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CREW Asks Government Oversight to Rework Proposed Federal and Presidential Records Acts Bill

Washington, D.C. – Today, in light of several federal and presidential records lawsuits and extensive study of the issue, Citizens for Responsibility and Ethics in Washington (CREW) asked Rep. Edolphus Towns (D-NY), chairman of the House Committee on Oversight and Govt. Reform, to make significant changes to HR 1387, the Electronic Message Preservation Act. The proposed legislation would amend both the Federal Records Act (FRA) and the Presidential Records Act (PRA) to address shortcomings with both statutes.

As CREW’s letter outlines, the proposed amendments -- identical to the legislation proposed by the Committee last session -- fail to address critical issues and loopholes in the existing laws. There are no effective enforcement mechanisms to ensure agencies preserve electronic records or to force the lackadaisical National Archives and Records Administration (NARA) to do its job of ensuring preservation of those records. Further, despite well-documented problems with presidential record keeping, the proposed legislation fails to provide any effective check against a president or vice president who flouts their PRA responsibilities.

CREW recommends amending the legislation to establish effective enforcement mechanisms as well as specific penalties for non-compliance with the FRA. As currently written, the FRA penalizes only the unlawful removal or destruction of records and neither that law nor the proposed legislation provides any penalties for an agency’s failure to comply with all other requirements of the FRA.

Second, agencies should have two, not four, years to establish electronic records keeping systems. The four-year time frame fails to take into account currently available records management software and the many years agencies already have had to figure out how to manage their electronic records.

Third, the legislation should create comprehensive benchmarks for agencies in the areas of training, education, and compliance. Numerous Government Accountability Office reports have identified these as gaps in the way agencies manage their electronic records, but HR 1387 does nothing to address these critical issues.

Finally, Congress must elevate the importance of electronic record keeping within agencies and ensure that NARA and the archivist take on a more pro-active role by requiring top agency officials to take responsibility for managing records.

The PRA should be amended to include specific penalties for a president’s failure to implement an effective system to manage and preserve electronic presidential records and to provide non-governmental organizations like CREW the right to sue to enforce compliance. The creation of such a private right of action would help ensure significant historical records are preserved for future generations.

Melanie Sloan, executive director of CREW, said today, “As recent events demonstrate, Congress clearly needs to amend the FRA and the PRA to protect our nation’s history. The Bush administration proved that without strong, comprehensive record keeping laws, records that rightfully belong to the American people may be permanently lost, preventing us from fully understanding our nation’s past.” Sloan continued, “Unfortunately, as written the Electronic Message Preservation Act is not that legislation. We urge the committee to revise and strengthen this bill before moving it any further.”

Read CREW’s letter to Chairman Towns here.

Read CREW's letter to the Oversight Committee here.