[11389] in Public-Access_Computer_Systems_Forum
Clinton's Nat'l Archivist wants to destroy digital rcds; keep paper
daemon@ATHENA.MIT.EDU (Jim Warren)
Tue Jun 17 20:46:25 1997
Date: Tue, 17 Jun 1997 17:02:31 -0500
From: Jim Warren <jwarren@well.com>
To: PACS-L@LISTSERV.UH.EDU
Reply-To: Public-Access Computer Systems Forum <PACS-L@LISTSERV.UH.EDU>
----------------------------Original message----------------------------
I consider this to be a most crucial issue and case regarding public access
to public records. I'm forwarding just the tiny first part of the very
long brief. Hope you will ask Becker for the full copy -- and join Public
Citizen's most-laudible effort to retain the records of *our* history in
their most useful, *electronic* form.
--jim
Jim Warren, (jwarren@well.com) activist-in-burnout & Contrib.Editor
(MicroTimes)
345 Swett Rd., Woodside CA 94062; voice/415-851-7075; fax-for-the-quaint/<ask>
[self-inflating puff: Hugh Hefner First-Amendment Award, Playboy Foundation;
James Madison Freedom-of-Information Award, Soc.of Prof.Journalists-Nor.Cal.;
Electronic Frontier Foundation Pioneer Award (in its first year, 1992);
founded InfoWorld, the Computers, Freedom & Privacy confs, blah blah blah]
===
> The PROFS CASE has sought to impose accountability in
> government by preserving Federal and Presidential Records. The
> case focused on e-mail Federal Records. Rather new
> when the case was first brought in 1989. At that time, up until the
> court decisions, many Federal agencies, with the blessing of the
> National Archives and Records Administration, (NARA), did not consider
> E-mail to be covered by the records laws.
> The PROFS WEB page includes court decisions, legal briefs, press
> releases, and articles about the management of electronic records.
> http://www.cpsr.org/cpsr/government_info/info_access/PROFS_CASE
> Recently, The National Archives issued regulations that would allow for
> the destruction of electronic records. Public Citizen has taken the
> lead in fighting to preserve Federal Records in their electronic form.
> Public Citizens filings on this case are kept at --
> http://www.citizen.org/public_citizen/litigation/elecrec.html
> NARA's regulation can be viewed at --
> gopher://gopher.nara.gov/00/managers/federal/emailreg.txt
> to view declassified White House e-mail released pursuant to this case
> go to the Home page of the National Security Archive --
> http://www.seas.gwu.edu/nsarchive/white_house_email/index.html
> Should you need pointers to any other sources of information on this
> subject, do not hesitate to write. You may Join the e-mail list to
> receive postings on new legal filings in the case. Just put JOIN
> in the subject line of your e-mail and your name and e-mail address
> in the message.
> Eddie Becker ebecker@cni.org
>
===
>Date: Mon, 16 Jun 1997 00:04:43 -0400 (EDT)
>From: Eddie Becker <ebecker@cni.org>
>Subject: PROFS Case: Plaintiffs Brief on NARA E-mail Regs 6/11/97
>
>This is a brief against the National Archives Regulations that would allow
>blanket destruction of electronic files throughout the Federal Government.
>You are invited to hear the arguments in this case, to be held in
>Washington, DC on Friday 06/27/97 at 9:30 before Judge Friedman, 3rd and
>Pennsylvania Ave, across from the newer wing of the National Gallery of
>Art. Eddie Becker ebecker@cni.org
>----------------------------------------------------------------------
> UNITED STATES DISTRICT COURT
>
>
> FOR THE DISTRICT OF COLUMBIA
>
> C.A. No. 96-2840 PLF
>
> PUBLIC CITIZEN, INC., et al.,
> Plaintiffs,
>
> v.
>
> JOHN CARLIN, in his official capacity as Archivist of
> the United States, et al.,
> Defendants.
>
> MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS OR, IN THE
> ALTERNATIVE, FOR SUMMARY JUDGMENT AND IN SUPPORT OF PLAINTIFFS'
> CROSS-MOTION FOR SUMMARY JUDGMENT
>
> _________________________________________________________________
>
> Michael Tankersley
> D.C. Bar No. 411978
> Alan B. Morrison
> D.C. Bar No. 073114
> PUBLIC CITIZEN LITIGATION GROUP
> 1600 20th Street, NW
> Washington, DC 20009
> (202) 588-1000
> Attorneys for Plaintiffs
>
> June 11, 1997
>
> _________________________________________________________________
>
> TABLE OF CONTENTS
>
> * INTRODUCTION
> * BACKGROUND
> + The Records Disposal Act.
> + The Armstrong v. EOP Decision.
> + The Revision of General Records Schedule 20.
> + Reliance On GRS 20 to Dispose of Agency Records.
> * ARGUMENT
> * PLAINTIFFS HAVE STANDING
> * GRS 20 IS UNLAWFUL BECAUSE IT IS OVERBROAD AND FAILS TO COMPLY
> WITH THE EXPLICIT REQUIREMENTS OF 44 U.S.C. Sec. 3303a(d).
> + GRS 20 Is Not Limited To Administrative Records, But
> Authorizes Destruction Of All Word Processing And Electronic
> Mail Records Without Regard To Content.
> + GRS 20 Is Not Supported By The Requisite Determination That
> All The Records Covered By The Schedule Lack Sufficient Value
> To Warrant Their Preservation.
> + GRS 20 Is Contrary To Law Because It Does Not Specify The
> Period For Retention of Records.
> * DEFENDANTS' ARGUMENTS CONCERNING DISMISSAL OF PLAINTIFFS' SECOND
> CLAIM FOR RELIEF ARE WITHOUT MERIT.
> * FOOTNOTES
> * CONCLUSION
>
> _________________________________________________________________
>
> Introduction
>
> In Armstrong v. Executive Office of the President, 1 F.3d 1274, 1277
> (D.C. Cir. 1993), the Court of Appeals rejected the government's
> contention that agencies were entitled to destroy their electronic
> mail records if they had "instructed employees to print out a paper
> version of any electronic communication that falls within the
> statutory definition of a `record.'" The Court held that electronic
> mail and other electronic records, like paper records, must be managed
> in accordance with the Federal Records Act and, thus, must be
> appraised for their historical value before being destroyed. Id. at
> 1287-88.
>
> Fourteen months later, however, the National Archives and Records
> Administration announced its intent to circumvent this ruling by
> promulgating a "General Records Schedule" that gives federal agencies
> blanket authority to adopt the print and delete practice rejected in
> Armstrong v. EOP. The Schedule allows agencies to destroy any
> electronic mail or word processing record on their computer systems if
> the record has been printed on paper or microfilm. Despite
> overwhelming public opposition to this proposed rule, the Archivist
> approved the Schedule, and agencies are now relying on the Schedule as
> authority for destroying electronic records -- including records of
> the highest agencies in the government.
>
> Plaintiffs challenge this government-wide, unqualified authorization
> for the destruction of electronic mail and word processing records as
> both unlawful and arbitrary. Plaintiffs do not contend that all
> electronic mail and word processing records must be preserved in
> electronic form. Indeed, plaintiffs do not dispute that most
> electronic mail and word processing records need not be retained in
> electronic form. Instead, plaintiffs contend that the law requires
> that the Archivist distinguish between electronic records that have
> historical value and those that do not. By adopting GRS 20, however,
> the Archivist has abdicated his responsibility to make such
> distinctions and has sought to circumvent the procedures for public
> notice and public comment on disposal decisions. More specifically,
> GRS 20 has four critical flaws, any one of which is sufficient to
> strike down the Schedule.
>
> First, the Schedule sweeps too broadly because it authorizes the
> destruction of all electronic mail and word processing records without
> regard to content. Under the Records Disposal Act, the Archivist's
> authority to use General Records Schedules is limited to records that
> have a character that is "common to several or all agencies," 44
> U.S.C. Sec. 3303a. Congress and the Archivist have long recognized
> that, because general schedules apply to many different agencies, they
> should only be used for "housekeeping" or "administrative" records,
> such as personnel records, whose value does not depend on which agency
> created them -- and should not be used for "program" records
> concerning the agency's mission. But General Records Schedule 20
> departs from this longstanding interpretation, without explanation or
> justification, and treats program records of the most powerful White
> House agencies as if they had the same value as records of the
> lowliest government field office.
>
<<...>>
> CONCLUSION
>
> For the reasons stated above, the Court should grant summary judgment
> to plaintiffs and enter a declaratory judgment declaring GRS 20
> contrary to law and arbitrary and capricious.
...
