White House Electronic Mail and Federal Recordkeeping Law: Press “D” To Delect History

This Note argues that federal recordkeeping law should promote the preservation of history above all other concerns. First, courts should construe and apply the recordkeeping statutes with this goal in mind. Second, Congress should amend the recordkeeping statutes to correct enforcement deficiencies that leave irresponsible recordkeeping practices unchecked and risk the loss of a historical record of White House decisionmaking. Finally, executive officials should adopt guidelines that identify and preserve historically significant materials regardless of the medium in which they are captured.

Part I of this Note examines the statutes that currently regulate the management and public disclosure of White House information and argues that this existing scheme dictates that the preservation of history should generally prevail over administrative convenience. Next, Part II finds that the enforcement mechanisms available under current recordkeeping law leave the historical record overly vulnerable to irresponsible government recordkeeping practices and concludes that Congress can augment the existing enforcement scheme without offending separation of powers principles. Part III then argues that the regulatory framework should be applied to modem means of communication such as electronic mail because such means are increasingly used to relay historically significant information among government officials. Th.is Note concludes that the overall recordkeeping regime can and should be reshaped through judicial interpretation, legislative revision, and executive guidelines – to ensure that White House recordkeeping practices serve the public interest in historical preservation.