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

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.

[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.

[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.

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.

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As Cox explains, this single paragraph allows the Archivist to determine whatora record -- something that must be retained -- and makes it binding acrossfederal agencies. If that passes, government agencies will no longer be able to exploit the law to bury embarrassing or incriminating documents.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.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.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."

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