Lawmakers mull updates to records management legislation

Loopholes and loopholes in federal records legislation pose a threat to government transparency and accountability, experts and lawmakers said Tuesday during a Senate hearing.

Sen. Gary Peters (D-Mich.), chairman of the Homeland Security and Governmental Affairs Committee, said a legislative update is underway.

“I remain convinced that this is a body that can work together on a bipartisan basis and we can work to improve the federal record-keeping process,” he said. “I am currently working on legislation that will increase visibility. It will strengthen existing laws, update regulations and modernize this process using emerging technologies so that we can ensure that NARA can adequately preserve and provide appropriate access to…all federal records.”

The Senate hearing took place following revelations that the National Archives and Records Administration (NARA) was to retrieve missing documents containing classified information taken from the White House by former President Donald Trump and held at his compound. of Mar-a-Lago. The House Oversight and Reform Committee has since launched an investigation into the missing documents.

Trump’s records management practices — including the tearing up and deletion of documents — are making headlines, but during the hearing, lawmakers and experts said violations of the Presidential Records and Records Act of the Federal Archives Act were common.

“Officials from previous administrations on both sides have failed to adhere to current federal record-keeping requirements and, in some cases, openly ignored them,” Peters said. “These failures to properly manage presidential and federal records have limited…transparency for the American people and risk missing out on critical moments in our nation’s history. It has left the door wide open to misrepresentation and historical distortion. “, he continued.

Technology presents a challenge and an opportunity for records managers and future legislation. One of the main concerns is encrypted messaging apps that destroy data as a feature.

These apps are an “existential threat to government recordkeeping,” said Jason R. Baron, a former Justice Department and NARA official who currently teaches at the University of Maryland.

“Such messages, when used by officials on matters relating to government business, simply fade from history,” he continued.

Although the witnesses differed in some of the details of their recommendations, all told lawmakers that legislative change was needed to ban the use of all of these types of apps or ban their use other than for specific apps that agencies or White Houses have approved, with provisions to save content for preservation purposes.

Another looming challenge is the ability of archives and agencies to manage the growing number of electronic records. A 2019 Politics requires agencies to manage permanent and temporary records electronically takes effect Dec. 31, 2022. NARA stops accepting newly created paper records on the same date, Baron noted.

He suggested that Congress and agencies reinvigorate the use of artificial intelligence, machine learning and data analytics to deal with it. An expert advisory group would be helpful, Baron said in his writing. testimony.

“Without the use of advanced search technologies and advanced analytics, agencies are going to be under an increasing burden to classify their records, dispose of their records according to records schedules, and provide access to those records. to Congress and the American people,” Baron said.

Congress could also rework the current statute that gives the president broad discretion over what is worth preserving or not changing, said Anne Weismann, outside citizens’ adviser for accountability and ethics in Washington and the draft. on government surveillance, and Jonanthan Turley, Professor at the George Washington University School of Law.

Weissman suggested establishing a rule that all presidential records are worth preserving, with NARA having the authority to dispose of those that do not need to be preserved.

“We now have reason to question the effectiveness of the normative system that underpins the [Presidential Records Act]”, Weismann said. “It is therefore up to Congress to turn the PRA into a law that achieves its purpose.”