Computer underground Digest Wed Feb 26, 1997 Volume 9 : Issue 12
ISSN 1004-042X
Editor: Jim Thomas (cudigest@sun.soci.niu.edu)
News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu)
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Field Agent Extraordinaire: David Smith
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #9.12 (Wed, Feb 26, 1997)
File 1--PROFS Case: Public Citizen V Carlin 12/23/96
File 2--Cu Digest Header Info (unchanged since 13 Dec, 1996)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
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Date: Sat, 11 Jan 1997 14:53:10 -0500 (EST)
From: Eddie Becker <ebecker@CNI.ORG>
Subject: File 1--PROFS Case: Public Citizen V Carlin 12/23/96
Enclosed please find the legal complaint against the National
Archives and Records Administration (NARA) over the issue
of the electronic retention and retrievability of Federal
Records. At the end of the brief I have appended a
description of the case by Page Putnam Miller, Director of
the National Coordinating Committee for the Promotion of
History.
If you are not on the PROFS Case: mailing list,
send e-mail to ebecker@cni.org
put Join in the Subject line and your name and e-mail
address in the text.
You may also want to check out
http://www.cpsr.org/cpsr/government_info/info_access/PROFS_CASE
and
http://www.citizen.org/public_citizen/litigation/briefs/carlin.html
for past postings. Eddie Becker ebecker@cni.org
________________________________________________________________
Public Citizen v. Carlin: Complaint Challenging GRS 20
Submitted 12/23/96 Judge: Charles R. Richey Case # 1:96CV02840
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________________________________
PUBLIC CITIZEN, INC.
1600 20th Street, NW
Washington, DC 20009,
AMERICAN HISTORICAL ASSOCIATION
400 A Street, S.E.
Washington DC 20003,
AMERICAN LIBRARY ASSOCIATION
50 East Huron Street
Chicago, Illinois 60611,
CENTER FOR NATIONAL SECURITY STUDIES
2130 H Street, N.W., Suite 701
Washington, DC 20037,
NATIONAL SECURITY ARCHIVE
Gelman Library, Suite 701
The George Washington University
2130 H Street, NW
Washington DC 20037,
ORGANIZATION OF AMERICAN HISTORIANS
112 North Bryan Street
Bloomington, IN 47408-4199,
SCOTT ARMSTRONG
2620 Quebec Street, N.W.
Washington DC 20008,
and
EDDIE BECKER
1844 Mintwood Place, N.W.
Washington DC 20009,
Plaintiffs,
v.
JOHN CARLIN, in his official
capacity as Archivist of
the United States,
7th and Pennsylvania Avenue, N.W.
Washington DC 20408,
EXECUTIVE OFFICE OF THE PRESIDENT,
725 17th Street, N.W.
Washington, D.C. 20503,
OFFICE OF ADMINISTRATION
725 17th Street, N.W.
Washington, D.C. 20503,
and
OFFICE OF THE UNITED STATES
TRADE REPRESENTATIVE
600 17th Street, N.W.
Washington, D.C. 20506,
Defendants.
_________________________________________________________________
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
This action challenges the Archivist's promulgation of a "General
Records Schedule" authorizing all federal agencies, at their
discretion, to destroy the only electronic version of Federal
agency records stored on agency electronic mail and word
processing systems provided the agency has printed a hard copy of
the electronic record on paper or microform. Plaintiffs charge
that by promulgating the General Records Schedule the Archivist
has improperly ignored the unique value of electronic records, has
abdicated his statutory responsibility to appraise the historical
value of such electronic records, and has unlawfully attempted to
use General Records Schedule to authorize the destruction of
records concerning individual agency programs without the public
notice and comment required by law.
This action presents an issue first raised by defendants in
Armstrong v. Executive Office of the President, C.A. No. 89-142,
in 1989 when the predecessor to the current Archivist argued, in
the alternative, that the General Records Schedules authorized the
destruction of electronic mail records of the Executive Office of
the President at issue in that litigation. The issue was not
decided in that case because, after the General Records Schedule
claim was challenged, the Archivist and other defendants abandoned
any reliance on it. On August 28, 1995, however, this claim
reappeared when the Archivist promulgated a General Records
Schedule purporting to authorize destruction of electronic mail
and word processing records at all federal agencies if a hard copy
of the record had been created on paper or microform. On or about
December 17, 1996, the Archivist endorsed the Executive Office of
the President's decision to rely on this revised General Records
Schedule to dispose of electronic records, including certain
electronic records of the Office of the United States Trade
Representative that were preserved pursuant to the injunctions
entered in Armstrong v. Executive Office of the President.
This action arises under the Disposal of Records Act, 44 U.S.C.
Secs. 3301-3314, and the Administrative Procedure Act, 5 U.S.C.
Sec. 706.
This Court has jurisdiction pursuant to 28 U.S.C. Sec. 1331.
_____________________________________________________________
PARTIES
. Plaintiff Public Citizen, Inc. ("Public Citizen") is a national
nonprofit corporation and membership organization with
approximately 100,000 members which, among other activities,
conducts research and educational programs on government
regulatory and information policies. Public Citizen makes
extensive use United States government records, including records
held by the National Archives and Records Administration ("NARA"),
units of the Executive Office of the President, the Department of
Justice, the Department of State, and other federal agencies.
Public Citizen intends to make use of records created in
electronic form by units of the Executive Office of the President,
the Department of Justice, the Department of State, and other
federal agencies.
. Plaintiff American Historical Association is the oldest and
largest association of historians in this country. It was founded
in 1884 and incorporated by the Congress in 1889 for the promotion
of historical studies, the collection and preservation of
historical manuscripts, and the dissemination of historical
research. It is a non-profit association, with a membership of
approximately 15,000 historians. It brings this action on behalf
of itself and its members, many of whom use records made available
to the public through the Freedom of Information Act or at
facilities operated by NARA. The Association and its members have
a strong interest in ensuring that historically important
government electronic records are preserved and, where
appropriate, are available for use by researchers and historians
in electronic format.
Plaintiff American Library Association, founded in 1876, is the
world's oldest and largest library association. It is a non-profit
educational association of approximately 58,000 members, including
libraries, archives, librarians, library trustees, and library
users. Part of the Association's mission is to enhance learning
and ensure access to information for all. It brings this action on
behalf of itself and its members, who have a direct interest in
ensuring that historically important government electronic records
are preserved and, where appropriate, are preserved and made
available to libraries, librarians, and the public, in electronic
format.
Plaintiff Center for National Security Studies is a non-profit
public interest scholarly research institute. It is organized and
operated as a project of the Fund for Peace, Inc., a New York
non-profit corporation. The Center for National Security Studies
makes extensive use of United States government records,
especially on national security issues, and makes such records
available to scholars, journalists, and other interested persons
as part of its program of public education. The Center for
National Security Studies intends to use records created in
electronic form by units of the Executive Office of the President,
the Department of State, and other federal agencies for its
research and public education activities and has an interest in
ensuring that, where appropriate, such records are preserved and
available for research in electronic form.
Plaintiff National Security Archive is a non-profit public interest
research institute and library. It is organized and operated as a
project of the Fund for Peace, Inc., a New York non-profit
corporation. The National Security Archive collects, catalogues,
indexes, and publishes declassified and unclassified government
documentation on national security and foreign affairs policy,
practices, and activities, and it makes such records available to
historians, researchers, and individuals throughout the country.
Through its research and publication activities, the National
Security Archive intends to use, and to make available to
historians, journalists and researchers, records on national
security issues created in electronic form by units of the
Executive Office of the President, the Department of State, and
other federal agencies, and has a direct interest in ensuring
that, where appropriate, these records are available for research
and dissemination in electronic format.
Plaintiff Organization of American Historians was founded as the
Mississippi Valley Historical Association in 1907. It is today the
largest association devoted to research and teaching on the
history of the United States. Its 12,000 members are drawn from
colleges and universities, historical societies, museums,
elementary and secondary schools, and other institutions. The
Organization is committed to ensuring access to, and preservation
of, records which are basic to understanding American history. The
Organization of American Historians brings this action on behalf
of itself and its members, many of who will use historically
significant government agency records in their research and
historical work, and have direct interest in ensuring that, where
appropriate, such records will be preserved for researchers and
historians in electronic format.
Plaintiff Scott Armstrong is a journalist, author, foreign policy
researcher, and founder of the National Security Archive. He makes
extensive use of records about United States government operations
that are made available to the public through the Freedom of
Information Act or at NARA facilities. He intends to use records
created in electronic form by units of the Executive Office of the
President, the Department of Justice, the Department of State, and
other federal agencies, and has a direct interest in ensuring
that, where appropriate, historically significant electronic
records are preserved and retained by NARA in electronic form.
Plaintiff Eddie Becker is a professional researcher specializing in
documentary reconstruction of historical events, with a particular
expertise in computerized information. He is employed by
documentary filmmakers, scholars, and journalists. He makes
extensive use of NARA facilities to obtain access to information
about historical events, and he wishes to use records created in
electronic form by government agencies in electronic format.
Defendant John J. Carlin is the Archivist of the United States, and
is sued solely in his official capacity. As Archivist, Mr. Carlin
is responsible for the supervision and direction of NARA. 44
U.S.C. Sec. 2102. The Archivist's duties include authorizing the
disposal of records of federal agencies after a specified period
of time through the approval of schedules submitted to him by
individual agencies, or by promulgating General Records Schedules.
Defendant Executive Office of the President ("EOP") is an agency of
the United States which supervises and coordinates the activities
of various component agencies that provide support to the
President of the United States. These components include the
Office of Science and Technology, the Office of the United States
Trade Representative, the Office of Management and Budget, and the
Office of Administration. Records disposition schedules for EOP
components, including the Office of Science and Technology and the
Office of the United States Trade Representative, are submitted in
the name of the EOP.
Defendant Office of Administration is a component agency of the EOP
which, inter alia, promulgates guidelines and directives on the
retention, management, and disposition of agency records by the
EOP. Records disposition schedules and directives for the Office
of the United States Trade Representative, the Office of Science
and Technology, and other EOP components are prepared and issued
by the Records Management Office of the Office of Administration.
Defendant Office of the United States Trade Representative ("USTR"),
is a component agency of the EOP which, inter alia, is responsible
for administering trade agreements, coordinating trade policy, and
setting and administering overall trade policy. It has custody and
control of word processing and electronic mail records created by
USTR staff using the USTR Data General Computer System.
_____________________________________________________________
STATUTORY FRAMEWORK
The Disposal of Records Act, 44 U.S.C. Sec. 3301-3314, provides that
agency records may not be disposed of without the authorization of
the Archivist of the United States.
The requirements of the Disposal of Records Act apply to all agency
records, regardless of physical form or characteristics, including
records created, received or stored in electronic format. 44
U.S.C. Sec. 3301.
The disposal of most agency records is authorized by agency
disposition schedules in which agencies submit to the Archivist
for approval lists or schedules proposing the disposal of specific
agency records after the lapse of specified periods of time
pursuant to 44 U.S.C. Sec. 3303a(a). Authorization to dispose of
records through such agency disposition schedules requires:
(a) That the agency responsible for the records prepare a schedule
describing the records and certify that the records do not or will
not have sufficient administrative, legal, or financial value to
the agency to warrant retention beyond the expiration of the
specified period;
(b) That notice of the agency proposal to dispose of records be
published in the Federal Register, and interested persons are
given an opportunity to comment on the proposal. 44 U.S.C. Sec.
3303a(a).
(c) That the Archivist independently appraises the records and
concurs in the agency's determination that the records do not, or
will not, after the lapse of the period specified, have sufficient
administrative, legal, research, or other value to warrant their
continued preservation. 44 U.S.C. Secs. 3303(3), 3303a(a), 36
C.F.R. Secs. 1228.26, 1228.30.
Agency disposition schedules are not required where the Archivist
authorizes disposal through "General Records Schedule." 36 C.F.R.
Sec. 1228.40. The Disposal of Records Act authorizes the Archivist
to promulgate General Records Schedules authorizing the disposal
of records common to several or all agencies after specified
periods of time if such records will not, at the end of the
specified periods specified, have sufficient administrative,
legal, research or other value to warrant their further
preservation. 44 U.S.C. Sec. 3303a.
Federal agencies are required to destroy records in accordance with
the disposition instructions in the General Records Schedules
unless they specifically request and obtain an exception from the
Archivist. 44 U.S.C. 3303a(b); 36 C.F.R. 1228.42(b). The
provisions of the General Records Schedules may also be applied to
agency records in the custody of NARA at NARA's discretion. 36
C.F.R. Sec. 1228.42(c).
Authorizing the disposal of agency records by a General Records
Schedule
(a) Allows the records to be destroyed without the agency
preparing a schedule describing the records and certifying that
the records the records do not, or will not, warrant retention:
(b) Eliminates the public's right to notice and comment on the
disposal of records of a particular agency pursuant to 44 U.S.C.
Sec. 3303a(a); and
(c) Allows the records to be destroyed without the Archivist
independently appraising the value of the records.
_____________________________________________________________
FACTS GIVING RISE TO PLAINTIFFS' CLAIM FOR RELIEF
Agency Electronic Mail and Word Processing Records
Nearly all federal agencies now use electronic mail and word
processing systems to transact government business.
The electronic mail and word processing systems used by government
agencies store, in electronic format, agency "records" as defined
in 44 U.S.C. Sec. 3301.
The agency records stored in agency electronic mail and word
processing systems include records that document the unique,
substantive functions for which each agency is responsible,
including substantive information on the organization, functions,
policies, decisions, procedures, operations, and other activities
of an agency that uses the system.
Records in electronic format have advantages over records recorded
on paper or microform because the records and the information that
they contain can be searched, manipulated and stored in ways that
paper or microform records cannot. Among other advantages, (a)
records stored in electronic format may be more accessible to and
useful to researchers and historians than identical records in
paper or microform format; and (b) records stored in electronic
format may have unique data or information that is not preserved
when the record is converted to paper or microform format.
The unique properties of records stored in electronic format affect
the administrative, legal, research or other value of the records
and may make records in electronic format more valuable than
identical records in paper or microform format.
The Archivist is responsible for ensuring that the records created,
received and stored by agencies using word processing and
electronic mail systems are not destroyed unless the records do
not have sufficient administrative, legal, research, or other
value to warrant their continued preservation by the Government.
This responsibility includes considering whether the records have
sufficient administrative, legal research, or other value to
researchers, historians, or other persons outside the agency to
warrant their continued preservation by the Government.
_____________________________________________________________
Revised General Records Schedule 20
In 1989, in Armstrong v. Executive Office of the President, C.A. No.
89-142, defendants, including the Archivist of the United States
at that time, Don W. Wilson, asserted that, even if the electronic
mail and other records of the EOP at issue in that litigation
could be deemed to be a "record" under 44 U.S.C. Sec. 3301,
General Records Schedules 20 and 23 authorized the destruction of
all of the types of data found on the EOP systems at issue.
Plaintiffs in that action alleged that General Records Schedules
20 and 23 are unlawful and arbitrary and capricious to the extent
that they authorized, or were construed by defendants to
authorize, the regular destruction of unique information on the
electronic mail system at issue having administrative, legal,
research or historical value which warrant preservation of the
information. This dispute concerning the General Records Schedule
was not decided in Armstrong v. Executive Office of the President,
C.A. No. 89-142, because by 1993 defendants acknowledged that
neither the EOP nor the National Security Council relied on
General Records Schedule 23 as authorization for deleting
information from their respective computer systems or routinely
destroying backup tapes of information stored on the PROFS
systems. Armstrong v. Executive Office of the President, 810 F.
Supp. 335, 342 (D.D.C. 1993).
In response to the 1993 ruling against the Archivist in Armstrong v.
Executive Office of the President, 1 F.3d 1274 (D.C. Cir. 1993),
NARA sought to expand the coverage of General Records Schedules
for electronic mail messages.
On October 7, 1994, the Acting Archivist, Trudy Peterson, proposed a
new version of General Records Schedule 20 that would, among other
things, explicitly authorize all federal agencies to destroy
agency records stored on word processing and electronic mail
systems if the records have been converted to paper or microform
for recordkeeping purposes and the agency no longer needs the
electronic version of the record. The Acting Archivist requested
public comment on the proposal.
All of the comments submitted in response to the Acting Archivist's
proposal from the public, professional organizations and state
archivists were critical of the proposal because the commenters
believed that the proposed General Records Schedule would result
in the destruction of valuable Federal records. The only entities
to submit comments in favor of the proposal were Federal agencies.
Despite the comments opposing the proposal, the Acting Archivist's
proposal was adopted, with little modification, by the current
Archivist, John J. Carlin, and on August 28, 1996, the Archivist
promulgated revised General Records Schedule 20 by publishing a
notice in the Federal Register. 60 Fed. Reg. 44643 (1995).
Item 13 of revised General Records Schedule authorizes agencies to
delete the only electronic version of agency word processing
records after the records have been copied to paper or microform
for recordkeeping purposes and the agency no longer needs the
electronic record for updating or revision.
Item 14 of revised General Records Schedule authorizes agencies to
delete the only electronic version of agency records stored on
electronic mail systems after the records have been copied to
paper or microform for recordkeeping purposes.
The Disposal of Records Act requires that, in order to promulgate a
General Records Schedule, the Archivist must determine that the
records covered by the schedule will not, at the end of the
periods specified, have sufficient administrative, legal,
research, or other value to warrant their further preservation by
the United States Government. 44 U.S.C. Sec. 3303a(d).
In promulgating revised General Records Schedule 20, the Archivist
did not make a determination that all the electronic mail and word
processing records covered by the schedule will not, at the time
the Schedule authorizes destruction of these records, have
sufficient administrative, legal, research, or other value to
warrant their further preservation by the Government.
In revised General Records Schedule 20, the Archivist leaves it to
agencies to decide whether word processing and electronic mail
records stored in electronic format have sufficient value that
they should be maintained in electronic format for recordkeeping
purposes. In making this decision, agencies are under no
obligation to consider whether the administrative, legal, research
or other value of the electronic records to those outside the
agency warrants their further preservation by the Government.
NARA manuals and guidance documents state that General Records
Schedules should be applied only to administrative records common
to most or all agencies, rather than program records.
"Administrative records" are records relating to budget,
personnel, supply, and similar housekeeping or facilitative
functions common to most agencies. "Program records" are records
documenting the unique, substantive functions for which an agency
is responsible.
Revised General Records Schedule 20 does not limit its provisions
concerning word processing and electronic mail records to
administrative records. Items 13 and 14 of General Records
Schedule 20 also apply to the electronic version of program
records documenting the unique, substantive functions for which
the agency that created the records is responsible.
Revised General Records Schedule 20 applies to word processing and
electronic mail records of all agencies, regardless of the
importance of an agency's mission or the legal, research or
historical value of the records created and received by personnel
of a particular agency on word processing and electronic mail
systems.
The revised General Records Schedule does not specify the period or
periods of time after which disposal of electronic records is
authorized and, instead, provides that records shall be deleted at
some unspecified time to be determined by the agency.
_____________________________________________________________
Destruction of Agency Electronic Records
Under Revised General Records Schedule 20
EOP Electronic Records
USTR has computer tapes containing word processing records that were
retained and preserved to comply with injunctions entered in
Armstrong v. Executive Office of the President, C.A. No. 89-142.
These tapes contain the only electronic version of agency records
with substantive information on the organization, functions,
policies, decisions, procedures, operations, and other activities
of the agency from 1986 through 1992.
USTR also has custody of word processing documents, including
letters, messages, memoranda, reports, directives, and related
drafts, recorded by USTR officials in electronic format from 1993
to the present using the USTR computer systems.
The EOP submitted a statement to the Archivist, attached to a
proposed records disposition schedule, which states that USTR
intends to rely on revised General Records Schedule 20 to dispose
of USTR word processing records in electronic format, including
word processing records that were preserved to comply with
injunctions entered in Armstrong v. Executive Office of the
President, C.A. No. 89-142. On or about December 17, 1996, the
Archivist approved the USTR disposition schedule to which this
statement was attached.
The EOP submitted a statement to the Archivist, attached to a
proposed records disposition schedule, which states that the
Office of Science and Technology Policy ("OSTP") also intends to
rely on revised General Records Schedule 20 to dispose of
electronic word processing records created by OSTP officials. On
or about December 17, 1996, the Archivist approved the USTR
disposition schedule to which this statement was attached.
The statements proposing to destroy USTR and OSTP electronic records
in reliance on General Records Schedule 20 were submitted by the
Records Management Office of the Office of Administration in the
name of the EOP.
The USTR and OSTP electronic records that the EOP has proposed to
destroy based on General Records Schedule 20 include program
records containing substantive information on the organization,
functions, policies, decisions, procedures, operations, and other
activities of these agencies.
The USTR and OSTP electronic records that the EOP has proposed to
destroy based on General Records Schedule 20 include records that
should not be destroyed because they have sufficient
administrative, legal, research or other value to warrant their
continued preservation by the Government in electronic format.
_____________________________________________________________
Cabinet Department Electronic Records
Cabinet-level agencies that create records that are particularly
valuable to plaintiffs and other researchers and historians,
including the Departments of Justice, State and Defense, use word
processing and electronic mail systems to create, receive, and
store agency records containing substantive information on the
organization, functions, policies, decisions, procedures,
operations, and other activities of these agencies.
The word processing and electronic mail records of the Departments
of Justice, State, and Defense are not preserved in electronic
format as each of these agencies instructs its personnel that the
electronic version of records may be deleted if a copy has been
printed on paper and placed in the agency's files.
_____________________________________________________________
Plaintiffs' Injury
Pursuant to the Disposal of Records Act, plaintiffs have the right
to notice and the opportunity to comment on proposals by EOP
agencies and Cabinet agencies to destroy particular series of
agency records, including agency word processing and electronic
mail records in electronic format, and the right to try to
convince the Archivist that such records should not be destroyed
because they have sufficient administrative, legal, research or
other value to warrant their continued preservation.
If agencies are permitted to destroy word processing and electronic
mail records pursuant to General Records Schedule 20, plaintiffs
will be denied their right to notice and an opportunity to comment
on the destruction of such records, and will be denied the benefit
of the Archivist's independent appraisal of whether the records
have sufficient administrative, legal, research or other value to
warrant their continued preservation.
Pursuant to the Freedom of Information Act, 5 U.S.C. Sec. 552, and
the National Archives and Records Administration Act, 44 U.S.C.
Secs. 2101-11, plaintiffs have a right of access to agency records
that have been, or will in the future be, recorded on agency
electronic mail or word processing systems of federal agencies,
including the Office of the United States Trade Representative,
the Office of Science and Technology Policy, the Departments of
Justice, State, and Defense, except to the extent that such
records are exempt from disclosure by law. While the agency
records are in the custody of the agencies, the information which
constitutes "agency records" is subject to disclosure by the
agency under the Freedom of Information Act unless it is covered
by one of the specific statutory exceptions. 5 U.S.C. Sec. 552.
Once the records are no longer needed by the agencies, those
agency records having permanent historical value are transferred
to the Archives for preservation. 44 U.S.C. Sec. 2107. The
Archivist must make such transferred records available to the
public, unless they are exempt from examination by statute or
other restriction. 44 U.S.C. Secs. 2108, 2110.
Plaintiffs' right of access to agency records under the Freedom of
Information Act includes the right to request that records be made
available in electronic format where the records are readily
reproducible by the agency in that format. See P.L. 104-231, Sec.
5.
Plaintiffs intend to exercise their rights to seek access to agency
records recorded on electronic mail and word processing systems,
but will be unable to access the records in electronic format if
agencies are permitted to destroy such information pursuant to
revised General Records Schedule 20.
_____________________________________________________________
FIRST CLAIM FOR RELIEF
(General Records Schedule 20)
Revised General Records Schedule 20 is contrary to law because it
authorizes agencies to destroy the only copy of word processing
and electronic mail records in electronic format without a
determination by the Archivist that the records will not, at the
time that destruction of the records is authorized, have
sufficient administrative, legal, research, or other value to
warrant their further preservation.
Revised General Records Schedule 20 is arbitrary and capricious
because any determination that all of the word processing and
electronic mail records of all federal agencies will not, at the
time destruction of the records is authorized, have sufficient
administrative, legal, research or other value to warrant their
further preservation would be arbitrary and capricious.
Revised General Records Schedule 20 is contrary to law and arbitrary
and capricious because the Archivist has abdicated his
responsibility to determine whether records in electronic format
have sufficient administrative, legal, research or other value to
warrant their further preservation in electronic format, and has
unlawfully delegated decisions concerning whether records in
electronic format should be retained to the agencies with custody
over the records. Furthermore, the Archivist has authorized
agencies to determine whether records in electronic format should
be destroyed based entirely on the agencies' own wishes, without
any consideration of the legal, research or other value of the
records to those outside the agency.
Revised General Records Schedule 20 is contrary to law because it is
not limited to records that are common to several or all federal
agencies but, instead, authorizes the destruction of word
processing and electronic mail records that contain information on
the particular functions, policies, decisions, procedures,
operations, and other activities of the agencies that created or
received the records.
Revised General Records Schedule 20 is arbitrary and capricious
because it is inconsistent with NARA's position that General
Records Schedules should only be applied to administrative records
of federal agencies, and should not be applied to program records
documenting the unique, substantive functions for which an agency
is responsible.
Revised General Records Schedule 20 is contrary to law because it
does not provide for disposal of records after the lapse of a
specified period of time, as required by 44 U.S.C. Sec. 3303a(d),
but authorizes destruction of records without specifying any
particular time.
Revised General Records Schedule 20 is contrary to law because the
electronic version of word processing and electronic mail records
may contain unique information of administrative, legal, research
and historical value that is not recorded in paper or microform
copies of the records, and will be permanently lost if the
electronic version of the records is destroyed.
Plaintiffs' rights to notice and the opportunity to comment on the
proposed destruction of agency records, and plaintiffs' rights of
access to agency records will be irreparably harmed if agencies
are permitted to destroy electronic mail and word processing
records in reliance on General Records Schedule 20.
_____________________________________________________________
SECOND CLAIM FOR RELIEF
(Destruction of USTR Word Processing Records)
The disposal of word processing records created by the USTR from
1986 through 1992 and stored on backup tapes preserved pursuant to
the injunction in Armstrong v. Executive Office of the President,
C.A. No. 89-142, pursuant to revised General Records Schedule 20
is unlawful because revised General Records Schedule 20 is
inconsistent with the Disposal of Records Act and is arbitrary and
capricious.
The disposal of word processing records created by the USTR from
1986 through 1992 and stored on backup tapes preserved pursuant to
the injunction in Armstrong v. Executive Office of the President,
C.A. No. 89-142, based on revised General Records Schedule 20 is
unlawful because these records contain unique information of
administrative, legal, research and historical value that is not
recorded in paper or microform copies of the records, and will be
permanently lost if the tapes are destroyed.
The disposal of word processing records created by the USTR from
1986 through 1992 and stored on backup tapes preserved pursuant to
the injunction in Armstrong v. Executive Office of the President,
C.A. No. 89-142, based on revised General Records Schedule 20 is
unlawful because these records were not copied in accordance with
the requirements set forth in revised General Records Schedule.
Plaintiffs' rights of access to the word processing records created
by the USTR from 1986 through 1992 and stored on backup tapes
preserved pursuant to the injunction in Armstrong v. Executive
Office of the President, C.A. No. 89-142, will be irreparably
harmed if the records are destroyed in reliance on General Records
Schedule 20.
_________________________________________________________________
PRAYER FOR RELIEF
WHEREFORE, plaintiffs pray that this Court enter a judgment and order:
Declaring that General Records Schedule 20 are null and void;
Enjoining the defendant Archivist from taking any steps to implement
General Records Schedule 20;
Enjoining the defendant agencies EOP, Office of Administration, and
USTR from destroying electronic records created, received or
stored on electronic mail or word processing systems pursuant to
General Records Schedule 20;
Awarding plaintiffs their costs and a reasonable attorney's fee; and
Granting such other and additional relief as the Court may deem just
and proper.
_________________________________________________________________
Respectfully submitted,
Michael Tankersley and Alan B. Morrison, Attorneys for Plaintiffs
PUBLIC CITIZEN LITIGATION GROUP
1600 20th Street, NW
Washington, DC 20009 Dated: December 23, 1996
__________________________________________________
2)
Date-- Sat, 28 Dec 1996 14:11:26 -0600
From-- H-DIPLO <hdiplo@ouvaxa.cats.ohiou.edu>
Subject--NCC Washington Update, v. 2, #43, 12/27/96
NCC Washington Update, vol. 2, #43, December 27, 1996
by Page Putnam Miller, Director of the National Coordinating
Committee for the Promotion of History <pagem@capaccess.org>
Public Citizen, Historians, and Librarians File Suit Against The
Archives Challenging Policies that Allow Destruction of Electronic Records
-- On December 23 Public Citizen, joined by the American Historical
Association, the Organization of American Historians, and the American
Library Association, filed a complaint against the National Archives in
the United States District Court for the District of Columbia. The suit
challenges the Archivist's promulgation of a "General Records Schedule"
authorizing all federal agencies, at their discretion, to destroy the
only electronic version of Federal agency records stored on agency
electronic mail and word processing systems provided the agency has
printed a hard copy of the electronic record on paper of microform.
The complaint states that the Archivist has "improperly ignored the unique
value of electronic records" and "has abdicated his statutory
responsibility to appraise the historical value of such electronic
records." The complaint asks the court to declare the General Records
Schedule 20 null and void and to prevent agencies from destroying
electronic records created, received or stored on electronic mail or word
processing systems pursuant to General Records Schedule 20.
This new lawsuit builds on the Armstrong v. Executive Office of the
President (Civil Action No. 89-0142). The inadequacy of National Archives
guidance to agencies on the preservation of e-mail was at the heart of
that case, frequently called the PROFS case. In 1989 the National
Security Council, as well as other agencies, routinely destroyed e-mail,
which according to the National Archives did not meet the standard of a
"record" which must by definition be appraised for retention or
destruction. Various court orders in the PROFS case led on August 25,
1995 to the announcement by U.S. Archivist John Carlin of final
regulations on managing records created or received on electronic mail
systems and to the issuing of the revised General Records Schedule 20,
which provides guidance to federal agencies about the kinds of records
that may be destroyed and those that must be preserved. In general
practice before a government agency may destroy its records, it must give
public notice and the Archivist must appraise the records to determine
whether they warrant continued preservation. The "General Records
Schedule," however, lists categories of records which agencies may destroy
without notice or appraisal if the agency determines that such records
"are no longer needed for administrative, legal, audit, or other
operational purposes."
Many in the historical and archival community commented on this schedule
prior to its adoption and stressed that the National Archives was
abdicating its role in appraising records with these regulations. There
are values to records that go beyond their administration and operational
use and agencies are sometimes shortsighted in apprising the long term and
historical value of records. The regulations give enormous authority to
agency heads. The "General Records Schedule" raises issues of both what
constitutes a federal record and what are the parameters of the
Archivist's authority. Additionally, with the changes in technology some
archivists are now recommending that information systems be appraised, not
just individual records. The National Archives, however, did not use the
opportunity of the revision of the "General Records Schedule 20" to adopt
a more forward looking approach to appraisal.
The reasons that the issue of the inadequacy of NARA's guidance was not
resolved as part of the PROFS case are complex. Judge Charles Richey was
unhappy in 1995 that he still had a case on his docket that began in 1989,
and he urged the lawyers for the government and the plaintiffs to work
together on guidance with which both sides could live. There was much
negotiation on the guidance. From the plaintiffs' point of view there was
some refinement, but not enough. However, the plaintiffs realized that
Judge Richey didn't want to prolong this case. Also they knew that a
stronger case could be made against the General Records Schedule once it
was put into effect and the pending destruction of some specific records
could be challenged.
At particular issue in this new case is the Archivist's authorization of a
proposed records disposition schedule from the Office of the United States
Trade Representative and the Office of Science and Technology Policy which
rely on the revised General Records Schedule 20 and which call for the
destruction of electronic record that the plaintiffs' view as having
substantive information on the organization, functions, policies,
decisions, procedures, and operations of the agencies.
* * * * * * * * * * * * * * * ** * * * * * * * * * * * * * * * * *
NCC invites you to redistribute the NCC Washington Updates.
A complete backfile of these reports is maintained by H-Net.
See World Wide Web: http://h-net.msu.edu/~ncc/
------------------------------
Date: Thu, 15 Dec 1996 22:51:01 CST
From: CuD Moderators <cudigest@sun.soci.niu.edu>
Subject: File 2--Cu Digest Header Info (unchanged since 13 Dec, 1996)
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