[Pages H1540-H1542]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

ELECTRONIC MESSAGE PRESERVATION ACT

Mr. CLAY. Madam Speaker, I move to suspend the rules and pass the
bill (H.R. 1387) to amend title 44, United States Code, to require
preservation of certain electronic records by Federal agencies, to
require a certification and reports relating to Presidential records,
and for other purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:

H.R. 1387

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Electronic Message
Preservation Act''.

SEC. 2. PRESERVATION OF ELECTRONIC MESSAGES.

(a) Requirement for Preservation of Electronic Messages.--
(1) In general.--Chapter 29 of title 44, United States
Code, is amended by adding at the end the following new
section:

``Sec. 2911. Electronic messages

``(a) Regulations Required.--Not later than 18 months after
the date of the enactment of this section, the Archivist
shall promulgate regulations governing agency preservation of
electronic messages that are records. Such regulations shall,
at a minimum--
``(1) require the electronic capture, management, and
preservation of such electronic records in accordance with
the records disposition requirements of chapter 33 of this
title;
``(2) require that such electronic records are readily
accessible for retrieval through electronic searches;
``(3) establish mandatory minimum functional requirements
for electronic records

[[Page H1541]]

management systems to ensure compliance with the requirements
in paragraphs (1) and (2);
``(4) establish a process to certify that Federal agencies'
electronic records management systems meet the functional
requirements established under paragraph (3); and
``(5) include timelines for agency compliance with the
regulations that ensure compliance as expeditiously as
practicable but not later than four years after the date of
the enactment of this section.
``(b) Coverage of Other Electronic Records.--To the extent
practicable, the regulations promulgated under subsection (a)
shall also include requirements for the capture, management,
and preservation of other electronic records.
``(c) Compliance by Federal Agencies.--Each Federal agency
shall comply with the regulations promulgated under
subsection (a).
``(d) Review of Regulations Required.--The Archivist shall
periodically review and, as necessary, amend the regulations
promulgated under this section.
``(e) Reports on Implementation of Regulations.--
``(1) Agency report to archivist.--Not later than four
years after the date of the enactment of this section, the
head of each Federal agency shall submit to the Archivist a
report on the agency's compliance with the regulations
promulgated under this section.
``(2) Archivist report to congress.--Not later than 90 days
after receipt of all reports required by paragraph (1), the
Archivist shall submit to the Committee on Homeland Security
and Governmental Affairs of the Senate and the Committee on
Oversight and Government Reform of the House of
Representatives a report on Federal agency compliance with
the regulations promulgated under this section.''.
(2) Clerical amendment.--The table of sections for chapter
29 of title 44, United States Code, is amended by adding
after the item relating to section 2910 the following new
item:

``2911. Electronic messages.''.

(b) Definitions.--Section 2901 of title 44, United States
Code, is amended--
(1) by striking ``and'' at the end of paragraph (14);
(2) by striking the period at the end of paragraph (15) and
inserting a semicolon; and
(3) by adding at the end the following new paragraphs:
``(16) the term `electronic messages' means electronic mail
and other electronic messaging systems that are used for
purposes of communicating between individuals; and
``(17) the term `electronic records management system'
means software designed to manage electronic records,
including by--
``(A) categorizing and locating records;
``(B) ensuring that records are retained as long as
necessary;
``(C) identifying records that are due for disposition; and
``(D) ensuring the storage, retrieval, and disposition of
records.''.

SEC. 3. PRESIDENTIAL RECORDS.

(a) Additional Regulations Relating to Presidential
Records.--
(1) In general.--Section 2206 of title 44, United States
Code, is amended--
(A) by striking ``and'' at the end of paragraph (3);
(B) by striking the period at the end of paragraph (4) and
inserting ``; and''; and
(C) by adding at the end the following:
``(5) provisions for establishing standards necessary for
the economical and efficient management of electronic
Presidential records during the President's term of office,
including--
``(A) records management controls necessary for the
capture, management, and preservation of electronic messages;
``(B) records management controls necessary to ensure that
electronic messages are readily accessible for retrieval
through electronic searches; and
``(C) a process to certify the electronic records
management system to be used by the President for the
purposes of complying with the requirements in subparagraphs
(A) and (B).''.
(2) Definition.--Section 2201 of title 44, United States
Code, is amended by adding at the end the following new
paragraphs:
``(5) The term `electronic messages' has the meaning
provided in section 2901(16) of this title.
``(6) The term `electronic records management system' has
the meaning provided in section 2901(17) of this title.''.
(b) Certification of President's Management of Presidential
Records.--
(1) Certification required.--Chapter 22 of title 44, United
States Code, is amended by adding at the end the following
new section:

``Sec. 2208. Certification of the President's management of
Presidential records

``(a) Annual Certification.--The Archivist shall annually
certify whether the electronic records management controls
established by the President meet requirements under sections
2203(a) and 2206(5) of this title.
``(b) Report to Congress.--The Archivist shall report
annually to the Committee on Homeland Security and
Governmental Affairs of the Senate and the Committee on
Oversight and Government Reform of the House of
Representatives on the status of the certification.''.
(2) Clerical amendment.--The table of sections for chapter
22 of title 44, United States Code, is amended by adding at
the end the following new item:

``2208. Certification of the President's management of Presidential
records.''.

(c) Report to Congress.--Section 2203(f) of title 44,
United States Code, is amended by adding at the end the
following:
``(4) One year following the conclusion of a President's
term of office, or if a President serves consecutive terms
one year following the conclusion of the last term, the
Archivist shall submit to the Committee on Homeland Security
and Governmental Affairs of the Senate and the Committee on
Oversight and Government Reform of the House of
Representatives a report on--
``(A) the volume and format of electronic Presidential
records deposited into that President's Presidential archival
depository; and
``(B) whether the electronic records management controls of
that President met the requirements under sections 2203(a)
and 2206(5) of this title.''.
(d) Effective Date.--The amendments made by this section
shall take effect one year after the date of the enactment of
this Act.

SEC. 4. PROCEDURES TO PREVENT UNAUTHORIZED REMOVAL OF
CLASSIFIED RECORDS FROM NATIONAL ARCHIVES.

(a) In General.--The Archivist of the United States shall
prescribe internal procedures to prevent the unauthorized
removal of classified records from the National Archives and
Records Administration or the destruction or damage of such
records, including when such records are accessed or searched
electronically. The procedures shall apply to all National
Archives and Records Administration facilities authorized to
store classified records and include the following
prohibitions:
(1) No person, other than covered personnel, shall view
classified records in any room that is not secure except in
the presence of National Archives and Records Administration
personnel or under video surveillance.
(2) No person, other than covered personnel, shall at any
time be left alone with classified records, unless that
person is under video surveillance.
(3) No person, other than covered personnel, shall conduct
any review of classified records while in the possession of
any cell phone or other personal communication device.
(4) All persons seeking access to review classified
records, as a precondition to such access, must consent to a
search of their belongings upon conclusion of their records
review.
(5) All notes and other writings prepared by persons other
than covered personnel during the course of a review of
classified records shall be retained by the National Archives
and Records Administration in a secure facility until such
notes and other writings are determined to be unclassified,
are declassified, or are securely transferred to another
secure facility.
(b) Definitions.--In this section:
(1) The term ``records'' has the meaning provided in
section 3301 of title 44, United States Code.
(2) The term ``covered personnel'' means any individual--
(A) who has an appropriate and necessary reason for
accessing classified records, as determined by the Archivist;
and
(B) who is either--
(i) an officer or employee of the Federal Government with
appropriate security clearances; or
(ii) any personnel with appropriate security clearances of
a Federal contractor authorized in writing to act for
purposes of this section by an officer or employee of the
Federal Government.

SEC. 5. RESTRICTIONS ON ACCESS TO PRESIDENTIAL RECORDS.

Section 2204 of title 44, United States Code (relating to
restrictions on access to presidential records) is amended by
adding at the end the following new subsection:
``(f) The Archivist shall not make available any original
presidential records to any individual claiming access to any
presidential record as a designated representative under
section 2205(3) of this title if that individual has been
convicted of a crime relating to the review, retention,
removal, or destruction of records of the Archives.''.

SEC. 6. BUDGETARY EFFECTS OF PAYGO LEGISLATION FOR THIS ACT.

The budgetary effects of this Act, for the purpose of
complying with the Statutory Pay-As-You-Go-Act of 2010, shall
be determined by reference to the latest statement titled
``Budgetary Effects of PAYGO Legislation'' for this Act,
submitted for printing in the Congressional Record by the
Chairman of the House Budget Committee, provided that such
statement has been submitted prior to the vote on passage.

The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Missouri (Mr. Clay) and the gentleman from California (Mr. Bilbray)
each will control 20 minutes.
The Chair recognizes the gentleman from Missouri.

General Leave

Mr. CLAY. Madam Speaker, I ask unanimous consent that all Members may
have 5 legislative days within which to revise and extend their
remarks.

[[Page H1542]]

The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Missouri?
There was no objection.
Mr. CLAY. Madam Speaker, I yield myself such time as I may consume.
H.R. 1387, the Electronic Message Preservation Act, is another open-
government bill that we are considering in celebration of Sunshine
Week. This bill modernizes the requirements of the Federal Records Act
and the Presidential Records Act to ensure that Federal agencies and
the White House preserve emails and other electronic messages. H.R.
1387 was introduced by Representative Holt, and it is substantially
similar to H.R. 5811, a bill that passed the House last year with
bipartisan support.
This bill requires agencies and the White House to adopt and maintain
records management and retention policies that are consistent with
modern technology. Under current law, Federal agencies have broad
discretion to determine how electronic messages are preserved.
In a 2008 report, the Government Accountability Office found that
many agencies rely on unreliable ``print and file'' systems for
preserving electronic records, including email. GAO reviewed the
practices of senior agency officials and determined that emails were
not retained in adequate recordkeeping systems, making the email
records easier to lose or delete and harder to find and use.
Last week, the National Security Archive awarded its sixth annual
Rosemary Award for worst open-government performance to the Chief
Information Officers Council. The council was chosen because it has
never addressed the failure of the government to save its email
electronically.
H.R. 1387 directs the Archivist of the United States to issue
regulations requiring agencies to preserve emails in an electronic
format. These regulations must cover, at a minimum, the capture,
management, preservation, and electronic retrieval of electronic
messages.

{time} 1415

The bill requires the Archivist to establish a process to certify the
electronic records management systems used by the agencies.
At this time, Madam Speaker, I would urge my colleagues to join in
passage of this bill, and I reserve the balance of my time.
Mr. BILBRAY. Madam Speaker, I rise in support of the bill. I yield
myself such time as I may consume.
Madam Speaker, this is a classic example of trying to work together
to open up the system, allow the transparency that the American people
are demanding, and I strongly support its intention and its execution.
Madam Speaker, you may remember, when we got here in 1995, that there
were Members of Congress who could not understand the concept of
sending electronic emails between offices or outside. It was alien to
Washington to be so technologically plugged in. It just shows you how
times have changed. Now we're finally starting to address the
technology. I think the gentleman from Missouri even recognized that we
need to really push harder at opening up the system, embracing the new
technologies that allow not only the public to know better, but also
the representatives of the public to be able to function in a much more
efficient manner.
This bill is truly one that we have been trying to work on for years.
It's one that was controversial in certain circles, but I think it's
one that we need to move forward with. I hope, again, that this is
another one of those steps that the Government Oversight Committee is
looking to to set an example for the rest the Congress and the rest of
Washington to find reasons to get to ``yes,'' to find reasons to work
together, and to find reasons to do it better. I think that that is one
thing we can do here.
Madam Speaker, I have to say while speaking on this item that it's
sad that, on the down side, we have been trying for over a decade to do
something the new President has talked a lot about, and that's using e-
technology for electronic medical records. And the fact is, the Federal
Government has been trying to develop that for our veterans and our
active duty military for over a decade and still has not been able to
implement it. So I hope this is one step towards becoming comfortable
with reviving, restoring, and really redesigning the way we approach e-
technology and new technology and that we will embrace it rather than
being terrified by it, like some people were in the nineties when we
showed up.
I reserve the balance of my time.
Mr. CLAY. I couldn't agree more with my friend from California. We
hope this is the impetus to spur the development--the successful
development of electronic medical records, because we know what the
savings would mean to our health care system and we know that it can
possibly save lives by reducing errors.
So at this time, Madam Speaker, I'd like to yield 2 minutes to the
distinguished chairman of the Oversight and Government Reform
Committee, the gentleman from New York (Mr. Towns).
Mr. TOWNS. I thank the chair of the subcommittee for yielding and
thank Congressman Bilbray from California for his work on this
committee, and Congressman Hodes, and of course the ranking member of
the full committee, Congressman Issa. I think that when you work
together, you can come up with strong legislation that can truly make a
difference. I also would like to thank the staff who worked on this
legislation as well.
I think that when we look at electronic records, when we look at
information that needs to be preserved, I really feel that this
legislation gets us to where we need to go. I think now, more than
ever, we have to make certain that this information is held at least
for a certain period of time so people can make an assessment to see in
terms of where we might have made mistakes, they can now correct them.
So I want to salute you for the work you have done, Chairman Clay,
and of course Ranking Member Bilbray, and of course all the staff
members who worked so hard to bring us to where we are today.
Mr. BILBRAY. Madam Speaker, I would like to close by thanking the
ranking member and full committee chairman for allowing the minority to
participate in the formation of this bill. There are so many committees
that aren't allowing the minority to participate. I think this is
really a nice example of the cooperation that I think the American
people want to see and don't see enough of. I want to thank the
chairman and ranking member for allowing us to participate in the
process.
I yield back the balance of my time.
Mr. CLAY. Let me also thank the ranking member for his participation.
As we have stated earlier, this is Sunshine Week. It's time for
openness and accountability. I appreciate participating with you in
these series of bills.
In closing, let me also mention that in this bill we are also
considering an amendment that makes a number of drafting corrections
suggested by the National Archives. For example, the amendment
clarifies that the bill addresses electronic Presidential records
rather than all Presidential records. H.R. 1387 will make the
government more accountable by protecting an important part of the
historical record, and I urge every Member to join me in supporting
this legislation.
Madam Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Missouri (Mr. Clay) that the House suspend the rules and
pass the bill, H.R. 1387, as amended.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.

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