Small Change To National Archivist's Powers May Keep Government Agencies From Destroying Embarrassing Documents

from the keeping-information-secure-until-it-can-be-freed dept

Thu, Nov 20th 2014 3:49pm — Tim Cushing

There may be some better news on the way for those of us who like free-as-in-FOIA information and an accountable government. Professor and attorney Douglas Cox points out that an amendment to the statutes governing the National Archive may give that agency the power to keep records of public interest from being deleted, destroyed or otherwise hidden.

Having passed every step but presidential approval, H.R. 1233 (Presidential and Federal Records Act Amendments of 2014) [pdf link], makes the following small, but important, change to the Archivist's powers and duties. Here's the portion Cox highlights at Document Exploitation:

DETERMINATION OF DEFINITION.—The Archivist’s determination whether recorded information, regardless of whether it exists in physical, digital, or electronic form, is a record as defined in subsection (a) shall be binding on all Federal agencies.

As Cox explains, this single paragraph allows the Archivist to determine what is or isn't a record -- something that must be retained -- and makes it binding across all federal agencies. If that passes, government agencies will no longer be able to exploit the law to bury embarrassing or incriminating documents.

[T]his authority allows the Archivist to close up - or at least tighten up considerably - the horrible loophole in the law that has been manipulated in a long line of cases of government document destruction or alienation.

Cox goes on to note that this isn't a theoretical harm. It's something that has happened time and time again over the past several years.

[F]rom the State Department's indefensible decision to allow Henry Kissinger to remove (and treat as his personal property) the transcripts of his official telephone calls as the Secretary of State all the way up to the CIA's destruction of the interrogation tapes. This is the same loophole that could legitimately endanger the long-term survival of the CIA's "Panetta Review" and necessitated the actions of the SSCI staff in exfiltrating a copy from the CIA to a Senate vault (as I described at length here - it is not a conspiracy theory), which is further complicated now by fears that new leadership at the SSCI will return the Panetta Review to the exclusive custody of the CIA.

The loophole isn't in the "record" language. That's still very broadly defined and (unfortunately) rather malleable. The loophole is which records are "appropriate for preservation," something that has been left up to each agency to determine. And "determine" they did, right up to the point that DC circuit court judges pointed out that government agencies have a "built-in incentive" to destroy records related to "mistakes."

Cox notes that while this amendment is promising, it doesn't fix everything -- especially some records-related circular reasoning that has made its way into the definition of "records" with the assistance of the National Archives and Records Association itself. But it is a step forward.

To be clear, the Archivist neither has the funding, nor the personnel, nor the appetite to look over the shoulder of every federal employee to micromanage whether each email is, or is not, a record, but this bill, once signed by the President, will give the Archivist an important power that should not be left to rot on the vine.

Cox recommends the first action it should take with its new powers (should the President sign it into law) is ensure the Panetta Review is designated a permanent federal record to keep the CIA from performing any extra "editing."

BILLS 113hr1233rs (PDF)BILLS 113hr1233rs (Text)

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Filed Under: archives, documents, foia, history, national archives, public access

7 Comments

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NoahVail (profile), 20 Nov 2014 @ 4:50pm

Awesome.
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Anonymous Coward, 20 Nov 2014 @ 5:32pm

Of little value:

The archivist has to know the type of document exists or can exist.

Then the archivist needs to make a declaration about that sort of document.

Then the archivist has to be able to archive such documents. And optionally, retrieve them.

These happen in sequence. And guess how the archivist finds out that information, eh?

Tort^h^h^h^hInterrogation tapes? They're not covered yet, we can destroy them.

"Internal TSA practices documents"? They're not covered yet...

"NYC police 'classification guidelines'"? Hey, we're a state organization, piss off!

And even so...
... "you mean THESE were covered? Oh, sorry. I'll do better next time, I swear!"

No teeth, no budget, no chance.
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Anonymous Coward, 20 Nov 2014 @ 5:42pm

Re:
Agreed. Without teeth, it will just be ignored.
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beltorak (profile), 20 Nov 2014 @ 5:43pm

Re:
it's the "no teeth for enforcement" part that really kills a lot of it's value. take the IRS records for example. everyone knew exactly what was required; the records got destroyed anyway, and no one got punished. as far as i recall.
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Quiet Lurcker, 20 Nov 2014 @ 7:25pm

Simple Fix
There's a simple fix for what records to keep, what not to keep.

Define every record, irrespective of type, storage medium, purpose, use, recipient, etc., generated in the course of any activities by any federal employee or contractor that are even peripherally related to their government job as a public record that must be preserved.

Then pass new legislation. First, Congress must approve by 2/3 majority (voice vote, names and votes recorded and made public) the classification of any document or record of any nature whatsoever. Second, any person or entity who makes a FOIA request, and is denied, can then go to the court and make application to the court to compel evidence of congressional approval to withhold the information and a business case in support. If the official cannot/does not, then the court MUST imprison that official for not less than 60 days, and direct law enforcement to forcibly retrieve the records in question.

FTFY.
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Anonymous Coward, 20 Nov 2014 @ 7:30pm

Even in this form, I will be surprised if it passes. Obama is not exactly known for his transparency despite his political promises.
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Coyne Tibbets (profile), 20 Nov 2014 @ 9:50pm

Dr. Archivist
"If that passes, government agencies will no longer be able to exploit the law to bury embarrassing or incriminating documents."

Never underestimate the power of the force (quid pro quo). I predict the archivist will be swimming in money (eliminating the "Archivist neither has the funding" problem) and we still won't get to see anything.

Because, Dr. Evil will soliloquize: "Gentlemen, I have a plan. It's called blackmail."

I mean, Dr. Archivist.
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