Here Now and Soon Gone
posted by Danielle Citron
Government accountability may be more of a slogan than a reality if agencies continue to fall down on their recording-keeping obligations. According to the New York Times, countless federal records have been irretrievably lost because federal employees regularly fail to preserve the documents they create on government computers, send by email, and post on agency websites. The EPA’s website, for instance, lists more than 50 broken links that once connected readers to documents on depletion of the atmosphere’s ozone layer. At least 20 documents have been removed from the website of the U.S. Commission on Civil Rights, including a draft report that was highly critical of the Bush Administration’s civil rights policies. Because federal agencies increasingly publish reports on the Web rather than on paper, and because agencies do not store records in a centralized manner, government records will simply disappear over time. Moreover, a recent GAO report notes that email records of senior officials at several large agencies were not consistently preserved. Those government records can never be checked.
The National Archives is in the early stages of creating a permanent electronic record-keeping system. Unfortunately, it is behind schedule and under budget. Although the House passed a bill in July that would require agencies to preserve more electronic records, President Bush has threatened to veto the bill on the grounds that it would “interfere with a president’s ability to carry out his or her constitutional and statutory responsibilities.” Government officials and employees who have not adhered to federal record-keeping rules likely will not start now, especially with the turnover in administration looming. Government records needed to assure accountability should not be here now and soon gone.
September 17, 2008 at 4:55 pm
Posted in: Administrative Law
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Responses (5)
Kenneth L. Marcus - September 17, 2008 at 6:04 pm
There’s also such a thing as too much record-keeping. Even the current regulations, if consistently followed, would render every government official an archivist first and a public servant second. Unless the point of the exercise is to obstruct and delay government action, the issue of electronic recordkeeping needs to be considered in a much more sober, balanced manner. Too often the discussion is politicized in ways that do not serve the public interest.
The old canard about the Civil Rights Commission’s draft reports is rather stale. None of these materials consisted of final Commission reports. Rather, they were drafts which had not been approved by the Commission during any Administration. Some of them, like the one specifically mentioned in Professor Citron’s post, had been specifically voted down (albeit by a split vote). Minority Commissioners objected that the Clinton staff appointees were using the web-site as an end-run around the Commissioners; that is to say, they marginalized minority Commissioners by publicizing drafts through the public website, even if those drafts could never obtain majority support. When the current Commission, angered that the website had been abused, voted to take those materials down, it is important to remember that they also posted information about how the materials could be obtained in hard copy.
Moreover, they remain available in electronic format through a variety of sources including the Thurgood Marshall Library at the University of Maryland. Considering that they are, in some cases, discarded draft documents, it is interesting to observe that they are now more readily available than some final approved government publications. Of course, the fact that some of them are critical of the George W. Bush Administration is a significant factor in their prominence.
Kenneth L. Marcus - September 17, 2008 at 6:04 pm
There’s also such a thing as too much record-keeping. Even the current regulations, if consistently followed, would render every government official an archivist first and a public servant second. Unless the point of the exercise is to obstruct and delay government action, the issue of electronic recordkeeping needs to be considered in a much more sober, balanced manner. Too often the discussion is politicized in ways that do not serve the public interest.
The old canard about the Civil Rights Commission’s draft reports is rather stale. None of these materials consisted of final Commission reports. Rather, they were drafts which had not been approved by the Commission during any Administration. Some of them, like the one specifically mentioned in Professor Citron’s post, had been specifically voted down (albeit by a split vote). Minority Commissioners objected that the Clinton staff appointees were using the web-site as an end-run around the Commissioners; that is to say, they marginalized minority Commissioners by publicizing drafts through the public website, even if those drafts could never obtain majority support. When the current Commission, angered that the website had been abused, voted to take those materials down, it is important to remember that they also posted information about how the materials could be obtained in hard copy.
Moreover, they remain available in electronic format through a variety of sources including the Thurgood Marshall Library at the University of Maryland. Considering that they are, in some cases, discarded draft documents, it is interesting to observe that they are now more readily available than some final approved government publications. Of course, the fact that some of them are critical of the George W. Bush Administration is a significant factor in their prominence.
Kenneth L. Marcus - September 17, 2008 at 6:05 pm
There’s also such a thing as too much record-keeping. Even the current regulations, if consistently followed, would render every government official an archivist first and a public servant second. Unless the point of the exercise is to obstruct and delay government action, the issue of electronic recordkeeping needs to be considered in a much more sober, balanced manner. Too often the discussion is politicized in ways that do not serve the public interest.
The old canard about the Civil Rights Commission’s draft reports is rather stale. None of these materials consisted of final Commission reports. Rather, they were drafts which had not been approved by the Commission during any Administration. Some of them, like the one specifically mentioned in Professor Citron’s post, had been specifically voted down (albeit by a split vote). Minority Commissioners objected that the Clinton staff appointees were using the web-site as an end-run around the Commissioners; that is to say, they marginalized minority Commissioners by publicizing drafts through the public website, even if those drafts could never obtain majority support. When the current Commission, angered that the website had been abused, voted to take those materials down, it is important to remember that they also posted information about how the materials could be obtained in hard copy.
Moreover, they remain available in electronic format through a variety of sources including the Thurgood Marshall Library at the University of Maryland. Considering that they are, in some cases, discarded draft documents, it is interesting to observe that they are now more readily available than some final approved government publications. Of course, the fact that some of them are critical of the George W. Bush Administration is a significant factor in their prominence.
Kaimi - September 17, 2008 at 6:16 pm
How many of these documents are preserved elsewhere, at sites like the Internet Archive?
It’s sad to have to rely on something like that, but if available, it’s certainly better than nothing.
Danielle Citron - September 17, 2008 at 6:31 pm
Thanks to you both for your responses.
Kenneth, it is worth thinking about the connection between FOIA and record-keeping rules. Agencies cannot comport with FOIA without keeping records, either on paper or digitally. FOIA keeps the public informed about government’s activities and in turn honest and responsible. (Imagine if corporations automatically deleted files, rather than storing them. Ah, civil litigation would be considerably faster, but no one could get to the merits). And yes our library at Maryland has those drafts as a distinguished member of that committee hails from Maryland (I believe Prof. Sherrilyn Ifill sat on that committee). Perhaps a draft report was not a great example (the Times cites that one). Nonetheless, agencies engaged in policy making cannot and should not delete information that can shed light on its decision-making. But I agree that we need limits on what agencies can keep–that is precisely what recording-keeping rules do and what agency officials are ignoring.
Kaimi, I imagine that they might be cached there and it would be better than nothing, but concerns remain about future accessibility to those documents and compliance with rules that enable agencies to comply with FOIA.
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