Advocacy

Keeping Track of Record Keeping: Closing the Gaps in Federal Records Management

Lee White, May 2015

In a January column in this space, I spoke of the benefits of the Presidential and Federal Records Reform Act (Public Law 113-187)1, which the president signed into law in December 2014. As noted, the National Coalition for History advocated passage of amendments to both laws, which, had they been in effect at the time, would have left no doubt that former Secretary of State Hillary Clinton had an affirmative duty to compose her e-mails using a government (.gov) account or forward them to the State Department server.2

Controversy now centers on whether Clinton violated the Federal Records Act (FRA) and National Archives and Records Administration’s (NARA) regulations when she used a private e-mail account and server to conduct official business as secretary of state. At a minimum, her actions violated the Obama administration’s commitment to transparency and open government, made on the president’s first day in office in 2009.3

The purpose of this article is not to dissect the legal nuances of Clinton’s claim that she did nothing in violation of FRA and NARA regulations. For far too long, leaders at federal agencies have treated record keeping as a budgetary and housekeeping problem instead of taking seriously their legal responsibility to ensure that the nation’s historical record remain complete and accessible not just to historians, but to all citizens. To that end, on March 17, 2015, the National Coalition for History joined 11 other pro-transparency, journalist, and historical groups in a letter to Secretary of State John Kerry and Archivist of the United States David Ferriero urging that Secretary Clinton’s e-mails containing federal records be recovered and transferred to the Department of State in their original electronic form.4

Public Law 113-187 states that an officer or employee of an executive agency (1) may not create or send a record using a nonofficial electronic messaging account unless they copy their official e-mail account in the original creation or transmission of the record, or (2) must forward a complete copy of the record to their official government account not later than 20 days after the original creation or transmission of the record. The law imposes this same responsibility on the president, the vice president, and their immediate staff for the first time in our history.

Recently, Politico columnist Josh Gerstein revealed that, without fanfare, the National Archives sent a letter to the State Department on March 3, 2015, the day after the story broke in the New York Times, that “NARA is concerned that Federal records may have been alienated from the Department of State’s official record-keeping systems.”5 NARA gave the State Department 30 days to explain which records were “alienated” and what is being done to retrieve them.

If this scandal did not involve former secretary Clinton or another high-profile government official, it would have blown over weeks ago. To paraphrase one TV commentator: “Let’s face it, records and e-mails just aren’t sexy.” Hillary Clinton may well have done historians and archivists a favor by shedding light on the challenges our profession faces every day. Despite clear directives from NARA and the Office of Management and Budget, how does the government address a laissez-faire attitude that many senior officials at federal agencies have toward their record-keeping and management responsibilities? How do we know what records are missing if we don’t know what records were there to begin with? And how can we file concise FOIA requests if we can’t be sure of what we’re looking for?

Unless technical experts can recover the deleted records, we cannot know whether our historical record is complete or if gaps exist that will never be filled. If nothing else, Clinton’s example may serve as a wake-up call to officials across the federal government that preserving the historical record is not, as she called it, “an inconvenience,” but a legal requirement to be taken seriously. NARA’s letter to the State Department notes potential federal record-keeping issues with e-mails created or received by secretaries of state dating back to the tenure of Secretary Madeline Albright. In fact, former secretary Colin Powell admitted to using a private e-mail account during his tenure.6

The State Department has a statutory duty to prepare the Foreign Relations Series of the United States (FRUS), the official documentary record of the foreign policy decisions of our country. The FRUS law states, “Volumes of this publication shall include all records needed to provide a comprehensive documentation of the major foreign policy decisions and actions of the United States Government.”7 It goes on to say, “The published record shall omit no facts which were of major importance in reaching a decision, and nothing shall be omitted for the purpose of concealing a defect of policy.” If e-mail records are missing from as far back as Secretary Albright, this absence will complicate the FRUS requirement that “all records” be used to ensure that the volumes remain comprehensive and accurate. Secretary Clinton’s negligence in destroying potentially government-related records will be felt even more keenly by the next generation of historians than by ours.

The FRUS law mandates that each volume be completed within 30 years of the events it chronicles. Conceivably, a young historian just starting his or her career in the Office of the Historian at the State Department and tasked with preparing FRUS volumes on the first term of the Obama administration is in elementary school as I write. We owe it to future generations of historians to do all we can to make the record complete. We may also want to reconsider the issue of whether records left by members of Congress “belong” to them; they can do with them as they please after leaving office, and have thereby exempted themselves from laws that apply to the executive branch.

Lee White is the executive director of the National Coalition for History.

Notes

1. “Public Law 113–187—Nov. 26, 2014,”
https://www.congress.gov/113/plaws/publ187/PLAW-113publ187.pdf.

2. Michael S. Schmidt, “Hillary Clinton Used Personal Email Account at State Dept., Possibly Breaking Rules,” New York Times, March 2, 2015,
http://www.nytimes.com/2015/03/03/us/politics/hillary-clintons-use-of-private-email-at-state-department-raises-flags.html?ref=topics.

3. Barack Obama, “Memorandum for the Heads of Executive Departments and Agencies,”
https://www.whitehouse.gov/the-press-office/transparency-and-open-government.

4. Letter to John Kerry and David Ferriero from 12 pro-transparency, journalist, and historical groups, March 17, 2015, http://bit.ly/1yoUn2D.

5. Josh Gerstein, “Archives Wants Explanation for Hillary Clinton Email Practices,” Politico, March 18, 2015,
http://www.politico.com/story/2015/03/hillary-clinton-email-national-archive-116185.html.

6. Schmidt, “Hillary Clinton Used Personal Email Account at State Dept., Possibly Breaking Rules.”

7. Legal Information Institute, 22 U.S. Code § 4351 – General Authority and Contents of Publication, https://www.law.cornell.edu/uscode/text/22/4351.


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