A coalition led by the American Historical Association and watchdog group American Oversight recently filed suit against the White House, seeking to overturn a recent memorandum issued by the Department of Justice asserting that the Presidential Records Act is unconstitutional and unenforceable.
Given the long and storied history of the National Archives, its centrality to American heritage, and its tradition of historic preservation, the controversy sits at the crossroads between practice and posterity for the information governance industry. Although records that touch the apex of American executive power are far removed from the daily experience of most of us, the episode nonetheless yields a variety of pertinent lessons that organizations can apply to enhance a records and information management program’s rigor, defensibility, resilience, and culture.
Key Takeaways:
- Adhering to established rules is always less costly than downstream “damage control” or litigation.
- Compliance culture starts with leadership; visible executive buy-in is a primary defense against scrutiny.
- Build RIM programs that depend on operational depth and documented processes rather than specific individuals.
Presidential Records Act Context & Controversy
Since its original enactment in 1978 and effective from 1981, the Presidential Records Act has operated to manage and maintain the working papers, correspondence, and other records of the President of the United States, preserving the details about events and decisions at the highest levels of American government for historians and future generations.
The present controversy concerning presidential records arose following the investigation into the retention of presidential documents not transferred to the National Archives in accordance with the Presidential Records Act. Although the case was ultimately inconclusive, people continue to question whether the Act is binding.
The new DOJ memorandum takes the position that due to separation-of-powers concerns surrounding the autonomy and impudence of the Executive branch, the Act is not binding on presidential records.
Although the final outcome will take some time to crystallize, several immediate principles and lessons can be drawn from the episode for records management professionals.
Core Records Management Compliance Principles
A Robust program is the foundation of compliance. Even an imperfect program that makes a substantial good-faith effort appreciably reduces risk compared to one that visibly disregards recordkeeping standards and obligations. Meticulous documentation of decisions, policies, procedures, and actions demonstrate that effort. Reports of unsecured or improvised storage of sensitive records (for example, keeping classified materials in unsecured common areas) illustrate how visible departures from accepted handling practices can materially increase the chances of scrutiny.
Err on the side of caution and over-compliance. It should never be necessary to rely on a favorable legal interpretation to withstand scrutiny. Classification, sensitivity, and retention categories should be taken seriously at the point of record creation rather than at the moment an investigation becomes a concern.
Culture and tone at the top set the standard. Leaders’ words and actions signal to both internal stakeholders and external parties about the seriousness with which recordkeeping is regarded. Engagement by high-level executives can foster a culture of compliance that propagates across the organization.
Building a Defensible Records Program
Build programs that outlast leadership. Although leaders are important, no leader stays in a role indefinitely. A defensible records management program should be constructed to withstand changes in leadership so that the transitions proceed seamlessly. The greater the operational depth of the program, the more resilient it will be to change.
How you respond matters most. If regulators investigate recordkeeping practices, the response can matter more than the underlying issue. A posture of cooperation and transparency can lead to formal and informal relief from potential consequences of deficiencies.
Proactivity is preferable to damage control. Diligent compliance with established recordkeeping rules and regulations greatly diminishes the risk of audit or investigation and can significantly mitigate the consequences when they do occur. Regardless of how the current legal questions are ultimately resolved, the time spent responding to investigative inquiries, managing the operational disruption of the search, preparing a defense, and subsequently litigating could have been avoided had the procedures been meticulously adhered to in the first instance. The effort required to proactively adhere to laws and regulations is often far smaller than the downstream consequences of non-compliance, which can include fines, administrative sanctions, civil penalties, and in some cases criminal liability.
Presidential Records Act Suit Conclusion
Ultimately, the Presidential Records Act controversy shows how consistent, visible compliance with recordkeeping rules reduces the likelihood of scrutiny and softens its impact when it does occur. The costs of inadequate compliance far outweigh the effort required to do it right. Careful records management is not merely a good business practice, it is a protection against avoidable risk. By proactively working towards compliance, records management professionals can spend their time focused on business operations rather than in a courtroom.
Disclaimer: The purpose of this post is to provide general education on information governance software. The statements are informational only and do not constitute legal advice. If you have specific questions regarding the application of the law to your business activities, you should seek the advice of your legal counsel.