Rep. Frank Pallone, Jr., D-N.J., speaks during a hearing of the Committee on Energy and Commerce, Subcommittee on Oversight and Investigations, about combating the opioid epidemic, on Capitol Hill, Tuesday, May 8, 2018 in Washington.
Photo: AP / Alex Brandon

Two senior Democrats in the U.S. House of Representatives are raising concerns about potential violations of the Federal Records Act committed by the Federal Communications Commission (FCC).

Congressmen Frank Pallone Jr. and Mike Doyle said in a letter to the FCC chairman on Thursday that the commission’s practices with regard to the retention of electronic records—emails, texts, instant messages—may not comply with the Federal Records Act (FRA) and other guidelines, including those prescribed by the National Archives and Records Administration (NARA).

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The letter also highlights the fact that soon after President Donald Trump appointed Ajit Pai to lead the commission, the FCC withdrew its request to NARA for help modernizing how the agency preserves, and prevents the unlawful deletion of, internal emails.

“Since NARA has yet to approve the FCC’s approach to records management, we are concerned that the FCC may not be managing its electronic records in accordance with federal law and guidance, potentially thwarting the public from an understanding of the FCC’s decision-making process and how it conducts its business,” the letter states.

Pallone and Doyle chair the Energy & Commerce Committee and the Subcommittee on Communications and Technology, respectively, and are charged with FCC oversight in the House.

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The FRA is the framework by which federal agencies manage “records,” a broad term encompassing documentation of many mediums, and with many characteristics, including books, audiotapes, maps, telephone messages, facsimiles, transcripts, and meeting minutes. In the digital age, it’s come to include virtually anything typed or printed, from social media and direct messages, to search histories, database entries, and yes, even really bad memes.

The National Archives and Records Administration (NARA), led by the archivist of the United States—David Ferriero, presently—is the agency responsible for oversight of records management throughout the government. Only one to three percent of records are permanently archived. Given that, NARA also oversees the destruction of agency records and issues binding guidelines to determine if, when, and how they may be destroyed.

These guidelines are vital to maintaining a clear and concise narrative of the government’s performance and conduct behind closed doors. But the guidelines also prevent agencies from improperly storing or destroying records that may be responsive to Freedom of Information Act (FOIA) requests; the very law that holds the “governors accountable to the governed,” to paraphrase the U.S. Supreme Court.

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NARA is also responsible for the creation and management of the Capstone program, a modernization effort focused on the preservation of public officials’ email messages. Capstone rendered many internal FOIA practices obsolete, but namely it is no longer considered reasonable for agencies to rely exclusively on custodian-driven searches in response to FOIA requests. What this effectively means is that email account holders can no longer be relied upon to produce every record that’s responsive to a legitimate records request.

Even when an email is deleted improperly, the Capstone program’s archiving tools should maintain a copy.

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The lawmakers’ letter to the FCC chairman does not point to any one specific incident at the FCC that caused alarms to go off, but underscores the fact that Capstone rolled out over five years ago. While most executive and independent agencies have adopted it, the letter asserts, “The FCC has not.”

And here’s the rub: “Though the FCC apparently planned to implement Capstone, we understand that its application to NARA was withdrawn in June 2017, shortly after you were appointed.”

In a 2011 memorandum on the management of government records, then-President Barack Obama wrote this:

Decades of technological advances have transformed agency operations, creating challenges and opportunities for agency records management. Greater reliance on electronic communication and systems has radically increased the volume and diversity of information that agencies must manage. With proper planning, technology can make these records less burdensome to manage and easier to use and share. But if records management policies and practices are not updated for a digital age, the surge in information could overwhelm agency systems, leading to higher costs and lost records.

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So not only is the FCC chairman potentially causing vital records about his own administration’s conduct to go missing, but he may also be costing taxpayers money by continuing to rely on an antiquated, inadequate system that adversely affects government transparency and accountability.

“Transparency, openness, and honesty are all bedrock principles of a functioning government responsive to its people,” Doyle and Pallone’s letter reads. “These principles are also at the heart of several major federal laws, including the Freedom of Information Act (FOIA), the Administrative Procedures Act, and FRA, among others.”

Accompanying the letter, which you can read here, is a list of nine questions concerning the FCC’s record keeping practices. It asks for the FCC to respond by April 4.

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The FCC did not immediately respond to a request for comment.