The White House has threatened to veto an already weak bill targeted at preserving electronic records, despite legal action and recommendations from the Government Accountability Office (GAO) on the need for such accountability. On July 9, the House passed the Electronic Communications Preservation Act (H.R. 5811) by a veto-proof margin of 286-137. While targeted at the White House, this legislation will have an impact throughout executive branch agencies.

Under current law, federal agencies have broad discretion to determine how electronic records, such as e-mail, are preserved. This flexibility, however, has led to a number of recent problems, including the loss of e-mails due to poor archival management systems and the use of outside accounts to conduct federal business. The legislation, sponsored by Reps. Henry Waxman (D-CA), William Lacy Clay (D-MO), and Paul Hodes (D-NH), seeks to solve such problems by charging the Archivist of the United States with the responsibility of setting uniform standards for the preservation of electronic records.

The investigation into the leak of CIA operative Valerie Plame's identity first uncovered the loss of White House emails. Citizens for Responsibility and Ethics in Washington (CREW) filed a request under the Freedom of Information Act to discover the extent of the problem, and in May 2007, filed suit against the White House Office of Administration for not complying with the request. The National Security Archive followed with a September 2007 suit against the White House seeking the preservation and restoration of millions of e-mails. Court filings by the White House revealed that the previous administration's electronic recordkeeping system was abandoned without implementing an adequate replacement for years, which resulted in the loss of approximately 10 million e-mail records. On June 16, U.S. District Court Judge Colleen Kollar-Kotelly dismissed CREW's suit, ruling that, despite having responded to FOIA requests for years, the Office of Administration is not an agency and therefore is not subject to FOIA. CREW is appealing the decision.

Also in 2007, a congressional investigation into the firing of eight U.S. attorneys discovered that the White House had used Republican National Committee (RNC) e-mail accounts for some official business. The RNC regularly deletes e-mail from its servers and is not subject to the Federal Records Act. As a result, at least four years of e-mails sent through the RNC from White House senior adviser Karl Rove have been lost. Over the course of administration, approximately 50 White House officials have received such RNC e-mail accounts.

On July 8, the day before the House passed H.R. 5811, the White House issued a Statement of Administration Policy about the bill. The administration argues that H.R. 5811 would create a costly and inefficient recordkeeping system. It suggests that, "Congress should reconsider whether mandating that all government e-mail records be preserved in electronic form is consistent with the greater goals of the Federal Records Act."

The Congressional Budget Office (CBO) has estimated that implementing H.R. 5811 would cost $13 million in 2009 and approximately $155 million over five years. However, it should be noted that the current search and review process for documents kept in paper form is also a costly burden on the government, one that could be reduced with improved management of electronic records.

A number of open government advocates were disappointed in the White House response to the bill. Some noted that the White House reluctance to support the bill would have grave implications for accountability. National Security Archive director Tom Blanton commented, "What is most shocking is that if anyone at the White House was deleting their e-mails during the invasion of Iraq, those e-mails are not on any back-up tapes."

The goal of H.R. 5811 is supported by a June Government Accountability Office (GAO) report, which recommends that the National Archive and Records Administration (NARA) take stronger oversight and enforcement measures to see that electronic records are properly preserved under the Presidential Records Act and the Federal Records Act. The GAO report also criticized the recordkeeping practice used by many agencies, including the Department of Homeland Security, of "print and file" rather than electronic archiving. The report found the paper archiving process to be "unreliable."

While H.R. 5811 takes important steps toward addressing current problems, it also seems to be a continuation of a pattern of making strong plans for better electronic recordkeeping, with little follow through. In 1998, NARA endorsed the Department of Defense (DOD) electronic records management design for software applications (DOD 5015.2-STD), meaning that it officially recommended the DOD records management applications for agency use. Little has been done since to create a standardized system or to promote standing recommendations. The bill grants NARA 18 months to establish minimum functional requirements and software certification.

Patrice McDermott of OpentheGovernment.org stated in testimony to Congress that "the blame in terms of compliance falls most squarely on NARA, which … has a statutory obligation to promulgate standards, procedures, and guidelines."