Posted: 12:44 am EDT
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In 1976, Henry Kissinger apparently left the State Department with records of his telcons, along with his memcons and office files, at the conclusion of his tenure as the 56th Secretary of State. The National Security Archive in 2001 filed a legal complaint directed at the State Department and the National Archives “for abdicating their duty under the Federal Records Act to recover the Kissinger documents, which were produced on government time with government resources.” In March 2015, the National Security Archive again filed suit against the State Department under the Freedom of Information Act to force the release of the last 700 transcripts of Kissinger’s telephone calls (telcons). The Archive’s appeal of State’s withholding dates back to 2007. State has apparently claimed they were “pre-decisional” or covered by executive privilege — claims that the Archive says “should long since have expired in the case of 40-year-old records.”
In 2013, 67th did not have to removed her record emails since they were not even in the State Department systems. Meanwhile, the State Department will be tied up in multiple civil litigations related to these damn emails until 2055.
In any case, Congress is on it! No one will be able to do this ever again. No one, that is, until the next secretary of state maybe in 2028 … and it’ll be for something similar to the telephones, or emails, but different; perhaps out of a new technology that is yet to be invented… records retention for lifelogging or mindprinting, anyone?
Well, here is what Congress did for now. A section of the ‘‘Consolidated Appropriations Act, 2016’’ which became Public Law No: 114-113 on December 18, 2015 includes the following item on Records Management with funding restrictions on the use of email accounts and email servers created outside the .gov domain, a requirement for records management reports from both the State Department and USAID within 30 days, and a provision for withholding $10,000,000 from the “Capital Investment Fund” until the reports required are submitted to Congress.
(1) LIMITATION AND DIRECTIVES.—
(A) None of the funds appropriated by this Act under the headings “Diplomatic and Consular Programs” and “Capital Investment Fund” in title I, and “Operating Expenses” in title II that are made available to the Department of State and USAID may be made available to support the use or establishment of email accounts or email servers created outside the .gov domain or not fitted for automated records management as part of a Federal government records management program in contravention of the Presidential and Federal Records Act Amendments of 2014 (Public Law 113–187).
(B) The Secretary of State and USAID Administrator shall—
(i) update the policies, directives, and oversight necessary to comply with Federal statutes, regulations, and presidential executive orders and memoranda concerning the preservation of all records made or received in the conduct of official business, including record emails, instant messaging, and other online tools;
(ii) use funds appropriated by this Act under the headings “Diplomatic and Consular Programs” and “Capital Investment Fund” in title I, and “Operating Expenses” in title II, as appropriate, to improve Federal records management pursuant to the Federal Records Act (44 U.S.C. Chapters 21, 29, 31, and 33) and other applicable Federal records management statutes, regulations, or policies for the Department of State and USAID;
(iii) direct departing employees that all Federal records generated by such employees, including senior officials, belong to the Federal Government; and
(iv) measurably improve the response time for identifying and retrieving Federal records.
(2) REPORT.—Not later than 30 days after enactment of this Act, the Secretary of State and USAID Administrator shall each submit a report to the Committees on Appropriations and to the National Archives and Records Administration detailing, as appropriate and where applicable—
(A) the policy of each agency regarding the use or the establishment of email accounts or email servers created outside the .gov domain or not fitted for automated records management as part of a Federal government records management program;
(B) the extent to which each agency is in compliance with applicable Federal records management statutes, regulations, and policies; and
(C) the steps required, including steps already taken, and the associated costs, to—
(i) comply with paragraph (1)(B) of this subsection;
(ii) ensure that all employees at every level have been instructed in procedures and processes to ensure that the documentation of their official duties is captured, preserved, managed, protected, and accessible in official Government systems of the Department of State and USAID;
(iii) implement the recommendations of the Office of Inspector General, United States Department of State (OIG), in the March 2015 Review of State Messaging and Archive Retrieval Toolset and Record Email (ISP–1–15–15) and any recommendations from the OIG review of the records management practices of the Department of State requested by the Secretary on March 25, 2015, if completed;
(iv) reduce the backlog of Freedom of Information Act and Congressional oversight requests, and measurably improve the response time for answering such requests;
(v) strengthen cyber security measures to mitigate vulnerabilities, including those resulting from the use of personal email accounts or servers outside the .gov domain; and
(vi) codify in the Foreign Affairs Manual and Automated Directives System the updates referenced in paragraph (1)(B) of this subsection, where appropriate.
(3) REPORT ASSESSMENT.—Not later than 180 days after the submission of the reports required by paragraph (2), the Comptroller General of the United States, in consultation with National Archives and Records Administration, as appropriate, shall conduct an assessment of such reports, and shall consult with the Committees on Appropriations on the scope and requirements of such assessment.
(4) FUNDING.—Of funds appropriated by this Act under the heading “Capital Investment Fund” in title I, $10,000,000 shall be withheld from obligation until the Secretary submits the report required by paragraph (2).
You gotta do what you gotta do, now for some laughs via SNL: