NARA fumbles with e-mail preservation policy
The resulting set of policies has been established largely by the desire of the Justice
Department and the White House to prevail in litigation. The National Archives and Records
Administration (NARA) is responsible for records preservation issues, but it has played a
secondary role, dancing to the tune played by the government's litigators. The rest of the
agencies have been left to twist slowly in the wind.
Let's look briefly at what happened. The litigation is messy. The two relevant
statutes--one for federal records and one for presidential records-- have different
scopes, standards and rules for judicial review. The courts have spent years parsing out
the application of these laws. Perhaps the most surprising outcome is that the courts have
done a consistently good job of understanding e-mail's unique nature.
In a 1993 decision, the court decided what seems obvious: An e-mail document is not the
same as a paper document. The court found that hard copy printouts of e-mail may omit
important parts of the original electronic version.
For example, a printout can omit data about the sender, recipients and transmission.
The court fairly referred to the hard copy as a dismembered document. The government's
response was to tell agencies that e-mail printouts must include all transmission
information. Viewed narrowly, the government's solution acknowledges the court's concern.
But reliance on paper rather than electronics is a fundamental mistake. Electronic records
beg to be maintained in digital form.
One real problem here--not discussed in court--is that software to sort and maintain
e-mail over the long term isn't readily available. Today, trying to preserve e-mail
electronically may not be easy, practical or even possible. The resources that went into
the litigation should have been used to develop tools for preserving e-mail in its native
format.
Another recent court decision showed again that the courts understand electronic
records better than NARA. This time, the lawsuit was over the validity of a General
Records Schedule promulgated by NARA covering electronic records. A GRS instructs agencies
how to dispose of a class of records. The GRS for electronic records said that an agency
could dispose of an electronic record if it kept a paper copy.
But the court decided that a GRS was only supposed to cover administrative and not
program records. Electronic records include both, so the GRS exceeded its statutory
authority. In a key finding, the court said that electronic versions are not merely copies
of paper records. Electronic records are worthy of preservation in their own right.
They can be searched, indexed and transmitted in a way that paper records cannot. Again
the court found that paper equivalents are not always complete. Printouts of word
processing documents, for example, may omit summaries, comments and annotations.
The GRS decision is now on appeal, but the legal niceties are less important than
devising the right policy for e-mail and other electronic records.
We need to preserve electronic documents in electronic form. There are two problems.
First, the litigators need to get out of the way and let policy makers decide about the
preservation of electronic records.
The goal should be for NARA to find the right policy, not just to win the current
lawsuit.
Second, NARA should provide agencies the right tools. It is not enough to say that
e-mail has to be preserved when the agencies don't have the necessary software. NARA needs
to work with agencies to induce vendors to provide e-mail software that meets feds' needs.
Without that software, all the policies in the world will accomplish nothing.
In the end, e-mail must be dealt with in its own terms. It is not like a phone call or
a memo, and treating e-mail as if it were something else is a mistake. Beware comparisons
of e-mail and other forms of communication; they invariably lead to a wrong conclusion.
The courts recognize the uniqueness of e-mail. If the executive branch will do the same,
we can start making practical policy.
Robert Gellman, former chief counsel to the House Government Operations Subcommittee
on Information, Justice, Transportation and Agriculture, is a Washington privacy and
information policy consultant. His e-mail address is rgellman@cais.com.