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By Cheryl Bolen
July 21 — Not all federal agencies will meet the Dec. 31 Obama administration deadline to install a record-keeping system to track, sort and store e-mail.
Even the intense public scrutiny of former Secretary of State Hillary Clinton's handling of e-mail has not created the hoped-for urgency among federal agencies to get their e-mail systems in order, a government watchdog said.
“The goal is to try and get as many agencies compliant by the end of December 2016, and then continue to work with those agencies where progress needs to be made beyond that,” said Laurence Brewer, the chief records officer at the National Archives and Records Administration (NARA), in an interview with Bloomberg BNA.
President Barack Obama started the process five years ago on Nov. 28, 2011, when he signed a presidential memorandum on managing government records.
To implement that order, in August 2012, the director of the Office of Management and Budget and the archivist of the U.S. issued a directive to all federal agencies requiring the use of electronic record keeping.
The directive required federal agencies by Dec. 31, 2016, to manage both permanent and temporary e-mail records in an accessible, electronic format. The system had to be capable of identifying, retrieving and retaining the records for as long as they were needed. The agencies were asked to report annually on their progress toward this goal.
This April, NARA issued a memo to all senior agency officials responsible for records management outlining the criteria for successfully managing e-mail records.
NARA divided the records-management considerations for e-mail into four groups: policies, systems, access and disposition, and said agency systems would be judged by those criteria.
When asked about agency progress toward the 2016 goal, Brewer pointed to the annual reports posted to NARA's website that include all executive branch departments and agencies and the large independent agencies.
“And based on their self-reports, the data show that 92 percent of the agencies expect that they will be successful by the end of this calendar year in meeting that goal to manage their e-mail electronically,” Brewer said.
“But what is also clear is that agencies are at different stages in their progress towards meeting that goal,” Brewer said.
“Some are doing better in some areas than others, and the reports show—based on what they’ve described as far as their activities—how they are doing in meeting all the requirements of the goals,” he said.
This is not surprising, Brewer said. There are many challenges, including organizational complexity issues across agencies, budget issues and the process each agency must go through in identifying its e-mail records and making sure they are appropriately scheduled, he said.
The ultimate goal, based on the directive, is to make sure the government as a whole moves away from printing and filing and toward electronic record keeping, Brewer said.
Among the benefits of managing government records electronically is the more efficient and effective processing of Freedom of Information Act requests, Senate Judiciary Chairman Charles Grassley (R-Iowa), said at a July 12 committee hearing on the FOIA.
At the Judiciary Committee hearing, Miriam Nisbet, founding director of the Office of Government Information Services at NARA, said the FOIA process depends on agencies being able to find records. That means the records have to have been kept in a way that someone can locate them to respond to a FOIA request.
“So I think all of these efforts with regard to electronic record keeping, not just for e-mails but all records that are being created now, is certainly going to aid the FOIA process,” Nisbet said.
Anne Weismann, executive director of Campaign for Accountability, a government watchdog group, said a key component—missing from the directive and the Federal Records Act—is enforcement.
“I think in part it’s a financial outlay that agencies may feel like they don’t have the funds for,” Weismann told Bloomberg BNA, “But I also think that agencies—and we’ve seen this play out with the State Department—they don’t take their recordkeeping responsibilities seriously enough.”
This is because the penalties for noncompliance are virtually nonexistent, Weismann said.
Weismann pointed to a bill approved by the House Oversight and Government Reform Committee this month that would mandate penalties for mishandling e-mail (See previous story, 07/14/16).
The Federal Records Modernization Act (H.R. 5709), sponsored by Rep. Mark Meadows (R-N.C.), would require that the head of an agency suspend an employee found by the agency’s inspector general to have willfully and unlawfully concealed or destroyed a federal record.
NARA's Brewer downplayed the role of his office in increased enforcement efforts.
NARA is expanding its oversight programs, spending more time engaged with agencies and evaluating how their e-mail management programs are working, Brewer said. Then it is making recommendations and working at the highest level of each agency. The engagements start with letters to the head of each agency, with specific data to allow them to make the changes that NARA feels they need to make to comply with their record-keeping requirements, Brewer said.
“So, the approach that we’re taking is to try and improve our resources and our ability to work with more agencies on these issues, to see if we can’t help agencies make the progress where we need to see progress,” he said.
Brewer said he did not know what percentage of the 260 federal agencies already use electronic record-keeping systems.
“We do know that a number of agencies are still using print-and-filing and are planning to transition at some point before the end of the year,” Brewer said. “But, based on the data, 92 percent means that by the end of December, those agencies are expected to have some kind of system in place so that they do not have to print and file.”
NARA has talked with a number of agencies that are using back-end systems, or traditional record-keeping systems that attach to an e-mail system, Brewer said.
There are a number of different approaches, tools and technologies that agencies can use—and NARA does not prescribe the tool that an agency should use—but it does need to meet the requirements in NARA's guidance, Brewer said.
How well agencies did in meeting the requirements of the directive will be publicly available most likely in the second quarter of 2017, Brewer said.
NARA wants to make sure agencies can get through 2016, then it will start collecting data from agencies on whether they were successful, he said.
“I feel like we have made a lot of progress in getting recognition in a number of agencies where we haven’t had the kind of attention to our requirements in the past,” Brewer said.
The 2012 directive was successful in raising the profile of electronic records management, he said. Brewer said he hopes situations like that at the Department of State will become a lesson for other agencies as well, he said.
In the end, Brewer said he was “cautiously optimistic” that agencies would have a fully compliant electronic e-mail record-keeping system in place by Dec. 31.
“Of course, we don’t expect that 100 percent of agencies are going to be in compliance by the end of the year,” Brewer said. “But we hope that by the end of the year we will have a large percentage of agencies that are in compliance. And for ones that aren’t in compliance, there are ideally good reasons why they aren’t, or specific steps that we can work with them to make sure that in the very near future they can be compliant.”
To contact the reporter on this story: Cheryl Bolen in Washington at email@example.com
To contact the editor responsible for this story: Heather Rothman at firstname.lastname@example.org
For the 2015 reports by agency: https://www.archives.gov/records-mgmt/agency/sao-reporting-2015.html.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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