The Hacker's Encyclopedia 1998

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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. --------------------------------------------------------------------- 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) Cu-Digest is a weekly electronic journal/newsletter. 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