The White House E-Mail Destruction Scandal of 2007 A Case Study for Digital Heritage1
Myron Groover
Abstract The 2007 controversy surrounding the e-Mail transmission and retention practices of the George W. Bush Jr. White House marked the beginning of a pivotal episode which saw the idea of digital preservation itself pushed to the forefront public consciousness. It culminated in a lengthy and conspicuously inconclusive lawsuit which saw both the National Archives and Records Administration and the Executive Office of the President as co-defendants; a lawsuit which was eventually resolved out of court when the White House changed political hands. The events concerned, and the extrajudicial resolution which effectively closed the case, have much to tell us about the politics – and laws – which impact the present and future state of digital heritage in the United States and worldwide. I present here a brief overview of the scandal, the contexts surrounding it, and some lessons we might hope to learn from the events concerned.
Author Myron Groover is an archivist at the Vancouver Holocaust Education Centre and a member of BCLA's information Policy Committee. He holds an MA (hons) in History from the University of Aberdeen and recently completed his MAS and MLIS at the University of British Columbia. During the course of his academic and professional work with public libraries, archives, and other heritage institutions, he has developed a keen interest in the ways archival and library theory (and practice) influence and relate to the shaping, maintenance, and legitimization of discourse within contemporary and historical nation-states.
1. Introduction The records of governmental bodies, particularly at higher judicial, legislative and executive levels, are as invaluable as they are irreplaceable. They are the living records of a society's life and are the rightful heritage not only of that society's citizens but indeed of the entire world – a world which will one day look to them in its attempts to make sense of its past just as we look to the records of past governments today. Imagine, for example, what our understanding of Nixon's presidency might look like without the Watergate tapes; now imagine how immeasurably the digital revolution has changed the scale of what's at
1 This work represents a distillation and maturation of my work to date regarding these events. I wish to thank Jason R. Baron in providing comments on an earlier draft of this paper; the views expressed herein are entirely my own, however, as are any errors or omissions. stake since then. The digital arena enables us to preserve more and better records than has ever been possible in human history – but it also presents us with similarly unprecedented opportunities to tamper with, destroy, or even lose those records outright. The 2007 controversy surrounding the e-Mail transmission and retention practices of the George W. Bush Jr. White House was an important watershed moment for digital heritage. While it was by no means the first time a United States presidential administration found itself in hot water over electronic record-keeping, it did mark the beginning of a particularly pivotal episode which saw these weighty issues – and the very idea of digital preservation itself – pushed to the forefront of public consciousness. It culminated in a lengthy and conspicuously inconclusive lawsuit which saw both the National Archives and Records Administration and the Executive Office of the President as co-defendants; a lawsuit which was eventually resolved out of court when the White House changed political hands2. The events concerned, and the extrajudicial resolution which effectively closed the case, have much to tell us about the politics – and laws – which impact the present and future state of digital heritage in the United States and worldwide. This paper will give (1) a brief synopsis of the political and administrative contexts surrounding the controversy, (2) a limited chronology of the events which precipitated it and brought it to resolution, and (3) an investigation of the ongoing legal and ethical issues highlighted by the incidents concerned. All these components will focus on the inadequacy of current safeguards in the United States to protect and preserve digital heritage artefacts generated by powerful administrative bodies – ultimately, as a candid investigation of the existing legal and administrative frameworks will show, it is too easy for attitudes and practices regarding digital heritage preservation at higher levels of government to be dictated by political will rather than a spirit of compliance and accountability. This situation is untenable, so my presentation will conclude with (4) a series of questions and recommendations which may serve to inform the development of future decision-making regarding the digital heritage of higher governmental bodies both in the United States and around the world.
2. Background and Context Controversy surrounding the e-mail practices of the federal government did not begin in 2006 when the first public murmurings that all might not be well with the Bush administration’s electronic record- keeping began to surface3. Indeed, as prior scholarship has pointed out, legal wrangling over the statutory obligations which surround the preservation and destruction of federal e-mail dates back to at least the late 1980s when the grounds were laid for what would be the first of many rounds of litigation surrounding the PROFS e-mail system in use by the National Security Council and other federal bodies at the time. The scandals of 2007 took place not only in light of a long and complex litigative legacy but also in the context of the unprecedented rise of the internet itself as a phenomenon – the electronic
2 It is significant, if perhaps not unusual, that the circumstances of the scandal first became known only coincidentally. The initial evidence came to light as a side-note of unrelated investigations into the Bush administration – one regarding the Plame Affair and one regarding the dismissal of US Federal attorneys for political purposes – and without these broader scandals the events discussed here would have taken an entirely different shape. 3 For more information on the circumstances surrounding the early days of the scandal and the media coverage thereof, see Media Matters Research Team. “Media Largely Ignored Fitzgerald Revelation that White House May Have Destroyed Emails.” Media Matters for America. http://mediamatters.org/research/200602020012 (accessed August 31, 2012).
2 landscape of the second George W. Bush administration was markedly different than that which predominated in Oliver North’s day, but many of the actual blunders involved in the Bush scandal bore a remarkable similarity to the events which gave rise to the original PROFS case4. From a statutory viewpoint, there are two key pieces of federal legislation in the United States which treat very directly on the subject of presidential records. The most notable is the Presidential Records Act5, first passed in 1978 and amended three times subsequently, which holds as a central tenet that “[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records6” and that:
“...[t]hrough the implementation of records management controls and other necessary actions, the President shall take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records pursuant to the requirements of this section and other provisions of law”7
In 2002, President Bush amended the law by executive order to severely curtail the public availability of records preserved because of the legislation8,9,10; he did nothing, however, to alter the fundamental requirement that presidential records be maintained in the first place. Any destruction of e- Mails which fall under the purview of “Presidential Records” as outlined above – whether deliberately, at the whim of staffers or party leadership; or unintentionally through neglect and incompetence –constitutes a clear violation of the PRA. Another significant law influencing the ongoing discourse around defining the norms of presidential record-keeping is the Hatch Act of 1939, which was originally passed to curb alleged
4 Baron, Jason. “The PROFS Decade: NARA, E-mail, and the Courts.” In Thirty Years of Electronic Records, edited by Bruce L. Ambacher, 105-37. Lanham: Scarecrow Press, 2003. 5 United States, Congress, 1978, Presidential Records Act, United States Code, Title 44, Accessed 7 April 2010; available from http://en.wikisource.org/wiki/Presidential_Records_Act_of_1978 6Ibid., §2202 “Presidential Records” are here defined as: “... documentary materials, or any reasonably segregable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President ... includ[ing] any documentary materials relating to the political activities of the President or members of his staff, but only if such activities relate to or have a direct effect upon the carrying out of... official or ceremonial duties of the President.” (§2201) “Documentary materials” are defined as: “... books, correspondence, memorandums, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films, and motion pictures, including, but not limited to, audio, audiovisual, or other electronic or mechanical recordations” (§2201) 7 ibid., §2203 8 George Bush, “Source Material: Executive Order 13233 [Federal Register Vol. 66, No. 214, November 5, 2001] Further Implementation of the Presidential Records Act,” Presidential Studies Quarterly 32, no. 1 (Mar., 2002): 185-89, http://www.jstor.org/stable/27552373 (accessed August 31, 2012). 9 See also Bruce Montgomery, “Source Material: Nixon's Ghost Haunts the Presidential Records Act: The Reagan and George W. Bush Administrations,” Presidential Studies Quarterly 32, no. 4 (Dec., 2002): 789-809, http://www.jstor.org/stable/27552442 (accessed August 31, 2012). 10 See also Bruce Montgomery, “Presidential Materials: Politics and the Presidential Records Act,” The American Archivist 66, no. 1 (Spring/Summer 2003): 102-38, http://www.jstor.org/stable/40294220 (accessed August 31, 2012).
3 corruption and political patronage tied up with various New Deal programs. The law has since become particularly important for its prohibition on the use of governmental resources for partisan political activities. By blurring the lines between party-political manoeuvring and official activity relating to the business of government, officials can either seek to pass off party business as federal business worthy of federal resources – or, on the opposite end of the spectrum, argue that communications which mention party business are outwith the sphere of federal record-keeping legislation.
3. The Controversy – A Narrative Overview The scandal itself fundamentally concerned inconsistencies in the Bush Administration’s recordkeeping practices which resulted in haphazard archival retention of both official and unofficial White House e- mail. It also concerned the subsequent attempts of White House staffers to illegally destroy e-Mails for a variety of reasons. These practices and processes took place far from public scrutiny and governmental oversight, and were subsequently found to be in violation of several federal statutes. The matter gave rise to public outrage at both the politicization of the Executive Branch of the United States federal government and at the seeming audacity of the Executive in seemingly behaving as if it was pre-eminent among the branches of government and therefore not subject to the oversight or separation of powers set forth in United States law. The scandal has its origins in the early years of the 21st century, but it was in 2004 that the scandal as a phenomenon began to take shape. It was the third year of an ongoing grand jury investigation into the Plame Affair whereby Richard Armitage and others made public the identity of CIA covert agent Valerie Plame as a political reprisal for her husband’s alleged opposition to Bush administration interests. It was during the indictment and trial of President Cheney’s then-Chief of Staff Lewis “Scooter” Libby for his involvement in the incident that the first public mention of inconsistencies in the Bush White House’s e- mail practices came to light11. In a letter to Libby’s attorneys from special counsel Patrick Fitzgerald, who was responsible in large part for prosecuting the case, we see the somewhat understated remark that:
“In an abundance of caution, we advise you that we have learned that not all e-mail of the Office of Vice President and the Executive Office of the President for certain time periods in 2003 was preserved through the normal archiving process on the White House computer system.”12
As time went on, these discrepancies began to be subjected to more intense scrutiny. In 2007, during an investigation of the White House for its involvement in illegal Department of Justice efforts to politicize the hiring and firing of United States Attorneys, the Bush administration was compelled to reveal in response to official subpoenas that it could not provide many of the e-Mails requested by the prosecution because these E-Mails had not been sent or received using the official White House E-Mail servers. This admission eventually resulted in the discovery that a significant percentage of the E-Mail sent by White House staffers was being hosted by internet domains registered to such overtly partisan
11 For a parallel case, see Nick Juliano, “Ethics Watchdog Accuses Education Department of Illegal E-Mail Use,” The Raw Story, http://rawstory.com/news/2007/Ethics_watchdog_accuses_Education_Department_of_0516.html (accessed August 31, 2012). 12 Patrick Fitzgerald to Messrs. Jeffress, Wells and Tate, “RE: United States vs. L. Lewis Libby,” Letter, January 23 2006, in CREW Lawsuit Exhibits, Citizens for Ethics and Responsibility in Washington, http://www.citizensforethics.org/files/Exhibits_1.pdf (accessed August 31, 2012)
4 entities as the Republican National Committee or “Bush-Cheney ’04 Inc”13. The most widely-used of these domains became a focal point for a subsequent investigation of the Bush White House by the House Judiciary Committee14. The matter was further compounded by the fact that, as it subsequently became clear, the White House’s record-keeping procedures in place for even official e-mail sent on federally- owned servers were well below standard. During the course of several investigations, a number of allegedly-destroyed E-Mails explicitly discussing both policy and politics came to light. The mixed nature of these e-mails’ content brought the Hatch Act and Presidential Records Act, and the tension between the two, into the spotlight. By arguing that the unrecoverable e-mails deleted or not preserved on federal servers – or sent via entirely external domains in the first place – were exclusively used for partisan purposes and politicking rather than the business of government, the White House could offer some justification for certain e-mail having gone missing. This justification wasn’t entirely enough to overshadow the statutory requirements of the Presidential Records Act, however, and in acknowledgement of that fact the White House’s Deputy Press Secretary Scott Stanzel was compelled to announce that non-federal domains had indeed been used for official government business by staff, that “the White House has not done a good enough job overseeing staff using political e-mail accounts to assure compliance with the Presidential Records Act”15, that “...some official E-Mails have potentially been lost”, and that the White House would take steps to recover the lost E-Mails. Stanzel stopped short of admitting any deliberate wrongdoing, maintaining that the confusion stemmed from an ‘unclear’ policy on E-Mail within the White House16. Interpretation of the above events was undoubtedly influenced by the publication in April 2007 of a highly critical report entitled Without a Trace: the Story Behind the Missing White House E-Mails and the Violations of the Presidential Records Act17. The report was authored by Washington-based civilian watchdog CREW (Citizens for Responsibility and Ethics in Washington), a whistleblower organization whose stated purpose is to "promote ethics and accountability in government and public life by targeting government officials - regardless of party affiliation – who sacrifice the common good to special interests.”18 It laid out in no uncertain terms what CREW perceived to be egregious law-breaking and deliberate misinformation on the part of the White House. The report caught the attention of the press and Congress with its projected figure of five million potentially-lost E-mails – a number which White House Press Secretary Dana Perino referenced directly the very next day with the words “I wouldn't rule out that
13 For registration information regarding these domains, see http://whois.domaintools.com/georgewbush.com, http://whois.domaintools.com/gwb43.com and http://whois.domaintools.com/rnchq.org (all accessed August 31, 2012) 14 Naomi Steiner, “CREW Asks for House Investigation into White House Violations of Presidential Records Act,” Citizens for Responsibility and Ethics in Washington, http://www.citizensforethics.org/node/25822 (accessed August 31, 2012). 15 Tom Hamburger, “Key Bush Aides' E-Mail May Be Lost,” Los Angeles Times, April 12, 2007. http://articles.latimes.com/2007/apr/12/nation/na-emails12 (accessed August 31, 2012). 16 Sheryl Stolberg, “Bush Advisers’ Approach on E-Mail Draws Fire,” New York Times, April 12, 2007. http://query.nytimes.com/gst/fullpage.html?res=950CE1DA123FF931A25757C0A9619C8B63 (accessed August 31, 2012). 17 CREW, “Without a Trace: the Story Behind the Missing White House E-Mails and the Violations of the Presidential Records Act,” April 12, 2007, Citizens for Ethics and Responsibility in Washington, http://www.scribd.com/doc/132187/Without-a-Trace-The-Missing-White-House-Emails-and-the-Violations-of-the- Presidential-Records-Act (accessed August 31, 2012). 18 CREW, “About CREW,” Citizens for Responsibility and Ethics in Washington, http://www.citizensforethics.org/about (accessed August 31, 2012).
5 there were a potential 5 million emails lost.19” This seeming admission of culpability was tempered somewhat when months later a White House spokesperson named Tony Fratto alleged that “to the best of what all the analysis [sic] we've been able to do, we have absolutely no reason to believe that any emails are missing; there's no evidence of that.20” The situation was escalated by lawsuits filed in the autumn of 2007 by two watchdog organizations –first the National Security Archive21 and a subsequently by the aforementioned Citizens for Responsibility and Ethics in Washington22. Both filed suit not only against the Executive Office of the President but also against Allen Weinstein and NARA, alleging that the latter parties were complicit in the scandal since they had failed to take effective action to monitor the goings-on of record-keeping practices in the Bush White House or to raise any alarm about what was (depending on your interpretation) either a serious ethical breach or an alarming incidence of technological incompetence. As the lawsuits were gathering steam, the entire affair came to a head in early 2008 at a dedicated hearing before the House Committee on Oversight and Government Reform which saw Bush Administration IT officials give their accounting of what had taken place and why precisely so many e- mails were missing. The public record of this hearing and the interrogatories which surrounded it provide one of the most valuable resources for studying the events concerned. The Hatch Act and Presidential Records Act were discussed extensively, but perhaps more significant were the statements of IT officials regarding their genuine technical difficulties in preserving the White House’s e-Mails. Far from presenting a picture of malfeasance and conspiracy, the White House’s CIO Theresa Payton testified to a challenging work climate of vast workloads, insufficient budgetary staff resources, and a rapidly-shifting technological landscape, which confounded the good-faith efforts of White House IT staff to preserve e- mail in accordance with the provisions of the PRA23. The particulars of this testimony were broadly supported by a written interrogatory from Steven McDevitt, a former administration IT official, although McDevitt went into much greater technical detail on the specifics of White House information policy. McDevitt’s interrogatory did contrast with Payton’s testimony in one important particular, however – rather than putting the failure to adequately preserve White House e-mail down to overwork and finite resources, he instead painted an extremely unflattering picture of incompetence and inadequacy among OCIO staff24. This hearing added fuel to the ongoing litigation, which wound its way through the courts inconclusively during most of 2008 and the early part of 2009. After a lengthy period of discovery, the case was eventually put on hold some two months after the swearing-in of the Obama administration,
19 Anonymous, “CNN: White House Won't Deny Lost E-Mails,” YouTube, http://www.youtube.com/watch?v=ryCZ9eZrvT8 (accessed August 31, 2012). 20 CREW, “A New Claim from the Bush Administration: 'We Have Absolutely No Reason to Believe That Any Emails Are Missing',” Citizens for Responsibility and Ethics in Washington, January 17, 2008, http://www.citizensforethics.org/node/30806 (accessed August 31, 2012). This statement was questioned the next day in a letter from Henry Waxman, chairman of the House Judiciary Committee, pointing out that a 2005 report had identified nearly 500 days where the White House registered no E-Mail traffic at all. 21 Meredith Fuchs and Tom Blanton, “Archive Sues to Recover 5 Million Missing White House E-mails,” National Security Archive, http://www.gwu.edu/~nsarchiv/news/20070905/index.htm (accessed August 31, 2012). 22 Anne Weismann and Melanie Sloan, “Citizens for Responsibility and Ethics in Washington vs. Executive Office of the President,” Lawsuit, September 25 2007, National Security Archive, http://www.gwu.edu/~nsarchiv/news/20080417/092507_CREW_Complaint.pdf (accessed August 31, 2012). 23 U.S. House of Representatives Committee on Oversight and Government Reform, “The Electronic Records Preservation at the White House Hearing before the Committee (Serial No. 110-80)”, U.S. Government Printing Office, February 26, 2008, http://www.fas.org/sgp/congress/2008/electronic.pdf (accessed August 31, 2012) 24 Ibid.
6 which had used transparency and openness as campaign watchwords25. During this time, the new administration began pursuing the restoration of the supposedly-lost E-Mails fairly aggressively, and after several months in abeyance the suit was finally settled out of court in December 200926. The defendants agreed to restore some 94 days’ worth of previously-missing E-Mails and to transfer them to NARA, and to further ensure that all back-up tapes relating to the period in question were retained for a full twelve years. The final tally indicated that some number approaching 23 million E-Mails had been destroyed or lost by the Bush White House27, a far cry from the figure of five million which was bandied about in the early days of the scandal.
4. Interpretation and Aftermath As the investigations progressed, two broad narratives emerged regarding the circumstances of the scandal. The first, endorsed by administration officials, is perhaps best encapsulated by the testimony of Theresa Payton and by the following response given by Scott Stanzel to a particularly pointed question regarding the Presidential Records Act on the day the initial CREW report was published:
“Well, technology has certainly advanced. We live in a new time. This is just the second administration that's actually had E-Mail. This is the first administration that has dealt with the ubiquity of 24/7 communications in the form of BlackBerrys. So it is always on. The White House policy actually has been improved. We've strengthened that in policy, clarified it for staff so they understand how to avoid violations of the Hatch Act, while at the same time adhering to the Presidential Records Act ... There are official business emails, there are political business emails, and then there is also this gray area. And that's where employees have to make a judgment. And some employees, out of an abundance of caution, could have been sending official business emails on their RNC political account.”28
This narrative centres around the technological and policy dimensions of electronic preservation, holding that any gaps in the official record are due to both policy confusion among staffers and to technical inadequacies on the part of the White House’s information infrastructure which compromised e- mail retention in some way. Opinion on the part of the IT personnel involved is mixed, as we have seen; there is by no means a consensus on whether this came to be through incompetence or misfortune, but at its core this narrative does not emphasize any malfeasance or deliberate wrongdoing. The second dominant narrative, as espoused by CREW through publications such as Without a Trace and through the CREW-NSA lawsuit, holds that the loss of so many e-mails cannot be ascribed to either incompetence or technological inadequacy – instead, proponents say, the scandal is evidence of a pernicious and long-enduring culture of obfuscation and callousness regarding federal recordkeeping statutes on the part of the Bush White House.
25 Judicial Watch, “Obama Promises Transparency, Openness,” Judicial Watch, November 10, 2007, http://www.judicialwatch.org/blog/2008/nov/obama-promises-transparency-openness (accessed August 31, 2012). 26 Dan Eggen, “Groups Announce Settlement in Missing Bush E-Mails Case,” Washington Post, December 14, 2009. http://voices.washingtonpost.com/44/2009/12/groups-announced-settlement-in.html (accessed August 31, 2012). 27 Cable News Network, “Millions of Bush Administration E-Mails Recovered,” CNN, December 14, 2009. http://www.cnn.com/2009/POLITICS/12/14/white.house.emails/index.html (accessed August 31, 2012). 28 Paul Kiel, “White House: 'We Live in a New Time',” Talking Points Memo, http://tpmmuckraker.talkingpointsmemo.com/archives/002993.php (accessed August 31, 2012).
7 While neither narrative eventually prevailed in the courts, frustration on the part of NARA increased as the Bush Administration drew to a close. Allen Weinstein, the Archivist of the United States, sent White House Counsel Fred Fielding a letter pleading that the latter commence E-Mail restoration efforts29. A meeting was subsequently arranged between National Archives and Records Administration representatives and White House staff – largely to give the latter a chance to explain to the former why they believed so many E-Mails were missing and what could be done to recover them if that were possible. According to leaked minutes of the meeting, NARA “... wanted a complete set of Bush emails in a format that we could accept into ERA” – but the organization had no power to force the White House to comply or facilitate this30. This frustration was voiced in an internal NARA memo from Counsel Gary M. Stern to Allen Weinstein, stating that “...we still have made almost zero progress in actually moving ahead with the important and necessary work ... even our rather simple and mundane request[s] ... [have] lain dormant for months.31” Whether because of malfeasance or technological factors (or a combination of both) NARA encountered real difficulty in its efforts to safeguard and preserve the electronic records of the Bush White House, immersed as it was in the very involved process of designing and implementing its flagship ERA (Electronic Records Archives) program32. These problems were compounded by NARA’s statutory mandate, which leaves it with little power to force compliance or oversight on powerful federal agencies. The end result was a serious breach in electronic record-keeping at the very highest levels of the United States Government whose impacts are still being felt today. The White House itself was left somewhat shamefaced by the controversy, but in spite of a fairly broad consensus that the White House had not sufficiently discharged its responsibilities under the Presidential Records Act no criminal case was ever brought against anyone as a result of the scandal. Congress did not take any action to compel the White House to rectify its mistakes by restoring lost E- Mails, and the whole incident was generally treated by Congress as an aside to the much more intense controversy over the politicization of U.S. Attorney firings by the Department of Justice. The lawsuit against the EOP was eventually settled – albeit after a tortuous litigative procedure that would have bankrupted any but the most well-funded NGOs – but the issues raised by the controversy are far from resolution. Not least among these are the lingering questions as to the robustness of federal record- keeping practices and the information architecture which supports them – and questions about the ability of these practices and systems to support a culture of heritage preservation and accountability.
29 Allen Weinstein to Fred Fielding, Letter, May 12 2007, in National Security Archive Primary Documents, National Security Archive, http://www.citizensforethics.org/files/Exhibits_1.pdf (accessed August 31, 2012) 30 NARA, “Notes of May 21, 2007 Meeting with White House on Email Issues,” National Security Archive, http://www.gwu.edu/...nsarchiv/news/20080417/Notes%20of%20May%2021,%202007%20Meeting%20with%20W hite%20House%20on%20Email%20Issues.pdf (accessed August 31, 2012). 31 Gary Stern to Allen Weinstein, “Bush 43 Transition, et. al.,” Memorandum, September 5 2007, in National Security Archives Primary Documents, National Security Archive, http://www.gwu.edu/~nsarchiv/news/20080417/09052007%20Stern-Weinstein%20memo.pdf (accessed August 31, 2012) 32 See the United States Budgets, where for the years from 2002-2007 the only line item consistently mentioned in NARA’s written appropriations summaries was ERA. Searchable versions of past federal budgets can be found at: Executive Office of the President, “Budget of the United States Government: Browse,” Government Printing Office, http://www.gpoaccess.gov/usbudget/browse.html (accessed August 31, 2012).
8 5. Analysis and Recommendations For an analysis of the record-keeping proficiency of the Bush White House, we might look to the ARMA International Draft Maturity Model as a frame of reference. We might reasonably hope that the Executive Branch33 of the most powerful government on the planet would meet or approach ARMA’s highest level of standards – 5 – but the facts which came to light as a result of the scandal and ensuing litigation have revealed that the core competency of the White House was closer to ARMA’s level 2 in most areas, or perhaps even 1 (the lowest possible level) in terms of Transparency34, Availability35, Integrity36 and Retention37. This analysis stands whether or not the errors in electronic record-keeping were deliberate or accidental, but we should not lose sight of the GARP Principle of Transparency:
‘The processes and activities of an organization’s record-keeping program shall be documented in an understandable manner and be available to all personnel and appropriate interested parties ... It is in the best interest of every organization, and of society in general, that all parties clearly understand [that] [1] The organization conducts its activities in a lawful and appropriate manner. [2] The record-keeping system accurately and completely records the activities of the organization. [3] The record- keeping system is itself structured in a lawful and appropriate manner. [4] Activities conducted to implement the record-keeping program are conducted in a lawful and appropriate manner’38
Whatever political position we take on the exigencies of the scandal, the White House does not come out looking especially favourable. Ultimately, the issue is not whether or not the failures of the Bush Administration in preserving its e-mail were down to malfeasance or circumstance – it is whether those failures are acceptable to us. More broadly, thinking along such lines invites us to examine our existing statutes and attitudes to evaluate their ability to support the culture of record-keeping we would like to see. What effective deterrents, professional or legal, are in place at the very highest level of society and governance to ensure that these principles are being applied? In this instance, the immediate real legal impact of the incident was reduced to a two-year litigious standoff (at the expense of the American taxpayer and the financial supporters of the NGOs who brought the suit) which could only reach some
33 Due largely to a series of political circumstances and unprecedented interpretations and re-workings of the mechanics of government, the Executive Branch was certainly the most immediately influential arm of American government during virtually the entirety of Bush’s two terms in office, which may mitigate or exacerbate the implications of his administration’s cavalier behavior regarding Records Management. 34 ARMA, “ARMA International Draft Maturity Model,” Association of Records Managers and Administrators International, http://www.armacanada.org/documents/GARP_MaturityModelchart.pdf (accessed August 31, 2012). “It is virtually impossible to obtain information about the organization or its records in a timely fashion ... There is no emphasis on transparency. It is not clear how the organization operates.” 35 Ibid. “Records are not readily available when needed ... Record inventories are practically non-existent ... Discovery is difficult since it is not clear where information resides or where the copy of the record is” 36 Ibid. “There are no systematic audits, and no defined process for showing the origin and authenticity of a record. Various organizational functions use ad hoc methods to demonstrate authenticity and chain of custody ... but their trustworthiness cannot be easily guaranteed.” 37 Ibid. “There is no current documented records retention schedule. Rules and regulations that should define retention are not identified or centralized ... In the absence of retention schedules, employees either keep everything or dispose of records based upon individual rather than organizational needs.” 38 ARMA, “Generally Accepted Record-keeping Principles (GARP) : Transparency,” Association of Records Managers and Administrators International, http://www.arma.org/garp/ (accessed August 31, 2012).
9 modicum of resolution when the Executive Branch itself changed hands and ceased actively obstructing the course of the investigation, resulting in an out-of-court settlement. For answers, perhaps we can look to the Universal Declaration of Archives ratified by the ICA in 2011. It provides a fairly unambiguous and encouraging blueprint for confronting just such issues. If we are to avoid similar incidents in the future, we must put the Declaration into practice – thankfully, it tells us exactly what we must work towards, a climate where:
“appropriate national archival policies and laws are adopted and enforced; the management of archives is valued and carried out competently by all bodies, private or public, which create and use archives in the course of conducting their business; adequate resources are allocated to support the proper management of archives, including the employment of trained professionals; archives are managed and preserved in ways that ensure their authenticity, reliability, integrity and usability”39
In light of this, it is abundantly clear that relying on litigation to ensure compliance is inadequate. Such processes can be profoundly undemocratic, relying heavily on financial resources to effectively buy outcomes, but are also extremely inefficient when one party to a suit is powerful enough to be consistently uncooperative and to delay the resolution of the suit indefinitely. Nor can we legitimately expect large federal bodies to self-regulate. Instead, we might ask hard questions of ourselves about our willingness – as professionals, and as a society – to pursue alternate routes toward ensuring compliance. Most crucial of all is the adequate funding of bodies like NARA, which are our first line of defence in the battle to protect our digital heritage. Such bodies must also be innovative – as NARA indeed is – in exhaustively documenting financial or material impediments to their efforts in this vein, so that it can be demonstrated that archivists and other heritage keepers have truly done all they can to facilitate good practices in electronic record- keeping. It is a matter of efficiency as much as anything else; in the case of the White House e-mail scandal, many e-mails were eventually recovered (electronic media seldom being so ephemeral as users think), but how much easier would it have been if adequate retention practices had been in place from the beginning? The elephant in the room, perhaps, is prosecution. Ultimately, if large-scale legislative measures like the Presidential Records Act are to prevent our digital heritage from being compromised, we cannot shy so readily away from criminal proceedings against those found to be responsible for lapses like those which gave rise to the Bush e-mail scandal. This is not whatsoever to say that there should be no room for negotiation or diminished responsibility in light of circumstance, but our unwillingness at a societal level to see the mighty in court over such matters cannot continue if we are to remain credible. If it is expected these archival principles will be adhered to by business leaders and governments, how can we vouch for the universality of our methodology if there is a tacit admission that some are beyond the reach of approbation for violating its tenets? Do our generally-accepted ways of defining records, as in the case of the legitimate conflict between the Presidential Records Act and the Hatch Act, truly lend themselves to regulation and a need to protect against conflicts of interest?
39 ICA, “Universal Declaration on Archives,” International Council on Archives, http://www.ica.org/download.php?id=2027 (accessed August 31, 2012)
10 In the case of electronic heritage preservation these questions are especially poignant. Ultimately it may be that the world needs to see a high-profile case around these issues – visible neglect on the part of powerful governmental bodies in capturing, maintaining, and ultimately retaining their electronic legacy, whether due to malfeasance or technical inadequacy – successfully brought to conviction in a court of law. We still have a chance to shape the debate around electronic heritage preservation, if we are willing. None of these measures can stand alone, however. As the Universal Declaration on Archives so clearly indicates, we need to continue working towards an integrated culture of reverence and respect towards our emerging digital heritage – and that goes far beyond shaming or punishing people who break the law. Instead, we should strive for a society where principles like those which inspire the Declaration – and this conference – are so generally accepted that they require neither punishment nor praise to maintain. An archivist can dream, after all.
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