Senate bill aims to bring federal records law into the age of ‘WhatsApp’

The legislation comes after recent federal records controversies where officials lost or deleted messages, like the missing Jan. 6 Secret Service texts.

Justin Doubleday@jdoubledayWFED

March 28, 2024 4:25 pm

5 min read

Key Senate lawmakers are pushing to raise the stakes for government officials who delete texts or use personal online accounts to skirt federal records law.

Homeland Security and Governmental Affairs Committee Chairman Gary Peters (D-Mich.) and Sen. John Cornyn (R-Texas) are introducing the “Strengthening the Federal Records Act of 2024” today.

The bill would tighten disclosure requirements for “non-official messaging accounts” used to carry out government business, while also strengthening the ability of the National Archives and Records Administration to hold agencies accountable for complying with record-keeping rules.

“Federal agencies must maintain adequate records so that the American public can hold officials accountable, access critical benefits and services, and have a clear picture of how the government is spending taxpayer dollars,” Peters said in a statement. “We must also update the law to keep pace with rapidly changing technology and ensure that we are not sacrificing transparency as we embrace new forms of communication.”

The bill would prohibit federal employees from using “non-official” messaging applications to carry out government business unless the messages are backed up or otherwise saved in an official account.

Beyond texting, government officials have also increasingly turned to platforms like WhatsApp and Signal in recent years. Those “ephemeral” messaging applications allow users to permanently delete messages after a set amount of time.

“American taxpayers deserve a full accounting of federal records, including across all forms of digital communication,” Cornyn said. “This legislation would help make sure technological advancements do not hamstring the government’s ability to provide greater accountability and transparency for federal records.”

The proposed FRA reforms do not address record-keeping at the White House. Those practices are governed by a separate statute, the Presidential Records Act.

But the legislation comes after numerous federal record-keeping controversies at the agency-level in recent years. For instance, the Secret Service lost key text messages from the day of the Jan. 6 Capitol riot, reportedly due to an IT system update.

The Department of Homeland Security inspector general, who had been investigating the missing Secret Service texts, more recently admitted to lawmakers he routinely deletes texts off his government-issued phone.

And during a hearing held by the homeland security committee earlier this month, Republicans pointed to a National Institutes of Health official who had told colleagues he used his personal email account to avoid having his records pulled under a Freedom of Information Act request.

“Records are the currency of democracy,” Anne Weismann, a former Justice Department official and law professor at George Washington University, said during the hearing. “They are the way we hold government actors accountable. And we have seen too many examples, whether it’s at NIH, whether it’s at DHS, whether it’s the Secret Service, where federal employees are either willfully or unwittingly avoiding or contravening their record keeping responsibilities. And as a result, the historical record of what they’re doing and why they’re doing it, is incomplete.”

Certification requirements

Under the legislation, federal employees would also have to certify their compliance record-keeping requirements before leaving an agency. Weismann pointed to reports that senior officials in the Trump administration may have deleted crucial messages regarding Jan. 6 before leaving government.

“If they had been required to certify upon leaving government that they had complied with their record keeping responsibilities, that might not have happened, or there would have been some ability to hold them accountable for what they did,” Weismann said during a hearing held by the homeland security committee earlier this month.

The legislation would expand a NARA program that automatically captures the email messages of senior agency officials.

The “Capstone” program would be expanded to automatically capture other forms of electronic messages, including through the “culling” of transitory messages and personal messages “as appropriate,” per the legislation.

Justice Department referral

Peters’ and Cornyn’s bill would also require NARA to refer repeated violations of the FRA to the Justice Department, including cases where employees unlawfully remove or destroy records.

Weismann had told lawmakers that NARA has been reticent to refer violations of records laws to DOJ, especially in cases where records were allegedly destroyed. She said that’s despite the fact that the Archives admits it doesn’t have the resources or authorities to investigate and punish record-keeping violations on its own.

“[NARA] is not well equipped, they don’t have the investigative resources, for example, that the Department of Justice has, which is precisely why we think it’s so critical that the obligation to make that referral be made clear,” Weismann said.

The bill comes as federal agencies and NARA manage an increasing amount of electronic records. NARA will stop accepting permanent paper records from agencies starting this summer.

Numerous advisory committees and advocacy groups have warned that agencies have largely been unprepared to handle the growing influx of digital data over the past two decades, impacting everything from classified information sharing to FOIA processing.

The Peters-Cornyn legislation would also set up an “Advisory Committee on Records Automation” at NARA. The committee would be responsible for encouraging and recommending ways that agencies can take advantage of automation to ingest and manage their electronic records.

The bill has garnered the support of multiple advocacy groups, according to statements provided by the Homeland Security Committee. They include the Citizens for Responsibility and Ethics in Washington (CREW), Americans for Prosperity, Protect Democracy, Government Information Watch, and the Association of Research Libraries.

“Government records are ultimately the property of the American people and agencies are responsible for maintaining the emails, texts, and documents they create,” Debra Perlin, policy director for CREW, said in a statement. “The Strengthening Oversight of Federal Records Act would update and bolster our federal recordkeeping laws to account for changes in technology, and make it easier for organizations like ours to ensure that records are created and preserved during any administration.”