Old-school recordkeeping meets the Digital Age

How does the government manage data that was born digital, meaning it was created in electronic form? Organizations as varied as the National Archives and Records Administration (NARA), the White House, open-government groups, and House members have recently offered recommendations for managing the growing volume of such information. Their approaches underscore the differences of opinion about how much responsibility and power various entities should have over future federal recordkeeping.  Electronic records management has been the topic of proposed legislation and rules, court cases, congressional investigations, hearings, and government audits as agencies weigh options for maintaining the vast amount of official communication that is conducted electronically. Because federal employees use e-mail and other technologies daily for routine notes and important information, it’s not always easy to decide which messages qualify as records that must be preserved. And once a decision is made, the next question is how best to store the messages. Under the Federal Records Act, NARA approves agencies’ recordkeeping schedules and maintains data once it is submitted for archiving, but each agency decides whether to keep a document. In the case of e-mail messages, individual users typically make the decision. “I think there is a growing consensus that electronic mail and other forms of electronic records that are born digital need to be managed and preserved in electronic form,” said Jason Baron, NARA’s director of litigation.But lacking a statutory prescription for maintaining electronic records, most agencies print and file them as they would paper documents, according to a recent investigation by the Government Accountability Office. GAO’s report states that top agency officials are not properly maintaining their electronic communications, and NARA has not been inspecting agencies’ recordkeeping practices. Those revelations provided fuel for House Democrats who were already angered by allegations that White House officials lost millions of e-mail messages generated during the prelude to the invasion of Iraq. NARA has less power over how a presidential administration handles its records while in office. The Presidential Records Act governs the White House.On July 9, the House passed the Electronic Message Preservation Act, a bill that would amend both the Presidential Records and Federal Records acts and significantly increase the authority NARA has over the White House’s recordkeeping practices. The measure would also require agencies to preserve electronic communications in a NARA-approved format.Bush administration officials have indicated that the president would veto the measure. An administration statement also said the proposed reforms for presidential records would “upset the delicate separation-of-powers balance” by giving NARA new authority over a presidential administration.  However, open-government groups say the measure does not go far enough.On July 31, NARA issued guidance to help agencies use e-mail archiving applications. The agency also has proposed new recordkeeping regulations that would define electronic records management in broader terms and provide guidance for inspections of agency records management practices.How much power should NARA have?Although NARA, open-government groups and lawmakers share the goal of improving the mangement of federal and presidential records, their ideas about what approach to take vary widely.In particular, they disagree on the role NARA should play in enforcing agencies’ recordkeeping practices. Some experts say NARA should abandon its cooperative stance toward agencies and become more of an enforcer. “The problem NARA has is — and they admit this — they operate on a sort of friendly basis with agencies, and they don’t threaten them,” said Meredith Fuchs, general counsel at George Washington University’s National Security Archive. “They don’t push too hard.”The National Security Archive, a research institute and library, has filed about 35,000 Freedom of Information Act requests since its inception in 1985. It is one of the groups suing the Bush administration for allegedly failing to archive millions of e-mail messages. The bill that passed the House in July would require NARA to issue regulations to compel agencies to preserve electronic messages in an electronic format and create certification standards for agencies’ electronic records management systems. The White House would need to meet a similar standard determined by NARA, and presidential recordkeeping practices would be subject to the agency’s approval. NARA officials have publicly questioned whether the Justice Department would support the agency’s increased oversight role in presidential recordkeeping. A proposed rule change published in the Aug. 4 Federal Register would have NARA providing guidance for its inspections of agencies’ records management practices. Furthermore, officials would undertake inspections when an agency fails to address risks or specific problems, the notice states.Nancy Allard, a senior policy specialist at NARA, said the proposed regulations would make inspections more focused.“What we are looking at is how we can do a combination of more effective agency self-assessment and then planned targeting for a specific issue and what will invoke an inspection,” she said. Patrice McDermott, director of OpenTheGovernment.org, said she found NARA’s proposed changes to be disappointing because they only called for inspections in high-risk situations. NARA “has chosen, once again, to reject its ongoing responsibility to conduct inspections or surveys of the records and the records management programs and practices within and between federal agencies,” she said. On the other hand, J. Timothy Sprehe, a records management expert who often writes about the topic in his Federal Computer Week column, said NARA already has enough to do. Rather than giving the agency more oversight responsibilities, the best plan would be to automate electronic recordkeeping, he said.Under current regulations, NARA does not require agencies to maintain records in their native formats. So for now, many agencies still print e-mail messages and file the paper versions.Although the filing process is relatively easy, the practice has a major weakness: It eliminates the searchability of digital documents. “Those laws didn’t really anticipate the development of our electronic communications systems, and so the agencies on their own have not taken the initiative to deal with all of this,” Fuchs said. NARA’s Electronic Records Archives system, which is in development, will have an enhanced ability to maintain records in all electronic formats — a capability that will become increasingly necessary as the demand for electronic discovery for legal cases grows. Baron said NARA’s recent guidance about e-mail archiving applications was important because it reminded agencies that adopting such tools does not necessarily mean they are managing records correctly.Agencies “need to be aware of the records management implications of [saving everything] and take steps to think about what makes sense in terms of saving permanent records and being able to tag and dispose of temporary records,” he added.NARA’s July 31 guidance outlined the benefits and drawbacks of using e-mail archiving technology to retain electronic messages that qualify as records. It also required agencies to provide training to ensure that their employees maintain the records correctly. Baron said NARA has been addressing federal electronic records management for decades, and the adoption of electronic records management tools by agencies offers a mixed picture.“This is a universal problem,” he said.  “It’s a matter of public trust — and that’s why it’s important for federal agencies to be aware of their options with respect to preserving information in electronic form.”