On June 17, 2010, the Information Policy, Census and National Archives Subcommittee of the House Oversight and Government Reform Committee held a hearing to review the status of the management of electronic records at federal agencies, and explored ways to improve the scheduling and preservation of electronic records.

The National Archives and Records Administration (NARA) recently transmitted to Congress a report entitled: “Records Management Self-Assessment 2009: An Assessment of Records Management Programs in the Federal Government
In September 2009, NARA issued a mandatory records management self-assessment to 245 Federal cabinet-level agencies and their components, and independent agencies. The goal of the initial self-assessment was to gather data to determine how effective Federal agencies are in meeting the statutory and regulatory requirements for records management.

Ninety-one percent of agencies responded to the self-assessment; 21 agencies did not. The responses indicate that 21 percent of Federal records management programs are at low risk of improper disposition of records. However, the National Archives found that 79% of agencies are at either a High (36%) or Moderate (43%) risk of improper destruction of records. These findings indicate that Federal agencies are falling short in carrying out their records management responsibilities, particularly regarding the exponential use and growth of electronic records.

The first panel included Archivist of the United States David S. Ferriero; Mr. Jason Baron, NARA’s Director of Litigation; Mr. Paul Wester, Director of NARA’s Modern Records Program; Mr. David M. Wennergren, Deputy Assistant Secretary of Defense for Information Management, Integration and Technology Deputy Chief Information Officer United States Department of Defense and Ms. Valerie C. Melvin, Director, Information Management and Human Capital Issues United States General Accountability Office (GAO).

On the second panel were Dr. Gregory S. Hunter, Associate Professor of Library and Information Science Long Island University – C.W. Post Campus; Ms. Carol Brock, Certified Records Manager, representing ARMA International; and Ms. Anne Weismann, Chief Counsel, Citizens for Ethics and Responsibility in Washington (CREW).

The main theme of the hearing was whether NARA has the legal authority necessary to regulate federal agencies records management and if it does whether the agency has been properly, and aggressively, exercising that authority.

Representative Judy Chu (D-CA) began the questioning by asking the representatives of NARA if they felt they had sufficient legal authority to carry out their statutory and legal responsibilities with regard to records management or if they felt legislation was needed to enhance their oversight capabilities. Mr. Wester responded that NARA was conducting an analysis of its authorities and policies to see what limitations exist. He felt NARA could better utilize policies and guidance to make agencies more aware of their legal responsibilities. Wester did not rule out the potential need for further statutory authority, but said NARA needed to take stock of what it had before seeking a legislative remedy.

Representative Chu went on to ask what NARA could do to make agencies more responsive. Wester stated that NARA did have the authority to conduct investigations and to report their findings to the Office of Management and Budget, senior officials at the non-complying agencies and the relevant authorizing and appropriating committees in Congress.

When asked what she thought about NARA’s records management enforcement, Ms. Melvin of the GAO stated that in the past NARA had authority but had been reticent to exercise it. Until the most recent agency self-assessment, NARA had not conducted any agency inspections since 2000. She stated NARA had been good at putting plans in place, but that its oversight had been lacking. She said NARA’s implementation of a series of GAO recommendations from 2008 was still ongoing.

Ranking Subcommittee Member Patrick McHenry (R-NC) followed a similar line of questioning. He asked Archivist Ferriero if he thought NARA had enough authority to hold agencies accountable. Ferriero replied that he thought they did. The Archivist noted that since federal agencies hadn’t been inspected in eight years, that they did not take last year’s self-assessment seriously. He said that he had been following up with senior leadership at the non-compliant agencies and had been using the self-assessment report to bring light to the problem within the administration. Mr. Wester noted that a new assessment had just begun in May 2010 and that agency response this time had been “more robust.”

Of the private sector witnesses, Ms. Weismann was highly critical of NARA’s oversight of agency records management. She noted that until quite recently NARA had interpreted its statutory responsibilities under the Federal Records Act (FRA) very narrowly. She urged Congress to amend the FRA to give the Archivist explicit and expanded oversight and enforcement responsibilities to compel agency cooperation.