An overview of access to electronic communications

As the Unites States government steadily progresses in its shift from paper to electronic records, transparency law has unfortunately struggled to keep up. It is a common obstacle in emerging bodies of law: the practical conflicts have developed ahead of a firm legal solution.

Reports that the Bush administration may have deleted millions of official White House e-mail messages and that it conducted official business through private Republican Party e-mail accounts have thrust this issue to the forefront of the national stage. The administration blamed technological failure for the loss of the e-mail. But whatever the cause, the gaping hole in the nation’s presidential archives sparked reintroduction of the Electronic Message Preservation Act, H.R. 1387, in Congress in March 2009. The measure, if passed, would strengthen federal legal requirements for the retention of such messages.

The notion that official government e-mail should be stored and open to the public is not a new one. The Clinton administration — the first in which electronic communication became widespread — archived e-mail using its Automated Records Management System (ARMS), which the Bush administration dismantled in favor of a new system called Electronic Communications Records Management System (ECRMS). Many of the missing messages were lost between 2003 and 2005, roughly the time period in which the switch was taking place. The ARMS program wasn’t foolproof — some e-mail messages went missing in the 1990s, too — but Clinton’s policy stipulated that the Presidential Records Act required maintenance of all records, including e-mail. It is unclear what the Bush administration’s policy on electronic records was.

In January 2009, as the Bush administration prepared to close up shop, Magistrate Judge John Facciola issued an order in National Security Archive v. Executive Office of the President that all White House e-mail records had to be protected during the transition. Facciola took the opportunity in his order to underscore the broader value of electronic records in the public arena: “[T]he emails that are said to be missing are the very heart of this lawsuit and there is a profound societal interest in their preservation. They are, after all, the most fundamental and useful contemporary records of the recent history of the President’s office.”

The watchdog groups Citizens for Responsibility and Ethics in Washington and the National Security Archive, which filed the suit, agreed with the government to stay the case in April 2009 as they worked on an agreement with the new Obama administration.

The federal government is not the only government body that appears to be making the small, but necessary, jump in logic that that these types of electronic communications are in fact official records — just as crucial as paper records — to which the public should have access.