1 <ONLINE MODERN HISTORY REVIEW>, May 1993
2 ========================================
3
4 Charles R. Richey
5
6
7 Opinion: Civil Action No. 89-142 (CRR), Scott
8 Armstrong et. al. v. Executive Office of the
9 President, et. al. -- Preservation of
10 Electronic Messages
11
12
13 =================================================
14
15 UNITED STATES DISTRICT COURT
16 FOR THE DISTRICT OF COLUMBIA
17
18
19 ============================
20 Scott Armstrong, <et al.>,
21
22 Plaintiffs,
23
24 v. Civil Action No. 89-142 (CRR)
25
26 Executive Office of the
27 President, <et. al.>,
28
29 Defendants
30 ============================
31
32 <Appearances>
33
34 <Plaintiffs>: Michael E. Tankersley, Public Citizen Litigation
35 Group, with Alan B. Morrison, Public Citizen Litigation Group,
36 Washington, D.C. were on the briefs.
37
38 <Defendants>: Jason Baron, Attorney, United States Department of
39 Justice, Civil Division, Washington, D.C., with whom Stuart M.
40 Gerson, Assistant Attorney General; Jay B. Stephens, United
41 States Attorney for the District of Columbia; and David J.
42 Anderson, Elizabeth A. Pugh, Peter D. Coffman, and Stephen G.
43 Harvey, Attorneys, United States Department of Justice, Civil
44 Division, Washington, D.C. were on the briefs.
45
46
47 TABLE OF CONTENTS
48
49 I. INTRODUCTION
50
51 II. DISCUSSION
52
53 A. THE STATUTORY COMMAND FROM 1943 THROUGH THE
54 LAST AMENDMENT BY CONGRESS IN 1984 SHOWS A
55 CLEAR LEGISLATIVE PURPOSE THAT RECORDS OF
56 HISTORICAL VALUE INVOLVING THE PUBLIC
57 REGARDLESS OF PHYSICAL FORM, SHALL BE
58 PRESERVED, PARTICULARLY WHERE SUCH MATERIAL
59 REFLECTS THE FUNCTION, POLICIES, DECISIONS,
60 PROCEDURES, OPERATIONS OR OTHER ACTIVITIES OF
61 THE GOVERNMENT OR BECAUSE OF THEIR
62 INFORMATIONAL VALUE.
63
64 B. THE INFORMATION ON THE DEFENDANTS' PROF,
65 OASIS AND A-1 SYSTEMS IS SUBJECT TO THE FRA
66 BECAUSE IT MEETS THE STATUTORY DEFINITION OF
67 A RECORD.
68
69 C. THE ELECTRONIC MATERIAL CREATED OR STORED ON
70 DEFENDANTS' PROFS, OASIS AND A-1 SYSTEMS
71 CONTAIN INFORMATION THAT IS NOT REPRODUCED ON
72 ANY PAPER COPIES. THEREFORE, PRINTING THE
73 SUBSTANCE OF THESE MATERIALS IN PAPER FORM
74 DOES NOT SATISFY THE REQUIREMENTS OF THE FRA
75 AS IT DOES NOT SHOW WHO HAS RECEIVED THE
76 INFORMATION AND WHEN.
77
78 D. THE DEFENDANTS' RECORD KEEPING PROCEDURES ARE
79 ARBITRARY AND CAPRICIOUS BECAUSE THERE IS NO
80 ADEQUATE MANAGEMENT PROGRAM OR SUPERVISION BY
81 RECORD KEEPING PERSONNEL OF THE STAFF'S
82 DETERMINATION OF RECORD OR NON-RECORD STATUS
83 OF COMPUTER MATERIAL.
84
85 E. THE EOP'S RECORD KEEPING GUIDELINES ARE
86 ARBITRARY AND CAPRICIOUS BECAUSE THE
87 GUIDELINES DO NOT PROVIDE SUFFICIENT GUIDANCE
88 TO DETERMINE WHAT IS A FEDERAL RECORD THAT
89 MUST BE PRESERVED AND THEY ALSO PERMIT THE
90 DESTRUCTION OF FEDERAL RECORDS.
91
92 F. THE NSC'S RECORD KEEPING GUIDELINES AT THE
93 TIME THIS SUIT WAS FILED WERE ARBITRARY AND
94 CAPRICIOUS BECAUSE THE GUIDELINES DID NOT
95 PROVIDE SUFFICIENT GUIDANCE TO DETERMINE WHAT
96 WAS A FEDERAL RECORD THAT MUST BE PRESERVED
97 AND TO DETERMINE THE DIFFERENCE BETWEEN
98 FEDERAL RECORDS, PRESIDENTIAL RECORDS AND NOW
99 RECORD MATERIAL.
100
101 G. THE COURT SHALL REMAND THIS CASE TO THE
102 ARCHIVIST FOR IMMEDIATE REMEDIAL ACTION UNDER
103 THE FRA TO PREVENT THE DESTRUCTION OF FEDERAL
104 RECORDS.
105
106 H. THIS COURT HAS JURISDICTION TO ORDER THE
107 PRESERVATION OF THE DEFENDANTS' ELECTRONIC
108 RECORDS UNTIL THE ARCHIVIST CAN TAKE
109 APPROPRIATE ACTION REQUIRED BY II(G) ABOVE.
110 HOWEVER, THE COURT CANNOT ORDER THE
111 PRESERVATION OF RECORDS CREATED BY EOP
112 COMPONENTS WHOSE SOLE RESPONSIBILITY IS TO
113 ADVISE THE PRESIDENT BECAUSE THERE IS NO
114 JUDICIAL REVIEW OF THE PRA.
115
116
117
118
119 <OPINION OF CHARLES R. RICHEY>
120 <UNITED STATES DISTRICT JUDGE>
121
122 I. INTRODUCTION
123
124
125 This case is before the Court on the merits of the
126 Plaintiffs' claims under Counts II and III of the Third Amended
127 Compliant.+1+ This case was filed in 1989 against Ronald
128 Reagan, President of the United States, <inter alia>, just before
129 his term of office ended.+2+ In September 1989, this Court
130 denied the Defendants' motion to dismiss or, in the alternative,
131 for summary judgment. This Court held that s 702 of the
132 Administrative Procedure Act ("APA") provided for judicial review
133 of the Defendants' compliance with the Presidential Records Act
134 ("PRA"), 44. U.S.C. ss 2201 et seq., and the Federal Records Act
135 ("FRA"), 44 U.S.C ss 2101-2118, 2901-2910, 3101-3107, and 3301-
136 3324. In addition, the Court determined that there were
137 unresolved factual issues regarding whether the Defendants had
138 complied with the recordkeeping statutes. <Armstrong v. Bush>,
139 721 F. Supp. 343 (D.D.C. 1989).
140
141
142 Thereafter, an appeal was taken. The Court of Appeals for
143 the District of Columbia Circuit approved of this Court's holding
144 that the APA provides for a limited review of the adequacy of the
145 NSC's and EOP's recordkeeping guidelines and instructions
146 pursuant to the FRA. <Armstrong v. Bush>, 924 F.2d 282, 291-293
147 (1991). The Court of Appeals also held that the APA does not
148 provide judicial review of the President's compliance with the
149 PRA. <Id.> at 288-291. Finally, the Court of Appeals remanded
150 for further development of the record to determine whether the
151 electronic communications systems operated and controlled by the
152 Defendants were within appropriate and proper guidelines as
153 required by law and regulations issued thereunder by the
154 Archivist of the United States, who is also a Defendant her.
155 <Id.> at 296-297.+3+
156
157
158 In other words, the basic question is whether on this
159 record, which counsel for the parties agree is ready for a
160 decision on the merits, the Defendants have complied with the
161 statutory requirements and whether the guidelines are reasonable
162 or sufficiently clear as to provide adequate guidance to
163 personnel employed by the Defendants in their maintenance and
164 preservation of federal records. The other issue is whether the
165 United States Archivist has fulfilled his statutory duties under
166 the Federal Records Act. 44 U.S.C. s 2905.
167
168
169 In light of the foregoing, the Plaintiffs particularly seek
170 preservation of and access to the Defendants' computerized
171 systems know as PROFS, OASIS, and A-1, on which the Defendants
172 send e-mail, write documents, transmit messages inter- and
173 intra-agency and perhaps even to people outside the official
174 government payroll.+4+ These computerized systems contain
175 transmit logs indicating to whom messages and documents were sent
176 by date, time and hour.+5+ They also have Receipt logs
177 containing the same or similar information.
178
179
180 While Plaintiffs are now on the Third Amended Compliant and
181 while each side has filed cross motions for summary judgment, the
182 Court, with consent of counsel, has combined the parties cross
183 motions for Summary Judgment with a decision on the merits.+6+
184 The Court also determined that it was reasonable to make findings
185 of fact and conclusions of law on the basis of the joint
186 submissions of the parties because it was unclear, based on the
187 parties separate submissions, whether there was a material issue
188 of fact in dispute.+7+ <Celotex Corp v. Catrett>, 477 U.S. 317
189 (1986); <Anderson v. Liberty Lobby, Inc.>, 477 U.S. 242 (1986);
190 <see> Local Rule 108(h).
191
192
193 After careful consideration of the foregoing, the Court,
194 with the consent of counsel, has combined the Plaintiffs' request
195 for a Preliminary Injunction with their request for Declaratory
196 and Injunctive relief on the merits pursuant to Rule 52(a) of the
197 Federal Rules of Civil Procedure. Accordingly, this opinion
198 shall constitute the Court's findings of fact and conclusion of
199 law pursuant to Rule 52(a) of the Federal Rules of Civil
200 Procedure.
201
202
203
204 <II. DISCUSSION>
205
206
207 The Defendants' record keeping guidance pursuant to the FRA
208 is subject to review under the APA. Under the APA, the reviewing
209 court shall compel "agency action unlawfully withheld or
210 unreasonably delayed" 5. U.S.C. s 706 (1), and "hold unlawful and
211 set aside agency action, findings, and conclusions found to be
212 arbitrary and capricious, an abuse of discretion, or otherwise
213 not in accordance with law." 5 U.S.C. s 706 (2) (A). In
214 examining an agency's action under the APA, the first question is
215 whether the agency action was arbitrary and capricious. Under
216 this second inquiry, an agency action can be set aside if it
217 fails to offer an adequate explanation for its action or fails to
218 consider a relevant factor in reaching its decision, <see
219 International Fabricare Institute v. EPA>, 972 F.2d 384, 389
220 (D.C. Cir. 1992); <Federal Election Comm'n v. Rose>, 806 F.2d
221 1081, 1089 (D.C. Cir. 1986), but the reviewing court is not to
222 substitute its judgment for that of the agency. <See Motor
223 Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile
224 Insurance Co.>, 463 U.S. 29, 43 (1983); <Adams House Health Care
225 v. Sullivan>, 895 F.2d 767, 770 (D.C. Cir. 1990); <Center for
226 Auto Safety v. Pack>, 751 F.2d 1336, 1342 (D.C. Cir. 1985).
227
228
229 A. THE STATUTORY COMMAND FROM 1943 THROUGH THE
230 LAST AMENDMENT BY CONGRESS IN 1984 SHOWS A
231 CLEAR LEGISLATIVE PURPOSE THAT RECORDS OF
232 HISTORICAL VALUE INVOLVING THE PUBLIC
233 REGARDLESS OF PHYSICAL FORM, SHALL BE
234 PRESERVED, PARTICULARLY WHERE SUCH MATERIAL
235 REFLECTS THE FUNCTION, POLICIES, DECISIONS,
236 PROCEDURES, OPERATIONS OR OTHER ACTIVITIES OF
237 THE GOVERNMENT OR BECAUSE OF THEIR
238 INFORMATIONAL VALUE.
239
240
241 The Federal Records Act governs the creations, management
242 and disposal of federal records.+8+ The FRA defines a federal
243 record as:
244
245 all books, papers, maps, photographs, machine readable
246 materials, or other documentary materials, <regardless
247 of physical form or characteristics>, made or received
248 by an agency of the United States under Federal law or
249 in connection with the transaction of public business
250 and preserved or appropriate for preservation by that
251 agency ... <as evidence of the organization, functions,
252 policies, decisions, procedures, operations, or other
253 activities of the Government or because of the
254 informational value of the data in them.>
255
256 44 U.S.C. s 3301 (emphasis added). The plain language of the
257 statute and legislative history show a clear legislative purpose
258 to allow private researchers and those whose rights may have been
259 affected by the actions of government to have access to the
260 records under the FRA. <See American Friends Service Comm'n v.
261 Webster>, 720 F.2d 29 (D.C. Cir. 1983); <Armstrong v. Bush>, 924
262 F.2d 282, 287-88.
263
264
265 Therefore, each agency head must "maintain an active,
266 continuing program for the economical and efficient management of
267 the records of the agency," 44 U.S.C. s 3102, and establish
268 "safeguards against the removal or loss of records he determines
269 to be necessary and required by the Archivist." <Id.> s 3105. In
270 turn, the Archivist is to provide "guidance and assistance to the
271 Federal agencies with respect to ensuring adequate and proper
272 documentation of the policies and transactions of the Federal
273 government and ensuring proper record disposition." <Id.> s
274 2904(a). Federal records may only be destroyed after the
275 Archivist's review and approval.+9+ <Id.> s 3314.
276
277
278
279 B. THE INFORMATION ON THE DEFENDANTS' PROF,
280 OASIS AND A-1 SYSTEMS IS SUBJECT TO THE FRA
281 BECAUSE IT MEETS THE STATUTORY DEFINITION OF
282 A RECORD.
283
284
285 The threshold issue before the Court is whether the material
286 created or saved on the Defendants' computer systems falls under
287 the FRA's definition of federal records. On the one hand, the
288 Defendants urge the Court to rule that none of the material on
289 the PROFS, OASIS, and A-1 systems are records under the FRA. The
290 Defendants also argue that any record material on the systems has
291 been saved by the staff in "hard" or paper copy and thus any
292 materials on these electronic communications systems records are
293 simply copies preserved for the convenience of reference.+10+
294 <See 44 U.S.C. s 3301. On the other hand, the Plaintiffs argue
295 that all the materials contained on the Defendants' computer
296 systems meet the statutory definition of records under the FRA
297 and cannot be destroyed without approval of the Archivist. <See
298 44 U.S.C. ss 3302, 3303, 3303a.
299
300
301 The Court does not agree with the extreme position taken by
302 either party. On the one hand, the Court will not and cannot
303 read the FRA to exclude computer systems such as those at issue
304 here. The statutory language makes clear that the FRA was
305 intended to include materials "regardless of physical form or
306 characteristic." 44 U.S.C. s 3101. Furthermore, the Court
307 cannot assume that the Defendants' staff are being advised to
308 save all computer records in paper form because the Plaintiffs
309 have explicitly challenged this contention. <See> Joint
310 Statement of Facts, No. 83, at 25. In addition, the Defendants'
311 argument assumes that a federal record on these systems is
312 exactly the same as a version printed out on paper, a contention
313 that the Plaintiffs dispute as well.
314
315
316 However, it would also be inconsistent to declare that all
317 materials on these electronic communication systems are records,
318 as the Plaintiffs request, where it is clear that these systems
319 produce many non-record or presidential record materials that are
320 not the subject of this suit. The factual record before the
321 Court shows that while these computer systems can be and are used
322 for substantive communications by staff, they are also used to
323 convey information that does not arise to the level of a
324 record.+11+ Under the APA, it is not for this Court to
325 second guess the wisdom of agency policies, but simply to
326 determine if the policies are arbitrary and capricious or not in
327 accordance with the law.
328
329
330
331 C. THE ELECTRONIC MATERIAL CREATED OR STORED ON
332 DEFENDANTS' PROFS, OASIS AND A-1 SYSTEMS
333 CONTAIN INFORMATION THAT IS NOT REPRODUCED ON
334 ANY PAPER COPIES. THEREFORE, PRINTING THE
335 SUBSTANCE OF THESE MATERIALS IN PAPER FORM
336 DOES NOT SATISFY THE REQUIREMENTS OF THE FRA
337 AS IT DOES NOT SHOW WHO HAS RECEIVED THE
338 INFORMATION AND WHEN.
339
340
341 With the two extreme positions above rejected, the Court
342 concludes that some of the material stored on these computer
343 systems do meet the definition of record under the FRA and must
344 be saved, regardless of whether a paper or hard copy of the
345 material has been printed out.
346
347
348 The Defendants' record keeping guidelines give its staff the
349 responsibility of deciding whether material on the PROFS, OASIS,
350 and A-1 systems are records under the FRA. Once it has been
351 determined that a certain PROF, OASIS, or A-1 note or document is
352 a federal record, the Defendants allegedly instruct their staff
353 to print out this information in paper form. However, even
354 assuming <arguendo>, that the staff are properly preserving
355 computer material that are federal records by printing out a copy
356 of the material on paper, the Defendants nevertheless have not
357 complied with FRA. The electronic material on the PROFS, OASIS,
358 and A-1 systems are qualitatively different than a copy printed
359 out in paper form and, therefore, the Defendants' record keeping
360 system violates the FRA because it does not save all the
361 information contained in these electronic records.
362
363
364 A paper copy of the electronic material does not contain all
365 of the information included in the electronic version. For
366 example, a note distributed over these computer system includes
367 information that is not reproduced on the paper copy regarding
368 who has received the information and when the information was
369 received, neither of which is reproduced on the paper copy.
370 <See> Affidavit of Eddie Becker, Plaintiffs' Exhibit Q. In
371 addition, distribution lists contained on these computer systems
372 are used by staff to route documents. These lists are maintained
373 separately from the material being sent, which will simply
374 designate a code that tells the system which distribution list to
375 use. The distribution lists are not necessarily printed out when
376 the material is saved in paper form.
377
378
379 Such information can be of tremendous historical value in
380 demonstrating what agency personal were involved in making a
381 particularly policy decision and what officials knew, and when
382 they knew it.+12+ Requiring the preservation of such
383 information is consistent with the legislative history of the
384 FRA, which clearly shows that "Congress intended, expected, and
385 positively desired private researchers and private parties whose
386 rights may have been affected by government actions to have
387 access to the documentary history of the federal government."
388 <American Friends Service Comm'n v. Webster>, 720 F.2d 29, 57.
389 (D.C. Cir. 1983).
390
391
392 Secondly, Congress was aware that, when left to themselves,
393 agencies have a built-in incentive to dispose of records relating
394 to their mistakes or simply do not think about preserving
395 information. <Id.> at 41. Thus, the FRA requires the Archivist
396 to "establish standards for the selective retention of records of
397 continuing value, and assist Federal agencies in applying the
398 standards to records in their custody." 44 U.S.C. s 2905.
399 Pursuant to this authority, the Archivist has issued regulations
400 and a Records Management Handbook containing additional criteria
401 for appraising records of permanent value. The regulations
402 issued by the National Archives and Records Administration
403 ("NARA")+13+ are persuasive authority in considering what is
404 reasonable conduct under the FRA. The NARA is unquestionably
405 concerned about the creation of federal records on electronic
406 medium: "Special attention must be given to machine-readable
407 records.... Unquestionably, those media are slowly replacing
408 paper records." NARA Handbook, Disposition of Federal Records,
409 1989, at 1.
410
411
412 In fact, even if this electronic information was the same as
413 that produced on paper, the NARA has issued several guidelines on
414 the disposition of records stating that "[i]f the same
415 information is stored on more than one medium (such as paper and
416 disk), agencies, in consultation with NARA should schedule the
417 disposition of all copies." <See> NARA Bulletin No 85-2, dated
418 June 18, 1985, (Plaintiffs' Exhibits, Vol. I., No. 1, attachment
419 A, at 5, e), NARA Bulletin 87-5, dated February 2, 1987
420 (Plaintiffs' Exhibits, Vol. I., No. 2, attachment A, at 5, e).
421
422
423 In common terms, a record is defined as "an account made in
424 an enduring form, especially in writing, that preserves the
425 knowledge or memory of events or facts" and "something on which
426 such an account is made." The American Heritage Dictionary,
427 1976. These computer materials certainly fit into an everyday
428 understanding on a record.
429
430
431 The Defendants contend "[s]tanding by themselves, such
432 miscellania such as lists of individual senders and recipients,
433 times of acknowledgement, and accounting records of log-on and
434 log-off times, do not rise to the level of a federal 'record'".
435 Defendants' Reply Memorandum in Support of Summary Judgment,
436 August 8, 1992, at 35 n.33. However, the Defendants' argument
437 misses the point because this information does not stand alone.
438 This information must be saved because, in combination with the
439 substantive information contained in the electronic material, it
440 will convey information about who knew what information and when
441 they knew it.
442
443
444 The Defendants also cite General Record Schedule 23 for the
445 proposition that after an electronic medium is used to produce a
446 hard copy which is maintained in organized files, the electronic
447 version may be deleted. Joint Statement of Facts No. 83, at 25.
448 The Court does not find such reasoning persuasive. Neither the
449 EOP nor the NSC relies on General Record Schedule 23 as
450 authorization for deleting information from their respective
451 computer systems or routinely destroying backup tapes of
452 information stored on the PROFS systems. <Id.> No. 84, at 25.
453
454
455 Given the record before the Court, it is clear that once the
456 Defendants staff decide that a note or other computer material on
457 these computer systems constitutes a federal record, that
458 material must be saved in a way that includes <all> the pertinent
459 information contained therein. As any paper copies of these
460 materials do not include all of the relevant information, the
461 Defendants record keeping guidance are contrary to law under the
462 FRA and arbitrary and capricious under the APA.
463
464
465 D. THE DEFENDANTS' RECORD KEEPING PROCEDURES ARE
466 ARBITRARY AND CAPRICIOUS BECAUSE THERE IS NO
467 ADEQUATE MANAGEMENT PROGRAM OR SUPERVISION BY
468 RECORD KEEPING PERSONNEL OF THE STAFF'S
469 DETERMINATION OF RECORD OR NON-RECORD STATUS
470 OF COMPUTER MATERIAL.
471
472
473 The Court also finds that the Defendants record keeping
474 procedures are arbitrary and capricious because there is no
475 oversight of the agency staff by the record keeping personnel.
476 The agency staff make the decision in every instance whether
477 computer material is a federal record that must be saved. The
478 Plaintiffs argue that the Defendants' record keeping personnel
479 should at least provide supervision to the agency staff to ensure
480 that federal records are being preserved.
481
482
483 The Court agrees. "Federal agency records management
484 programs must be in compliance with regulations promulgated by
485 ... NARA." 36 C.F.R. s 1220.2. "Each Federal Agency, in
486 providing for effective controls over the maintenance of records,
487 shall: (1) Establish and implement standards and procedures for
488 classifying, indexing and filing records as set forth in GSA and
489 NARA handbooks." The National Archives Records Management
490 Handbook, "Disposition of Federal Records," promulgated by the
491 Archivist states:
492
493 Within the agency, only records officers should
494 determine the record or non-record status of files. No
495 officials at agency staff or operating levels should be
496 given the authority to do so. Such authority weakens
497 the disposition program by indiscriminate use of the
498 nonrecord label and can result in the loss of valuable
499 records.
500
501 Records Management Handbook, Plaintiff's Appendix, Tab 8, at
502 2-3. Therefore, the Court is convinced that the Defendants are
503 not permitted to allow its staff to make its record keeping
504 decisions under the FRA without some supervision from record
505 keeping personnel. Such a determination is consistent with the
506 written and authoritative guidance of the NARA. It is also
507 consistent with the purpose and history of the FRA.+14+
508
509
510 It is notable that the EOP and NSC perform such supervision
511 and review for paper records but not electronic records.+15+
512 Therefore, while the Defendants' review of paper materials
513 prevents the destruction of misclassified paper files, there is
514 no such safeguard in the case of electronic records. Such a
515 practice is consistent with the Defendants' position that once a
516 paper copy of a computer e-mail is printed out, the computer
517 material is a convenience copy and therefore not a record under
518 the FRA. However, since the Court has determined that computer
519 materials are not simply convenience copies, these computer
520 materials are subject to the FRA and the Archivist and the
521 Defendants must institute immediate provisions for periodic
522 review to ensure the adequacy, effectiveness and efficiency of
523 the record keeping program. <See> 44 U.S.C. ss 3102, 3105; 36
524 C.F.R. ss 1220.54, 1222.10, 1222.20, 122.32, 122.50.
525
526
527 The lack of supervision and review is of particular concern
528 because the NSC instruct their staff that "the most common types
529 of electronic mail notes are non-record materials" and that 'non-
530 record materials are notes that relate to official business but
531 do not need to be made a matter of record because of their
532 insignificance or because they are duplicated elsewhere." NSC
533 Memorandum dated May 13, 1992 (Second Menan Declaration, Exhibit
534 1 and Tab C). This encourages staff to classify materials as
535 non-record, thus exempting them from preservation.
536
537
538 Requiring that records personnel provide supervision in
539 records decisions is also consistent with the level of difficulty
540 in discerning whether the Defendants' computer materials are
541 federal records, presidential records or non-record. Finally and
542 perhaps most importantly, given the FRA's goal of the
543 preservation of records for historical purposes, the Defendants
544 should err, if at all, on the side of preservation.
545
546
547
548 E. THE EOP'S RECORD KEEPING GUIDELINES ARE
549 ARBITRARY AND CAPRICIOUS BECAUSE THE
550 GUIDELINES DO NOT PROVIDE SUFFICIENT GUIDANCE
551 TO DETERMINE WHAT IS A FEDERAL RECORD THAT
552 MUST BE PRESERVED AND THEY ALSO PERMIT THE
553 DESTRUCTION OF FEDERAL RECORDS.
554
555
556
557 The Court finds that the record keeping guidelines provided
558 to the EOP staff at the time this suit was filed in 1989 were
559 arbitrary and capricious.+16+
560
561
562 The written records management guidelines for the components
563 of the EOP using these computer communication systems are
564 contained in the "Federal Records Manual," first issued in
565 1979.+17+ The 1982 edition of the Manual was in use when
566 PROFS first was introduced at the EOP in 1986 and when the
567 Plaintiffs filed this suit.+18+ It does not provide a
568 reasonable method of ensuring compliance with the FRA. While it
569 quotes the definition of a federal record contained in the
570 statute, it simply refers to those materials meeting the
571 statutory definition as "records" and does not distinguish
572 between federal and presidential records.+19+ It also does
573 not instruct staff on how to go about saving record material in
574 electronic form. For example, after providing a definition of
575 the term record, the 1982 Manual proceeds to discuss a central
576 filing system, without discussing the way that records make their
577 way into such a filing system. Neither does it discuss the
578 format that such record material must or can take when being
579 placed in these files.
580
581
582 In addition, the memoranda issued to the EOP staff during
583 1988 concerning record management at the close of the Reagan
584 Administration simply reference the Manual and does not clarify
585 or improve the record keeping guidance.+20+ Similarly, the
586 oral guidance provided to the EOP staff does not remedy the
587 adequacy of the recordkeeping procedures because it was based on
588 the written guidance. In light of the foregoing, the Court
589 concludes that the EOP's record keeping guidance to the staff, at
590 the time this suit was filed, was not reasonably calculated to
591 achieve the goals of the FRA.
592
593
594 However, the Court finds that the 1989 Manual is a far
595 better presentation of record keeping requirements than the 1982
596 version and provides better guidance to EOP staff. The 1989
597 Manual, unlike the 1982 version, differentiates between federal
598 and presidential records and cites the statutory language of both
599 the FRA and the PRA. While the 1989 edition of the Manual
600 defines a federal record in the same language used in the 1982
601 Manual, it further defines documentary material to include:
602
603 <all media> containing recorded information, regardless
604 of the nature of the medium or the method of
605 circumstances of recording. The related phrase
606 "regardless of physical form or characteristics" means
607 that the medium may be paper, film, disk, or other
608 physical type or form; and that the method of recording
609 may be manual, mechanical, photographic, electronic, or
610 any other combination of these or other technologies.
611
612 Anton Dec., Exhibit B, at 5 (emphasis in the original).
613 Therefore, the Court finds that while the 1982 Manual violates
614 the APA, the 1989 Manual does not.+21+
615
616
617 However, this does not end the Court's inquiry. The
618 Plaintiffs have also challenged various instructions given to the
619 EOP staff as being contrary to law in violation of the explicit
620 mandate of the FRA. The Court again agrees. In June 1991, the
621 Defendant Office of Administration, a component of the EOP,
622 issued a new directive on its record management program to its
623 staff. The June 1991 directive contains the first and only
624 recordkeeping instruction by the OA explicitly mentioning
625 electronic mail. The Directive states:
626
627 Electronic mail should not be used to convey official
628 records information. If an employee creates or
629 receives an electronic message that contains such
630 information, the message should either be incorporated
631 into a memorandum, or reduced to paper. The electronic
632 mail function is not designed to replace the existing
633 system of document production and retention.
634
635
636 Other EOP components, including the Office of Management and
637 Budget, have adopted this directive and issued similar
638 instructions to their staff.+22+ The Court finds that this
639 June 1991 instruction is impermissible under the FRA because it
640 tells staff that they have complied with the FRA simply by
641 incorporating record material into a memorandum. It is unclear
642 from this directive whether such memorandum should be in paper
643 form or on the computer and what steps should be taken to
644 preserve the information incorporated into the memorandum. Such
645 a vague instruction is not reasonably calculated to preserve
646 federal record material and will lead to the destruction of
647 record material, particularly those previously discussed herein
648 on computers which indicate who said what to whom and when.
649
650
651 F. THE NSC'S RECORD KEEPING GUIDELINES AT THE
652 TIME THIS SUIT WAS FILED WERE ARBITRARY AND
653 CAPRICIOUS BECAUSE THE GUIDELINES DID NOT
654 PROVIDE SUFFICIENT GUIDANCE TO DETERMINE WHAT
655 WAS A FEDERAL RECORD THAT MUST BE PRESERVED
656 AND TO DETERMINE THE DIFFERENCE BETWEEN
657 FEDERAL RECORDS, PRESIDENTIAL RECORDS AND NOW
658 RECORD MATERIAL.
659
660
661 The Court finds that the record keeping guidelines given to
662 NSC staff at the time this suit was filed was arbitrary and
663 capricious. The FRA's definition of a federal record, contained
664 in 44 U.S.C. s 3301, does not appear in any of the NSC's written
665 record keeping guidance used by its staff.+23+ While some
666 memoranda quote parts of the definition, they do not quote the
667 definition in its entirety. At the very least, compliance with
668 the FRA requires that the staff be fully advised of the
669 definition of a federal record. None of the written materials
670 provided to the staff provide this definition.+24+
671
672
673 The Defendants contend that it is unnecessary for NSC staff
674 to be given more detailed instructions because the staff is
675 instructed to save all their records other than personal records
676 for the Secretariat staff to review. However, the record belies
677 this assertion. The guidelines do not instruct staff that all
678 electronic materials, other than personal records, must be saved.
679 In fact, only one memorandum tells the NSC staff to save computer
680 materials that meet the definition of a federal record.+25+
681 Therefore, the NSC guidelines during this time period gave the
682 staff the responsibility of deciding whether electronic material
683 constituted a federal record even though the staff has not been
684 given the statutory definition. A complete explanation of what
685 constitutes a record under the FRA is necessary.
686
687
688 The oral guidance the NSC provided to its staff during this
689 time did not ensure compliance with the FRA. The oral guidance
690 addressed the record keeping issue in the same manner as the
691 written guidance. While the Defendants claim that the oral
692 guidance might go beyond the written guidance, there is no
693 evidence in this record that this oral guidance uniformly
694 provides substantive guidance complimenting the written.
695
696
697 The NSC issued additional instruction to its staff after
698 this action was filed. The Court finds that these guidelines
699 define what constitutes a federal record to its staff.+26+
700 However, they are still arbitrary and capricious because the
701 staff are told that electronic mail does not constitute record
702 material and need not be saved once a paper copy has been printed
703 out. <See> Section II(B) <supra.>+27+ Moreover, the record
704 keeping personnel do not exercise adequate supervision over the
705 staff's determination of what constitutes a federal record.
706 <See> Section II(D) <supra>.+28+ While the NSC's practice of
707 requiring departing employees to attest that they have complied
708 with record keeping laws may be a good practice, it does not aid
709 the staff in their day-to-day determination of record keeping
710 status.+29+
711
712
713 The Plaintiffs also contend that the NSC's record keeping
714 guidance is contrary to law because it instructs the staff to
715 save certain material as presidential records when, in fact, they
716 are federal records.+30+ The Plaintiffs argue that, under
717 the "sole function" test announced in <Soucie v. David>, 448 F.2d
718 1067 (D.C. Cir. 1971), the NSC is an agency and therefore, all
719 records made or received by its staff whether they are used to
720 assist the President or perform the statutory functions of the
721 NSC, are federal records subject to the FOIA, exempt from the PRA
722 and covered by the FRA.+31+ Therefore, the Plaintiffs
723 contend that the NSC cannot designate certain records as
724 presidential simply because the staff member was advising the
725 President. <See Ryan v. Department of Justice>, 617 F.2d 781,
726 788 (D.C. Cir. 1980).
727
728 The Court disagrees. The clear language of the PRA and the
729 history of this lawsuit clearly demonstrate that the NSC is
730 entitled to segregate presidential and federal records. The
731 clear language of the PRA provides that EOP components, which
732 include the NSC, produce presidential records:
733
734 "[d]ocumentary materials produced or received by the
735 President, his staff, or units or individuals in the
736 Executive Office of the President the function of which
737 is to advise and assist the President, shall, to the
738 extent practicable, be categorized as Presidential
739 records or personal records upon their creation or
740 receipt and shall be filed separately.
741
742 44 U.S.C. s 2203(b). Furthermore, our Circuit Court explicitly
743 stated that, because the NSC advises the President and has
744 statutory obligations, the NSC produces both presidential and
745 federal records. <Armstrong v. Bush>, 924 F.2d 282, 284 n.2
746 (D.C. Cir. 1991). Our Circuit Court also held that the PRA
747 precludes judicial review and this Court has no power to review
748 actions taken by the President to ensure that presidential
749 records are maintained. <Id.> at 289-90; <see> 44 U.S.C. s 2203.
750
751
752 This Court stated that the question of how the NSC
753 classified presidential records was not before the Court because
754 the PRA precludes judicial review of the President's
755 recordkeeping practices and decision, which includes the
756 guidelines used in keeping Presidential records. <Armstrong v.
757 Bush>, 139 F.R.D. 547, 551 (D.D.C. 1991).
758
759
760
761 G. THE COURT SHALL REMAND THIS CASE TO THE
762 ARCHIVIST FOR IMMEDIATE REMEDIAL ACTION UNDER
763 THE FRA TO PREVENT THE DESTRUCTION OF FEDERAL
764 RECORDS.
765
766
767 The duty of the Archivist and the defendant agency heads to
768 prevent the destruction of federal records has been violated in
769 this case with the result that the Court is compelled to grant
770 the Plaintiffs a declaratory judgment to that effect. The Court
771 finds that the Archivist has breached his statutory duty to
772 prevent the destruction of federal records. The Archivist
773 responsibilities are triggered once an unlawful destruction of
774 federal records has or will likely occur. <See> 44 U.S.C. s
775 2905(a); <Armstrong v. Bush>, 924 F.2d 282, 295.+32+
776 Injunctive relief under s 706(1) of the APA is appropriate where
777 a reviewing court concludes that the "defendant official has
778 failed to discharge a duty that Congress intended him to
779 perform." <Covelo Indian Community v. Watt>, 551 F.Supp. 366
780 (D.D.C. 1982) (citation omitted); <see Environmental Defense
781 Fund, Inc. v. Costle>, 657 F.2d 275 (D.C. Cir. 1981).
782
783
784 It is not the Court's place to instruct the Defendants on
785 exactly what procedures must be followed to comply with the
786 FRA.+33+ Instead, the FRA requires that, where actual,
787 impending unlawful removal or destruction of records in the
788 custody of an agency comes to the attention of the Archivist, the
789 Archivist shall notify the head of the agency and:
790
791 assist the head of the agency in initiating action
792 through the Attorney General for the recovery of
793 records unlawfully removed and for other redress
794 provided by law. In any case in which the head of the
795 agency does not initiate action for such recovery or
796 other redress within a reasonable period of time after
797 being notified of any such unlawful action, the
798 Archivist shall request the Attorney General to
799 initiate such an action, and notify the Congress when
800 such a request has been made.
801
802 44 U.S.C. s 2905; <see Armstrong v. Bush>, 924 F.2d at 294-
803 296.+34+ Therefore, the Court shall remand this case to the
804 agencies and the Archivist for appropriate and immediate action
805 to preserve these electronic federal records consistent with this
806 opinion.
807
808
809 As the Defendants record keeping procedures violate the FRA,
810 the Defendants are enjoined from removing, deleting or altering
811 their electronic records systems until such time as the
812 Archivists takes action pursuant to Section 2905 of the FRA to
813 prevent the destruction of federal records, including those
814 records saved on backup tapes pursuant to the two Temporary
815 Restraining Orders entered in this case. <See> footnote 4.
816
817
818
819 H. THIS COURT HAS JURISDICTION TO ORDER THE
820 PRESERVATION OF THE DEFENDANTS' ELECTRONIC
821 RECORDS UNTIL THE ARCHIVIST CAN TAKE
822 APPROPRIATE ACTION REQUIRED BY II(G) ABOVE.
823 HOWEVER, THE COURT CANNOT ORDER THE
824 PRESERVATION OF RECORDS CREATED BY EOP
825 COMPONENTS WHOSE SOLE RESPONSIBILITY IS TO
826 ADVISE THE PRESIDENT BECAUSE THERE IS NO
827 JUDICIAL REVIEW OF THE PRA.
828
829
830 The Court is limited by the Court of Appeals decision in
831 framing the scope of relief in this case. <See Armstrong>, 924
832 F.2d 282 (D.C. Cir. 1991). The Circuit Court, while providing
833 for judicial review under the FRA, expressly held that there was
834 no review under the PRA. <Id.> at 289. This distinction is an
835 important one for, while the Court has power to review the
836 recordkeeping guidance of federal agencies under the FRA, it can
837 not delve into record management practices under the PRA.
838
839
840 The Circuit also provided the methodology for separating the
841 FRA and the PRA as it applies here: The Circuit noted that EOP
842 components whose sole responsibility is to advise the President
843 are subject to the PRA and create presidential records.
844 <Armstrong>, 924 F.2d at 286 n.2. Similarly, the components of
845 the EOP that have statutory responsibility are subject to the
846 FRA. <Id.> Thus the order of the Court today only applies to
847 agencies that have statutory responsibility and not those that
848 solely advise the President.
849
850
851 The parties have disputed the scope of this Court's
852 Temporary Restraining Order. <See> Defendants' Statement to the
853 Court dated December 8, 1992; Plaintiffs' Response dated December
854 10, 1992. The Parties disagree as to whether the electronic
855 material produced by various components of the EOP are federal or
856 presidential records. Under the Court of Appeals mandate, this
857 Court has no power to review compliance with the PRA, and thus,
858 no power to review the record keeping procedures of the EOP
859 components whose "sole responsibility is to advise the
860 President." <Armstrong> 924 F.2d at 286 n.2. It was for this
861 reason that the Court exempted such components, containing only
862 presidential records, from the Temporary Restraining Order
863 requiring the preservation of electronic records. <See> Order
864 dated November 23, 1992.
865
866
867 In the court's decision today on the merits of the
868 Plaintiffs' FRA claims, the same logic applies. The Defendants
869 shall not be required to preserve material which are presidential
870 records produced by components of the EOP whose sole
871 responsibility is to advise the President. However, in
872 components that produce both types of records, this Court does
873 have jurisdiction to authorize the preservation of these
874 materials until the Archivist can ensure that federal records are
875 not destroyed. Once again the Defendants must err on the side of
876 preservation.
877
878
879 III. CONCLUSION
880
881 The Court finds that the EOP and NSC have violated the
882 Federal Records Act and that their record keeping practices are
883 arbitrary and capricious under the Administrative Procedures Act.
884 The Court also finds that the United States Archivist has failed
885 to fulfill his statutory duties under the Federal Records Act.
886 The Court will remand this case to the Archivist to take
887 immediate action with the assistance of the Attorney General
888 pursuant to the FRA with notice to Congress to take all necessary
889 steps to preserve the electronic federal records here in
890 question.
891
892
893 The Court shall issue an Order of even date herewith
894 consistent with the foregoing Opinion.
895
896
897
898 <NOTES>
899
900 +1+The Defendants' have also filed a motion for summary
901 judgment as to the Plaintiffs' claim under the Freedom of
902 Information Act ("FOIA"), 5. U.S.C. 552, <et seq.>, contained in
903 the Count I of the Third Amended Compliant. However, as the
904 Plaintiffs have recently filed an amended FOIA request with the
905 Defendants, this claim is not yet ripe for review.
906 In addition, the Plaintiffs' Complaint had originally
907 included a claim under the Presidential Records Act. However,
908 this claim has been omitted from the Third Amended Compliant and
909 therefore need not be considered by the Court.
910
911
912 +2+The Plaintiffs present suit is against the Executive
913 Office of the President ("EOP"), the National Security Council
914 ("NSC"), and the Archivist of the United States.
915
916
917 +3+After remand, the Plaintiffs filed a Third Amended
918 Compliant to include information about new electronic
919 communication systems used by the Defendants. In the Third
920 Amended Complaint, the Plaintiffs allege that the guidelines
921 issued by the Defendants are arbitrary and capricious in
922 violation of the FRA because they authorize destruction of agency
923 records and that the Archivist has violated his statutory duty to
924 initiate action to stop improper destruction of agency records on
925 these electronic communication systems. <See> Third Amended
926 Complaint at 13-15. The Third Amended Complaint dropped the
927 President as a Defendant, and set forth the following Defendants:
928 EOP, the Office of the Administration ("OA"), the NSC, and the
929 White House Communications Agency ("WHCA").
930
931
932 +4+Both the EOP and the NSC copy the information on their
933 electronic communication systems (PROFS, OASIS, and A-1) onto
934 backup tapes. The backup tapes contain a snapshot of the
935 information stored on these systems at a given moment and can be
936 used to retrieve data that is captured on the tape. The purpose
937 of the backup tapes is to ensure that agency personnel are able
938 to recover data as quickly and efficiently as possible if the
939 computer system fails or files stored on it are advertently
940 deleted.
941 The same day this suit was filed, the Plaintiffs received a
942 Temporary Restraining Order prohibiting Defendants from erasing
943 certain material stored on the National Security Council's
944 ("NSC") Professional Office ("PROFS") computer system during the
945 Reagan administration. As a result of the Temporary Restraining
946 Order and a stipulation entered on January 31, 1989, the
947 Defendants have preserved the computer tapes of the material
948 stored in 1989.
949 A second Temporary Restraining Order was entered on November
950 20, 1992 requiring the Defendants to preserve all the current and
951 existing computer backup tapes in their custody from their
952 electronic communications systems. At a status conference on
953 December 4, 1992, the Defendants agreed to maintain these backup
954 tapes until January 7, 1993.
955
956
957 +5+The systems are also used to transmit electronic mail and
958 to generate calendars of appointments and meetings. They are
959 also used for creating and editing of memoranda, and transferring
960 files and documents in an electronic format. The creation and
961 transmittal of electronic mail, in the form of "notes" is the
962 most commonly used function of the systems.
963
964
965 +6+The parties did not wish to present any witnesses or
966 further evidence beyond what has been presented to the Court in
967 their papers.
968
969
970 +7+Pursuant to a request by the Court made at a status
971 conference on December 4, 1992, the parties files a Joint
972 Statement of Facts on December 8, 1992.
973
974
975 +8+The FRA is a series of statutes, beginning with the 1943
976 Disposal of Records Act, ch. 192, 57 Stat. 380, and the Federal
977 Records Act of 1950, ch. 849, 64 Stat. 583. These acts were
978 subsequently amended by the Government Records Disposal
979 Amendments of 1970, 84 Stat. 320, the Federal Records Management
980 Amendments of 1976, 90 Stat. 2723, and the National Archives and
981 Records Administration Act of 1984, 98 Stat. 2280. <See Armstrong
982 v. Bush>, 924 F.2d 282, 284 n.1 (D.C. Cir. 1991).
983
984
985 +9+The FRA establishes procedure in which the agencies
986 submit lists and schedules of records to be disposed of to the
987 Archivist. 44 U.S.C. s 3302(1). The Archivist must examine the
988 lists or schedules submitted to him by agencies to determine
989 whether or not any of the records "have sufficient
990 administrative, legal, research, or other value to warrant their
991 continued preservation by the Government...." <Id.> s 3303a.
992
993
994
995 +10+The Defendants argue that it has instructed its staff
996 that all material on these computer systems that constitutes a
997 federal record must be printed out on paper form and saved and,
998 therefore, all materials on these computer systems are copies
999 saved only for convenience.
1000
1001
1002 +11+Even the Plaintiffs admit that some PROFS communications
1003 convey information that does not constitute federal records. The
1004 Plaintiffs' position is that a substantial amount of the
1005 electronic mail is record material. <See> Joint Statement of
1006 Fact at 16-18.
1007
1008
1009 +12+The Court does not agree with the Defendants' contention
1010 that this information has no value. The question of what
1011 government officials knew and when they knew it has been a key
1012 question in not only the Iran-Contra investigations, but also in
1013 the Watergate matter.
1014 The historical value of this information is best illustrated
1015 by the amount of information contained in PROFS notes that was
1016 used during the Iran-Contra investigation. <See> Plaintiffs'
1017 Exhibit B, Q, R, T.
1018
1019
1020 +13+Because the NARA is administered under the supervision
1021 and direction of the Archivist, 44 U.S.C. s 2102, the Court will
1022 refer to the NARA and the Archivist interchangeably.
1023
1024
1025 +14+For this reason and because the Archivist and the
1026 agencies have not initiated an enforcement action with the
1027 Attorney General to ensure the preservation of these federal
1028 records, the Court shall remand this case to Archivist. <See>
1029 Section II(G) <infra>.
1030
1031
1032 +15+At the end of the Reagan Administration, officers of the
1033 NSC Information and Policy Directorate reviewed all <paper>
1034 files, including all files that employees believed to be personal
1035 in nature, to assure that staff members had complied with their
1036 record keeping obligations. However, no such review of
1037 <electronic> material was performed.
1038
1039
1040 +16+The NSC has a PROFS system for its staff that is
1041 maintained separately from other components of the EOP. For this
1042 reason, any reference to the EOP is intended to refer only to EOP
1043 components other than the NSC, which shall be referred to
1044 separately.
1045
1046
1047 +17+The Library and Information Services Division ("LISD")
1048 within the EOP maintains a records management program for the OA,
1049 the Council on Environmental Quality, the Office of Management
1050 and Budget, the Office of Science and Technology Policy, Office
1051 of the United States Trade Representative and, since 1989, the
1052 Office of National Drug Control Policy. LISD issues written
1053 guidelines on the retention, management, and disposition of
1054 Federal records for these components agencies.
1055
1056
1057 +18+The Manual was later updated in 1989, after this suit
1058 was filed. The 1982 and 1989 Federal Records Manuals were the
1059 exclusive written guidance on recordkeeping for the EOP staff
1060 from 1982 through June 1991.
1061
1062
1063 +19+This distinction is an important one. Presidential
1064 records are "[d]ocumentary materials produced or received by the
1065 President, his staff, or units or individuals in the Executive
1066 Office of the President the function of which is to advise and
1067 assist the President, shall, to the extent practicable, be
1068 categorized as Presidential records or personal records upon
1069 their creation or receipt and shall be filed separately." 44
1070 U.S.C. s 2203(b).
1071 Presidential records are stored, and disposed of differently
1072 than federal records. <Compare> 44 U.S.C. s 2203 <with> 44
1073 U.S.C. ss 3301 <et seq.> Finally and perhaps most importantly,
1074 federal records are made available to the public through FOIA
1075 while presidential records are not. <See> 44 U.S.C. s 2201(2)
1076 (B).
1077
1078
1079 +20+At the close of the Reagan Administration, a memorandum
1080 issued by OA asked the staff to print out "any notes or documents
1081 that may be covered under the Presidential Records Act or that
1082 may be transferred to the next Administration." Joint Statement
1083 of Facts No. 97.
1084
1085
1086 +21+The Plaintiffs also contend that both the 1982 and 1989
1087 Manuals are unreasonable because they do not instruct the staff
1088 to print out in paper form all federal record material contained
1089 or created on these computer systems. The Defendants contend
1090 that such an instruction is implicit in the Manuals and also has
1091 been made explicitly in other memoranda to their staff.
1092 However, since the Court has already held that such an
1093 instruction does not satisfy the requirements of the FRA because
1094 the paper and the computer version of these electronic records
1095 are different, the Court does not need to address this particular
1096 issue.
1097
1098
1099 +22+The 1989 Manual is still the exclusive written guidance
1100 on recordkeeping for those EOP components that have not adopted
1101 the June 1991 OA Directive.
1102
1103
1104 +23+From the time PROFS was introduced in 1985 until March
1105 1987, the NSC written guidelines on recordkeeping obligations
1106 were contained in the 1984 "National Security Council
1107 Administrative Manual." The Manual has a section entitled
1108 "Records Management," which states:
1109 All materials received or developed by an employee,
1110 detailee, or consultant during his/her tenure with the
1111 NSC Staff are official records or either the NSC or the
1112 President, and they may not to be removed or destroyed.
1113 NSC 1984 Administrative Manual, at 33, Defendants Motion for
1114 Summary Judgment, Exhibit A, Tab D. The Manual also states that:
1115 The following procedures should be followed with regard
1116 to all files maintained by each individual: 1. All
1117 originals of logged items ... and other NSC
1118 institutional documents must be separated and sent to
1119 the Secretariat. The originals are Federal records and
1120 must be law be included in either the NSC institutional
1121 records, which will remain with the NSC, or
1122 Presidential records, which will be sent to the
1123 National Archives for the President's Library. <Id.>
1124 Finally, the 1984 Manual contains instructions on non-record
1125 materials:
1126 Unclassified, wholly personal items, i.e., not related
1127 to White House or NSC business, should be filed
1128 separately and may be removed and retained.... The
1129 remaining files should be boxed according to
1130 established procedures ... and turned over to the
1131 Secretariat. <Id.>, at 34.
1132 In addition to the 1984 Manual, various memoranda were given to
1133 the staff on the subject of records management before the
1134 Plaintiffs filed this suit in January 1989.
1135
1136
1137 +24+A May, 19, 1988 memorandum requests that the staff begin
1138 reviewing their records in "preparation for the eventual transfer
1139 of all official records to a depository at the end of the
1140 administration." It states that all presidential and NSC records
1141 will be reviewed before the start of the new administration and
1142 that electronic data "will be subject to a similar process of
1143 review and disposition." The memorandum goes on to divide files
1144 into 3 categories: personal records, presidential records and NSC
1145 records and states that personal records must be reviewed by
1146 records personnel before their removal. A memorandum dated
1147 November 11, 1988 restates the information contained in this May
1148 memorandum.
1149
1150
1151 +25+A memorandum dated December 20, 1988 reminds staff of
1152 its responsibilities under the FRA. It states that the FRA
1153 "requires the creation of records reflecting the 'organization,
1154 functions, policies, decisions, procedures and essential
1155 transactions' of an agency. It states that
1156 Consistent with longstanding NSC policy and practice,
1157 information meeting the definition of a federal or
1158 presidential record is required to be formally entered
1159 into the Secretariat's record systems and may not be
1160 maintained solely by staff in convenience files or in
1161 electronic mail or other computer files.
1162 The memorandum also states:
1163 I ask that you review your computer files prior to your
1164 departure or January 20, 1989, whichever comes first.
1165 Should you identify therein any federal or presidential
1166 record as defined above, that you believe is not
1167 contained in the Secretariat systems, please forward it
1168 in hard copy....
1169
1170
1171 +26+On March 20, 1983, a memorandum was issued to the NSC
1172 staff on "Presidential Records and NSC Agency Records." The
1173 memorandum quotes the statutory definition of a federal record
1174 and presidential records.
1175 This memorandum, along with other materials, are still
1176 distributed to new employees and used by NSC staff as the
1177 official record keeping guidelines of the agency.
1178
1179
1180 +27+For example, a March 18, 1989, memorandum to the NSC
1181 staff on "Use of Electronic Mail" states:
1182 Electronic mail <should not> be used to convey
1183 substantive information about policy issues when such
1184 information is not already contained or will not
1185 otherwise be contained in a written federal or
1186 presidential record .......As stated in [the]
1187 memorandum of January 25, 1989, information meeting the
1188 definition of a federal or presidential record <should
1189 not> be maintained solely in electronic mail files.
1190
1191
1192 +28+For example, on May 18, 1992, the NSC installed a new
1193 program for electronic mail on the PROFS and A-1 systems. The
1194 program requires that when a user creates an electronic mail
1195 note, he or she must enter a code identifying the note as a
1196 presidential record, a federal record, or non-record material.
1197 The computer automatically routes copies of notes identified as
1198 Presidential or Federal records to Records Management for entry
1199 into NSC's record's system. Significantly, if a user identifies
1200 a note as non-record material, it is not copied or routed to
1201 Records Management.
1202
1203
1204 +29+Since February, 1990, departing NSC employees have been
1205 required to sign a certificate attesting:
1206 I have reviewed my computer memory files, including my
1207 electronic mail files, and have forwarded to the
1208 Secretariat any materials containing information that
1209 constituted a Presidential record or an agency record
1210 which was not otherwise recorded in a presidential or
1211 agency record .... All material remaining in my
1212 computer memory files, including my electronic mail
1213 file, constitutes non-record material, or information
1214 already recorded in another record, and can be deleted.
1215
1216
1217 +30+In the Plaintiffs' view, the NSC does not produce
1218 presidential records. <See> Plaintiffs' Opposition to the
1219 Defendants' Motion for Summary Judgment, July 6, 1992, at 45-52.
1220 The Plaintiffs argue that because the NSC is an agency for
1221 purposes of the FOIA, it produces agency records and not
1222 presidential records. <Soucie v. David>, 448 F.2d 1067 (D.C.
1223 Cir. 1971) (depending on its general nature and functions, a
1224 particular unit is either an agency or it is not).
1225
1226
1227 +31+The Plaintiffs note that the PRA specifies that it does
1228 not cover official records of an agency that fall under FOIA. 44
1229 U.S.C. s 2201(2) (B).
1230
1231
1232 +32+The Archivist shall notify the agency head of "any
1233 actual, impending or <threatened> unlawful removal ... or
1234 destruction of records ... that shall come to his attention...."
1235 44 U.S.C. s 2905(a) (emphasis added).
1236
1237
1238 +33+The Supreme Court has held that there is no implied
1239 right of action for private litigants under the FRA. <See
1240 Kissinger v. Reporters Committee for Freedom of the Press>, 445
1241 U.S. 136 (1980). However, our Court of Appeals concluded that
1242 "it would not be inconsistent with <Kissinger> and the FRA to
1243 permit judicial review of the agency head's or Archivist's
1244 refusal to seek the initiation of an enforcement action by the
1245 Attorney General." <Armstrong>, 924 F.2d 282, 295. This is why
1246 the Court today will remand this case to the Archivist who shall
1247 notify the Attorney General and the Congress.
1248
1249
1250 +34+The 1984 amendments to the FRA strengthened the
1251 administrative enforcement mechanism to prevent the unlawful
1252 removal or destruction of records by requiring the Archivist to
1253 notify Congress and independently request that the Attorney
1254 General initiate an action if the agency refused to do so. H.R.
1255 Conf. Rep. No. 98-1124, 98th Cong. 2d Sess. 28 (1984), <reprinted
1256 in> 1984 U.S.Code Cong. & Admin. News 3865, 3894, 3903. Congress
1257 enhanced the administrative enforcement mechanism because "of the
1258 frequency of incidents of removal or destruction of records in
1259 recent years." <Id.> at 28, 1984 U.S.Code Cong. & Admin. News
1260 3903.
1261
1262
1263 Dated: January 6, 1993 CHARLES R. RICHEY
1264 UNITED STATES DISTRICT JUDGE
1265
1266 ===================================================
1267
1268 UNITED STATES DISTRICT COURT
1269 FOR THE DISTRICT OF COLUMBIA
1270
1271
1272 ============================
1273 Scott Armstrong, <et al.>,
1274
1275 Plaintiffs,
1276
1277 v. Civil Action No. 89-142 (CRR)
1278
1279 George Bush, <et al.>,
1280
1281 Defendants
1282 ============================
1283
1284
1285 <ORDER>
1286
1287
1288 Upon consideration of all the papers filed in this case, the
1289 applicable law, the oral arguments of counsel, and pursuant to
1290 and for the reasons set forth in the Opinion of the Court, issued
1291 of even date herewith, it is, by the Court, this 6th day of
1292 January, 1993,
1293
1294
1295 ORDERED, that the Plaintiff shall have a Declaratory
1296 Judgment that the guidelines issued by and at the direction of
1297 the Defendant Agencies are inadequate and not reasonable and are
1298 arbitrary and capricious and contrary to law in that they permit
1299 the destruction of records contrary to the Federal Records Act;
1300 and it is
1301
1302
1303 FURTHER ORDERED, that the Defendant Archivist shall
1304 immediately, upon receipt of today's opinion and this Order, seek
1305 the assistance of the Attorney General with notice to Congress,
1306 and take all necessary steps to preserve, without erasure, all
1307 electronic Federal Records generated at the defendant Agencies to
1308 date, except purely Presidential Records; and it is
1309
1310
1311 FURTHER ORDERED, that the parties shall process the pending
1312 Freedom of Information Act claim administratively, with all
1313 deliberate speed, and advise the Court at the earliest
1314 practicable date of when that phase of this case may be made ripe
1315 for Judicial Resolution.
1316
1317
1318 CHARLES R. RICHEY
1319 UNITED STATES DISTRICT JUDGE