeff Sessions, R-Ala., has a hold on the bill, according to a House aide.

“Recent history in the Bush administration suggests that someone needs to be looking out for the interests of the people in preserving the records of the White House,” Rep. Paul Hodes, D-N.H., a co-sponsor of the legislation, told National Journal after the Wednesday hearing.

Patrice McDermott, director of OpentheGovernment.org, a coalition of open-government advocates, warned the Subcommittee on Information Policy, Census and National Archives that NARA is to blame for abdicating some of the authority and responsibility it already possesses to improve the handling of electronic records throughout the government.

“I don’t believe that NARA needs 18 months to develop a standard that’s been in existence for 12 years,” she said. McDermott, who previously dealt with presidential libraries as an Archives employee, compared current difficulties preserving electronic records, including e-mails, to a corollary with paper.

“It’s like we went in and destroyed all the letters and memos,” she said. “We’re losing our accountability and the possibility to write histories in the future.”

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