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An email sent by the press office of the Environmental Protection Agency (EPA) incorrectly claims that “federal record keeping requirements” ensure that information withdrawn from the EPA website will remain “available to the public.”
Doug Ericksen, the head of communications for the Trump transition team at the Environmental Protection Agency, responded to reports of potential political vetting of scientific research at the EPA as "inaccurate" in an email sent by the EPA press office.
- How Trump Transition Officials Are Privately Explaining the Chaos at the EPA, by Tim Sohn, Slate (Feb. 1 2017).
In that email, Ericksen said:
"Claims that science and research will be deleted are simply not true. Because there are federal record keeping requirements, there is a process in place for archive Federal website information so it remains available to the public if it is removed from the active pages."
This greatly oversimplifies federal record keeping requirements in a misleading way. There is no guarantee that website information removed by an agency will remain available to the public.
Existing federal record keeping requirements do not necessarily guarantee that information that is removed by a new administration from the EPA website will be either deposited with the National Archives (NARA) or that any that are deposited will be made available online by NARA.
It will be up to the EPA to determine whether or not the information it removes from its website fits the definitions that require its deposit with NARA. The presence of information on the EPA website does not automatically make that information a "record" that falls under the Federal Records Act [Public Law 81-754, 64 Stat. 578, TITLE V-Federal Records (64 Stat. 583)].
The disposition of EPA web content is guided by publicly available records schedules (List of EPA Records Schedules in Final Status, and EPA Records Schedules in Final Status), but, according to the NARA Guidance on Managing Web Records Background, it is ultimately up to the agency to determine what information fits the guidelines and what information does not.
Even if web-based public information is deposited, NARA does not guarantee that it will make that information available online.
UPDATE: Senate torture report to be kept from public for 12 years after Obama decision by Spencer Ackerman, The Guardian (12 December 2016). President Obama has agreed to preserve the report, but his decision ensures that the document remains out of public view for at least 12 years and probably longer. Obama’s decision prevents Republican Senator Richard Burr from destroying existing classified copies of the December 2014 report. Daniel Jones, a former committee staffer criticized the preservation as inadequate. “Preserving the full 6,700-page report under the Presidential Records Act only ensures the report will not be destroyed,” Jones said. “It does little else.”
Declaring that the written history of the U.S. torture program is in jeopardy, two former United States Senators have called upon President Obama to take steps now to make it difficult for a future administration to erase the historical record.
- The Torture Report Must Be Saved By CARL LEVIN and JAY ROCKEFELLER. New York Times (DEC. 9, 2016)
They suggest that President Obama can do this by declaring that the Senate Intelligence Committee’s full, classified 6,700-page report on torture is a "federal record." This will allow government departments and agencies that already possess the full report to retain it and it will make it more difficult for a future administration to destroy existing copies of the document.
Traditionally we think of "government documents" as those publications that government agencies produce for public consumption and "government records" as information that provide evidence of the operations of the agency. Government "records" are defined in 44 U.S. Code § 3301:
…includes all recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government or because of the informational value of data in them…
The National Archives and Record Administration uses this definition to guide agencies in their records retention and disposition policies.
As Levin and Rockefeller point out, "the roughly 500-page summary of the Senate report [available as a free PDF and as a $29 print copy] that was declassified and made public at the end of 2014 is only a small part of the story. The full report remains classified." They say that the full report contains:
"information that leads to a more complete understanding of how this program happened, and how it became so misaligned with our values as a nation. Most important, the full report contains information that is critical to ensuring that these mistakes are never made again.
In 2014, the report was sent by the Committee to the Obama administration. Senator Richard Burr of North Carolina, has tried to recall the full report to prevent it from ever being widely read or declassified and specifically asked that it "should not be entered into any executive branch system of records." So far, the Obama administration has not returned the report to Senator Burr. Levin and Rockefeller say that "Given the rhetoric of President-elect Trump, there is a grave risk that the new administration will return the Senate report to Senator Burr, after which it could be hidden indefinitely, or destroyed."