Few levers to keep records scofflaws in line

The specter of Hillary Clinton shadowed a federal records management conference in Washington, D.C., on March 19, not least because a former National Archives litigator opted to open a slide deck with the iconic image of the former secretary of State consulting a Blackberry from her seat in a C-17.

"The firestorm that's happening with record keeping policy, I think is a dream come true," said Jason Baron, formerly director of litigation at the National Archives and Records Administration. He's been making the rounds on cable news, trying to explain the overlapping tangle of authorities that govern federal recordkeeping to a general audience.

For feds working in records management, the Clinton contretemps points to a key problem they face in doing their work -- they lack meaningful authority to enforce the rules that apply to top agency officials governing what to save and for how long. Also, there are no rules specifically prohibiting senior officials from using private or commercial email accounts.

However, there doesn't seem to be any way to rein in a top official who is determined to work outside of existing communications and records channels. A recently enacted law requires officials using private email accounts to forward copies to their agency within 20 days, but there is a lot of discretion built into the law.

"The statute leaves it to the official in charge to make that determination of what is personal and what is official for transferring their records to an appropriate record-keeping system. It is leaving it to the end user on his or her smartphone or device, as to what to transfer," Baron said.

Under a 2012 presidential directive, agencies are required to designate a "senior agency official" at the assistant secretary level or higher to ensure compliance with records policy. The idea is to have someone with enough stature to initiate a conversation with a top official whose records management practices might be less than optimal.

"I would encourage you, if you don't know who that person is in your agency, to really seek them out and talk to them," said Allison Stanton, director of E-Discovery, FOIA and Records in the Civil Division of the Justice Department. "If you are that person in your agency and you are still having those challenges, there are a couple of different ways," she said, speaking at the Digital Government Institute conference.

Those ways are basically moral suasion and appeals to self-interest. Stanton noted, obliquely, that the Clinton story provides a useful teaching moment. "There are some contemporary examples of very high level people potentially causing a lot of grief, not only for an agency, but a lot of distraction for themselves as well," she said.

Stanton advised that senior records officials collaborate with IT departments to develop a strategy for making sure that an agency head or other top official has the best technology available.

Baron advised using the Clinton story as a point of departure for consultation between records officers and CIOs, CFOs, COOs, general counsels, and others. "Next week have a conversation -- ask how is our agency meeting the 2016 and 2019 mandates," for electronic records management.