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Executive Summary

The public’s right to access information through the Freedom of Information Act (“FOIA”) is critical to holding the federal government accountable. But the FOIA faces threats on numerous fronts: ever-increasing backlogs, heavy-handed political review, and pages painted with black ink. There is another threat that could undermine the FOIA and put much of the federal government in the dark—technology. The increasing integration of new electronic messaging technologies into the workplace is changing the way employees communicate, and the federal government is not keeping pace by preserving records in accordance with federal law and guidance from the National Archives and Records Administration (“NARA”).

In 2014, Congress amended the Federal Records Act (“FRA”) to modernize the definition of a record and cover new forms of communication. The amendments updated the definition of electronic messages to include “electronic mail and other electronic messaging systems that are used for purposes of communicating between individuals.” A few months later, NARA released guidance for management of instant messaging (“IM”) records.

In 2018, Cause of Action Institute (“CoA Institute”) and Americans for Prosperity Foundation (“AFPF”) began investigating dozens of agencies’ IM records management policies and practices. Based on our experience, we suspected that federal agencies were unwilling or unable to properly address the increasing use of IM platforms for government work. We analyze records obtained through FOIA requests to determine whether agencies are using instant messaging and preserving those messages in accordance with the FRA and NARA guidance. We find that many of the forty federal agencies we investigated have inadequate records management policies that fail to properly account for instant messaging.

• Thirteen of the sixteen agencies that produced their policies for the administration of IM in response to our FOIA request do not preserve instant messages as a matter of policy—a violation of federal law and NARA guidance.
• Only three agencies produced records reflecting policies to automatically preserve instant messages using features common in IM platforms.
• Of the twenty agencies that produced their policies for employee use of IM, thirteen allow its use but prohibit employees from creating or sending a record through IM and three ban IM use altogether. Prohibiting IM use to conduct business is contrary to NARA guidance.
• Many agencies have failed to incorporate the 2014 Presidential and Federal Records Act Amendments and subsequent NARA guidance into their records management policies and practices.
• Agencies are shirking their responsibility to manage IM records by prohibiting the use of instant messaging or claiming erroneously that instant messages are insignificant and need not be saved.

While new ways of doing business can strain records management compliance, these technological advancements also provide opportunities for better records management. The tools needed to keep federal agencies compliant with the law already exist.

The IM platforms that agencies are using offer enterprise-level message retention, data loss prevention, and eDiscovery tools. Agencies should embrace IM’s increasing integration and use in the workplace—providing employees with an official IM option for work that is equipped with the necessary features to comply with legal requirements. The Federal Communications Commission, for example, provides its employees with an IM platform called Jabber and keeps logs of all messages and can produce those logs upon receiving a FOIA request.

Both the FRA and FOIA are instrumental to government transparency and accountability. But for these laws to serve their purpose, agencies must implement policies and practices that track advancements in technology and effectively account for how agencies generate and transmit information.

Findings

We analyze agencies’ IM policies and practices across five dimensions. Agencies receive points if they have updated their policies since the 2014 FRA amendments, allow employees to use instant messaging, preserve instant messages, and produce messages upon request.

Scores for agencies are plotted on Figure 1. Agencies with good scores are in the green area and those in the yellow area need to improve their IM practices. Agencies with poor IM policies and practices appear in the red region and those that did not respond to our FOIA requests are listed at the bottom.

Only four agencies receive passing scores: FCC, CIGIE, USDA, and NASA. These agencies all have up-to-date policies and allow IM use, though two maintain policies that IM should not be used to send non-transitory information. Two of the agencies automatically preserve instant messages and the other two enable their employees to do so, which is reflected in their archive settings. All but CIGIE provided us records of instant messages.

Nine agencies need improvement. These agencies allow IM use but fail to properly preserve and produce instant messages. About half (thirteen) of the agencies that responded to our FOIA request have very poor policies regarding IM. These agencies, for the most part, claim to not allow IM use, do not preserve instant messages, and did not produce any messages. Agencies in the red region of Figure 1 are not complying with federal records laws.

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About Us

About Americans for Prosperity Foundation
Americans for Prosperity Foundation is a 501(c)(3) nonprofit organization committed to educating and training Americans to be courageous advocates for the ideas, principles, and policies of a free and open society.

About Cause of Action Institute

Cause of Action Institute is a 501(c)(3) nonprofit, nonpartisan government oversight organization that uses investigative, legal, and communications tools to educate the public on how government accountability, transparency, the rule of law, and principled enforcement of the separation of powers protects liberty and economic opportunity.

About The Authors

Thomas Kimbrell is a Policy Analyst at Americans for Prosperity Foundation, who started as an Investigative Analyst at Cause of Action Institute in 2017. His work currently focuses on government transparency, trade, cronyism and corporate welfare.

James Valvo is Chief Policy Counsel at Americans for Prosperity Foundation. He is also Executive Director of Cause of Action Institute, where he has worked since 2013. Mr. Valvo’s work focuses on the separation of powers, administrative law, and government oversight and transparency. He was a member of the 2016–18 Federal Freedom of Information Act Advisory Counsel.

Kevin Schmidt is Director of Investigations at Americans for Prosperity Foundation. His work focuses on cronyism and corporate welfare, government spending, trade, and immigration. He is also a co-founder and contributor to FOIA Advisor, a forum designed to help the public learn more about the federal Freedom of Information Act.