Agencies allowed to establish own policies for the deletion of electronic records

When the Archivist of the United States told federal agencies to delete electronic records if they had made paper or electronic copies for files, watchdog groups were horrified. They sued, trying to force the archivist to limit destruction of the electronic records.

Records are more searchable and more useful when they are in electronic form, they said, and the archivist has a duty to manage the billions of records agencies produce so that they are useful. A federal District Court judge agreed in 1997 and, following his ruling, many federal agencies worked to gain the archivist’s approval of new electronic record-keeping systems. But in early August an appeals panel reversed and said agencies can choose, based on their own needs, how to maintain their records.

John Carlin, the Archivist of the United States, in August 1995directed federal agencies to dispose of word processing and electronic mail files located in personal computers once they had copied them to a paper or electronic record-keeping system. When the records were no longer needed for updating or revision, they could be erased under the directive General Records Schedule 20 (GRS 20).

In late December 1996, Michael Tankersley, an attorney with Public Citizen, sued the archivist in federal District Court in Washington, D.C. on behalf of Public Citizen and a number of historians, journalists, and researchers. Public Citizen is a nonprofit organization that researches government regulatory and information practices.

Tankersley said the archivist ignored the “unique value” of electronic records when he allowed agencies to delete them.

He told the court the archivist also had ignored cases ruled on by the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.) requiring the management of electronic records under the Federal Records Act.

In those cases, litigated by Public Citizen, former Washington Post reporter Scott Armstrong sued the Bush and Clinton administrations to stop destruction of electronic records of prior presidential administrations as succeeding presidents came into office. (See NM&L, Summer 1998 and Fall 1993)

In Armstrong’s cases, the appeals court said the government must create, manage, and dispose of its electronic records, like its paper records, in line with the Federal Records Act, although the appeals court did allow agencies, with approval of the archivist, to purge routine “housekeeping” records.

The federal government responded that Congress had not intended to limit agency records management by allowing them to destroy only routine records. The GRS 20 was meant to apply to other and more substantive records as well.

It said there was little value to leaving records on live word processing and e-mail systems where they would be of little use to researchers or other agency personnel.

And the government’s computers simply do not have the capacity to store all the information that it deals with every day. The existence of information in disparate government files, even if it is filed electronically, does not aid agency-controlled record keeping systems, the government said.

To avoid system overload and successfully manage its records, an agency has to be able to delete electronic records, it said. Agencies cannot be expected to maintain records that have no administrative, legal, or research value, it said.

In October 1997, federal District Court Judge Paul Friedman ruled against the government, saying the archivist had exceeded his authority in permitting agencies to delete records because of their form rather than because of their content.

The General Records Schedules were intended by Congress to address only routine, housekeeping matters common to all agencies and records that, over time, have very little value, the court said. Records relating to hiring of personnel, procurement of supplies, and fiscal management have diminished value.

Electronic records often have unique and valuable features not found in paper printouts. They have the capacity for being searched, manipulated, indexed, and transmitted, the judge said. Records kept in electronic format are more useful, he said.

The government appealed to the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.), but the archivist kept GRS 20 effective. In April 1998, Friedman said the archivist had “flagrantly” violated his ruling. He enjoined Carlin from authorizing any electronic record disposal and ordered him to tell agencies GRS 20 was “null and void.”

In appealing the initial order, the government defended the archivist for solving the difficult problem of live records on desktop computers. Agencies have to delete records or face overloads. Deleting records preserved elsewhere in an official record-keeping system is reasonable, it said.

The lower court had “second-guessed” the archivist’s policy choices, the government said. Even if the records law only allows disposal of housekeeping records and requires retention of program records, GRS 20 should be effective. It only deletes “disparate electronic files” maintained by individuals.

The law allows disposal of “records of a specified form or character,” the government said, and GRS 20 simply describes what those records are.

The archivist’s directive preserved records of value by requiring them to be transferred to record-keeping systems, it said. The Armstrong cases require maintenance of electronically created records, but do not require that they be maintained electronically, the government argued.

Public Citizen said the archivist skirted his duty to monitor agency records destruction. The Records Disposal Law requires the archivist’s review of agency disposal practices for good reason, it argued. Without guidance, agencies may fail to consider the records’ value to the public and to the government as a whole.

The archivist is supposed to consider the content of records in these decisions. He is supposed to ensure preservation of archival values that go beyond an agency’s immediate needs and interests, the public interest group argued.

In the past, General Records Schedules have only provided for destruction of records with little administrative, legal, or research value that are commonly held by most agencies. Here, content was not considered at all, it said, and the only common feature of records to be destroyed was that they are electronic. The directive gives the archivist no role in determining what is valuable and what should be preserved.

The law also requires that the records be held for a “specified time” before destruction, Public Citizen said. That does not mean the time when they are converted to a record-keeping system, as GRS 20 provides, it said.

In early August, the appellate court reversed, ruling that the archivist could issue GRS 20.

Judge Douglas Ginsburg wrote for the court that Congress intended in the Records Disposal Act to reduce unnecessary retention of records and that GRS 20 accomplishes that. Because the directive addresses records that are common to all agencies, he noted, a general directive is appropriate.

Because the directive concerns only records that agencies choose to copy into a record-keeping system, it provides for some determination of value before they are deleted or copied, he said.

The archivist made the required determination of the value of records before they could be destroyed, Ginsburg said. He determined that records that the agency had copied into permanent files were valuable.

Electronic record-keeping has advantages over paper record-keeping, Ginsburg wrote, but the agencies can determine for themselves how to maintain their record-keeping systems. (Public Citizen v. Carlin)