Yesterday, Citizens for Responsibility and Ethics in Washington (CREW) was honored as the co-winner of the American Library Association’s James Madison Award. The award recognized the work by CREW and the National Security Archive (NSA) in the missing White House emails case.

The ALA bestowed the award jointly to CREW and Meredith Fuchs, General Counsel for the National Security Archive (NSA). The James Madison Award is given annually to those who make a great impact on strengthening government transparency.

Last December, CREW, the NSA and the White House announced a settlement in the long-running lawsuit challenging the failure of the Bush White House and the National Archives and Records Administration (NARA) to recover and properly archive millions of emails. These emails had disappeared from White House servers over a two-and-a-half-year period.

The settlement directs the Executive Office of the President to restore a total of 94 days of missing emails, which will then be sent to NARA for preservation and, eventually, opened to public access.

CREW's chief counsel, Anne Weismann, accepted the award and gave this speech.

CREW is deeply honored by this award and very proud of the tireless work put in by Ms. Weismann and the entire CREW legal team to ensure these critical records of our nation’s history are preserved.

CREW has been involved with several federal and presidential records lawsuits and has done an extensive study of this issue.  With that background, today, we 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, which can be found here, 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.

Melanie Sloan said:

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.  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.

Based on our experiences, CREW recommends:

First, 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.

Today, CREW filed a lawsuit against the Department of Education for violating the Federal Records Act (FRA) by failing to preserve copies of emails of official Education business sent by agency employees through the use of non-governmental email accounts.  The documents relating to the lawsuit can be found here. 

As we reported last week,  CREW learned that officials in the Department were using private e-mails to conduct official business:

On May 9, 2007, CREW’s counsel, Dan Roth, had a telephone discussion with FOIA officers who told Mr. Roth that Department personnel “often use private email addresses,” and that the Department “wouldn’t have access to that.” Mr. Roth asked whether private email accounts were used for official business and was told that they were, adding that this issue has arisen in the past in reference to other FOIA requests.

On May 14, 2007, a Department FOIA officer confirmed that Department employees use private email addresses for official business.

This is serious.  If employees are regularly using private email accounts to send official email and the Department neither tracks nor stores such email, the Department may be violating the Federal Records Act (FRA), which requires agencies to preserve records of official business.

This is serious, which is why we filed a lawsuit against the Department of Education today.  When CREW filed this latest lawsuit,  Melanie Sloan said:

Complying with laws -- such as the Federal Records Act -- is not optional. Regretfully, it appears that a lawsuit is required to ensure that the Department of Education follows the law.  The question remains as to whether it is only Department of Education and White House personnel who have been violating record-keeping procedures, or if this is an Administration-wide issue.