National Archives attorney offers e-mail counsel

By Max Cacas
Federal News Radio

By all accounts, Jason Baron, the Director of Litigation for the Office of General Counsel at the National Archives and Records Administration (NARA), has visited & counseled the records keeping offices of nearly every cabinet level department and independent agency in the federal government.

In a lively, and somewhat irreverent, yet informative talk to NARA’s recent Records Administration Conference, Baron discussed something that remains an on-going headache for those responsible for government records: electronic mail.

What we are doing is confronting the 800-pound gorilla in our lives, which is e-mail. I know that we have been talking about this for a number of years, but emerging in the marketplace are some products, tools, and services that might be helpful.

Baron is enthusiastic about the subject of records management, and his zeal for helping agencies comply with the law, especially when it comes to electronic communications, has made him homething of a legend and a popular visitor in many federal government agencies. He told the RACO conference two recent cases, ripped from contemporary law journals, points up the need, and the seriousness of dealing with e-mail:

  • In re Fannie Mae Litigation, 552 F.3d 814 (D.C. Cir. 2009): “OFEO was held in contempt, not once, but twice, by a circuit court, and affirmed by a district court, because lawyers for the agency said they could do something that they couldn’t. They represented that they could search backup tapes, in an open-ended way, based on 440 keywords, getting 660,000 hits, in a very defined period of time. You don’t want to be in that quadrant for your agency. That’s not a good day at the office for your lawyers, and you and your IT people.”
  • Aguilar v. ICE Division of US Dept of Homeland Security, 2008 WL 5062700 (S.D.N.Y. Nov. 21, 2008): “This is a case involving IT, Immigration and Customs Enforcement, in which the court is talking about metadata. The parties wanted DHS to produce documents in their native or propietary format. The problem is they didn’t ask early enough. The judge did a Solomon-like decision. He decided that was too late to ask for that information in that form, with the metadata.”

Baron says the jury is still out on the best approach to managing e-mail as part of a comprehensive records management policy. But there’s hope for a technological solution on the horizon:

There is emerging in the marketplace electronic archiving solutions. It’s not a magic bullet, you can’t just buy a product and run with it. What is it? It’s a capture of e-mail. It’s not everyone in this room spending until 9 o’clock at night worrying about their e-mail and how to tag it. It’s capture. It’s taking a snapshot of e-mail, and it can be done, the IT people know how to do it, the question is, how smart can we be about it?

In the meantime, Baron says agencies need to think seriously about forumulating a policy of what e-mail needs to be kept. Do you just keep the e-mail of senior managers, or is it necessary to capture and store every single message that originates in your agency? All this, he says, is to cover agency liability until Congress hopefully rides to the rescue like the cavalry with…legislation.

The Electronic Message Preservation Act was passed by the House of Representatives on March 2010. It is not the law of the land. The Senate has not passed it, so you can’t run with it. It is a signal event, it has been referred to the Senate. It would force the Archivist and NARA to confront issues around electronic messaging, define electronic messaging. It would require, by its terms, the capture of electronic records that are electronic messages. and make them accessible through retrieval methods and functional requirements.

Baron concluded that he can’t forsee what form a solution for the archiving of electronic messages may take, and also cannot predict what policy will be set based on the new law. He says those decisions will be made by policymakers and elected officials if and when the new law is approved by Congress and sent to the President.


Related story:

Federal News Radio: NARA/RACO: OMB’s Sunstein links records and open government

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