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Earlier this week, we posted to let readers know about the Customs and Border Patrol (CBP) draft records schedule submitted to NARA that would destroy important civil rights records. CBP was asking for NARA’s approval to destroy after four years “records developed to track and monitor complaints that are or will be investigated by DHS Civil Rights and Civil Liberties (CRCL) regarding alleged violations of civil rights and civil liberties” and associated “Requests for Information” (NARA RFC Control Number DAA-0568-2018-0001).
CBP further proposed 25-year retention periods for “records pertaining to administrative and criminal investigations on [CBP] employees, contractors, and those in CBP custody,” as well as records and reports pertaining to Prison Rape Elimination Act (PREA) allegations. A July 9, 2020 NARA appraisal memorandum accompanying the Proposed CBP Schedule recommends approving it in full (Appraisal Memorandum is at the end of the proposed CBP records schedule (p11-14)). The ACLU has more background and context on these important records.
A group of organizations working on immigration issues, government accountability, civil liberties, refugee and immigration history, libraries, and more (including PEGI Project and FGI!) have signed on to a letter to NARA raising deep concerns (PDF) regarding CBP’s proposed records schedule and requesting that NARA revise the schedule and permanently retain the records at issue. The letter is extremely thorough and deeply researched and shows how researchers use NARA’s records, puts agencies’ FOIA support (or lack thereof) in historical relief, and offers a strong argument for why these records in particular from the CBP should be designated as permanent.
I encourage our readers to read the letter. Records retention of federal agency records is extremely important to a wide swath of professional, library, and civil society organizations. And this is a great example for how to write a comment to a federal agency.
Please send comments to NARA re CBP’s draft records schedule seeking to destroy important civil rights records
[UPDATED 9/28/2020 5:30pm PST: I’ve taken down the link to the Google form. Please submit comments via REGULATIONS.GOV. Thanks! JRJ]
[UPDATED 9/29/2020: I deleted the link to the letter since it was a draft. When the final letter is published, I’ll be sure to post. JRJ]
**** DEADLINE for INDIVIDUAL PUBLIC COMMENTS is WEDNESDAY 30 September ****
The National Archives and Records Administration (NARA) has extended the commenting period to 30 September on a proposed records schedule regarding Department of Homeland Security (DHS), Customs and Border Protection (CBP) (Control Number DAA-0568-2018-0001), 85 FR 47248 (Proposed CBP Schedule).
CBP seeks NARA’s approval to destroy after four years “records developed to track and monitor complaints that are or will be investigated by DHS Civil Rights and Civil Liberties (CRCL) regarding alleged violations of civil rights and civil liberties” and associated “Requests for Information.”
CBP further proposed 25-year retention periods for “records pertaining to administrative and criminal investigations on [CBP] employees, contractors, and those in CBP custody,” as well as records and reports pertaining to Prison Rape Elimination Act (PREA) allegations. A July 9, 2020 NARA appraisal memorandum accompanying the Proposed CBP Schedule recommends approving it in full (Appraisal Memorandum).
FGI has signed on to a DRAFT letter to NARA raising deep concerns (PDF) regarding CBP’s proposed records schedule and requesting that NARA revise the schedule and permanently retain the records at issue. The comments were crafted by groups working on immigration issues, government accountability, civil liberties, refugee and immigration history, and more. The letter is extremely thorough and shows how researchers use NARA’s records and and offers a strong argument for why these in particular from the CBP should be designated as permanent.
If any of our readers would like to submit individual comments, please feel free to submit directly via regulations.gov (Control Number DAA-0568-2018-0001). You can also read others’ comments on regulations.gov.
**** DEADLINE for INDIVIDUAL PUBLIC COMMENTS is WEDNESDAY 30 September ****
There’s an interesting thread on the govdoc-l listserv regarding “threshold concepts” for government information — core concepts which, once understood, “transform perception of a given subject, phenomenon, or experience” or as someone on govdoc-l stated “concepts that are so foundational that people immersed in a discipline take them for granted.” We think some of the issues being discussed there can benefit from making explicit some of those foundational ideas of govinfo that we probably all hold in common but that we rarely articulate or discuss. Here are seven of them:
1. Public Information.
The U.S.Code and the Office of Management and Budget define different categories of government information. Perhaps most familiar to government information specialists are the categories of "records" and "publications." But these are just two of six categories — each one narrower than the one above it. The six categories are defined in OMB Circular A-130 (pp. 26‑37).
…… Federal Information
……………… Public Information
…………………… Information dissemination product
………………………… Government Publication
In discussing threshold concepts, we believe it is essential to have a clear understanding of this hierarchy of information and the difference between levels.
As we have suggested before we believe that the most appropriate of those levels when discussing library policies is that of "Public Information," as defined in Chapter 35 of Title 44:
The term "public information" means any information, regardless of form or format, that an agency discloses, disseminates, or makes available to the public.
2. Information vs. Information Services.
While it is certainly true in the digital age that the federal government provides access online to much of its public information and "organizes" it for access and use, we should understand that there is a difference between such services and the actual content provided by those services. These days, it is common to speak of the services as "e-government."
E-government is a service. It is like the gate at a national park. The park is a resource and the gate is a service that protects the resource and provides access to it — but is not the resource itself. Agencies keep their resources in silos and decide how to organize and present that information through their websites.
Public information is a resource, like a national park, and government websites are like the gates at national parks. When the government controls the resource by keeping it in its own information silos and allowing access only through its gates, the government controls what we can use. We lose access to the information during a government shutdown or when an agency takes information offline. Agencies can alter and move information or impose fees or restrictions on access when they control the only copy of the information resource. And no agency can guarantee that its siloing or its organization and presentation of its content will meet the needs of every community of users, or of user communities in the future.
We have analyzed this issue in more detail here: Information is not a Service, Service is not Information and here: FDLP: Services and Collections.
3. Public Information is essential to democracy.
In order for a democracy to function, it is essential for citizens to have an accurate record of its government including authentic government records of its actions and the data it collects, creates, and uses.
Familiar examples include Congressional debates and hearings, laws and regulations (e.g., USC, CFR), official statistics (e.g. GDP, CPI, censuses, surveys), judicial hearings and decisions, administrative records (e.g. aggregations of state records of births, deaths, marriages, crime, health, etc.), position statements, policies, press releases, and transcripts of press conferences.
Such records need to be accessible to the public in order for citizens to be able to hold government accountable. Citizens also need these records to be preserved over time so that they can have an accurate record of the history of government actions, changes in policy, and the data government use to determine those policies and actions.
Such records need to be preserved and accessible in context. For example, a record of a single speech in Congress needs to be preserved in the context of all speeches in Congress; a single law must be preserved in the context of all laws and regulations; the census of the population of a city needs to be preserved in the context of its populations in previous censuses and in the context of the censuses of other cities.
"Context" also includes the methodologies used to measure, collect, aggregate and present raw information. For example, it is important that The Congressional Record makes clear that it is only a "substantially verbatim" record and that Members may revise and extend their remarks after the fact, before they are published.
And it is essential for methodologies used to create economic indicators such as GDP an CPI be part of the record of those indicators.
The records of government must be accurately preserved without alteration and must be accessible in such a way as to assure users that those records are authentic and complete.
Note that government records may contain inaccuracies and both those inaccuracies as well as any corrections to those inaccuracies must be accurately preserved. The official record of a government is the record of "what the government knew" and what officials said at any given point in time. It is only by preserving this record that citizens can hold agencies and officials accountable.
There are many controversies over the methodologies used to create government statistics. Such controversies (and all methodologies) reflect political assumptions and political goals. Preserving the methodologies, raw data, and published statistical indicators, provides the potential for creating better policies with better data and better indicators.
5. Gray areas of information distribution.
In the digital age, "government information" is available from many sources including non-official sources. While the Congressional Record is the official record of Congress, it is easy to find video recordings of what actually happened on the floor of Congress (without revisions or "extensions of remarks") on C-Span and Twitter.
The most notable example of this gray area in current administration is, of course, tweets by the President under his personal twitter account.
The digital age thus often presents citizens with confusing and contradictory information and presents libraries with complex and difficult policy and collection choices.
6. Misinformation, Disinformation, and Propaganda.
It is essential to have accurate and authentic preservation of Public Information in order to counter misinformation, disinformation, and propaganda whether distributed by government or non-government sources.
We do not have to agree on the accuracy or mendacity of official (and un-official) statements, speeches, comments, tweets, etc. to agree that it is essential that "Public Information" produced and created by government agencies and individual officials be accurately preserved. It is only by doing so that citizens will have an accurate record of policy debates and decisions and can contextualize that record within the wider historical record.
It is only by having an accurate and authentic record of Public Information that the truthfulness and accuracy of the content of those records can be determined. It is only by having such a record of Public Information that agencies and officials can be held accountable for their claims, policies, and actions.
7. Role of libraries.
Libraries should accept, continue and maintain their traditional role of ensuring long-term access to Public Information for their own user-communities because government agencies cannot and are not doing so.
Preservation. Although the federal government makes Public Information available through e-government information services, very few government agencies have legal mandates, or budgets, or policies for preserving that information or for providing long-term, free public access to it. Most Public Information is not being adequately preserved or curated. Libraries need to continue their critical societal role in curating government information. They can do this by building their own digital collections of government Public Information.
Access. As noted above, no agency can guarantee that its e-government information service will meet the needs of every community of users. Libraries can address the access and use-needs of specific communities-of-interest, while government agencies attempt to address only a broad, monolithic public.
Service. When libraries build services for their user communities based on digital collections that they acquire and control, they will be able to combine non-government information with Public Information from different agency silos to create unique user-experiences that no government agency can. By addressing the needs of their specific user-communities, libraries can provide more services and better services than any government agency can provide. These services can include both traditional reference services provided by subjects specialists as well as online digital services. We have written more about this idea here: Building a Collaborative FDLP.
James A. Jacobs, University of California San Diego
James R. Jacobs, Stanford University
Natural Resources Defense Council (NRDC) submits comment to NARA re Dept of Interior records schedule request
The Natural Resources Defense Council (NRDC) just sent me a PDF copy of the comment that they submitted to the National Archives and Records Administration (NARA) regarding the Department of Interior records schedule request. This letter, combined with the others from DLF, transparency organizations, and Stanford Libraries offers a finely grained analysis of the overall problem and suggestions for moving forward in making the scheduling process much more transparent and in understanding and preserving important government records. Many thanks to these organizations and the many others who submitted comments.
The Natural Resources Defense Council (NRDC) is a non-profit organization dedicated to safeguarding the earth: its people, its plants and animals, and the natural systems on which all life depends. On behalf of our over 3 million members and online activists, NRDC submits the following comments regarding the Department of the Interior’s proposed updates to its records schedule, DAA-0048-2015-0003. See Notice of availability of proposed records schedules, 83 Fed. Reg. 45,979, 45,980 (Sept. 11, 2018). NRDC also joins the letter submitted by the Emmett Environmental Law and Policy Clinic at Harvard Law School. We appreciate the willingness of the National Archives and Records Administration to work with interested parties and extend the comment period to permit public inspection of Interior’s retention policy for such vital records.
The proposed schedule covers records that are central to the public’s understanding of the Department of the Interior’s (“Interior’s”) stewardship of our nation’s public lands and natural resources. Moreover, it encompasses records of activities that might have long-lasting or permanent implications for both human health and the environment. But the proposed schedule permits some records to be destroyed while they may still be substantially valuable to the public, while other retention policies are too vague to assess their impact. Moreover, the high publicity and comprehensive nature of Interior’s schedule change highlights shortcomings in NARA’s approval process for agency records schedules. Interior’s records schedule should be amended to ensure that valuable records are preserved for public inspection.
[August 9, 2018 update] Thank you Meg Phillips, NARA’s External Affairs Liaison, for contacting me and offering additional information and context. Meg notes that “No agency may dispose of records without written authorization from the Archivist of the United States in the form of approval of the records retention schedule. That is what is going on with ICE – ICE submitted a schedule, NARA requested public comment, which it has gotten, and NARA is now working with ICE to revise the schedule.”
Because of the public interest in the ICE schedule, Archivist David Ferriero recently blogged about where NARA’s process is at, and also wrote a response to the AHA letter dated August 1, 2018 (available as a PDF).
Good on the American Historical Association for writing a letter to Archivist of the US David Ferriero to complain about the imminent destruction of records by the US Border Patrol and Immigration and Customs Enforcement (ICE). Most people do not realize that executive branch agencies get to define what constitutes a “record” and its own records schedule of what ultimately gets sent to the National Archives for preservation. NARA only offers guidance to executive agencies, they do not tell executive agencies what to preserve.
U.S. historians are rallying to stop federal immigration agencies from destroying records of their treatment towards immigrants.
In a letter addressed to the National Archives and Records Administration (NARA), which instructs federal agencies on how to maintain their records, the American Historical Association has demanded that the regulatory body shut down any “threats to the preservation of records relating to the treatment of immigrants by the U.S. Border Patrol and Immigration and Customs Enforcement (ICE).”
The letter, signed by AHA Executive Director James Grossman, comes after it was revealed that ICE had sought permission from NARA to begin destroying years’ worth of data, including information on reports of sexual abuse, solitary confinement and in-custody deaths.