Weekend Read: Sunshine Week Hearing Focuses on Rise of Digital Records, Disappearing Messages, and How to Fix the Presidential Records Act

By Claire Harvey 

The U.S. National Archives and Records Administration (NARA) faces existential challenges to preserve electronic records critical to our nation’s history, according to the March 15, 2022, hearing before the Senate Committee on Homeland Security and Governmental Affairs, Correcting the Public Record: Reforming Federal and Presidential Records Management. Expert testimony focused on how new technology has exponentially increased the number of federal records and hampered NARA’s ability to conduct oversight of agency record-keeping. The hearing also focused on the challenge of disappearing messaging applications that delete records before they can be preserved, and the need to reform the Presidential Records Act to ensure the protection of White House records. The Committee hearing took place during Sunshine Week, the annual celebration of open government.

Here are some big takeaways from the hearing:

Jason Baron, a Professor at the University of Maryland and an expert on agency record management practices, highlighted the challenges and concerns posed by NARA’s announcement that it will no longer accept paper records after 2022. He states that NARA’s announcement means that in the coming decades the agency must “preserve and provide access to literally billions of Executive branch records in electronic or digital format.” NARA’s announcement, particularly the part which states that agencies may dispose of the original source records, where appropriate, continues to pose serious concerns for historians, including:

• How much oversight will NARA have of the digitization process to ensure it is carried out properly and will include all relevant metadata?
  • NARA’s oversight of agency compliance with previous rules regarding email preservation raises concerns that NARA’s approach in this instance will be relatively hands-off, and that spot checks for individual agency compliance will be few and far between. It also raises the possibility that some agencies will choose the quickest and cheapest digitization process over long-term archival requirements.
• What happens to physical records after they have been digitized? Will agencies have free reign to dispose of them?
• Will there be backups of digitized files if they become corrupted?

Ensuring that this change is carried out effectively will be challenging for the agency, which has not had a budget increase that reflects the agency’s outsized responsibilities in decades, according to this year’s annual Sunshine Week audit by the Archive, U.S. National Archives’ (NARA) Budget: The 30-Year Flatline. 

Baron also testified about the concerning rise of disappearing messaging apps used by both federal agencies and White House officials. Efforts to preserve these messages are  ineffective largely because they rely on individuals to self-enforce, and any disciplinary action as a result of neglect has yet to happen, according to Baron’s testimony. 

Read Baron’s full testimony here. 

Anne Weismann, Outside Counsel for Citizens for Responsibility and Ethics in Washington (CREW), emphasized the need for additional enforcement mechanisms to be added to the Presidential Records Act (PRA). In response to a question from Chairman Gary C. Peters (D- MI) on what was the most important challenge to the PRA, Weismann responded that it was “a lack of effective and robust enforcement schemes” that would allow both the Archivist and Congress to ensure the White House was following recordkeeping law. Ways the National Security Archive has identified to strengthen the PRA include:

• Directing the Archivist of the United States to monitor, review and report on the Executive Office of the President’s (EOP) compliance with PRA; 
• Requiring the Archivist of the United States to sign off on White House record keeping guidelines and practices; and
• Requiring the White House Office of Administration to monitor and report on EOP compliance with PRA.

Read Weismann’s full testimony here. 

Jonathan Turley, Professor of Public Interest Law at The George Washington University Law School, testified that government use of instant messaging apps only underscores the risks of not adding an enforcement mechanism to the Presidential Records Act. Mr. Turley noted that the PRA was first enacted when records were nearly entirely in paper. Despite the Presidential and Federal Records Act Amendments of 2014, new technology and instant messaging such as WhatsApp “allows for easy evasion of both the PRA and FRA.” And while Congress did pass the Electronic Message Preservation Act in 2021, Turley argued that it is too vague in scope and mandate.

A prime example of this loophole are Jared Kushner’s WhatsApp messages with Saudi Prince Mohammed bin Salman. The White House argued that a screenshot of the records would suffice, but a National Security Archive lawsuit argued that this fails to capture important metadata required by the law (read more on lawsuit in the February 11, 2021, posting, Lawsuit Saves Trump White House Records).

Read Turley’s full testimony here.