November 19, 2018

In recent days, misinformation has gone viral on the internet that the Department of Interior is proposing to the National Archives and Records Administration (NARA) the destruction of valuable historical records having to do with the Endangered Species Act, Fish and Wildlife, energy management and other important environmental issues under the department’s jurisdiction. Conversations with senior officials at the National Archives, as well as colleagues working for several major open government groups and other in the archival community has helped the NCH to clarify the situation. NARA has been most cooperative and agreed to extend the comment period on recently proposed decisions on the disposition of records to November 26, 2018, so all parties have adequate opportunity to prepare responses.

What Happened?

The federal government has strict laws (Federal Records Act and Presidential Records Act) and regulations that govern the retention or destruction of records.

Federal agencies cannot unilaterally destroy federal records. NARA has final say on what records are destroyed or retained. According to NARA, “Each year, Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing records retention periods and submit these schedules for NARA’s approval. These schedules provide for timely transfer into the National Archives of historically valuable records and authorize the agency to dispose of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions.”

Routinely when an agency proposes a schedule, professional archivists and records managers at NARA review the records and make a determination as to which records will be transferred for permanent retention by NARA and which will be later destroyed. NARA also makes a determination as to when the records will be transferred or will be eligible for destruction. Before approving a schedule that includes records that will be destroyed, NARA must allow a period for public comment.

NARA issued a notice in the Federal Register dated Tuesday, September 11, 2018 (Vol. 83, No. 176), that the US Department of Interior was proposing the destruction of a broad spectrum of what the agency considered non-essential records having to do with natural resources management, the environment, water projects, energy resources and public lands. However, the notice also stated, “Proposed for permanent retention are final studies and reports related to mission programs and activities such as the Endangered Species Act and Fish and Wildlife Act management and planning files; energy and mineral final financial reports and summaries; mineral lease case history files; land use management plans and reports requiring agency authorization; historic water and power projects; and water resources and delivery records.” The public was given 30 days, until October 11, to comment.

According to NARA, five requests were made from individuals for access to the actual schedule that provides the details. Because NARA was unable to provide the large schedule until October 16, obviously past the deadline, they extended the comment period to October 29. Adding to the need for additional time was that this case is what NARA refers to as a “Big Bucket Schedule” which covers records from multiple divisions within a large federal agency such as Interior.

One of the requestors sent out an email to a host of groups asking for their support in extending the deadline still further until late-November. Though there was nothing unusual about this request, the requestor cast the appeal as if NARA was being uncooperative or obstructionist. That E-mail “went viral,” although there is no evidence that NARA was acting in any way other than following routine precedent. Adding to the confusion was an error made by NARA which resulted in sending the requestor a draft and not the final information requested. Immediately upon realizing the error on October 25th, NARA sent out the correct information and extended the deadline for public comments until November 26, 2018.

What Happens Next?

At this point, the full technical records schedule provided by Interior is being reviewed by those that requested it. Their comments and recommendations will be considered by NARA before rendering its final determination on the disposition of the records schedule from Interior.

This episode and the perception of a lack of transparency have identified a serious flaw in NARA’s public notification process on the destruction of records. A somewhat generic one paragraph description in the Federal Register does not provide the public with the data it needs need to offer informed comments. Providing a link to the actual records would allow the public the opportunity to review the records in a timely manner. As we saw here, requestors often have too little time to respond to a large amount of data and in some cases they receive the material after the comment deadline has passed. In the interest of increased transparency, we have raised this issue with officials at NARA. Hopefully this incident may lead to positive changes in the process. The NCH plans on submitting comments on this point to NARA before the November 26th deadline. We urge all other interested parties to do so, as well.

The broad and swift dissemination of erroneous information is especially regrettable. To no small degree it is a product of diminished confidence in our government and the truthfulness of government officials. Before concluding that a federal agency wants records destroyed as part of a broader political agenda, judicious and thorough investigation must be a priority. In fact, Interior and NARA have been working on this schedule since the Obama administration. NARA has highly trained archivists and records management professionals who have the expertise to make decisions concerning the historical significance of records and a long record of doing so with the utmost integrity. There is no evidence that they have acted in anything other than a spirit of good faith and professionalism in the current matter.