Agencies Shuffling Toward 2016 Deadline, Likely to Fall Short on E-Mail Recordkeeping
By: Cheryl Bolen
May 27 –Federal agencies are lurching toward a Dec. 31, 2016, deadline for managing e-mail traffic electronically, but with no additional funding and until now little attention, it is unlikely they will all make it, stakeholders both inside and outside the government told Bloomberg BNA.
“I think we’re going to be very close,” said Paul Wester, chief records officer at the National Archives and Records Administration. “I think a lot of agencies are doing a lot of good things right now, but we’re clearly not there yet,” he said.
“I think a lot of agencies are doing a lot of good things right now, but we’re clearly not there yet.”
Paul Wester,
National Archives and Records Administration
Agencies are dealing with tight budgets, Wester said. “But we think a lot of that gets taken care of as regularly scheduled IT upgrades occur and we can get these requirements built into it,” he said
Until the recent controversy over former Secretary of State Hillary Clinton’s e-mail, which was stored on a personal server and is only now being released to the public, little attention has been paid to the arcane issue of recordkeeping requirements for e-mail sent by federal employees or received by a federal agency .
History of Actions
On Nov. 28, 2011, President Barack Obama signed a presidential memorandum that began an executive branch effort to overhaul record management practices and promote openness and accountability.
In August 2012, the Office of Management and Budget and NARA issued a joint directive to all federal agencies to work toward the two central goals of managing all permanent electronic records in an electronic format and creating a robust records management framework.
The directive contained two deadlines for agencies, including the electronic management of all e-mail by Dec. 31, 2016, and the electronic management of all permanent electronic records by Dec. 31, 2019.
In September 2014, OMB and NARA circulated guidance to all federal agencies reaffirming the importance of properly managing and retaining their e-mail records .
On Nov. 26, 2014, Obama signed the Presidential and Federal Records Act Amendments of 2014 (Pub. Law No. 113-187), which essentially codified the administration’s ongoing efforts to improve records management.
More recently, the Government Accountability Office reported May 14 that 24 federal agencies have begun implementing each of the seven requirements in the directive.
OMB: Identifying Resources
“The Obama administration has taken a number of actions to reform the government’s records management practices, as well as to promote openness and accountability,” OMB spokesman Jamal Brown said in an e-mail to Bloomberg BNA.
“In particular, OMB has partnered with NARA to provide guidance to agencies to ensure federal records management compliance, while also working with agencies to identify the necessary resources in an era of budget constraints,” Brown said.
“We are pleased that an overwhelming majority of the largest departments and agencies are demonstrating progress towards managing e-mail records in an open and transparent electronic format,” Brown said. “Though work remains to be done, we will continue working toward developing a 21st century framework for managing government records,” he said.
Without Records, No FOIA
Patrice McDermott, executive director of OpenTheGovernment.org, a public interest organization, said that for a long time, federal employees were allowed to either print an e-mail and file it, in which case they could delete the electronic copy, or save the electronic copy in an electronic recordkeeping system.
Most agencies don’t have an electronic recordkeeping system, McDermott said. So what Freedom of Information Act (FOIA) officers had to do was go to the desk of everyone who might have a responsive e-mail, after first figuring out who all of those people might be, and hope the e-mail had been preserved on that person’s hard drive, or saved electronically somewhere and not just printed out and stacked on a desk, she said.
“So it’s a true problem, McDermott said. “If you don’t have recordkeeping, you don’t have FOIA. You don’t have effective FOIA certainly, at a minimum, because you don’t know if you’re getting everything,” she said.
Tracking Changes
The other problem is that in recent years when agencies write a policy, they only save the final version, McDermott said.
When documents were printed out, a researcher could tell who had contributed what to a policy, because the physical document would be annotated, McDermott said. Now, none of that is saved, or at least none of it is automatically saved, she said.
“So for purposes of accountability, for purposes of history, you don’t know, you can’t know in many cases now, how a policy or anything else evolved and who had a hand in it and what the changes were and what the significance of those changes were, what the original thinking was–all of which really could inform you,” she said.
The reality is most employees don’t understand their obligations when it comes to preserving e-mail and records, because it is complicated, McDermott said.
“I think there is a need to educate employees from the time they walk in the door the first time, that recordkeeping is their responsibility and it really shouldn’t be something that they have a choice about,” she said.
Unfunded Mandate
Anne Weismann, executive director of Campaign for Accountability, predicted that 2016 will be a time of reckoning for federal agency recordkeeping systems.
“It’s both a problem of technology and I think it’s also a problem of priority, and prioritizing,” Weismann said, adding that the issue hasn’t gotten the kind of attention it needs from the White House.
Agency budgets are being squeezed every year by Congress and they don’t want to use funds for this purpose, Weismann said.
“I think agencies do not perceive recordkeeping along with FOIA as part of their basic agency missions. That doesn’t get the first priority for money.”
Anne Weismann,
Campaign for Accountability
“I think agencies do not perceive recordkeeping along with FOIA as part of their basic agency missions,” Weismann said. “That doesn’t get the first priority for money,” she said.
When the directive first came out, the December 2016 deadline seemed very distant, Weismann said. “And yet, I have very little confidence that agencies are going to even meet that deadline,” she said.
Again, it gets down to priorities, and it is unclear to what extent agencies are moving in that direction, Weismann said. Even with the Federal Records Act amendments “it becomes just another unfunded mandate,” she said.
Lacking Enforcement
The National Archives can come up with guidance, guidelines and ideas, and they’ve done all that, Weismann said. “But at the end of the day, all they can be is a cheerleader for federal agencies,” she said.
NARA’s Wester said it is true that there is no enforcement in the law in the traditional sense of penalties. But OMB expects NARA to deliver on its part of the deal, and a lot of open government and public interest groups are watching, he said.
Also, expectations are increasing, Wester said. Records need to be available to respond to FOIA requests and make the whole open government agenda work more effectively, which is very much tied to making sure records are made available electronically, he said.
“I think, while there’s not a penalty per se kind of piece to this, there’s an expectation that the federal government needs to figure out how to do this and get it done,” Wester said.
Capstone Approach
Part of the directive required the National Archives to provide new and different directions for agencies on how to manage e-mail records, Wester said.
In response, NARA came up with an approach called Capstone to manage e-mail, Wester said. Under this approach, agencies identify a level above which all e-mail will be captured and eventually go to the National Archives, after it has been culled for non-record material, he said.
And then beneath that level, there is a series of temporary dispositions to cover large aggregations of e-mail, Wester said
In addition to Capstone, there is a lot of technological development going on right now, Wester said. Searching is increasingly getting easier to do and storage is getting cheaper, he said.
Part of what NARA is trying to do with this whole initiative is figure out which of these technology and policy approaches come together to solve the records management problem, Wester said.
“So I don’t want to suggest that this is a perfect solution, because it isn’t, because you don’t have as much of the content, context and structure as you have in traditional records management,” he said.
But when the issue is ensuring there is a body of material that documents the national experience at a high level of an agency, this is the best way to get at that issue today, Wester said.
Number of Challenges
There are also a number of challenges, Wester said. Obviously, the number one challenge is the volume of this material, he said.
There’s an emerging consensus on the different platforms that e-mail is delivered throughout the federal government, which is making it easier, Wester said. But there are still a lot of technical requirements that need to be sorted out in each of the individual 250 agencies, he said.
Also, the Federal Records Act dates back to the 1950s, and there is an analog bias in a lot of recordkeeping, Wester said. The act was amended last year, he said.
“We’re looking at what kinds of regulatory changes we need to make related to that,” Wester said. “And agencies are looking at what they need to do on their internal records management policies and in other general policies within their agencies to make sure that their staff are aware of these new rules. So that’s been a huge change,” he said.
So the volume, the number of platforms and formats that e-mail comes in, and then rolling out this new approach to managing e-mail from a print-and-file approach to a larger aggregation approach is a huge change, Wester said.
“So figuring out how to do that in a thoughtful way that’s consistent with the Federal Records Act is kind of where a lot of the challenges are,” he said.
Never Waste a Good Crisis
“Sustaining interest in this is really difficult,” McDermott said. The National Archives and good government groups have been beating their heads against a wall on this issue for years, she said.
It took the Clinton e-mail crisis to make a significant impact, McDermott said. She cited a saying, “Never let a good crisis go to waste.”
“So we’ve been trying to make the most out of this, because it did get the government’s attention,” McDermott said. “And it got Congress’s attention,” she said.
To contact the reporter on this story: Cheryl Bolen in Washington at cbolen@bna.com
To contact the editor responsible for this story: Heather Rothman at hrothman@bna.com
The GAO report (GAO-15-339) on information management is available athttp://www.gao.gov/products/GAO-15-339.