THE MANAGING GOVERNMENT RECORDS DIRECTIVE

In November 2011, President Obama signed Managing Government Records memorandum with the familiar aim of dragging the federal government into the twenty-first century. The goal was to finally make the federal government deal with the explosion of electronic records being created by its employees thanks to the information technology revolution.

That memorandum served as the basis for the Managing Government Records Directive issued by OMB in August 2012. This directive set two distinct markers – by the end of 2019 all federal agencies should be effectively paperless and managing all permanent records electronically. Furthermore, by the end of 2016 every agency was to manage ALL email records, permanent and temporary, in an accessible format. Each agency was to designate senior officials to work closely with NARA and OMB as part of this effort to update record keeping for the electronic era.

Over the next several years, NARA partnered with agencies and developed a policy it called Capstone, a new role-based approach to managing emails. In the past, federal employees were instructed to literally print out email on a case by case basis to be retained as work-related records. Under capstone, however, record retention would be based on the role of the worker. Senior staffers would have their entire email account captured for permanent storage with NARA, while other employees would have their emails designated as temporary – to be disposed of after seven years. Capstone has been adopted as the model by many agencies, but NARA has also specified its criteria for successful email management to achieve the goals of the Managing Government Records directive without using Capstone.

OUR PROJECT

That brings us to the present day. Our project is to keep the government beholden to those goals of the Managing Government Records Directive. To that end we’ve started requesting relevant records as to ascertain the degree and nature of federal agency understanding of and compliance with records management directives. KGB is placing a special emphasis on emails, as now every agency should be retaining all electronic correspondence in an electronic format. For our pilot project, we’re targeting twelve different agencies to test compliance with the new era of record retention: HHS, Treasury, HUD, Education, FBI, GSA, EEOC, CFTC, FCC, FEC, FTC, and PTO.

With this project, we hope to learn not only how these agencies are reporting their record retention policies, but how they are executing them in practice. We’re requesting these agencies correspondence with NARA and all documentation of retention training they’ve provided to senior employees in the department.  Moreover, because most of these agencies have told NARA they would meet the December 31, 2016 deadline, we’re also requesting ten days worth of emails from senior staff to test compliance with the goal of accessibility.

To solve one mystery, we’ve specifically asked for emails from named “beachhead” officials identified by ProPublica. According to the Washington Post, many of these appointments are a ‘shadow government’ of senior White House advisers, different than the traditional White House liaison position. This begs the question – are they agency employees, and thus plugged in CAPSTONE and record retention rules? Or are they literal White House employees and shielded from FOIA requests? The difference, and its effect on our ability to understand our own government, is hugely significant. We hope to find out and share it with everyone!

BRINGING FOIA INTO THE 21st CENTURY

So far, we’ve sent out dozens of record for the above information and more. In a perfect world, there will be no need for litigation, but unfortunately that’s unlikely to be the case. If we do end up in court, we’re hopeful for a friendly hearing because our end goal is obviously in the public interest. We want to share everything we receive for use by any person or group seeking information to which they’re entitled by the federal government. To sum it up, KGB wants to educate the public on what records are stored where by which agency and how to get them.

In this new world, the existence of records should no longer be up for debate by officials. While there will always be leaks and cover up, every federal employee should be of the understanding all their communications are being archived for the benefit of history. If there’s misdoing, the trail is there to follow. If a decision was reached, the steps should be reviewable. Public Record law is going to have to adapt to electronic age, but the first step is making sure we’re retaining records in the first place.