House Oversight Subcommittee Examines Federal Records Implications of Web 2.0

On July 22, the House Oversight and Government Reform Information Policy, Census and National Archives Subcommittee held a hearing on “Government 2.0: Federal Agency Use of Web 2.0 Technologies.”

Chairman William Lacy Clay (D-MO-1) explained in his opening statement the three goals of the hearing were to: gain an understanding of what is meant by Web 2.0 in the Federal government; recognize the Federal records management implications of these new technologies; and identify what areas of Web 2.0 need further exploration by the Committee.

United States Archivist David Ferriero was the first witness. He discussed NARA’s guidance on Federal e-records management, including the 2005 guidance on managing Web records and the 2006 guidance on the use of new Web technologies, including RSS feeds, blogs and wikis. NARA will be issuing a new Bulletin on Web 2.0 and Social Media Platforms this fall that will expand on how agencies’ use of social media platforms may impact records management. NARA is also currently conducting a study on Federal agencies’ use of Web 2.0 technologies to identify what kinds of records agencies are creating and their potential long-term value.

Gregory Wilshusen, Director of Information Security Issues at the Government Accountability Office (GAO), testified on the challenges that Web 2.0 has created for agencies in  identifying what records to preserve, and how, as well as the privacy implications of these new technologies. He also spoke about uncertainties that Web 2.0 records have created for agencies in responding to FOIA requests, because it is not always clear whether agencies control Web 2.0-generated content and whether the information created actually constitutes federal records.

Chairman Clay had previously requested that GAO conduct a review of the management and protection of information collected and maintained by third party social media providers such as Facebook and Twitter. Since that review has just begun, Wilshusen could not yet comment on its findings. We’ll let you know when that report is released.

David McClure, Associate Administrator of the Office of Citizen Services and Innovative Technologies at the General Services Administration, testified on the important role Web 2.0 can have in easing outreach to the public, and the challenges that these third party applications can create since they are not built exclusively for government use. Finally, John Simpson of Consumer Watchdog expressed his concerns about the risks that third party Web 2.0 technologies present for consumer privacy.

This hearing was the first in a series on Federal agencies’ use of Web 2.0 and the e-records management challenges it creates. We’ll keep you updated as future hearings occur.

[Posted by Emily Feldman]

Loss of Department of Justice Emails Illustrates Continuing Lack of Effective E-Records Management

The Senate Judiciary Committee held a hearing on February 26 on the troubling findings of an investigation by the Department of Justice’s (DOJ) Office of Professional Responsibility (OPR) into the Office of Legal Counsel’s memoranda on issues relating to the CIA’s use of “enhanced interrogation techniques,” commonly referred to as the “torture memos.” The report revealed that the OPR investigation had been obstructed by the loss of emails belonging to former DOJ lawyers John Yoo and Patrick Philbin during the period in which the memos were being drafted.

The apparent destruction of emails raises serious concerns about possible violations to the Federal Records Act (FRA). On March 10, AALL joined 45 organizations committed to government transparency and accountability on a letter to the House and Senate Subcommittees that have jurisdiction over Federal government information policy. The letter requests hearings on how the emails could be missing despite the requirements of the FRA, and to determine whether the Act needs to be strengthened to prevent such violations in the future.

This latest example of missing emails illustrates the continuing inadequacy of effective electronic records management at Federal agencies. In fact just today, the non-profit National Security Archive awarded their annual “Rosemary Award” for worst open government performance to the Federal Chief Information Officers Council for failing to address this major problem despite the Federal CIO’s annual $71 billion budget for Information Technology.

Under the FRA, it is ultimately the responsibility of the National Archives and Records Administration (NARA) to provide federal oversight and guidance of agency records management, including email records. Unfortunately, despite years of continued appropriations for NARA’s Electronic Records Archive (ERA) to preserve and provide long-term access to electronic records and ultimately move away from a paper-based record-keeping system, the Government Accountability Office has documented continued problems and delays with the ERA.

[Posted by Emily Feldman]

Baish Testifies in Support of Government Printing Office’s FY 2011 Budget Request

On Wednesday, February 24, Mary Alice Baish, Director of the AALL Government Relations Office, testified at the public witness hearing before the House Committee on Appropriations Subcommittee on the Legislative Branch in support of the U.S. Government Printing Office’s (GPO) Fiscal Year 2011 budget request.

Mary Alice addressed several important issues in her oral testimony, including the need:

• To fund fully the Congressional Printing and Binding request so that federal depository libraries can continue to have the option of receiving Congressional materials in print.
• To fund FDsys at the requested $8 million so that GPO can complete the migration of the GPO Access system into FDsys. We are especially anxious for the entire e-CFR to be migrated into FDsys.
• To encourage GPO and the Library of Congress to enter into a formal Memorandum of Understanding to partner on the digitization of historic legal resources.
• For GPO to capture content from agency Web sites to be ingested into FDsys as part of their mission to provide access to current government information.

This was Mary Alice’s fourth year in a row testifying before the Subcommittee in support of GPO’s budget request. Her testimony was very well-received by the Subcommittee, whose members asked a number of insightful questions.

[Posted by Emily Feldman]

House Judiciary Committee Passes PATRIOT Reauthorization Bill

Yesterday, the  USA Patriot Amendments Act of 2009 (H.R. 3845) was reported favorably out of the House Judiciary Committee by a vote of 16-10. During the mark-up, the Committee adopted Chairman Conyers’ manager’s amendment that tightens the standards for issuing National Security Letters and adopts important new reporting, audit and oversight provisions. Unfortunately, the committee also adopted an amendment offered by Rep. Adam Schiff (D-CA-29) that struck the “specific and articulable facts” language for Sec. 215 orders.

Thank you to all of you who took action on our alert to ask your representatives to co-sponsor H.R. 3845. Earlier this week, AALL, MLA and SLA sent a letter to Chairman John Conyers (D-MI-14), Jerrold Nadler(D-NY-8) and Bobby Scott (D-VA-3) to express support for the bill.

As we reported in the October E-Bulletin, the Senate Judiciary Committee reported the USA PATRIOT Act Sunset Extension Act of 2009 (S. 1692) favorably out of committee on October 13. The bill will now go to the Senate floor for a vote.

For more information about the fast-moving PATRIOT Act reauthorization process, please take a look at our updated Issue Brief.

[Posted by Emily Feldman]

Senate Hearing on Whistleblower Protections

The Senate Committee on Homeland Security and Governmental Affairs Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia is holding a hearing right now on whistleblower protections. The hearing began at 2:30pm EDT. The subcommittee is holding this hearing to consider legislation in the Senate to provide whistleblowers with stronger protections, the Whistleblower Protection Enhancement Act of 2009 (S. 372). The hearing will also address differences between S. 372 and the House version of the bill (H.R. 1507).

As we explain in a new AALL Issue Brief on whistleblower protections, the Senate bill lacks several important provisions in the House bill, including the right to a jury trial in federal court and coverage of national security employees. On May 15, AALL joined 292 organizations on a letter to President Obama and Members of Congress in support of the House bill.

[Posted by Emily Feldman]

AALL Government Relations Office Director to Testify at House Legislative Branch Appropriations Hearing

Tomorrow, Mary Alice Baish, Director of the AALL Government Relations Office, will testify before the House Committee on Appropriations’ Subcommittee on the Legislative Branch on the FY 2010 Appropriations Request of the U.S. Government Printing Office (GPO). She will testify on behalf of AALL, the Medical Library Association, and the Special Libraries Association.

Mary Alice also testified before this committee last year. Her testimony then focused on the need to fund GPO’s Federal Digital System (FDsys), which is now available as a public beta.

The hearing will take place tomorrow, Tuesday, May 5, at 10:00 AM in room H-144 of the United States Capitol. Mary Alice’s testimony is embargoed until after the hearing but will be posted on our Web site later this week.

[Posted by Emily Feldman]

House Holds Hearing on New FOIA Ombudsman

On Wednesday, September 17, the House Oversight and Government Reform’s Subcommittee on Information Policy, Census, and National Archives held a hearing on the implementation of the Office of Government Information Services (OGIS). The OPEN Government Act (P.L. 110-175) created OGIS within the National Archives and Records Administration (NARA) to review agency compliance with the Freedom of Information Act (FOIA) and offer mediation services to requestors.

I attended the hearing on Wednesday, much of which focused on the White House’s repeated attempts to shift the responsibility of OGIS to the Department of Justice (DOJ). As AALL stated in letters to the House and Senate Appropriations Committees in February 2008, allowing DOJ to oversee the office in charge of FOIA mediation services creates a major conflict of interest and contradicts both the spirit and the letter of the law. Congress agreed and indicated that it will appropriate $1 million for OGIS, specifying that the office will remain at NARA. However, the budget with this new appropriation is not likely to be enacted until March 2009.

In his testimony, Archivist of the United States Allen Weinstein encouraged Congress and the White House to meet to resolve their differences on whether OGIS should be located at NARA or DOJ. Mr. Weinstein stated, however, that if asked, NARA will create OGIS:

Should it be resolved that the responsibility of this office falls to the National Archives and Records Administration, we will do everything we can to follow the letter of the law and the intent of Congress to create an office that would assist in seeking to resolve disputes between agencies and individuals requesting information from their government.

The other witnesses offered recommendations for creating a successful Office within NARA. Thomas Blanton, Director of the National Security Archive at George Washington University, emphasized the importance of strong leadership, transparency, and priority setting for OGIS. Patrice McDermott, Director of OpenTheGovernment.org, focused on OGIS’s duties to ensure agency compliance with FOIA. Rick Blum, Coordinator of the Sunshine in Government Initiative, recommended that OGIS should be led by a senior executive reporting directly to the Archivist and that OGIS must maintain its independence. Lastly, Terry Mutchler, Executive Director of Pennsylvania’s Office of Open Records, described her experience as a FOIA mediator in Illinois and Pennsylvania and offered recommendations for the structure of OGIS.

In his testimony, Mr. Blanton nicely summed up the importance of creating a strong OGIS and the need for Congressional oversight:

None of this will be easy, as you know, Mr. Chairman. Every bureaucracy in world history has utilized secrecy as a core tool of its power. The iron laws of turf protection, embarrassment avoidance, and controlling the spin all mean that freedom of information is a constant struggle. But Congressional attention like this hearing today really works, providing decision-forcing deadlines, encouraging wider public dialogue, clarifying both official and stakeholder positions.

[Posted by Emily Feldman]

New Bill Would Prevent Presidents from Making Secret Changes to Executive Orders

A bill introduced in the Senate last week would prevent the President from secretly modifying or revoking a published executive order. The bill, S. 3405, the “Executive Order Integrity Act of 2008,” is sponsored by Sen. Russ Feingold (D-WI) and Sen. Sheldon Whitehouse (D-RI). As reported by Secrecy News, the bill comes in response to an Office of Legal Counsel (OLC) opinion, revealed last year by Sen. Whitehouse, who, as a member of the Senate Intelligence Committee, was granted access to OLC secret opinions.

Sen. Whitehouse found that, according to one secret opinion, “There is no constitutional requirement for a President to issue a new Executive order whenever he wishes to depart from the terms of a previous Executive order. Rather than violate an Executive order, the President has instead modified or waived it.”

To prevent a President from changing an Executive Order in secret, S. 3405 would require that notice be placed in the Federal Register within 30 days if a President revokes, modifies, waives, or suspends a published Executive Order or similar directive.

Steven Aftergood, author of Secrecy News, testified last April at a Senate Judiciary Committee hearing, “Secret Law and the Threat to Democratic and Accountable Government,” on the various categories of secret law, including FISA Court Opinions, OLC opinions, and secret Presidential Directives. More information about the hearing, including testimony of all witnesses, is available on the Senate Judiciary Committee’s web site here.

[Posted by Emily Feldman]

House Subcommittee Hearing on Information Sharing

Today, Wednesday, June 11, the House Committee on Homeland Security’s Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment held a hearing on H.R. 6193, “The Improving Public Access to Documents Act of 2008.” The bill would require the Secretary of Homeland Security to develop and administer policies, procedures, and programs to promote the implementation of a Controlled Unclassified Information Framework at the Department of Homeland Security.

The witnesses at today’s hearing included:

Ms. Meredith Fuchs
General Counsel
National Security Archive

Ms. Caroline Fredrickson
Director
Washington Legislative Office
American Civil Liberties Union

Ms. Patrice McDermott
Director
OpenTheGovernment.org

For more information on new government-wide rules governing the designation and sharing of CUI and how AALL has been involved in this process, see our previous blog posts:
AALL and Others Urge Public Comment on Guidance for Sensitive But Unclassified Information and
White House Issues Memo on New Controlled Unclassified Information Policy.

[Posted by Emily Feldman]

Senate Subcommittee Holds Oversight Hearing of the National Archives

On Wednesday, May 14, the Senate Committee on Homeland Security and Governmental Affairs’ Subcommittee on Federal Financial Management, Government Information, Federal Services, and International Security held an oversight hearing of the National Archives and Records Administration (NARA). The hearing focused on NARA’s electronic records management system and the preservation of executive branch electronic records, including White House emails.

The hearing featured two panels, the first of which included testimony from Allen Weinstein, Archivist of the United States, NARA; Linda Koontz, Director, Information and Management Issues, U.S. Government Accountability Office; and Paul Brachfeld, Inspector General, NARA. Brachfeld’s testimony provided a harsh critique of NARA’s Electronic Records Archives (ERA), and its plans to manage electronic White House Presidential Records.

The second panel included testimony from Patrice McDermott, Director, OpenTheGovernment.org; Thomas Blanton, Director, National Security Archive and co-chair of OpenTheGovernment.org; Dr. Jim Henderson, Former State Archivist, State of Maine; and Dr. Martin Sherwin, Professor of History, George Mason University.

AALL is following many of the issues addressed by Dr. McDermott in her testimony. For example, Dr. McDermott discussed NARA’s role as the site of new public access initiatives, including the Office of Government Information Services mandated by the OPEN Government Act (see the January Edition of the AALL’s Washington E-Bulletin). NARA is also designated as the “Executive Agent” responsible for implementing the White House’s new Designation and Sharing of Controlled Unclassified Information (see our previous blog post). Dr. McDermott also addressed NARA’s electronic records management responsibilities and NARA’s decision to stop taking snapshots of federal agency websites (see the April Edition of the Washington E-Bulletin).

In addition, Dr. McDermott’s testimony addressed NARA’s efforts to increase access to digital records by entering into partnerships with private sector entities to digitize historical holdings. Dr. Weinstein also addressed these partnerships in his testimony. This was a timely discussion, because late last week NARA released its new Strategy for Digitizing Archival Materials for Public Access, 2007-2016, building on its former strategic plans and addressing some of the input NARA received from stakeholders, including AALL. This new document outlines NARA’s approach to digitization projects and includes NARA’s “Principles for Partnerships to Digitize Archival Materials.” We are pleased that the document addresses some of the issues AALL pointed out in the comments we submitted last November, including that free access to digitized materials be available in a timely fashion. In addition, we commend NARA for its commitment to issue calls for comments on proposed partnerships. NARA also published a list of the types of comments they received during the public comment period.

Wednesday’s hearing, the Subcommittee’s first NARA oversight hearing in more than three years, was an important look at NARA’s efforts to manage information in the digital age. We thank the Subcommittee for holding the hearing and hope that the increased oversight and attention will lead to a stronger National Archives.

[Posted by Emily Feldman]