Bill would give National Archives greater reach in electronic records management

Officials at the National Archives are conflicted about new powers that the House is poised to give them to ride herd on the electronic messages, records, and e-mails of future presidents.

The National Archives and Records Administration is already tasked with capturing, preserving, and cataloguing the records of presidents and their teams at the end of their tenures.

The new legislation would require the Archives to create mandatory standards for electronic records management systems and to monitor their use by future administrations.

By bipartisan consensus, the House Oversight and Government Reform Committee approved such a bill on May 1, and House leaders could bring the measure to the floor anytime.

"I'm surprised [the House leadership] hasn't done that already," one House Republican aide commented on May 13. "I don't think it will raise a lot of controversy."

Archivists worry about becoming politicized pariahs if presidents and their teams see them as internal-affairs investigators who report transgressions to the legislative branch. Interviews with lawmakers and their aides suggest that despite such hand-wringing, the measure will likely clear the House, although Senate attention is a question mark. The measure won bipartisan support because the Archives and President Bush's successor would be given long transition periods to comply, and because enforcement would be restricted to congressional oversight based on annual reports from the Archives to Congress.

Chairman Henry Waxman, D-Calif., said that the Bush White House, while only the second administration to make significant use of electronic records in governing, made action necessary. The White House "lost" millions of e-mails when it moved data from one commercial software system to another, Waxman lamented at the markup. It relied for five years on a flawed archiving system, he said, and Bush's team looked the other way while aides conducted federal business off-line on e-mail accounts of the Republican National Committee without ensuring that those records were archived.

"What's happened during this administration certainly brought home the need for us to do some thinking about the problem and further legislation on it," Waxman said in an interview this week. "There has been a lot of failure on the part of people at the White House to think through how to have an archived system that would capture the information."

Rep. Tom Davis, R-Va., the ranking committee member, has for years worked closely with Waxman on government records issues. He sounded just as eager this month to hasten fixes that will keep pace with new technologies, although he isn't entirely satisfied with the panel's bill.

"I would urge the chairman to continue to refine this bill to make sure we get it right on issues such as managing the cost of preserving unknown but presumably vast electronic databases; how to include emerging media like blogs and virtual-reality avatars in such a system; and the functional parameters of any [technological] requirement [that is] searchable," Davis said before approving the measure.

The Government Accountability Office and outside open-records groups such as Citizens for Responsibility and Ethics in Washington issued reports this spring outlining some of the problems they unearthed with government records. Privately, Archives' experts have expressed similar worries about materials being lost to history, but they warn that the complications of emerging technologies and the constitutional tensions between the federal branches make writing legislation a challenge. Currently, presidents and their staffs may seek help from federal archivists while they're in office, but NARA would be handed new clout.

"Such authority is unprecedented and would mark a significant departure from accepted and long-standing practice," Paul Wester, NARA's modern records program director, told the committee in April. Future administrations would likely deem it "intrusive to White House records management processes."

Gary Stern, NARA's general counsel, told the panel, "The president is responsible for his own records management" under current law, and Congress should ask the Justice Department for advice about how far it can go beyond that. (The bill moved out of committee without contact with Justice, aides said.)

Waxman and Davis, along with their aides and NARA officials, have met frequently with attorneys from the Bush counsel's office over the last few months to discuss efforts to recover data and how to send presidential records to the Archives in January. Another such meeting will take place in May, an aide said.