The Presidential Records Act & Protecting America’s Right to Know

Published: May 3, 2011

Author: Array

Since the passage of the Presidential Records Act 33 years ago, electronic media and information technology have proliferated across the federal government. Yet Congress has not undertaken a legislative effort to update the law and meet the demands of the digital information age.

Three different presidents have issued executive orders to supplement the Presidential Records Act, but each has addressed issues relating to presidential privilege or the restriction of access to presidential documents. The classification of documents and rules of their collection, storage, and preservation, however, have remained unaltered since the Watergate era.

Indeed, advances in technology have brought new tools to increase the efficiency and effectiveness of the federal government. These innovations promise to increase the government’s openness and accountability to the American people and lower barriers between public servants and the public they serve.

The growth in digital and mobile communications, however, has made compliance with the Presidential Records Act more difficult. Problems with the White House archiving system have now plagued three successive administrations. Both the Clinton and the Bush administrations struggled to comply with the Presidential Records Act and often failed to capture and store electronic correspondence and other key documents.

Today, the Obama administration continues to fall short of the standards of compliance. In May of last year, for instance, the White House was forced to reprimand a senior official for his use of personal email accounts to conduct official business.

Moreover, recent press accounts have raised concerns that other White House officials have used personal, non-government accounts to arrange meetings and conversations about the government’s business outside of official federal channels. These communications do not appear to have been properly archived by federal recordkeeping authorities.

These developments signal the inadequacy of the current legal framework to protect the American people’s right to know. The practical enforcement of the law has been surpassed by technological advances in the area of digital information, and the time has come for Congress to reexamine federal records laws to meet the challenges of the Facebook generation.

Indeed, today’s laws lack basic enforcement mechanisms to ensure executive branch compliance. The White House must do its part to retain all presidential records, whether e-mails, social media posts and text or instant messages, including those sent by mobile devices. Staff members must be certain of their record-keeping duties, and government officials must be held accountable for failure to follow the law.

Early in his administration, President Obama stated his desire to make his administration “the most open and transparent in history.” Numerous transparency setbacks, however, have kept this goal more of a distant hope than a reality.

“The way to make government accountable,” the president has stated, “is to make it transparent, so that the American people can know exactly what decisions are being made, how they’re being made and whether their interest are being well-served.”

The Presidential Records Act must account for the digital resources now commonly used by government officials. No ambiguity in the law should keep the American people from their fundamental right to know what their government is doing.

Legislative reforms to secure that right in the digital age are essential to protect the basic principles of democracy.

Rep. Darrell Issa, R-CA, is chairman of the House Committee on Oversight and Government Reform.