House Passes Electronic Message Preservation Act

The House has just passed the Electronic Message Preservation Act, H.R. 5811, by a veto-proof margin of 286-137. The bill modernizes the requirements of the Presidential Records Act and the Federal Records Act in order to ensure that the e-mail records of the White House and of federal agencies are properly preserved.

Chairman Henry Waxman of the Oversight Committee speaks in favor of the bill and responds to Republicans who argued that debate should be focused on giving oil companies land to drill on instead:

Rep. Waxman: "The issue of energy is very much related to this question of emails. And the preservation of the records. Why do we have our energy problems in this country? Suddenly the Republicans are saying, notwithstanding the fact that they have run this government for 7 1/2 years, that Democrats, that Democrats are at fault. Well, let me point out that as soon as President Bush came into office he asked Vice President Cheney to chair an energy task force. And they operated in secrecy. We don't know exactly who they heard from or what they were asked to do. But we know that the legislation that the Administration requested from the Congress was for billions of dollars to be given to the oil, gas, coal and nuclear industries. Industries that are making record profits."

Preservation of Presidential Records

There have been serious deficiencies in the preservation of e-mail at the White House. For example, investigations by the House Oversight Committee have found that, during the Bush Administration, numerous White House officials used e-mail accounts maintained by the Republican National Committee for official government business. Meanwhile, the RNC regularly deleted the e-mails from its servers. In addition, the Bush White House grossly mismanaged its own e-mail records and ignored concerns raised by the National Archives about the way it was storing its e-mails. While the problems have been particularly acute under the Bush Administration, other administrations, including President Clinton's, have encountered problems preserving e-mail records.

This bill requires the Archivist to establish standards for the preservation of White House e-mails. The bill directs the Archivist to establish standards for the capture, management, and preservation of e-mails and other electronic messages and then to certify that the system put in place by the President for the White House meets the requirements established by the Archivist.

Preservation of Records of Federal Agencies

There have also been serious deficiencies in the preservation of e-mail by federal agencies. Under current law, federal agencies have broad discretion to determine how electronic records and electronic communications are preserved. Investigations by the House Oversight Committee and by the Government Accountability Office have found that many federal agencies rely on unreliable "print and file" systems for preserving electronic records, including e-mails. As a result, many e-mails that should be saved as federal records may be lost.

This bill requires the Archivist to issue regulations governing the preservation of e-mails by federal agencies. The bill directs the Archivist to issue regulations requiring federal agencies to preserve electronic messages that are records in an electronic format. These regulations must cover, at a minimum, the capture, management, preservation, and electronic retrieval of these electronic records, and must be implemented within four years of the enactment of the Act.