POGO Joins Letter Calling on Congress to Investigate Whether Federal Records Act Needs Strengthening

Chairman Thomas R. Carper

Senate Committee on Homeland Security and Governmental Affairs

Subcommittee on Federal Financial Management, Government Information, Federal Services, and International Security

432 Russell Senate Office Building

Washington, DC 20510

Ranking Member John McCain

Senate Committee on Homeland Security and Governmental Affairs

Subcommittee on Federal Financial Management, Government Information, Federal Services, and International Security

439 Hart Senate Office Building

Washington, DC 20510

Chairman William Lacy Clay

House Committee on Oversight and Government Reform

Subcommittee on Information Policy, Census and National Archives

B-349C Rayburn House Office Building

Washington, DC 20515

Ranking Member Patrick McHenry

House Committee on Oversight and Government Reform

Subcommittee on Information Policy, Census and National Archives

B-349C Rayburn House Office Building

Washington, DC 20515

Dear Chairman and Ranking Member,

The undersigned organizations concerned with government openness and accountability respectfully request that you hold hearings on the apparent destruction of e-mails in the Department of Justice to determine how the e-mails could be missing despite the requirements of the Federal Records Act (FRA), and if the Act needs further strengthening.

According to a report by the Office of Professional Responsibility on the investigation into the Office of Legal Counsel's memoranda concerning issues relating to the Central Intelligence Agency's use of "enhanced interrogation techniques" on suspected terrorists, investigators reported that their work was "hampered" by the destruction of Mr. Yoo's and Mr. Philbin's emails from around the time the memos were being drafted. Specifically, the report noted investigators were "told most of Yoo's records had been deleted and were not recoverable. [Former Deputy AAG] Philbin's email records from July 2002 through August 5, 2002 – the time period in which the Bybee Memo was completed and the Classified Bybee Memo was created – had also been deleted and were reportedly not recoverable."

The FRA is intended to prevent the loss of records of legal, financial, evidentiary and historical significance by requiring federal agencies to establish a program for the creation and preservation of agency records. Such a program should include effective controls over the records' use and safeguards against their removal or loss. As the business of the government is increasingly conducted over email, the common understanding, supported by case law, is that email falls within the scope of these FRA obligations.

The disappearance of emails that are required to be saved under current law raises serious concerns about government transparency and whether information needed to hold the government accountable is being destroyed before officials, Congress and the public can have access to it. We respectfully urge you to hold hearings to examine the issue, and to consider the need for reforms to the FRA.

Thank you in advance for your attention to this important matter. If you have any questions, or would like to discuss the issue in greater detail, please contact Patrice McDermott, Director of OpenTheGovernment.org ([email protected] or 202-332-6736).

Sincerely,

CC: Chairman Joseph Lieberman, Senate Committee on Homeland Security and Governmental Affairs

Ranking Member Susan Collins, Senate Committee on Homeland Security and Governmental Affairs

Chairman Edolphus Town, House Committee on Oversight and Government Reform

Ranking Member Darrell Issa, House Committee on Oversight and Government Reform

Chairman Patrick Leahy, Senate Judiciary Committee

Ranking Member Jeff Sessions, Senate Judiciary Committee

Chairman John Conyers, House Judiciary Committee

Ranking Member Lamar Smith, House Judiciary Committee