Why Did the Bush White House Copy and Print Every Email It Received? It's a Long Story

Historians/History




Nneoma Amadi-obi is an HNN intern.

Who owns the President’s papers? Prior to the passage of the 1978 Presidential Records Act, American presidents claimed legal ownership of the records generated during the course of their presidency, and established public access to these historical materials at their own pleasure. The 1978 Presidential Records Act essentially put an end to this tradition by establishing that ownership and control of presidential records belonged to the United States. The PRA requires Presidents upon leaving office to deposit their records at the National Archives and Records Administration (NARA) in the custody of the Archivist of the United States. Thereafter the Archivist assumes “responsibility for the custody, control, and preservation of, and access to the Presidential Records of that President.”1

Beyond the question of ownership, the Presidential Records Act recognizes the importance of documenting the activities and decisions of the Executive Office of the President (EOP), and providing access to these records. To achieve these ends, the PRA imposes on the President the duty of implementing records management controls in order that “the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented….” Public access to these records is via Freedom of Information requests (FOIA) five years after the records are deposited at NARA. The PRA also allows the President to stipulate a period of up to twelve years before which the United States Archivist can release/open the records of his administration. Ronald Reagan, for instance, opted to restrict the release of his records for the full twelve years. The records of his administration were due to be opened in 2001.

Presidential Records Act and Coverage

 “Presidential Records” as defined by the PRA are “documentary materials, or any reasonably segregable portion thereof, created, or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the constitutional, statutory, or other official or ceremonial duties of the President.”2 Presidential records exclude the President’s personal records as these are “documentary materials…of a purely private or non-public character” which have no bearing on the President’s constitutional or official duties. These records are to be archived separately from presidential records.

“Documentary materials” includes correspondence created or received by the President and members of the Executive Office of the President. The PRA does not distinguish between electronic correspondence and paper correspondence; as long as the document reflects the policies and deliberations of the Executive Office of the President, the material is subject to the PRA. Therefore, the White House is required to archive materials such as e-mails, and even its web pages. The Obama administration, which utilizes many of recent innovations like blogs, Twitter, and Facebook has moved the Presidential Records Act into a new era of communication. The Obama administration pursuant to the PRA, archives its online postings on these social media sites. It also treats the public’s comments and messages on these sites as presidential records as they constitute a form of correspondence between the White House and the public. The administration on a White House Blog post explained that “instead of sending an e-mail, people often now post on someone’s profile or comment on a video that’s been uploaded. When people want to tell the White House what they think, they’ll often do the same thing on our social media pages” and “these new types of communication from individuals to the White House, even though they take a different form, are governed by the PRA.” 3 The White House manages these records through an automated archiving process.

Archiving Records

The Presidential Records Act governs retention and management of presidential records. In establishing a records creation and management system, the White House can be assisted by the Archivist of the United States, who is empowered by statute to “provide guidance and assistance…with respect to ensuring adequate and proper documentation of the policies and transactions of the Federal government…”4 Professor Anna K. Nelson, the Distinguished Historian in residence at American University, in an e-mail to HNN, explained that “NARA's work in the White house is subject to the desires of the President and his staff. Some will ask for an archivist on detail from NARA. Others, like the Bush administration does not want anyone. Most have records managers.” Nevertheless, while “previous presidential records were under no such obligation “the White house under the PRA must keep its records according to rules set by NARA.”

The adequacy of White House records management system has been challenged several times over the years. These challenges, in the form of law suits, to federal government record keeping have largely been in respect to the preservation of electronic records. The guidelines by which electronic records are archived by the federal government have evolved in great part in response to judicial decisions emanating from these suits. For example, prior to the 1993 D.C. Circuit Court of Appeals ruling in Armstrong v. EOP, the federal government did not archive emails in their electronic forms; rather, emails were printed and filed. The electronic versions of the emails were then scheduled for deletion from the live system at the White House. The federal government followed this policy in the blief that “…the printed copy is identical to what is on the computer screen.” Therefore, “printing the actual message text on the computer screen normally is sufficient for adequate documentation of the agency’s business.”5 The court however agreed with Armstrong et al., that print-outs of emails are not full reproductions of the emails in their original electronic form. A paper copy might omit pertinent information contained in the electronic record which does not appear in the onscreen message. These include the identity of the sender(s) and the recipient(s). For example, an email could be sent out to a number of people on a distribution list titled List A and the paper record will only note that the email was sent out to this list without capturing the actual names of the recipients. As such, the court determined that electronic records of emails are not extra copies of hard-copy emails, but are distinct federal records themselves, and pursuant to the Federal and Presidential Records Act, must be preserved. The court also affirmed that federal agencies and the Executive Office of the President are obligated to periodically review the record keeping practices of their staff to ensure that they are following established standards and procedures.

One of the outcomes of the decision reached in Armstrong v. EOP was the implementation of the Automated Records Management System. The system was used to archive White House electronic mails by the Clinton administration in accordance with the Presidential and Federal Records Act. ARMS, however, was discontinued by the Bush Administration with the intention of replacing it with a new archiving system, the Electronic Communications Records Management System (ECRMS), but it was never implemented.

The White House electronic records keeping came under scrutiny repeatedly during the George W. Bush years. In 2007, the National Security Archives and Citizens for Responsibility and Ethics in Washington filed separate lawsuits against the Executive Office of the President, the White House Office of Administration, and the National Archives and Records Administration. The lawsuits challenged the robustness of the White House management of electronic records on the grounds that millions of emails generated between 2003 and 2005 had gone missing from the White House email system. In addition, with the removal of ARMS and the non-implementation of ECRMS, the White House reportedly had archived emails in paper format, in violation of the decision reached in Armstrong v. EOP.  Criticism appeared again in 2008 when it was discovered that some White House officials had circumvented the PRA by using Republican National Committee email accounts for official White House purposes. The Committee on Oversight and Government Reform has been investigating the alleged violations of PRA, and has reported the loss of federal records because some of the emails in question were destroyed by the RNC (which is neither subject to the Presidential nor the Federal Records Act). 6

Attempts to Reform

The electronic records controversies, particularly those that occurred during the George W. Bush presidency, give weight to the words of Former United States Archivist John Carlin that “electronic records pose the biggest challenge ever to recordkeeping in the Federal government.” 7 The Federal government and NARA are still working out how to adequately archive electronic records in an electronic format, the volume of which has increased since the PRA and FRA came into place. The National Archives and Records Administration has developed the Electronic Records Archive System to enable it to meet the challenge of storing the government’s electronic records. NARA has also developed the Electronic Records Management Initiative with the objective of aiding agencies to better manage their electronic records. 

Besides the above mentioned initiatives, efforts to improve the management of federal electronic records include the Electronic Message Preservation Act which was introduced in the House of Representatives in March 2009. One of the provisions of the Act was a process for the annual certification of the President’s management of Presidential Records by the United States Archivist. The provision was borne out of concerns generated by the White House e-mail controversies that White House’s archiving system of presidential records was inadequate. 

The Presidential Records Act (and the Federal Records Act) which govern federal record keeping faces several challenges in the 21st century world of electronic communication. There still remains to be addressed one of the worrying aspects of the increasing use of computers, which as Professor Anne K. Nelson explained is the “convenience of the delete key….” The ease with which records materials can be erased could threaten the spirit of the Presidential and Federal Records Act.

Endnotes

1 See 44 U.S.C. 2203.

2 See 44 U.S.C 2201.

3 Macon Philips, “Reality Check: The Presidential Records Act of 1978 meets web-based social media of 2009,” The White House Blog, http://www.whitehouse.gov/blog/Reality-Check-The-Presidential-Records-Act (accessed November 5, 2009).

4 See 44 U.S.C. 2904.

5 See Armstrong v. Executive Office of President, 1 F.3d 1274 (D.C. Circ. 1993).

6 “The Use of RNC E-mail Accounts by White House Officials,” Committee on Oversight and Government Reform, http://oversight.house.gov/index.php?option=com_content&view=article&id=2469&catid=44:legislation (accessed November 22, 2009).

7 Statement by John Carlin, Archivist of the United States, July 8, 2003, http://www.archives.gov/about/speeches/07-8-03a.html (accessed November 4, 2009).




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Maarja Krusten - 1/9/2010

When I informally polled archivists on the status of the 12/4/70 document to which I linked, most said it should be classified as governmental. One said it should be released in full. All the other respondents said portions should be restricted for privacy and portions released. The assumption was that the President still was alive as were all the people mentioned in it, which largely was the case during the 1980s when NARA considered what to do with the document. Although NARA's determination was that the document should be returned to Nixon, I don't have information readily available as to whether that was the initial independent archival determination or the result of Nixon lodging a claim that the document should be returned to him. Nixon lodged claims against release of a number of items we tried to open during the late 1980s during Don Wilson's tenure as U.S. Archivist.


Maarja Krusten - 1/8/2010

Thanks again for posting this essay. Rick Shenkman tries from time to time to interest historians in how the records they rely on are or are not created and preserved. Don’t be discouraged by the fact I was the only historian to comment here, don’t give up your interest in this topic..

It’s the end of the week and here is the answer regarding the determination NARA made on the status of the Nixon memo to which I linked. NARA marked the December 1970 memo from Nixon to Haldeman as personal and non-governmental and returned it to Nixon. A couple of years ago, his estate donated it back to the government which released it to the public as a donated item after the merger in 2007 of the private Nixon Library into NARA’s system of governmental presidential libraries. Until 2007, Nixon’s official records resided at NARA but not in a presidential library.

But the question of how to determine what material (including email) is governmental is tricky because decision-maker’s judgments can vary. Consider if you will, that if, as a member of the public, you walked into the research room of NARA’s Nixon Project at any time after 1987, you could read the following in meeting notes filed by H. R. Haldeman in the Nixon White House Special Files collection. Under the Presidential Recordings and Materials Preservation Act (PRMPA), the notes had been screened by federal archivists during the 1980s for retention, restriction or return to Nixon.

[Extract, Haldeman’s notes of meetings with the President]

“12/3 [1970]
0920

PR Only thing we need is boldness, guts, etc.
_not_ how well the machinery works
the story is 'what kind of man is he?'

so we have image of PR admin - & have failed in PR
keep talking about how we make no mistakes
& run things well
but don't get across kind of man
warmth - phone ops - treatment of staff
for. pol. - did 3 things
Cambodia - Mid East - VN speech
courage - independence - boldness
standing alone - over-riding advisors.

have to read act to troops

not Valenti style - but always sell personal
hard-working

none has come thru in polls. =

Saf. Safire - re his dinner guests
Moore was great - re what kind.

E - S - K - F have to get this across.
_not_ the process
2 hrs. w/ Semple re process is _no_ help."

[end extract]

That’s right – NARA returned the December 4, 1970 memo to Nixon as personal. But for the last twenty years, Haldeman’s notes of a meeting he had with Nixon on the same topic on December 3, 1970 (one day before the President dictated the memo) have been available as released governmental information. Starting in 1987, you could go to the Archives and read the notes because a NARA archivist determined during the 1980s that the notes Haldeman took while sitting with the President were governmental. That just goes to show that these judgment calls are not easy and that people can differ in how they apply criteria.


Maarja Krusten - 1/5/2010

Here are the options for the linked document which I presented to archivists when I informally polled them a couple of years ago:

1) document is purely personal or solely political and has no connection to a President's constitutional or statutory duties. It should be returned to him or his family. It then legally may be destroyed by them or retained as their personal property.

(2) document offers some personal observations and mentions politics and voters but relates to Presidential duties and is inherently governmental. It should be retained in NARA custody. You may consider restricting all or some portions for privacy, either the President’s or that of third parties, while the people still are alive;

(3) document is governmental, relates to Presidential duties, requires little or no restriction, and largely should be released during the President's lifetime.


Maarja Krusten - 1/5/2010

In terms of determining what records, including email, should come to the National Archives and Records Administration (NARA) and what can be disposed of at will by Presidents and their aides, how easy is it to determine whether a President and his aides are acting purely politically or within the scope of their governmental duties? Sometimes easier than at others. As a senior NARA official once said, sometimes the two facets of the presidency are “inextricably intertwined.” Take a look at
http://www.nixonlibrary.gov/virtuallibrary/documents/donated/120470_nixon.pdf
Is it retainable as governmental or returnable to the former President? This is typical of the type of material with which I once worked while employed by NARA. In addition to spotting marked or unmarked national security and privacy information which might require restriction we looked at or, in the case of the Nixon tapes, listened to, such information with an eye to determining status. By that I mean we first had to determine if it was personal or personal-political and outside the scope of government-retainable information or governmental and a White House record eligible for retention by NARA.

Some HNN readers previously have seen this document and know which determination the government made on it. At the end of this week, I’ll post that decision here as well as the result of a poll of archivists I took a couple of years ago regarding the document. For those who have not previously seen the item and want to consider whether it should have been kept by the government or returned to the former president, here is some contextual information. We often researched the background of items as we made our determinations. Nixon’s was a paper based White House so our searches were manual, of course. (In the age of email and computers, one advantage of an ERMS as opposed to printing for filing is the ability to do full text electronic searches.) We also had to do some searches for “special access” cases for lawsuits such as Dellums v. Powell, which involved the handling of anti-Vietnam war demonstrators during the Nixon administration.

Of the people mentioned in the linked December 4, 1970 memo, the following were on the government payroll: Haldeman, Kissinger, Ehrlichman, Flanigan, Safire, Moore, Rumsfeld, Price, Klein, Ziegler, Butterfield, Shultz, and Rosemary Woods (referred to in the memo as Rose). David Derge was a pollster used both by the Republican National Committee and by the White House during the Nixon administration. There also are references in the document to Gallup and Harris polls. Some polls during the Nixon presidency showed the public's reaction to domestic and foreign policy issues or to specific actions taken by the administration, others showed general Presidential approval/disapproval numbers, and others (during the first term) showed results for trial heats for the forthcoming 1972 Presidential race.

A determination by us that an item was personal-political resulted in its being removed from the collection and returned to the former President and his family as non-governmental. A determination that it was governmental resulted in its retention by the National Archives and consideration by us for release to scholars. Nixon’s records were seized in place so we at NARA got everything (White House Central Files, White House Special Files, National Security Council files, Nixon’s tapes, White House Communications Agency materials, etc.) and we ourselves made the retain/return decisions at the Archives.

For PRA material, the determination would be made within the White House as a part of records management, with the cut being made before anything was shipped to NARA. The President of the United States and his designees within the White House are in charge of records management for PRA material. Under the PRA’s original language, NARA’s responsibilities kick in when an administration leaves office. To date, the extent to which WH officials consult with NARA while an administration is in office has been discretionary. Obama White House officials reportedly have reached out to NARA more so than those of some previous administrations.

Maarja Krusten
Historian and former NARA Nixon Presidential Materials Project archivist


Larry Medina - 1/4/2010

...but it's not a good one. The original post spoke to the issue of WHY was e-mail printed instead of managed electronically, so I'll respond to that issue.

36CFR requires that Federal Records be managed to very specific standards, and those are even more stringent when it comes to records generated in electronic forms. In general, if you DO NOT HAVE an 'approved' ERMS (electronic records management system), records MUST be printed and managed in paper form.

One exception, to a degree, is e-mail (see 36CFR 1236.22). The requirements here are that you not only print, but you expand all headers, maintain distribution lists, attachments, addressee lists, drafts (if they meet certain criteria), messages sent by web-based systems (if they pertain to Govt business). The only content that can remain in the native e-mail system is anything that is considered "transitory" in nature, and has a maximum retention of 180 days.

What complicated things for the Executive Office of the President (EOP) is the ARMS did not meet the requirements and the planned ECMS (which never came on line) didn't either. So, even if they HAD these systems, they would have been insufficient in complying with the regulations.

As mentioned by another poster, there are different rules surrounding the records governed by the Presidential Records Act(PRA)when it comes to issues of access and privilege, but the requirements for capture and management are the same.


Maarja Krusten - 1/4/2010

Thanks for posting this interesting overview. A clarification regarding the statement in the essay that “The PRA also allows the President to stipulate a period of up to twelve years before which the United States Archivist can release/open the records of his administration. Ronald Reagan, for instance, opted to restrict the release of his records for the full twelve years.” What the PRA does is allow a former President to select from a governmentally established menu of restrictions those which he would like NARA to consider for a 12-year period. Every President, Republican and Democratic, since Ronald Reagan has done this.

This does not mean, however, that records cannot be released before 12 years. Indeed, members of the public can start requesting such records after 5 years. Rather, it means that NARA reviews the records to see if any of the listed restrictions apply. If they do not, it releases the material. Moreover, while some restrictions, notably restriction P-5 for unclassified deliberative information, fall away after the 12 year mark, others do not. The executive order on national security requires that classified information continue to be withheld after 12 years, if appropriate. Privacy protections remain in place for the lifetime of individuals. If you submit a job application to the White House, or write to the President about difficulties in obtaining benefits related to medical problems, in a letter of the sort the White House typically refers to an executive agency for handling, or discuss other information that is private, NARA will continue to review it for restriction. No one need fear a document dump of such information after 12 years.

Private has a different statutory meaning than personal. As I just noted, information may relate to governmental actions, such as veterans’ benefits, but be private because it encompasses medical issues. Personal refers to ownership of a record. Purely personal records created within the WH do not fall under the PRA, as the author of the essay states correctly. Notably, the definition of personal includes purely political information. The President serves as chief executive but also as leader of his political party. Purely political information is protected – it does not fall within the scope of the government’s record keeping system -- and can be disposed of at will. The RNC email accounts that some officials used during the Bush years were set up with that in mind. (It’s the same principle that applied to questions as to where and using what telephone equipment Vice President Gore made some calls related to campaign contributions during the Clinton administration. And the same reason why White House lawyers provide advice to staff on how to split among taxpayer, appropriated funds and privately funded accounts the costs of Presidential travel if it involved both purely political events and appearances related to governance.) This requires establishment of two email accounts for some officials. In purely records management terms, what Bush administration officials should have done, if they received or sent PRA material on their RNC BlackBerries, was forward the messages to their WH email accounts so as to place them in the official record keeping system.

Years of following these issues, after having worked for 14 years as an employee of NARA’s Office of Presidential Libraries, have led me to conclude that the issue that is most challenging to explain to my fellow historians is not how technically to preserve information or to set up an Electronic Records Management System (ERMS) or ingest data into NARA’s electronic records archives, but what it is like as a creator of records to be required to preserve and face the opening of one’s internal deliberations. Unless historians consider what it is like to have strangers with varying motivations pore over the internal deliberations of one’s career, they cannot grasp what factors may affect the life cycle of records. As historian John Earl Haynes once noted of his time in state government, “We cared greatly for our policy goals which we regarded as in the public interest and were determined that nothing would exist in the record of use to our political opponents or those of the media seeking controversy. We were not at all unusual. In my post-political role as a acquirer of historical records, the drastic diminution of the richness of the record between those created before the mid-1970s and later is obvious. The practical result of legally mandated rapid disclosure of the records of policy makers has been to impoverish the historical record. Records not created are not available, ever, for historical research.”

Presidents and their advisors spend their time in office protected by press spokesmen, spin meisters, aides who apply message discipline, and surrogates who use carefully constructed talking points to speak for the administration. No one is less prepared after leaving office to make a sharp pivot and say, “have at it, read all the candid, raw information we created” than is a President. Let’s face it, most scholars, although less protected by a cocoon of spin meisters than a President, would struggle if they were asked during their lifetimes to do the same with the confidential records of their own careers. Yet that is precisely what the PRA requires. That this is so is appropriate in a democratic nation – but that does not mean we should not consider how to make records management, retention, review and disclosure work better for all the stakeholders.