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]

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