White house electronic mail and federal recordkeeping law: press 'D' to delete history.

• Date: 01 February 1995
• Author: Lewis, James D.

INTRODUCTION

In the past two decades, the Watergate and Iran-Contra scandals have produced far-reaching inquiries into the activities and decisions of the President and his White House staff. In both cases, investigators have tried to determine what the President knew and when he knew it.(1) The Watergate scandal spawned extensive litigation over the issue of access to presidential materials(2) and ultimately led Congress to enact the Presidential Records Act of 1978 (PRA),(3) which asserts public ownership of presidential records and establishes presidential record management procedures.(4) The difficulties encountered during investigation of the Iran-Contra affair,(5) however, suggest that the PRA fails to ensure the preservation and availability of historically significant White House materials.

Indeed, the PRA cannot possibly regulate all White House recordkeeping practices, because the statute covers only those records created or received by the President, the Vice President, and immediate presidential staff and advisors.(6) As a result, if National Security Council (NSC) officials improperly destroyed Iran-Contra materials that they created or received while acting outside their roles as direct presidential advisors, the PRA would not apply to such transgressions.(7) Unless federal law imposes uniform recordkeeping duties on White House officials regardless of the presidential or nonpresidential status of particular White House materials, those officials wiu be able to evade their recordkeeping responsibilities by expediently designating records to fit under the most lenient statutory regime.(8)

Accordingly, because the PRA does not reach beyond presidential records, any attempt to reform White House recordkeeping must reconcile the PRA with the two additional statutes that bear upon White House recordkeeping and record disclosure practices: the Federal Records Act (FRA)(9) and the Freedom of Information Act (FOIA).(10) The PRA and the FRA both regulate recordkeeping practices, but they govern mutually exclusive sets of records: the FRA covers records "made or received by an agency of the United States Government,"(11) including White House agencies such as the NSC, while the PRA covers only presidential records, which are explicitly defined as excluding official records of an agency."(12) In contrast to the recordkeeping focus of the PRA and the FRA, the FOIA governs public disclosure of agency records(13) but sets no recordkeeping standards.(14) Although the FOIA refers only to agency records, the PRA explicitly provides for eventual public disclosure of presidential records under the FOIA as well.(15) Because each statute has a distinct role -- the PRA and the FRA governing presidential and agency recordkeeping practices and the FOIA controlling public disclosure of White House records -- any congressional or judicial response to the problems presented by the Iran-Contra scandal must consider the interaction of these federal statutes.

In addition to highlighting this statutory interplay, the Iran-Contra scandal also introduced another novelty not present in Watergate: evidence of White House plans and activities might have been captured in electronic mail (e-mail) messages exchanged among White House officials.(16) When journalist Scott Armstrong, the National Security Archive, and other private citizens and public interest groups brought suit on the final day of the Reagan Presidency to prevent destruction of any information still remaining in the White House e-mail system and on backup computer tapes,(17) they faced not only the typical legal obstacles that block access to presidential records(18) but also the task of convincing a court that e-mail should be regulated by the same recordkeeping and record disclosure laws that govern more traditional White House documents.(19) Armstrong and his fellow plaintiffs argued that the PRA and the FRA limit the power of White House officials to dispose of e-mail and that at least some e-mail retained under the PRA or the FRA should be available to the public under the FOIA.(20)

Having twice reached the D.C. Circuit Court of Appeals, the Armstrong litigation has addressed some basic issues of federal recordkeeping law. First, Armstrong v. Bush (Armstrong I)(21) considered the availability and extent of judicial review of White House compliance with the PRA and the FRA. The court concluded that the FRA permits limited judicial review of White House agency compliance with recordkeeping law but that the PRA precludes judicial review of presidential recordkeeping decisions.(22) Next, Armstrong v. Executive Office of the President (Armstrong II)(23) considered whether the recordkeeping statutes cover electronic mail. The court affirmed that e-mail is not intrinsically beyond the reach of federal recordkeeping law(24) and that existing White House agency guidelines for managing e-mail failed to meet FRA requirements.(25)

Despite this extensive litigation, Armstrong has left several White House recordkeeping issues unresolved. Armstrong has not yet established the right of eventual public access to White House electronic communications, and the courts have not yet ordered any FOIA disclosures of Reagan Administration e-mail.(26) Nor has the htigation ensured that siznilar communications win be preserved in the future because the Armstrong courts have yet to determine the necessary features of a White House electronic mail guideline that would satisfy the dictates of federal recordkeeping law.(27) Thus the Armstrong litigation, spanning three presidential administrations and with no end in sight, demonstrates how federal law has so far failed to facilitate straightforward judicial evaluation of White House electronic mail management practices and procedures.

Specifically, the Iran-Contra scandal and the Armstrong litigation reveal three major weaknesses in the current statutory scheme that governs maintenance of and access to White House computer-based information. First, current law attempts to serve two purposes, administrative efficiency(28) and preservation of a historical record,(29) that may suggest conflicting recordkeeping priorities and practices. Second, Congress has opted to weaken some enforcement provisions of the recordkeeping statutes in deference to separation of powers concerns that arise whenever Congress or the courts attempt to regulate or review executive branch activities.(30) Finally, current law often fails to resolve the issues raised by the evolution from paper-based to electronic government communications; for example, the statutes focus on "records," but information can be electronically represented in various forms that may not be precisely analogous to records.(31) These statutory infirmities cast doubt upon the congressional claim that under the PRA "the preservation of the historical record of future Presidencies [is] assured."(32)

This Note argues that federal recordkeeping law should promote the preservation of history above all other concerns. First, courts should construe and apply the recordkeeping statutes with this goal in mind. Second, Congress should amend the recordkeeping statutes to correct enforcement deficiencies that leave irresponsible recordkeeping practices unchecked and risk the loss of a historical record of White House decisionmaking. Finally, executive officials should adopt guidelines that identify and preserve historically significant materials regardless of the medium in which they are captured.

Part I of this Note examines the statutes that currently regulate the management and public disclosure of White House information and argues that this existing scheme dictates that the preservation of history should generally prevail over administrative convenience. Next, Part II finds that the enforcement mechanisms available under current recordkeeping law leave the historical record overly vulnerable to irresponsible government recordkeeping practices and concludes that Congress can augment the existing enforcement scheme without offending separation of powers principles. Part III then argues that the regulatory framework should be applied to modern means of communication such as electronic mail because such means are increasingly used to relay historically significant information among government officials. This Note concludes that the overall recordkeeping regime can and should be reshaped -- through judicial interpretation, legislative revision, and executive guidelines -- to ensure that White House recordkeeping practices serve the public interest in historical preservation.

1. THE EXISTING STATUTORY FRAMEWORK

   The current federal statutory framework divides government information-related responsibilities into two distinct functions regulated by separate and exclusive laws.(33) On the one hand, the government must manage information, which includes the creation, retention, and disposal of records in order to carry out and document government activities; the FRA and the PRA regulate these information management practices. On the other hand, the government must also disclose information to the public; the FOIA regulates this duty to disclose. Though separate statutes govern these management and disclosure duties, the duties themselves are clearly interrelated: a duty to disclose a particular type of information is meaningless without a corresponding duty to retain the information in the first place.34 This relationship between information retention and disclosure suggests that weaknesses in one element of the statutory framework could undermine the effectiveness of other elements. Accordingly, this Part examines the provisions and purposes of the FRA, the PRA, and the FOIA, and it argues that courts should interpret and reconcile these statutes with the principal goal of ensuring the preservation of a historical record of government activity.

   1. The Federal Records Act

      1. The Procedures and Scope of the...