National Security Council subject to federal records and information laws

WASHINGTON, D.C. — Federal District Court Judge Charles Richey ruled in mid-February that the National Security Council is a federal agency subject to the Federal Records Act and that, as such, it must preserve its electronic mail records.

NSC had issued a directive in March 1994 declaring that it was not an agency because it existed solely to advise and assist the President. Therefore NSC did not have to preserve records in line with the Federal Records Act or make them available under the Freedom of Information Act, according to the directive. However, in an accompanying memorandum Clinton said that NSC would take steps to make appropriate records public.

Judge Richey ordered the agency to adopt new guidelines “forthwith” to ensure that NSC records are preserved.

Richey’s ruling is the latest in a series of court rulings in an action brought by former Washington Post reporter and historian Scott Armstrong. The first was an injunction against the Reagan administration on the eve of the inauguration of President Bush that prevented destruction of electronic mail records between high level officials. Ultimately the Bush and the Clinton administrations became parties to the litigation.

In a lengthy opinion, Richey enumerated functions of the NSC that are independent of its role in advising the President.

In August 1993 the U.S. Court of Appeals (D.C. Cir.) ordered the District Court to determine whether NSC was evading records laws by categorizing its records as “Presidential records” which are not subject to protection against destruction or to the FOI Act. (Armstrong v. Executive Office of the President; Counsel: Michael Tankersley, Washington, D.C.)