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Pallone & Doyle: FCC May Be Violating Federal Records Act

Mar 7, 2019
Press Release

Washington, D.C. – Energy and Commerce Chairman Frank Pallone, Jr. (D-NJ) and Communications and Technology Subcommittee Chairman Mike Doyle (D-PA) wrote to Federal Communications Commission (FCC) Chairman Ajit Pai today to request information about its policies on the retention and disposition of electronic communications, including email, text messages, chat and instant messages and social media messages. 

The Chairmen are concerned that the FCC may be violating the Federal Records Act (FRA), regulations and guidance, including the Office of Management and Budget (OMB)/National Archives and Records Administration (NARA) 2012 Directive, as well as the Freedom of Information Act (FOIA) and the Administrative Procedures Act.

In recent years, Congress and the Executive Branch have updated laws and policies to reflect the fact that in the 21st century, federal agencies conduct their business almost exclusively using electronic communications and systems.  The updates included the OMB/NARA “digital government” Directive, which ordered federal agencies to manage all  email records in an electronic format by the end of 2016.  Congress then amended FRA in 2014 to define a “record” to explicitly include “information created, manipulated, communicated or stored in digital or electronic form,” amongst other changes. Congress also prohibited agency employees from creating or sending records using non-official electronic messaging accounts.  

“Transparency, openness, and honesty are all bedrock principles of a functioning government responsive to its people.  The Committee seeks to ensure the agencies under its jurisdiction uphold these principles,” Pallone and Doyle wrote to Pai.  “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.”

In 2013, NARA announced the creation of Capstone, an automated system designed to assist federal agencies in meeting the requirements of FRA and the OMB/NARA Directive. 

“More than five years after NARA announced the creation of Capstone, most executive and independent agencies have had their applications approved or have otherwise demonstrated to NARA how they are in compliance with the OMB/NARA Directive.  The FCC has not,” Pallone and Doyle continued in their letter to Pai.  “The American public should have confidence that the FCC is properly capturing and archiving its own communications.”

Pallone and Doyle requested answers from the FCC to a series of questions by April 4.

To read the letter, click HERE.