Presidential Tweets

The recent Republican primary election in Alabama produced a lot of drama and ideological clashing, as well as talk about the future of the Republican Party. One of the most striking elements of the campaign was Donald Trump’s endorsement of sitting Senator Luther Strange, who lost the nomination to archconservative and radical Christian Roy Moore. Trump had endorsed Strange via both in-person visits to Alabama as well as his characteristic and increasingly tiresome tweeting, and Strange’s defeat was seen by many as a sign of Trump’s weak political influence. After Strange’s loss to Moore on September 26, 2017, a number of Trump’s most recent tweets touting his support for Strange were deleted from his verified Twitter account.  Although many of those tweets were archived by and remain accessible by ProPublica, the fact that Trump deleted them in the first place is yet another link in the chain of troubling behavior by Trump on the subject of public information and on ensuring the integrity of his record. (This behavior, of course, was a large part of the inspiration for the Concerned Archivists Alliance in the first place.)

Trump’s periodic deleting (and correcting) of tweets has raised questions about his administration’s commitment to obeying the Presidential Records Act, which requires all the records of presidential administrations to be preserved for the future and for eventual public release. It strikes me, in addition, as part of Trump’s disdain for facts, evidence, and proof in general.

I contacted the National Archives and Records Administration on this matter, wondering whether they had plans to issue a statement about this very public violence done to the historical record. On September 28th, I received a reply from a member of NARA’s Public and Media Communications Staff, which read:

We received your email asking about the recent deletion of Tweets on an official White House account. Under the Presidential Records Act, records management authority is vested in the President, and the National Archives does not make determinations with respect to whether something is or is not a Presidential record. Rather, the National Archives provides advice and guidance concerning the PRA upon the request of the White House.  

The National Archives has advised the White House that it should capture and preserve all tweets that the President posts in the course of his official duties, including those that are subsequently deleted, as Presidential records, and the National Archives has been informed by White House officials that they are, in fact, doing so.

NARA’s guidance about Presidential tweets is online at https://www.archives.gov/press/press-releases/2017/nr-43

 https://www.archives.gov/files/press/press-releases/aotus-to-sens-mccaskill-carper.pdf 

Questions about the current Administration’s policies and practices under the PRA should be addressed directly to the White House press office, at press@who.eop.gov.

 

This response struck me as a frustrating act of bureaucratic buck-passing. I used to work for NARA once upon a time, and I am well aware that NARA has no real enforcement authority to compel a federal agency or employee to do anything. (As I heard often from NARA staff, “we’re not the records police.”) What NARA has, though, is a moral authority and an appeal to truth and accuracy, which may not have the strength or force of law or federal regulation but which is not nothing. The response I received suggested to me that NARA is content to rest on its position as an advisory body to the White House (we all know how well this particular White House welcomes advice from experts), and to ignore its higher duty to the American historical record.  I wrote back to NARA on September 29th:

So, then, as I understand it, NARA will make no statement about Donald Trump’s blatant disregard for the preservation of the documentary record, and it will continue to rely on the moral sense and integrity of an administration that has demonstrated neither of these. Do you have any evidence that Trump is, in fact, preserving the tweets he later deletes? And even if he is, NARA has no opinion on the issue of access to Trump’s tweets? If Trump deletes these, the public has lost access to them for the foreseeable future, and this is dangerous for government accountability to the public.

As a former employee of NARA, I am deeply saddened by NARA’s apparent supine attitude towards the Trump Administration and its willingness to rest the future of the record of this administration on the willingness of Donald Trump to follow federal records laws. When this is combined with NARA’s acceptance of ICE’s request to destroy records relating to the deaths of people in its custody after 20 years (rather than retain these permanently), I see a troubling slide in NARA’s support of its own mission and its commitment to democracy.

I received, unsurprisingly, no response to this.

NARA is charged with the weighty responsibility of preserving the record of the activities of our government. In a democracy, the right of the people to know what their government has done and is doing is paramount if we are to ensure electoral, legal, and historical accountability. And when we are faced, as we have been since January 20, 2017, with a President who eschews accuracy and truth, who in the face of the nation he supposedly leads tries to blatantly remove evidence of a political blunder, and who has shown in the past clear disrespect for the integrity of information, it is more and more incumbent on NARA to stand up as our national records authority. (Even if that authority carries little to no enforcement mechanism.) In contentious times, when the foundations of our government are at risk, it behooves those bodies vested with the protection of government institutions (in this case, our very history) to rise above the dull language of statute and tradition and business-as-usual and remember what it is they are charged with: the stability and integrity of democracy. NARA, to my mind, is failing in this, both in its non-response to Trump’s deleted tweets and in its acceptance of Immigration and Customs Enforcement’s request to delete certain groups of records [see previous blog entries].

We can only hope that NARA will come to realize that because it is, as it likes to term itself, “the nation’s record keeper”, it owes the nation a commitment to fulfilling that role and to doing what it can – via lobbying for legislative action, public messaging, or other actions – to make evident the danger that history and democracy face in this presidential administration.

-Jeremy Brett

 

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Issue Update: ICE Request to Destroy Records

As we continue to discuss the question of the records retention schedule for ICE, as overseen by NARA, we encourage our members and readers who have thoughts they would like to share with NARA to take action by submitting comment:

Here is a link to the records schedule (PDF).

Here are the instructions for submitting comments.

~CAA Organizers

 

The ICE Kerfluffle: A Response (Jeremy)

I deeply appreciate Brad’s thoughtful response to my blog post. It demonstrates his expertise and experience in records management, and it certainly captures the legal and administrative complexities of the issue.  However, it does prove my point (which, of course, came from an impassioned editorial rather than from a deep administrative analysis). Brad’s piece is a perfect example of the type of bloodless neutrality that the ACLU and others, including the CAA, are complaining about. The issue is that records documenting the dehumanization and abuse of human beings by their own government should NOT be treated like ordinary records.

These are not personnel files.

They are not meeting memos.

They are not receipts or contracts or tax forms.

They are the documentation of abuses of power and evidence of unlawful death, and there will only be more of these as this administration winds on. After all, Donald Trump has doubled the number of arrests of noncriminal illegal immigrants, and his disastrous decision on DACA is likely to result in even more troublesome and dangerous interactions between ICE agents and their targets. Brad writes a good essay, much more elegantly and informed than mine, but nowhere do I see him acting as if these records did not document, in some cases, monstrous crimes. And for me, that is the real point, not fine points of records law or records management practices, and not administrative versus historical value.

Jeremy Brett

And now, the ICE kerfluffle, records management-style, part 3

[We have invited Brad Houston, City Records Officer, City of Milwaukee, Wisconsin, to contribute to the blog with his thoughts about the proposed destruction of ICE records. We invite further conversation in the comments to his posts and at our Twitter account. This is the final post.]

 By Brad Houston

The Human Rights Angle

Still with us? Congratulations on getting this far. Your reward for getting to the end of this series is likely the most controversial angle from which to examine this issue, plus the promised “TL;DR” section. You’re welcome!

I said two angles in the first post—so where’d this third one come from? Well, I’m least qualified to talk about this part of it, so I didn’t want to necessarily include it as a main plank of this post. But I did want to at least address it a little bit. The “soft” part of this angle is the question of “whose story gets told by the Archives”, and questions the assumption made by the appraiser that “major activities of federal officials” are the only ones worth archiving. As has been discussed at great length in the archival literature, the question of whether to document the high-level functions of government or the quotidian effect that government has on everyday people is very much an open one. The former has long been the default position of most national archival agencies, including NARA, and you can see that in the record groups and appraisal decisions that NARS/NARA has been making since the 1930s. The latter happens more sporadically, and primarily as part of managing vital records of the State, but it DOES happen.

As Splinter notes, Alien Registration Files, to take a relevant example, are already marked as permanent by NARA because they serve as “the primary documentation for most of our government’s immigration processes”. I don’t know enough about these files to say for sure, but it seems plausible that some of the information in the ICE files under scrutiny makes its way to this primary documentation. Is that enough? Should these records be preserved as a way of further providing records as “evidence of the interaction between the people and the federal government”, as Stacy Wood suggested to Splinter? I would suggest that NARA’s mission, for better or worse, dictates their answer to these questions in their appraisal decisions. In which case, attacking individual scheduling choices seems less efficacious than working to refocus NARA’s emphases on a policy level.

The second angle is a bit more dangerous, and that is the question of these records as long-term Truth and Reconciliation-type records. In other words, under the current administrative and legal regime, NARA and ICE believe they are within an acceptable legal framework to destroy these records after 20 years, since there is not likely to be widespread research interest in any particular case. If, however, a president or Congress is elected in 2032, say, who creates policy to dismantle ICE and/or provide redress to victims of systemic abuse in its detention centers, that calculus about the long-term value of these individual case files changes drastically. In that case, the hypothetical commission investigating abuses would likely lament the fact that records from 1999 were destroyed in 2019 following the approved retention schedule.

Having said that, there is no reasonable expectation that NARA can provide retention guidance based on that hypothetical, nor that ICE would follow any guidance so proffered. So this use case might be a case where future Commissions will need to rely on either records requested and saved for particular cases, or hope that the reports are, in fact, accurate enough to make a proper accounting.

TL;DR

Whew! That’s over 2500 words of rambling on this topic, and I could probably write 1000 more easily. Which sort of speaks to my overall point—this isn’t an issue that can be readily summarized or boiled down to a press release. There are all sorts of records management considerations that need to be taken into account to provide all of the necessary context behind the ICE request to destroy these records, and I just don’t think “we want to cover up evidence of our wrongdoing” is necessarily the primary driver. (I will concede that it may be *a* driver.) Frankly, I have a decade plus of records management experience, and I am only about 80% confident that I have explained this right even in this enormous post (or, more likely, series of posts, depending on how the blog runners edit this :). The federal government is an enormously complicated beast, and I have at best a sub-dermal understanding of its operations.

But that’s the point, innit? I don’t think that we, as archivists and records managers, can reasonably assume that discussion of these issues in “mainstream” venues, particularly political-type venues, are fully informed on the situation. There is generally just a lot of misunderstanding in the public sphere about what records management is supposed to do and why this kind of request is much more likely to be a case of “we need to clear out our storage areas” than “we are nefariously destroying records of historical value”. Stories like this tell me that the profession as a whole needs to do more work educating the public about not just the value of records with archival value, but about the process of appraising those records, and why not everything that institutions are creating needs to stay around forever and ever.

Yes, archivists, this means that as ambassadors to the public in a way not always possible for pure RMs, you’re going to have to learn more about records management, and that need is only going to grow. Sorry. I promise, however, that it is not as bad as it looks, and you will even get the chance to learn more about how records get from point A to point Z in the first place. Knowing more about that is going to help us talk to non-experts, and (hopefully) cut down on the alarmism a bit.

And yes, if there IS a use case for these records in year 21 after they’ve closed, or if there’s otherwise something about retention that you think should be brought to NARA’s attention, of course you should provide public comment—that’s why the public comment period is there. But reflexive complaining about destruction of public records, as much of this genre of release seems to be, does not help anyone.

[See Part One here!]

[See Part Two here!]

And now, the ICE kerfluffle, records management-style, part 2

[We have invited Brad Houston, City Records Officer, City of Milwaukee, Wisconsin, to contribute to the blog with his thoughts about the proposed destruction of ICE records. We invite further conversation in the comments to his posts and at our Twitter account. This is  part two of three posts.]

 By Brad Houston

The Records Management Angle

Welcome back! In this part of the post, I’m going to talk about the destruction of records by ICE from a strictly-RM viewpoint. Buckle in, folks, it’s going to a wild ride. (Is he joking, or does he actually enjoy records management discussion that much? Little of column A, little of Column B.)

The important thing to remember when we’re talking about records management at a federal level is that the Federal Records Act has no inherent enforcement mechanism. What this means is that to the extent that Executive Branch agencies follow records management practices at all, they are *only* constrained in their assessment of appropriate retention times by the canonical records values (Historical, Administrative, Legal, and Fiscal) that attach to those records. To the extent that there is any meaningful penalty for improper destruction of records at all, it is attached to destruction or mishandling of records under another criminal statute (remember, Hillary Clinton was being investigated for Those Emails under the Espionage Act, not the Federal Records Act), or as part of litigation, either in sanctions for improper destruction or in the inability to produce records to support a case. If ICE *really* wanted to get rid of those records, the main thing stopping them from doing so unilaterally is public opprobrium… and as has been suggested to me on Twitter, the premise that ICE cares about that is questionable at best.

(SIDENOTE: At this point, after almost 70 years of no enforcement power and concomitant records manager frustration, cold-turkey implementation of penalties might be, ahem, ill-advised:

https://twitter.com/herodotusjr/status/902710767258132481

Anyway.)

So let’s examine the three relevant values (Fiscal likely not factoring in, though tell me in the comments if I’m wrong):

Historical: This is the value ACLU is apparently hanging its hat on, which is kind of the records equivalent of putting all your money on 36 Red. My general rule of thumb is that only about 5-10% of records in a given institution are genuinely historical in nature; per NARA’s communication with Splinter News, at the federal government level that’s down to 2-5%. ACLU’s main argument for permanent retention of these records appears to be “Even 20 years is far too short for keeping the record of a death or sexual assault of an individual in government custody.” Which, sorry ACLU, saying that doesn’t make it so. NARA’s primary reason for approving temporary retention is that the series in question “Does not document significant actions of Federal Officials.” Which is… not untrue? Secondarily, the appraisal document indicates that “the information is highly sensitive”, which is…also accurate? For the latter, you cannot divorce the privacy issues inherent to records from their appraisal. The PII that is likely to be endemic to these records means that they are only going to be available to subjects, family and other privileged groups for a good long while after close of file; once the privacy restrictions expire, are the particulars of an individual case of real interest to most researchers? I would argue “probably not”—you are at that point looking for systemic analysis rather than specifics. (For the former, see the last section of this. Or, you know, the Appraisal literature for the last 30 years or so.)

Which takes us to:

Administrative: There’s a couple of sub-values at work here. One is the primary use of the records by ICE, which presumably is to document the circumstances surrounding the in-custody deaths or sexual assaults and (one hopes) use that information to improve their operations (I know, I know, but I’m speaking generally here). The secondary use of these records is as the accountability measure, which is what ACLU is most interested in. Mechanisms such as FOIA and other public records laws are supposed to facilitate this secondary use, by allowing members of the public to see documentation of agency operations and take action to push for changes as necessary. To the extent that the ACLU complaint is a valid one, it is in this area—given the tendency of federal agencies to try to skirt FOIA by whatever means necessary (often but not always including overclassification), it makes sense to push for longer retention of records to ensure that they are around long enough to be released at all. Having said that, three big caveats:

  1. 20 years is a long time, comparatively speaking. There is probably not a lot of primary administrative value in these kinds of records—either ICE officials take action on this sort of information as it happens, or they don’t—so that retention period is probably for a combination of legal reasons (see next section) and specifically to give people a chance to review these records for accountability reasons in the first place. Whether they will be released in a form that is minimally-redacted enough for people to use them is another question, but that’s what lawsuits are for!
  2. Case files for this kind of thing are rarely the only documentation for information on the overall process—there are almost always summaries, reports, audits, etc. that have the systemic information about responses to programs that is really being sought here. Splinter makes a fair point that the kind of information that suggests abuses in the system might be sanitized by the time it gets to annual reports, but frankly if we accept that premise there is nothing really stopping ICE from sanitizing the originals either.
  3. Given a request for a particular case file, especially if that request gets to the point where it is being litigated, the chance that case file will *actually* be destroyed is low, because of the records best practice of putting a hold on records subject to litigation. Which is a nice segue into:

Legal Value: That last point is a nice segue into my discussion of the final main record value applicable to these records. Ironically, legal value is probably the value that argues most strongly *for* longer retention of records such as these. To the extent you are maintaining a record for an extended period of time under this value, you are doing so because you believe that having the record will ultimately exonerate your or your organization’s actions. There are all sorts of calculations made here by ICE’s lawyers that I am not privy to, such as the relevant criminal and civil statutes of limitations for sexual assault or murder/wrongful death as they apply to detainees. But the 20 year retention period tells me that ICE lawyers a) determined that 20 years was sufficient under civil statutes for retaining records for defending the agency vs. litigation; b) calculated that the risk of criminal charges being brought against the agency in any given case after 20 years was low enough to justify destroying records at that point. (Note too from the Splinter article that when a case IS found to be as a result of employee misconduct, those records are supposed to be maintained permanently.)

“But Brad,” you ask, “What about when the records show that ICE DID NOT act appropriately in regards to detainee sexual assault or in-custody death?” An excellent question! Even in those cases, official records can often provide mitigating circumstances that can lessen the severity of the charge or sanction towards the agency. But even if the records show unequivocally bad actions on behalf of ICE, this is one of the circumstances where the Federal Records Act has teeth after all—because if records in either civil litigation or criminal cases can be shown to have been destroyed outside of the regular retention period, with intent to conceal the actions described by those records, courts can apply sanctions, from instructing juries to assume the worst-case scenario is described in the missing records to awarding the judgment to the plaintiff outright. The question of intent is difficult, but not impossible, to prove, so here again I would expect ICE lawyers to not want to chance it any more than they have to.

[See Part One here!]

[See Part Three here!]

 

And now, the ICE kerfluffle, records management-style

[We have invited Brad Houston, City Records Officer, City of Milwaukee, Wisconsin, to contribute to the blog with his thoughts about the proposed destruction of ICE records. We invite further conversation in the comments to his posts and at our Twitter account. This is  part one of three posts.]

 By Brad Houston

Can we take a deep breath and relax for a moment, please? I get it. I really do. ICE is a deeply problematic agency with some deeply problematic policies and procedures, and the stance of the current administration is going to be largely to exacerbate them. In that light, seeing a press release from the ACLU that the agency is going to start “Destroying Records Of Immigrant Abuse” is, at first glance, deeply alarming. But can we step back a moment here? As a records manager, an archivist, and someone who recognizes that Outrage Fatigue is a real thing, I have real concerns about reflexively getting one’s hackles up about this. Sure, as was pointed out to me on Twitter by one of this blog’s administrators, it can be argued that it is ACLU’s job to argue the worst-case scenario and rouse people to action. As information professionals, we should do better.

As I see it, this issue—and the reaction thereto—can and should be examined from at least two angles (plus a third which I am not really qualified to opine upon, but will attempt to address anyway).

(NOTE: This wound up being WAY longer than I was expecting, so I have asked editors to split this up into a couple of posts so you don’t get records management burnout. We’ll start with Angle 1, information literacy.)

The Information Literacy Angle

As stated above, the ACLU and similar activist groups arguably exist to get into a frenzy on issues like this, and to a certain extent press releases like this one should be expected. The problem is that—how can I put this delicately?—As activists and not records professionals, these groups may or may not have any idea of what they are talking about. Public advocacy groups in general tend to focus more on the aspects of public records law relating to *access*– your Freedom of Information Acts, your Open Records Laws, etc. And that’s good! They should! There is an unfortunate tendency at many levels of government to subvert the spirit of open records laws, and to the extent that agencies are preventing legitimate access to public records, advocacy groups should push back against it. This… is not that. This is an unfortunate tendency on the part of advocacy groups to object to the proposed destruction of *any* records, particularly those belonging to hot-button agencies like ICE or the FBI. To be frank, government entities neither CAN maintain all records until the end of time (because of storage costs and concerns), nor SHOULD they do so (because of the undeniable tendency of post-1945 society to create many, MANY more records than are strictly necessary, which significantly impedes information management and retrieval). As such, when I see news like this coming from a group like the ACLU, the IFF, or the Sunlight Foundation, I am careful to scrutinize what they’re actually complaining about.

In this case, I am particularly skeptical because the ACLU does not provide much context to support the seriousness of their complaint. For example, they quote from the official NARA appraisal report in their press release, but they do not provide a link to the original document so that readers can assess for themselves the context in which the appraisal decision is being made. If I received an argument like that in a student paper, you’d better believe I would at least be knocking off points for improper citation. (For reference, the ICE request and the NARA appraisal response are both available at http://thememoryhole2.org/blog/ice-document-destruction. This information courtesy of a separate google search.) There’s also no information in the press release about comparative retention of similar records elsewhere in federal government—as an information professional I would want to know about this in order to determine if ICE’s request is wildly out of step with best practices. Information found elsewhere suggests this may be the case—DoD retains its records of sexual assaults vs. detainees for a minimum of *50 years*, for example, suggesting ICE may be overly aggressive in its request. But elsewhere, records of in-custody deaths maintained by the Federal Bureau of Prisons are retained for just *5* years after the close of investigation. So there’s clearly some variance in best practice here, for which ICE’s proposed 20-year retention is well on the spectrum. Nowhere in the press release or related statements is there any indication of this. When we talk to students and members of the public about information literacy, we ask them to consider the source of the information, whether that source may have a bias, whether its assertions are well-supported by the evidence, etc. As information professionals, it is incumbent upon us to undertake the same due diligence when we are sharing information among ourselves.

[See Part Two here!]

[See Jeremy Brett’s original statement here!]

Issue Alert: ICE Request to Destroy Records

Unfortunately, even as this poor excuse for an administration continues to falter in many places, we are continuing to see a drive among some government employees – people paid by taxpayers – to increase the misery and persecution of their fellow human beings. Immigration and Customs Enforcement (ICE) has been particularly criminal in this regard, and it is sad to say that it is now being enabled in its abusive activities by the National Archives and Records Administration (NARA). It is a reminder that records are not mere documents but – especially in a democratic society – tools for ensuring accountability and for preserving and protecting people’s basic human rights.

ICE has recently sought approval from the National Archives and Records Administration to destroy records documenting deaths and sexual assaults of individuals in its custody after a period of 20 years. ICE has asked for permission to begin routinely destroying 11 kinds of records, including those related to sexual assaults, solitary confinement and even deaths of people in its custody. Other records subject to destruction include alternatives to detention programs; regular detention monitoring reports, logs about the people detained in ICE facilities and communications from the public reporting detention abuses. ICE proposed various timelines for the destruction of these records ranging from 20 years for sexual assault and death records to three years for reports about solitary confinement. According to the American Civil Liberties Union, NARA has approved ICE’s proposal and its explanations for doing so are, to say the least, troubling. Continue reading

#ThatDarnList: The Saga Continues*

Hi, all!

Those of you who have been following the current controversy on the Archives & Archivists listserv (A&A), which is monitored (though not owned) by the Society of American Archivists and our de facto professional listserv, might be sighing, you might be angry, you might be dumbfounded. But this most recent controversy demonstrated that there is still a serious problem in the archival profession with the mythical concept of archival ‘neutrality’ and with some archivists’ inability or unwillingness to entertain the notion that we can still be unwelcoming or even hostile to minorities in the profession.

Background: The A&A listserv is generally used for people to post about archival-related matters in the news, to ask questions of colleagues about problems or concerns in the workplace, or to post new employment opportunities. To this extent, it is a very useful source, which allows colleagues separated by distance to exchange ideas, opinions, and professional expertise. However, as with most things on the Internet, there is a more troublesome side to the listserv as well.

Every now and again, certain individuals will post what amounts to right-wing propaganda on the listserv. A particularly troublesome individual here is Peter Kurilecz, a retired records manager (and non-SAA member) who has been posting on the listserv for many years. In fact, the listserv developed formal Terms of Participation directly because of Kurilecz’ previous behavior in posting massive numbers of posts, some of which included this kind of propaganda. Kurilecz has a number of defenders in SAA, who see his provision of links as a valuable service, regardless of their content.

On August 7, Kurilecz posted a link to the right-wing site Campus Reform. This is a site devoted to exposing so-called “liberal bias” in higher education, and seems particularly concerned with minorities who are fighting for equity and fairness in education. The site had posted a “story” about the recent SAA Annual Meeting in Portland, and specifically talked about one session – this session was hosted by members of the Archives for Black Lives in Philadelphia group, and featured as a guest a female African-American social activist. In the session, which I attended, participants talked about the development of A4BLIP, and the activist recounted the deep Black roots of the Portland community and the challenges that community faced and faces today in light of other people trying to police access to Black Portlanders’ own history. She talked about a system established to maintain control, to restrict, to mandate, and to deny access. Continue reading

CAA Meet Up @ SAA!

Will you be at SAA in Portland, Oregon next week? Concerned Archivists’ Alliance organizers Katja and Jeremy would love to meet you in person!

Friday, July 28th @ 6:30pm
Spirit of ’77 Bar
500 NE Martin Luther King Blvd
http://www.spiritof77bar.com/

We’ve planned this meet-up to come directly after the ProjectARCC gathering taking place from 4:30-6:00pm at the same location. Come for the climate change…stay for archival resistance networking!