Preservation of electronic records

From ARCHIVES%INDYCMS.BITNET@Forsythe.Stanford.EDU  Mon Mar  1 05:54:28 1993
Date:         Mon, 1 Mar 1993 08:49:58 EST
Sender: Archives & Archivists
<archives%INDYCMS.BITNET@Forsythe.Stanford.EDU>
From: Bill Holmes <wholmes@AMERICAN.EDU>

To the Editor:

The Chronicle of Higher Education recently published a Point of View in which Page P. Miller urged greater preservation of the Federal government's electronic records, focusing on electronic mail produced by the White House during the administrations of former Presidents Reagan and Bush. Dr. Miller also advocated "a comprehensive, national information policy that will ensure the preservation of all records of historical value."

As a historian myself, as well as Archivist of the United States, I enthusiastically endorse Dr. Miller's contention that--ideally--the fullest possible historical record should be preserved. Unfortunately, Dr. Miller's article did not reflect the crucial distinction between a document that is historically significant and a Federal record.

Not all "historical" materials, whether electronic or otherwise, are Federal records under terms of the current law. For example, the diaries of a President, which typically contain some of the most valuable information about his presidency from a historical point of view, are, under current law, the personal materials of the President. So are other purely personal and political materials, such as at least some of the messages on the White House backup tapes. Ultimately, many of these materials do become part of the historical record by donation, but under current law they are personal, not Federal or Presidential records, and so fall beyond the authority of the National Archives. Moreover, under the Presidential Records Act, it is the President's responsibility -not that of the Archivist of the United States--to determine the record status of these personal and political materials.

Nor is the historical record the principal factor in the creation and retention of materials created or received by Federal agencies and offices. A Senate report in 1943 put the matter well when it pointed out that "records come into existence, or should do so, not in order to fill filing cabinets or occupy floor space, or even to satisfy the archival needs of this and future generations, but first of all to serve the administrative and executive purposes of the organization that creates them." The National Archives works diligently to ensure the preservation of Federal records so that both these agency-related purposes and the cause of history are served.

Identifying and preserving Federal records is an exceedingly complex task today because of the electronic storage, processing, and transmittal of information. As the nature of electronic records creation and recordkeeping have been rapidly transformed during the past few years, the National Archives has sought to ensure that the heads of Federal agencies fulfill their responsibilities. Those responsibilities include creating and maintaining "adequate and proper"--complete and accurate--documentation of their policies and decisions, their functions, and their activities. When records are no longer needed to conduct current agency business, the heads of Federal agencies are responsible for transferring to the National Archives those records that have enduring value.

Potential users of these records should be aware, however, that the authority of the National Archives does not extend so far that it can dictate to agencies what is and is not a record. (Those who advance this claim base it upon a tenuous interpretation of language adopted in 1955 regarding surveys of government records; even that authority, never exercised by the Archivist, was removed from the statutes in 1976.) We have pushed our actual authority as far as we can through detailed guidance, training, inspections, and persuasion of top agency officials. But the burden is clearly on an agency head to act responsibly to avoid loss of the record.

We would like to strengthen the authority of the Archivist of the United States through the issuance of regulations that would be binding upon agencies. The National Archives has worked for years to get the Congress to strengthen the Archivist's hand in this manner, but this effort has not yet been successful. A recitation of some history will be useful for understanding the situation in which the National Archives finds itself.

In 1976, amendments to the Federal Records Act removed from it any language that even suggested the Archivist of the United States had final authority in the area of records creation. Soon thereafter, the National Archives became embroiled with the Department of State over telephone messages that former Secretary Henry Kissinger intended to remove from the Department when he resigned. The National Archives argued that these messages were in fact Federal records; the Department disagreed, insisting that Kissinger had excerpted and filed in the Department's files the truly "record" material from them. (However, the Department did not permit the National Archives to compare the original materials with the excerpts in order to ascertain the validity of this argument.) In January 1981, the Office of Legal Counsel of the Department of Justice settled the issue by ruling that the agency determines what is a Federal record; the Archivist of the United States, Justice said, "is not authorized to promulgate standards or guidelines that have a binding effect on the agency's determination as to whether a document constitutes a 'record."'

The next year, in 1982, the National Archives--then still under the General Services Administration--persuaded GSA to propose to the 98th Congress legislation restoring the Archivist's authority, as well as his unfettered right to inspect agency records for the purposes of records management. In the face of objections from various other Federal agencies, the National Archives withdrew the proposed legislation--but proposed it again in 1983, with certain modifications that sought to accommodate the objections heard in 1982. Strong objections were heard again, however, and the Office of Management and Budget removed the provisions from its legislative agenda for that Congress.

The National Archives independence legislation (1984) did include the provisions we sought. When it became clear, though, that their inclusion jeopardized passage of the independence bill itself, a compromise was struck and the proposed language was removed. It was hoped that a newly independent National Archives would be successful, later, in restoring the authority of the Archivist to determine record status and the right to inspect agency records. Indeed, the accompanying House committee report asked the National Archives to study the issue and to offer its recommendations to Congress regarding an appropriate role for the Archivist in questions of the status of records.

This requirement led to preparation of an extensive report (1988) by the Committee on Authorities and Program Alternatives that reviewed the issues involved and recommended that the Archivist seek 1) the specific power to issue binding regulations establishing standards for interpreting and applying the definition of records and 2) an enhanced authority to inspect agency records, even those restricted to protect national security and other interests.

The National Archives succeeded in getting these two provisions included in the Paperwork Reduction Act, which was introduced in the 102nd Congress in 1989. We advocated passage of those provisions -- indeed, they were the number-one item on our legislative agenda for the 102nd Congress. Unfortunately, the bill did not pass both houses of Congress. (The House passed it but the Senate did not, for reasons unrelated to these two provisions.)

Prospects for passage of the two provisions seem better now, but until they do become law we are left without the full authority that we would like to have.

Meanwhile, though, I can assure potential researchers and others with an interest in this topic that the National Archives is doing everything that is within its authority and influence to ensure the preservation of electronic records, as well as other types of Federal records. And these records continue to come to the National Archives in ever-larger quantities: the increase in our holdings of this type since 1985 has been more than seventy-two fold. We have greatly expanded our Center for Electronic Records to cope with this increase. More is needed, in the way of both accessions and staffing, but the fact is that the National Archives is already handling electronic records--and has been handling them for twenty-five years following creation of the Data Archives Staff in 1968.

In addition, we have studied the implications for the National Archives of new types of records systems, and new kinds of data as well, for the archival record. We have commissioned technical studies of some of the more vexing aspects of this topic, such as data exchange between systems, longevity of media, and legal admissibility requirements. And our affiliate, the National Historical Publications and Records Commission, has established a research agenda that should help the archival profession as a whole to develop solutions to some of the problems that we and other archives have identified.

The issue of electronic records forms only a part of a comprehensive Federal information policy, which is long overdue. We at the National Archives support such a policy, and we are eager to define our share of responsibility under such a policy.

Some other parts of Dr. Miller's essay also call for clarification. The National Archives has never stated that electronic mail systems do not produce Federal records. In fact, a 1983 National Archives bulletin that dealt with the proliferation of office-automation systems pointed out that such systems can produce Federal records and reminded agencies that disposition of such records requires the approval of the Archivist of the United States. It is the responsibility of the agency creating records to determine the format for records creation and filing. A National Archives task force then studied the issues that such systems raise, after which we issued more-detailed regulations for electronic records including e-mail: another Bulletin, in 1985, stated explicitly that the fact that information is created or stored electronically has no bearing upon whether the information is record or non-record in nature and provided guidelines to agencies on a wide range of issues related to electronic records. Our General Record Schedule 23 (1988), covering records common to most agencies, re-emphasizes that e-mail can constitute record material and advises agencies regarding the disposition of e-mail in either the electronic or the paper medium. We have continued since 1988 to amend and augment our guidance to agencies regarding the handling of electronic records. A booklet in our Instructional Guide Series entitled "Managing Electronic Records," issued in 1990, notes that all components of electronic information systems are potentially records. The National Archives has, in other words, spoken often--and forcefully--to agencies in the area of electronic records. Furthermore, it was the guidelines of the National Security Council and the Executive Office of the President, not those of the National Archives, that Judge Richey described as "arbitrary and capricious." Instead, he cited the guidance of the Archivist as "persuasive authority" regarding what action agency heads must take in order to comply with the Federal Records Act. This is a heartening reinforcement of what we have been advocating, but it is not yet the statutory provision that we have been seeking.

The National Archives acted promptly to comply with the courts' decisions by reaching agreements with Bush Administration officials, offices of independent counsel, and others regarding the White House computer materials. In addition, we sent a team of ten NARA archivists, systems specialists, and assistants to the White House to take possession of over 5,000 tapes and disks and to move them to secure space in the National Archives Building. NARA archivists will now carefully maintain them until legal issues in the case are resolved.

The National Archives welcomes scholarly and professional interest in our handling of electronic records--indeed, Federal records of all types. We realize that researchers both today and tomorrow will depend heavily upon such records for information they need and interpretations they develop. We are committed to exercising our authority to the fullest so that all historically valuable Federal records and Presidential records will be saved for posterity.