Regardless of what camp you find yourself in on the topic of Amazon’s HQ2 courtship with North American cities, the process has triggered open record requests and questions about the degree to which cities are required to disclose the documentation of their overtures to the corporate giant.
This is especially true in Pittsburgh, where inclusion of the region’s bid, titled PGHQ2, as one of 20 finalist cities led to renewed demand for the full proposal to be released via the state’s open records law. Why is this important? Many cities have offered significant tax and civic incentives to sway Amazon’s interest. With promised results of $5 billion in economic investment and the creation of 50,000 jobs, an argument can be made that it is in the public interest to know how elected officials believe HQ2 will influence the social, political, and economic fiber of their region.
These desire for details have manifested themselves in open records requests throughout many candidate cities, to varying degrees of success. Pennsylvania’s mechanism for open records requests, the Right-to-Know Law, was signed into law in 2008 and is facilitated by the state’s Office of Open Records. Like many open records laws, all records are presumed to be public and are deemed “open” unless one of several exceptions bars their disclosure. Thus, the burden is on the government agency to argue why certain records, for instance a proposal with wide-ranging public impact, should not be made publicly available.
So what’s happening in the Steel City? Like hundreds of other cities across North America Pittsburgh submitted its bid in October 2017, the details of which were not publicly disclosed. PGHQ2, led by elected city and county officials, first cited a confidentially agreement with Amazon. The reasoning for secrecy soon shifted to “protecting a competitive advantage.” Right-to-Know requests for the proposal were refused. Requests for secondary records (letters, emails, notes) pertaining to the process, not the proposal itself, were met with half hearted gestures. The City initially stated those weren’t public either; the county responded that “the records do not exist.” Eventually these secondary requests were fulfilled through state intervention (Harrisburg itself is a big proponent of Pittsburgh’s bid).
But what of the PGHQ2 proposal? As is often the case with open records requests, persistence pays off. Fast forward two months to January 24, when news broke that Pennsylvania’s Office of Open Records issued a ruling on a Right-to-Know request filed by local WTAE reporters ordering Allegheny County and the City of Pittsburgh to make the full PGHQ2 proposal and corresponding documentation public within 30 days. In a coincidental twist, both entities have 30 days to appeal, the same period one has to return unopened items to Amazon. If delivered, there’s no doubt Pittsburghers will open this proposal package.
The jury is still out on whether or not it’s truly in the region’s best interest that the PGHQ2 push is successful. With revived economic sectors, oft-touted cultural amenities, regional charm, and room to grow, Pittsburgh’s case is compelling. But the records and documents supporting that case shouldn’t be kept from the very citizens that make Pittsburgh so alluring. Open records laws, like Pennsylvania’s, are meant to serve the public good and promote transparent and accountable government. If Pittsburgh officials baited the PGHQ2 hook with tax incentives, public domain authority, or questionable civic inducements, the citizens of Southwest Pennsylvania certainly have a Right-to-Know.
As many records managers note, recordkeeping decisions are in the news on a daily basis (with today’s accelerated news cycle, it often feels like an hourly basis!). Our last Resourceful Records Manager interview astutely noted, “As I first assumed RM responsibilities, I sat in on a conference talk by a leader in the field, who cited a news headline on records mismanagement and dissected it with great enthusiasm. As I realized that records implications are everywhere, the massiveness (and potential massiveness) of the profession made an impression on me.”
It’s increasingly clear that one of the major areas of public discontent is around disposition. Disposition is the decision that guides what should happen to records once they have reached the end of their useful value from the records creator’s point of view. Disposition can either take the form of destruction, or transfer to archives. I am enormously sympathetic to concern over this topic – there are very real worries that public records and data will disappear because it does happen – sometimes for normal reasons, sometimes for scary Orwellian reasons. However, not all disposition is created the same, and one of the most valuable things that records managers can communicate to the public is explaining the difference between what’s normal and what’s not normal when it comes to what should be destroyed and what should be saved.
This isn’t something that only records managers and archivists struggle with – our library colleagues navigating the rocky paths of weeding old books and media have their own public relations horror stories. Librarians and archivists know that a collection development policy is there not only to guide collecting decisions, but to protect librarians and archivists from future headaches (in this case, getting saddled with tons of out of scope collections or donations). A collection development policy is also in the public interest – a library or an archive so bogged down by a backlog of unprocessed and out of scope donations doesn’t serve the general public well at all.
I think of records retention schedules – in many institutional archives, the de facto collection development policy – performing a very similar role. You can’t keep everything due to resource constraints, and even if time and money were no object, you still shouldn’t keep everything from a liability perspective. On a hypothetical basis, the general public understands that all records can’t, and shouldn’t be, kept forever in an institutional setting. Where things break down with public understanding are questions of how long to keep those records, and what should happen to them after they are no longer actively needed.
This was vividly illustrated during some recent research I’ve undertaken on regulatory failures concerning hydraulic fracturing. The short version is that fracking technology and proliferation is far ahead of existing oil and gas regulations. The current regulatory environment cannot keep up with fracking’s environmental impacts, and failures of recordkeeping are a prominent part of larger regulatory failures. Many groups have been filing open records requests to try to understand the impacts of fracking on rural land and water. The Pittsburgh-based investigative reporters of Public Herald has done enormous work in this area, scanning citizen complaint records from Pennsylvania’s Department of Environmental Protection, and making them available through a public files website, and mapping the complaints. Many of these complaints trigger subsequent investigations into whether fracking has resulted in an impact on local water supplies. In other words, a “positive determination of impact” would mean that the Department of Environmental Protection found that fracking affected water supplies.
As much as I admire the work of the Public Herald, I strongly object to one of their assertions about a very normal recordkeeping issue. In their article claiming that the Pennsylvania Department of Environmental Protection systematically cooks the books, they laid out nine different methods to substantiate their argument. Some of the recordkeeping practices are indeed serious cause for alarm, but the final one (“DEP Retention Policy for complaint records says complaints are to be kept on file for five years, “then shred.””) struck me as a complete misunderstanding of retention scheduling. Scheduling records for destruction is not a method for manipulating records, and it’s disingenuous to claim otherwise.
The Public Herald wrote the following:
Around month twenty-eight of this investigation, sitting down to scan the last remaining complaint files, a paper with everything blacked out except one paragraph was left on Public Herald’s file review desk by a veteran PA Department of Environmental Protection (DEP) employee. It read “DEP retention policy.” In a paragraph about “Complaints,” the document revealed that the Department should only hold complaint records for five years after resolution – “then shred.”
Initially, Public Herald figured these records would be kept on microfiche or a digital PDF and that shredding them would only ensure space within the records office. But, after careful questioning with an employee who’s been with the agency for decades, the staff person revealed that only those records which could be considered “useful” would be kept on record at all, turned into microfilm, and “useful” meant only those listed in DEP’s 260 positive determinations. What shocked us even more is that, according to this whistleblower, there is no review committee in place to sift through the “non-impact” complaint records before they are shredded.
The Public Herald rightfully raises important and compelling questions about how DEP assesses the question of fracking’s impact. But only part of the retention schedule is posted – the remainder is redacted. Without having the full context of the retention schedule, we do not know what other information is kept for say, 100 years (as one of the redacted record groups appears to be), and it very well may be that information otherwise in the public interest is kept for much longer. I tried to do a quick search for the full schedule online – although I could not easily find it (one of my biggest pet peeves common to state agencies – for some reason, I find it easier to obtain municipal and federal agency records schedules), one could almost certainly obtain an unredacted version of it by filing a Pennsylvania Right to Know request.
Perhaps this is the first time Public Herald has encountered a retention schedule, but the presentation of this as a shady and strange document is truly unfortunate. Furthermore, the write-up demonstrates how little the public understands about why records are scheduled the way they are – which is that the vast majority of retention decisions begin, and often end with, “How long must we keep these records to fulfill legal obligations?” Simply put, what is to be gained by maintaining complaint records for more than 5 years, given that most local, state, and federal agencies can barely keep up with managing records as they are currently scheduled? Proposals to retain records even longer would have to make a very compelling reason for why.
Many of the applicable statutes of limitations associated with potential liability brought by complaints would fall within 5 years, so a 5 year retention period for both impact and non-impact determination records doesn’t seem abnormal. Furthermore, the suggestion that a review committee should determine the final disposition of individual records is a recipe for disaster. Public comment absolutely can and should inform the broad formulation of retention scheduling decisions – for example, if members of the public could make a compelling argument for retaining the complaint records more than 5 years, that is something that should be seriously considered and perhaps incorporated into retention policies. But a committee to review the final disposition outcome for individual complaint case files is not realistic, and would almost certainly result in far more political bias. Who would be on the review committee? How would they document their decisions? How fast would they be expected to work? Witness how slow and controversial federal records declassification is if you want a glimpse of what individual-record-determination-decision-by-committee would almost certainly look like in practice.
Bottom line: as many archivists have pointed out, there is almost nothing that is neutral about the world of records and archives. Many records retention scheduling decisions are areas that significantly misunderstood by the general public. It would behoove more records managers to talk openly and transparently about why and how we schedule records the way we do. Others may disagree with our decisions, but at least the process will be clearer to those encountering records retention schedules for the first time.
Update: At their request, this post has been updated to more accurately identify the Public Herald as investigative reporters.
Mark your calendars for the next Records Management Section Google Hangout!
On Thursday, July 6 at noon Eastern, the Records Management Section will be hosting a hangout on the Federal Records Act and the Presidential Records Act. We will be joined by Gary Stern, (General Counsel), Hannah Bergman (Assistant General Counsel), John Laster (Director, Presidential Materials Division), and Laurence Brewer (Chief Records Officer for the U.S. Government) all from the National Archives and Records Administration (NARA).
Be sure to tune in live to ask questions or watch later at your convenience. You can view the Hangout here.
We will be accepting questions for our speakers from you. If you have a question or topic for discussion please leave it as a comment here or use the #saarmrt hashtag on Twitter. We will also monitor the comments on the YouTube live streaming page.
As more and more law enforcement incidents are captured on police officer-worn body and dashboard cameras, states are obliged to consider legislation that governs the creation, retention, and public access of such records. Regulations, where they do exist, often lack uniformity between municipalities, cities, and states, as illustrated by the Brennan Center’s guidedetailing police body camera retention policies across the U.S.
Awareness of such regulations, and navigating their inconsistencies, is an important part of how records managers execute their positions. What happens when retention and preservation provisions are absent from legislation governing the creation and access of such police records?
The Pennsylvania General Assembly is currently considering a bill that would legislate law enforcement use of body-worn cameras, and more importantly, public access to such records. Approved by the PA Senate (currently pending a vote in the House) on October 19, Senate Bill 976 – an expansion of Pennsylvania’s current Wiretap Act – would essentially do two things.
First, the bill would increase areas where police officers are permitted to use body cameras, such as within private homes and in public spaces. Under the bill, officers would not be required to directly inform individuals they were potentially being recorded. Second, the bill would place a considerable burden on those attempting to access these records.
SB976 stipulates that within 14 days of the incident a written request be submitted that includes, in “particularity”, the date, time, and location of the incident. Each individual in the footage must be identified by the requester, or at the least, described. If a request is denied – grounds for dismissal include lack of “sufficient particularity” – an appeal must be filed in a PA Court of Common Pleas within 14 days of the denial, a $250 filing fee will be applied, the written request must be resubmitted, and finally “if the requested audio or video recording was made inside a structure, [identify] the owner and occupant of the structure.”
The amendment seems to contradict itself in that it specifically states that “an audio or video recording by a law enforcement officer shall not be subject to production under the act of February 14, 2008 (p.l.6, no.3), known as the right-to-know law” (Section 6702) while stipulating that that a court may grant release if a “preponderance of evidence” are met, including that “disclosure of the audio or video recording would be permissible under the right-to-know law.”
Pennsylvania civics and policy aside, you may be asking where records management fits into all this? While legislating officer-worn body camera use and record access, the bill does nothing to address appropriate retention periods and preservation methods law enforcement entities could be required to employ uniformly across the state. The bill actually removes language concerning retention periods of certain recorded communications. Primary sponsor Sen. Stewart Greenleaf, R-Montgomery, has acknowledged that provisions governing how long footage and accompanying data must be retained before it’s erased, as well as when a body-worn camera is turned on or off, are not considered in the bill.
The intent of the SB976 may be noble (“body cameras have a civilizing effect on both the officers and members of the public”), and there is no doubt that balancing public transparency, individual privacy, and the integrity of police investigations presents public policy and records management challenges alike. However, constraints to access and record keeping oversights may only serve to distance the citizenry from law enforcement and public officials, rather than fostering the transparency and trust the bills seeks to instill.
As states continue to consider legislation governing the use and access of police officer-worn body and dashboard camera records, records mangers should be engaged in this dialogue. If creation and access to such record can be legislated to serve the public interest, so too can record keeping policies. Records mangers must continue to be advocates for clear and consistent retention and preservation provisions that benefit the public good, in Pennsylvania and across the nation.
A local news story recently caught my attention, because it contains many lessons for records professionals, auditors, and local government. Last month, the Cincinnati Enquirerreported,
“A tiny river town in Adams County has no mayor, no clerk and, apparently, no financial records. The state auditor’s office has ruled the Village of Rome “unauditable” and is warning that legal action may follow.
In a press release Monday, the Ohio Auditor of State reported that during its audit of the village, which is scheduled to take place every two years, no financial records were provided.”
The entire story is worth reading. In addition to the lack of records, it seems that the Village of Rome lacks clear elected leadership, and that no one ran for mayor, clerk, or council during the last election.
This got me thinking – is this a recurring issue in very small jurisdictions? The Village of Rome only had 94 citizens at the time of the 2010 Census. While I don’t know much about the demographics of Rome, it does seem like it would be difficult to find and recruit enough elected representatives from a body of fewer than 100. From a quick web search, this seems like it’s an issue all over the United States. Jacksonburg, Ohio (population: 64) has gone at least 10 years without anyone filing for the top offices (in which case a write-in wins, or someone must be appointed). In Minnesota, 2/3 of local offices either have 0 or 1 candidate running, and over 30 cities have no one running for mayor. Sometimes there is little documented guidance about what to do if you want to retire and no one else files to run for your spot.
A common theme through many of these articles is that running for elected office in small jurisdictions is a thankless job: little compensation, or recognition, but still a significant amount of work. And since many rural residents now commute long distances to larger urban areas, there is a small pool of people potentially willing to run for elected office.
So what are the records management implications? Obviously even the smallest community is not an island unto itself, and typically is part of a larger governance relationship. It may be required to submit records to the county or state on a regular basis. And as we see from the Village of Rome, officials with records responsibilities are the key ingredient to not only creating and maintaining records, but performing their own act of archival transparency and authenticity by existing in the first place to turn over records to auditors. No people means no records.
Perhaps the best summary of this mess comes from the press release from the Ohio Auditor of State:
“It’s tough to start an audit when you can’t even find the people in charge,” Auditor Yost said, “but it’s even harder when they don’t provide any records.”
So! The Office of the Inspector General released its report on Hillary Clinton’s emails today. Perhaps you’d heard about it.
The report itself is here (Warning: major TL;DR alert). It reads like a litany of “everything that can go wrong with a digital records management program”–poor communication, lack of executive buy-in, technology not up to the job of meeting requirements– and my plan is to break down the whole thing at some point to take a closer look at what happened from a purely records management standpoint. But in light of Eira’s excellent post on institutional silences and the digital dark ages, I wanted to quickly hit one paragraph that jumped out at me:
Two staff in S/ES-IRM reported to OIG that, in late 2010, they each discussed their concerns about Secretary Clinton’s use of a personal email account in separate meetings with the then-Director of S/ES-IRM. In one meeting, one staff member raised concerns that information sent and received on Secretary Clinton’s account could contain Federal records that needed to be preserved in order to satisfy Federal recordkeeping requirements. According to the staff member, the Director stated that the Secretary’s personal system had been reviewed and approved by Department legal staff and that the matter was not to be discussed any further. As previously noted, OIG found no evidence that staff in the Office of the Legal Adviser reviewed or approved Secretary Clinton’s personal system. According to the other S/ES-IRM staff member who raised concerns about the server, the Director stated that the mission of S/ES-IRM is to support the Secretary and instructed the staff never to speak of the Secretary’s personal email system again.
Holy moly. I am simultaneously astonished and not at all surprised that this conversation happened. Without attempting to divine the source of this supposed gag order or the motivation behind it, there is at minimum a failure to communicate happening here, and in all likelihood a deeply ingrained culture of subordination. Two employees, rightly concerned that use of a personal email account posed a recordkeeping and security risk, were specifically told that they were there “to support the Secretary”, and as a result questioning her use of personal email was anathema. That is really an incredible directive, if substantiated. I would argue that pointing out vulnerabilities in information security and governance IS supporting the Secretary (by, say, helping her avoid a prolonged investigation into her email management practices during an election year), but that’s just me.
And yet… what do you even DO in this case as a records manager? In a lot of institutions records managers are so far down the totem pole that there’s not a lot of pushing back to be done if a C-level staffer doesn’t want to follow records management directives to the letter. It’s easier to stand up to your negligent or reluctant official if you’re based out of the Legal department (and even easier if you are yourself a lawyer), but for a records manager based out of an administrative department, or the library? How do you make the case for good records practices when you have been explicitly told not to pursue it? How far do you stick your neck out for the sake of the historical record and transparency, vs. the short-term interests of your institution? Particularly if, as in so many cases, the records law which you are following has no real penalty for non-compliance other than the hypothetical/tangential “you might get sued”?
I don’t have an answer to any of the above questions. I’ve struggled with the right level of aggressiveness in pursuing records of high-level officials at my own institution, and have almost certainly lost some key electronic records being kept on a personal hard drive or in an email account because of it. (Elsewhere in the report records staff reports “not feeling comfortable” directing the Secretary to use the internal records system and looking for an automatic system to capture the records; I feel this anxiety acutely.) In this *particular* case Secretary Clinton released (most of) the emails after the fact, so the damage to transparency and the historical record is perhaps not as great as it could have been. In other cases? Who knows what’s being lost because the records manager is not as much in control as he/she would like to be.
These are the kinds of questions that keep me up at night, because I am an enormous nerd and am kept awake by records management questions. (Well, that and a one-year-old baby.)