Deadline Extended for Agencies to Transition to Fully Electronic Records – but Questions About Historical Records Remain, A Lackluster National Action Plan, and Much More: FRINFORMSUM 1/5/2023

Deadline Extended for Agencies to Transition to Fully Electronic Records

The Office of Management and Budget (OMB) and the National Archives and Records Administration (NARA) recently issued a joint memorandum, (M-23-07), that extends the deadline by when all agencies must 1) manage all their records in electronic format, 2) transfer their permanent records to NARA in electronic format, and 3) manage their temporary records in electronic format (with limited exceptions) to June 30, 2024. This announcement updates the June 28, 2019, memo, (M-19-21), that established December 31, 2022, as the deadline, and cites COVID-19 as the reason for the extension. 

The transition to all electronic records poses serious questions about the implementation of such a major policy change, especially one with no dedicated funding. For example, will agencies like the CIA, who have cut funding to their historical programs in the past, pay to have these historical paper records digitized? Or will they destroy them, or simply not transfer them to NARA? There are also lingering questions about how the mandate will be enforced and assessed (most agency records management reports are self-assessments, with occasional spot-checks from NARA officials). 

In an effort to help address these concerns, M-23-07 states that by the end of 2023, NARA will issue both updated records management guidance and regulations, and establish Electronic Records Management (ERM) standards and requirements for procuring ERM services for the transition. Time will tell if the upcoming regulations have enough teeth to ensure that historical records are not lost in the transition.

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Biden Administration Unveils 5th National Action Plan Without Meaningful Input from Civil Society

The Biden administration has released the U.S. government’s fifth National Action Plan, ostensibly updating its commitments to the Open Government Partnership (OGP), an international coalition that the U.S. helped found and that works to make governments more transparent and accountable.

The Biden administration released draft commitments for public feedback over a two week period (an OGP requirement) over the winter holidays, but did so without a major press announcement to alert the public to the process. This lack of publicity adds fuel to speculation that the administration was not meaningfully committed to collaborating with civil society for its NAP commitments.

A close examination of the Freedom of Information Act (FOIA) section shows that the NAP does not offer new, robust commitments – opting instead to re-package existing transparency requirements. For example, the 2016 FOIA amendments require the creation of a national FOIA portal where a member of the public can go and request records from any government agency. The portal has been updated in fits and starts over the last six years, but is nowhere close to fulfilling the promise of the statute (and many agencies do not participate in the portal, especially members of the Intelligence Community). The NAP does not vow to finish building the portal, rather it pledges to enhance user experience of FOIA.gov “by developing an interactive tool to help members of the public more easily locate records”.  This falls well-short of what is already required by the statute, and falls even shorter of what the FOIA community asked of the Biden administration during its limited NAP engagement sessions. 

The public owes Alex Howard, director of the Digital Democracy Project, a debt of gratitude for diligently reporting on the Biden administration’s lack of transparency during the NAP process. 

January 6 Select Committee Website No Longer Available

The website for the January 6 Select Committee, a product of the erstwhile 117th Congress, is no longer available. The website was shuttered on the first day of the 118th Congress – January 3, 2023 – shortly after the committee released its final report, as well as thousands of pages of supporting evidence. NARA will publish archived versions of all committee pages from the 117th Congress this spring, and hopefully the archived versions will be as robust as the original.

In the meantime, the Wayback Machine has captured the January 6 committee website, and the committee’s final report and publicly-available resources are available on GovInfo.  

Latest Batch of JFK Assassination Records Released, Thousands Still Secret

The Biden administration released another installment of JFK assassination records in the final weeks of December 2022 – and sanctioned the ongoing withholding of nearly 3,000 records. 

NARA published over 13,000 records as part of the most recent release, which were primarily CIA documents. This release means that 95 percent of the CIA’s JFK records are now public, and that five percent somehow still warrant ongoing secrecy, nearly 60 years after the assassination. In total, 515 document continue to be withheld in full, and 2,545 continue to be withheld in part. 

The Kennedy Assassination Records Collection Act of 1992 (JFK Act) required that each assassination record be publicly disclosed in full by October 2017 – unless the President upholds an agency appeal and “certifies” that releasing a record would cause specific harm. Both President Trump and President Biden certified the postponement of some JFK records, and President Biden’s December 15, 2022, memorandum sanctions the ongoing withholding of 3,000 records until June 30, 2023. The memo also requires agencies to prepare “Transparency Plans” to ensure ongoing disclosure of records as the “harm associated with release of the information dissipates.”

The Public Interest Declassification Board (PIDB) announced in its blog, Transforming Classification, that it “intends to conduct a sampling of records that remain classified and meet with originating agencies to understand the rationale behind continued withholding from public release.” 

In Brief

• The Los Angeles Times “Latinx Files” named “After Ayotzinapa” one of the best podcasts of 2022. The LA paper joins the New York Times in praising the podcast, which investigates the 2014 forced disappearance of 43 Mexican college students. The podcast is the result of a partnership between the Archive’s Kate Doyle, reporter Anayansi Díaz-Cortes, and Reveal News from the Center for Investigative Reporting.