Chairmen Pallone, Doyle: FCC May Be Violating Federal Records Act

House Commerce Committee Chairman Frank Pallone, Jr. (D-NJ) and Communications Subcommittee Chairman Mike Doyle (D-PA) wrote to Federal Communications Commission Chairman Ajit Pai to request information about its policies on the retention and disposition of electronic communications, including email, text messages, chat and instant messages and social media messages.  The Chairmen are concerned that the FCC may be violating the Federal Records Act (FRA), regulations and guidance, including the Office of Management and Budget (OMB)/National Archives and Records Administration (NARA) 2012 Directive, as well as the Freedom of Information Act (FOIA) and the Administrative Procedures Act.

In recent years, Congress and the Executive Branch have updated laws and policies to reflect the fact that in the 21st century, federal agencies conduct their business almost exclusively using electronic communications and systems. The updates included the OMB/NARA “digital government” Directive, which ordered federal agencies to manage all  email records in an electronic format by the end of 2016.  Congress then amended FRA in 2014 to define a “record” to explicitly include “information created, manipulated, communicated or stored in digital or electronic form,” amongst other changes. Congress also prohibited agency employees from creating or sending records using non-official electronic messaging accounts. "The American public should have confidence that the FCC is properly capturing and archiving its own communications,” wrote Chairmen Pallone and Doyle.