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September 10, 2013

Mixing Politics and Record Keeping: Why Nobody Wins

By Anne Weismann

Lisa JacksonYesterday, on the eve of a hearing before the House Oversight Committee on “Preventing Violations of Federal Transparency Laws,” the Senate Environment and Public Works Committee issued a minority report with the dubious name “A Call for Sunshine: EPA’s FOIA and Federal Records Failures Uncovered.”  The release of the report and the hearing suggest an orchestrated hatchet job on EPA, particularly given that former EPA Administrator Lisa Jackson — she of the “alias” email account — was a star witness called by Oversight Committee Chairman Darrell Issa to atone for her sins.  These coordinated events also reveal Republicans in Congress are more interested in embarrassing the administration than solving one of the more perplexing record keeping problems in government: how to ensure emails are properly preserved.

Contrary to the minority report and a comment made by Chairman Issa in his opening remarks at today’s hearing, problems with email are by no means limited to the current administration.  It took a lawsuit by CREW and the National Security Archive to bring to light the failure of the Bush administration to preserve millions of White House emails generated.  Subpoenas from congressional committees investigating the mass firings of U.S. Attorneys and the crimes of Jack Abamoff showed that many Bush administration officials used RNC email accounts to conduct official business, in an effort to avoid having their emails preserved as the law requires.

To be fair, this administration has not been immune from email problems, and the House Oversight Committee lined up for today’s hearing some of the more well known offenders: Former Administrator Jackson, former Deputy CTO for the White House Office of Science and Technology Policy Andrew McLaughlin, CFTC Chairman Gary Gensler, and former Energy official Jonathan Silver.  At least some of these witnesses made a compelling case that they had not intentionally violated the Federal Records Act, although a few had  problematic emails they couldn’t explain away.

The real take-away for anyone who really cares about transparency and record preservation, however, is that the issue is complicated.  Technology is outpacing our ability to manage record keeping systems.  Indeed, email is almost “old school,” as we wrestle with new social media like Twitter, texts, and instant messaging. 

Archivist David Ferriero, who also testified at today’s hearing, has issued new guidance on managing multiple email accounts, and is leading the administration’s effort to implement effective electronic record keeping systems government-wide by 2016.  As some of today’s witnesses pointed out, however, federal employees are not trained in even the pre-existing guidance, and basically have no clue what a federal record is and what they are supposed to do with one.  When an agency head like Mr. Gensler acknowledges receiving no training on his record keeping responsibilities — even though as an agency head, his emails are of particular public interest — we know we have a problem that runs pretty deep.

Congress should work with the administration to find a solution to this problem, through both legislation and appropriations.  While attempting to bully and embarrass administration officials, as some Oversight Committee members did today, may score political points, it does nothing to solve the underlying problem, which is rooted in technology and training, not ideology.

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