Managing Federal and Presidential Records

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).

You may have additional questions after reading NARA’s Role in Preserving Presidential and Federal Records by David Ferriero, Archivist of the United States, in the latest Archival Outlook. Here is your chance to ask!

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.

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Legislating the Creation, Access, and (not) the Retention of Officer-Worn Body Camera Records

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 guide detailing 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.

How to Audit Nothing

A local news story recently caught my attention, because it contains many lessons for records professionals, auditors, and local government. Last month, the Cincinnati Enquirer reported,

“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.”

A (probably doomed) attempt to desensationalize Public Records reporting

So, I suspect that Journalists on a political beat pay more attention to potential changes in public records law than is warranted by public interest in the topic. This is not altogether surprising– Freedom of Information-like acts have a direct impact on journalists’ ability to do their jobs properly by collecting key information about the actions of state government and bureaucracy. Because of this impact on their livelihoods, however, stories about potential restrictions to public records access tend to be… um… a bit overexcited. We saw this on this very blog a few years ago with the Franklin County Brouhaha, and now we’re seeing it again closer to my own home with some stories about a change to retention schedules in Wisconsin.

On the one hand, great! Happy to see Public Records Law and retention scheduling in the news. On the other hand, both of these stories get a lot wrong about what is really going on in this situation. If only there were someone on a group blog who was informed about how Records Retention and Disposition worked in the State of Wisconsin…Hmm… Well, if there is such information I bet it’s past the jump.

FULL DISCLOSURE: I am technically an employee of the State of Wisconsin, and while the schedule mentioned in these stories does not apply to UW, I do work with the Public Records Board to approve our local schedules. Because of that position I am also not going to comment on the political implications of these retention changes. (Much.)

Continue reading “A (probably doomed) attempt to desensationalize Public Records reporting”

And now: Football!

deflate1It is not really much of a secret that I am not a fan of New England Patriots QB Tom Brady.  Those of you who follow this blog and are also fans of American Football (I am sure at least some of you exist) are undoubtedly aware of the #deflategate fracas surrounding the Patriots’ game vs. the Indianapolis Colts during last season’s playoffs. (For those of you who weren’t, the TL;DR version: The Patriots were accused playing with underinflated balls, which makes them easier to handle and catch and makes a material difference because each team brings its own balls to games.) An investigation ensued, the NFL released a report indicating that it was “more probable than not” that the balls were deflated on purpose and with Brady’s knowledge, and yesterday Mr. Brady was suspended without pay for 4 games for the 2015 season due to his role in the affair. I may or may not have declared myself “the happiest boy in the world” to my wife last night upon hearing this news.

But this post is not about Brady Schadenfreude! (Well, *mostly* not.) It is about the following nugget from the NFL’s official statement about the case:

Another important consideration identified in the Policy is ‘the extent to which the club and relevant individuals cooperated with the investigation.’ The Wells report identifies two significant failures in this respect. The first involves the refusal by the club’s attorneys to make Mr. McNally available for an additional interview, despite numerous requests by Mr. Wells and a cautionary note in writing of the club’s obligation to cooperate in the investigation. The second was the failure of Tom Brady to produce any electronic evidence (emails, texts, etc.), despite being offered extraordinary safeguards by the investigators to protect unrelated personal information. Although we do not hold the club directly responsible for Mr. Brady’s refusal to cooperate, it remains significant that the quarterback of the team failed to cooperate fully with the investigation.

It’s a records management issue (Sort of)! I really am the happiest boy in the world. Tom Brady was asked to turn over electronic documents to help the NFL determine his responsibility in this matter, he refused to do so, and the NFL factored that in to his eventual punishment. Does that sound like sanctions for spoliation to anyone else? It sure does to me.

Now, a few caveats here: The proceedings were part of a conduct investigation strictly internal to the NFL, rather than a civil or criminal suit in open court. There was likely no formal discovery request, no “meet-and-confer” requirement, and the “Safe Harbor” rule probably wouldn’t have applied to (or protected) Brady in this case. But in its effects, this is basically the same– because Brady was unwilling to produce evidence as requested by the NFL, the investigating body made an assumption that the missing evidence would be materially harmful to his case, and altered the punishment accordingly. It was “a culpable failure to preserve and produce relevant electronically stored information, and [presented] a reasonable probability that the loss of the evidence has materially prejudiced the adverse party” , which the Sedona Principles explicitly calls out as reasons for courts to consider spoliation sanctions.

The upshot of all of this: when you’re talking to your “front line” employees, name-dropping Zubulake and the Sedona Conference isn’t going to mean much to them in terms of legal responsibilities to produce electronically stored information and/or destroy records according to defined retention schedules. Name dropping Tom Brady, on the other hand, may be another story. “Tom Brady’s punishment was made more severe by his failure to cough up emails and text” seems likely to at least get their attention, and lets you draw direct connections to the records they are producing and maintaining for your organization.

Yes, it’s true that the “sanction” in this case is based on the NFL’s internal judgment rather than the Federal Rules of Evidence, and so the parallel isn’t exact. If your employees know enough to point this out, a) I’m impressed, and b) you do need to have an explanation of how the law re: their public records and/or discovery responsibilities differ. That said, I won’t tell if you won’t.