SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2015, Issue No. 26
April 10, 2015

Secrecy News Blog: http://fas.org/blogs/secrecy/

NATIONAL ARCHIVES TACKLES EMAIL MANAGEMENT

Overwhelmed by the challenge of trying to sort, identify and preserve historically valuable government email, the National Archives and Records Administration (NARA) has devised what it calls the Capstone approach to email management.

Under Capstone, government email would be categorized for retention or disposal based on the title or position of the email sender, rather than the contents of the email message. Those officials responsible for agency policy and mission performance would have their emails systematically collected and saved; others would not. In theory, this approach should simplify the task of email management and improve the preservation of historically valuable email.

NARA has prepared a draft "General Record Schedule" (GRS) for agency email that embodies the Capstone approach. The draft GRS along with related explanatory material has recently been published for public comment.

One initial concern is that the General Record Schedule would replace the various individual schedules that agencies have been obliged to prepare up to now. This would make it harder for interested members of the public to monitor the email management practices of particular agencies.

So, for example, it was the fact that the Central Intelligence Agency filed its own email record schedule last year that made it possible to discover that the Agency intended to preserve the email of only 22 senior officials. The ensuing controversy elicited congressional displeasure and led the National Archives to suspend approval of the CIA proposal. If there had been no CIA record schedule available for public review, there would have been no opportunity to challenge the agency's minimalist record preservation policy.

On closer examination, however, this may be less of a problem than it first appears to be. That's because the Capstone General Record Schedule would positively require the capture of email from a much broader cross-section of officials than were included in the CIA proposal. If CIA or any other agency wished to narrow the list of required officials specified in the draft GRS (in item 010), it would still have to prepare its own separate record schedule.

Even so, the draft GRS grants individual agencies considerable discretion in how they would implement the Capstone approach. Among other things, agencies would notably be responsible for determining "the extent of inclusion of classified email," a provision that might easily lend itself to abuse.

Inevitably, there will have to be trade-offs made in order to achieve a government email management regime that is practical and effective. But agencies that have a history of problematic records management practices -- not only CIA -- should arguably be required to demonstrate a degree of competence and good faith before they are granted unsupervised discretion in managing the disposition of official email. In such cases, a requirement for individual agency record schedules might still be appropriate.

JUSTICE DEPT UPDATES ITS FOIA REGULATIONS

The Department of Justice last week published newly updated regulations on implementation of the Freedom of Information Act, with several notable changes made in response to public comments.

Fifteen sets of comments were submitted by individual members of the public or public interest organizations after the Department released its draft FOIA regulations in 2011. In a lengthy Federal Register notice on April 3, the Department addressed all of the comments, and actually adopted a number of the changes recommended by public commenters.

Among the changes that were approved:

* The revised regulations explicitly include news organizations that operate solely on the Internet as "representatives of the news media," making them exempt from search fees.

* "The revised fee schedule includes a decrease in duplication fees due to advances in technology."

* The revision adds language specifying that "in responding to requests for classified information, the component [of DoJ to which the request is addressed] must determine whether the information remains currently and properly classified."

Some other new provisions should make it easier to use the FOIA, including a procedure for consulting with the Department's FOIA Public Liaison in advance of making a request. The revised regs also incorporate a statement of policy that would "encourage discretionary releases of information whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption."

It nevertheless remains true that in order to take full advantage of the tools provided by the Freedom of Information Act, it is often necessary for requesters to litigate over information that is withheld or denied.

According to The FOIA Project (foiaproject.org), there were 422 Freedom of Information Act lawsuits filed in federal district court last year, up from 372 the year before and 342 the year before that.

RAILROAD-RELATED FATALITIES, AND MORE FROM CRS

The leading cause of railroad-related deaths is not collisions or derailments, but trespassing, explains a neatly argued new issue brief from the Congressional Research Service. See Rail Safety Efforts Miss Leading Cause of Fatalities, CRS Insights, April 2, 2015.

Other new and newly updated CRS reports that Congress has withheld from public distribution include the following.

Net Neutrality: Selected Legal Issues Raised by the FCC's 2015 Open Internet Order, April 6, 2015

Ballistic Missile Defense in the Asia-Pacific Region: Cooperation and Opposition, April 3, 2015

An Overview of Unconventional Oil and Natural Gas: Resources and Federal Actions, April 7, 2015

U.S. Crude Oil and Natural Gas Production in Federal and Non-Federal Areas, April 3, 2015

Marijuana: Medical and Retail -- Selected Legal Issues, April 8, 2015

Social Media in the House of Representatives: Frequently Asked Questions, April 2, 2015

The No Fly List: Procedural Due Process and Hurdles to Litigation, April 2, 2015

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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