846 lines
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846 lines
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Plaintext
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Computer underground Digest Wed Feb 26, 1997 Volume 9 : Issue 12
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ISSN 1004-042X
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Editor: Jim Thomas (cudigest@sun.soci.niu.edu)
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News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu)
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Archivist: Brendan Kehoe
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Shadow Master: Stanton McCandlish
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Field Agent Extraordinaire: David Smith
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Shadow-Archivists: Dan Carosone / Paul Southworth
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Ralph Sims / Jyrki Kuoppala
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Ian Dickinson
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Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
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CONTENTS, #9.12 (Wed, Feb 26, 1997)
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File 1--PROFS Case: Public Citizen V Carlin 12/23/96
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File 2--Cu Digest Header Info (unchanged since 13 Dec, 1996)
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CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
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THE CONCLUDING FILE AT THE END OF EACH ISSUE.
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---------------------------------------------------------------------
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Date: Sat, 11 Jan 1997 14:53:10 -0500 (EST)
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From: Eddie Becker <ebecker@CNI.ORG>
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Subject: File 1--PROFS Case: Public Citizen V Carlin 12/23/96
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Enclosed please find the legal complaint against the National
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Archives and Records Administration (NARA) over the issue
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of the electronic retention and retrievability of Federal
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Records. At the end of the brief I have appended a
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description of the case by Page Putnam Miller, Director of
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the National Coordinating Committee for the Promotion of
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History.
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If you are not on the PROFS Case: mailing list,
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send e-mail to ebecker@cni.org
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put Join in the Subject line and your name and e-mail
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address in the text.
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You may also want to check out
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http://www.cpsr.org/cpsr/government_info/info_access/PROFS_CASE
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and
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http://www.citizen.org/public_citizen/litigation/briefs/carlin.html
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for past postings. Eddie Becker ebecker@cni.org
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________________________________________________________________
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Public Citizen v. Carlin: Complaint Challenging GRS 20
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Submitted 12/23/96 Judge: Charles R. Richey Case # 1:96CV02840
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UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF COLUMBIA
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_________________________________________________________________
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PUBLIC CITIZEN, INC.
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1600 20th Street, NW
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Washington, DC 20009,
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AMERICAN HISTORICAL ASSOCIATION
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400 A Street, S.E.
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Washington DC 20003,
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AMERICAN LIBRARY ASSOCIATION
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50 East Huron Street
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Chicago, Illinois 60611,
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CENTER FOR NATIONAL SECURITY STUDIES
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2130 H Street, N.W., Suite 701
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Washington, DC 20037,
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NATIONAL SECURITY ARCHIVE
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Gelman Library, Suite 701
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The George Washington University
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2130 H Street, NW
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Washington DC 20037,
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ORGANIZATION OF AMERICAN HISTORIANS
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112 North Bryan Street
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Bloomington, IN 47408-4199,
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SCOTT ARMSTRONG
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2620 Quebec Street, N.W.
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Washington DC 20008,
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and
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EDDIE BECKER
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1844 Mintwood Place, N.W.
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Washington DC 20009,
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Plaintiffs,
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v.
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JOHN CARLIN, in his official
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capacity as Archivist of
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the United States,
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7th and Pennsylvania Avenue, N.W.
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Washington DC 20408,
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EXECUTIVE OFFICE OF THE PRESIDENT,
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725 17th Street, N.W.
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Washington, D.C. 20503,
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OFFICE OF ADMINISTRATION
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725 17th Street, N.W.
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Washington, D.C. 20503,
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and
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OFFICE OF THE UNITED STATES
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TRADE REPRESENTATIVE
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600 17th Street, N.W.
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Washington, D.C. 20506,
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Defendants.
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_________________________________________________________________
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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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This action challenges the Archivist's promulgation of a "General
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Records Schedule" authorizing all federal agencies, at their
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discretion, to destroy the only electronic version of Federal
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agency records stored on agency electronic mail and word
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processing systems provided the agency has printed a hard copy of
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the electronic record on paper or microform. Plaintiffs charge
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that by promulgating the General Records Schedule the Archivist
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has improperly ignored the unique value of electronic records, has
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abdicated his statutory responsibility to appraise the historical
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value of such electronic records, and has unlawfully attempted to
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use General Records Schedule to authorize the destruction of
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records concerning individual agency programs without the public
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notice and comment required by law.
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This action presents an issue first raised by defendants in
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Armstrong v. Executive Office of the President, C.A. No. 89-142,
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in 1989 when the predecessor to the current Archivist argued, in
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the alternative, that the General Records Schedules authorized the
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destruction of electronic mail records of the Executive Office of
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the President at issue in that litigation. The issue was not
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decided in that case because, after the General Records Schedule
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claim was challenged, the Archivist and other defendants abandoned
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any reliance on it. On August 28, 1995, however, this claim
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reappeared when the Archivist promulgated a General Records
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Schedule purporting to authorize destruction of electronic mail
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and word processing records at all federal agencies if a hard copy
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of the record had been created on paper or microform. On or about
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December 17, 1996, the Archivist endorsed the Executive Office of
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the President's decision to rely on this revised General Records
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Schedule to dispose of electronic records, including certain
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electronic records of the Office of the United States Trade
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Representative that were preserved pursuant to the injunctions
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entered in Armstrong v. Executive Office of the President.
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This action arises under the Disposal of Records Act, 44 U.S.C.
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Secs. 3301-3314, and the Administrative Procedure Act, 5 U.S.C.
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Sec. 706.
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This Court has jurisdiction pursuant to 28 U.S.C. Sec. 1331.
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_____________________________________________________________
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PARTIES
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. Plaintiff Public Citizen, Inc. ("Public Citizen") is a national
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nonprofit corporation and membership organization with
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approximately 100,000 members which, among other activities,
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conducts research and educational programs on government
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regulatory and information policies. Public Citizen makes
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extensive use United States government records, including records
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held by the National Archives and Records Administration ("NARA"),
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units of the Executive Office of the President, the Department of
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Justice, the Department of State, and other federal agencies.
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Public Citizen intends to make use of records created in
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electronic form by units of the Executive Office of the President,
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the Department of Justice, the Department of State, and other
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federal agencies.
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. Plaintiff American Historical Association is the oldest and
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largest association of historians in this country. It was founded
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in 1884 and incorporated by the Congress in 1889 for the promotion
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of historical studies, the collection and preservation of
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historical manuscripts, and the dissemination of historical
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research. It is a non-profit association, with a membership of
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approximately 15,000 historians. It brings this action on behalf
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of itself and its members, many of whom use records made available
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to the public through the Freedom of Information Act or at
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facilities operated by NARA. The Association and its members have
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a strong interest in ensuring that historically important
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government electronic records are preserved and, where
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appropriate, are available for use by researchers and historians
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in electronic format.
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Plaintiff American Library Association, founded in 1876, is the
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world's oldest and largest library association. It is a non-profit
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educational association of approximately 58,000 members, including
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libraries, archives, librarians, library trustees, and library
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users. Part of the Association's mission is to enhance learning
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and ensure access to information for all. It brings this action on
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behalf of itself and its members, who have a direct interest in
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ensuring that historically important government electronic records
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are preserved and, where appropriate, are preserved and made
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available to libraries, librarians, and the public, in electronic
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format.
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Plaintiff Center for National Security Studies is a non-profit
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public interest scholarly research institute. It is organized and
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operated as a project of the Fund for Peace, Inc., a New York
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non-profit corporation. The Center for National Security Studies
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makes extensive use of United States government records,
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especially on national security issues, and makes such records
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available to scholars, journalists, and other interested persons
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as part of its program of public education. The Center for
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National Security Studies intends to use records created in
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electronic form by units of the Executive Office of the President,
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the Department of State, and other federal agencies for its
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research and public education activities and has an interest in
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ensuring that, where appropriate, such records are preserved and
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available for research in electronic form.
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Plaintiff National Security Archive is a non-profit public interest
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research institute and library. It is organized and operated as a
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project of the Fund for Peace, Inc., a New York non-profit
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corporation. The National Security Archive collects, catalogues,
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indexes, and publishes declassified and unclassified government
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documentation on national security and foreign affairs policy,
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practices, and activities, and it makes such records available to
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historians, researchers, and individuals throughout the country.
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Through its research and publication activities, the National
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Security Archive intends to use, and to make available to
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historians, journalists and researchers, records on national
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security issues created in electronic form by units of the
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Executive Office of the President, the Department of State, and
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other federal agencies, and has a direct interest in ensuring
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that, where appropriate, these records are available for research
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and dissemination in electronic format.
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Plaintiff Organization of American Historians was founded as the
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Mississippi Valley Historical Association in 1907. It is today the
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largest association devoted to research and teaching on the
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history of the United States. Its 12,000 members are drawn from
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colleges and universities, historical societies, museums,
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elementary and secondary schools, and other institutions. The
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Organization is committed to ensuring access to, and preservation
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of, records which are basic to understanding American history. The
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Organization of American Historians brings this action on behalf
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of itself and its members, many of who will use historically
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significant government agency records in their research and
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historical work, and have direct interest in ensuring that, where
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appropriate, such records will be preserved for researchers and
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historians in electronic format.
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Plaintiff Scott Armstrong is a journalist, author, foreign policy
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researcher, and founder of the National Security Archive. He makes
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extensive use of records about United States government operations
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that are made available to the public through the Freedom of
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Information Act or at NARA facilities. He intends to use records
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created in electronic form by units of the Executive Office of the
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President, the Department of Justice, the Department of State, and
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other federal agencies, and has a direct interest in ensuring
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that, where appropriate, historically significant electronic
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records are preserved and retained by NARA in electronic form.
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Plaintiff Eddie Becker is a professional researcher specializing in
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documentary reconstruction of historical events, with a particular
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expertise in computerized information. He is employed by
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documentary filmmakers, scholars, and journalists. He makes
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extensive use of NARA facilities to obtain access to information
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about historical events, and he wishes to use records created in
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electronic form by government agencies in electronic format.
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Defendant John J. Carlin is the Archivist of the United States, and
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is sued solely in his official capacity. As Archivist, Mr. Carlin
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is responsible for the supervision and direction of NARA. 44
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U.S.C. Sec. 2102. The Archivist's duties include authorizing the
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disposal of records of federal agencies after a specified period
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of time through the approval of schedules submitted to him by
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individual agencies, or by promulgating General Records Schedules.
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Defendant Executive Office of the President ("EOP") is an agency of
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the United States which supervises and coordinates the activities
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of various component agencies that provide support to the
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President of the United States. These components include the
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Office of Science and Technology, the Office of the United States
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Trade Representative, the Office of Management and Budget, and the
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Office of Administration. Records disposition schedules for EOP
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components, including the Office of Science and Technology and the
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Office of the United States Trade Representative, are submitted in
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the name of the EOP.
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Defendant Office of Administration is a component agency of the EOP
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which, inter alia, promulgates guidelines and directives on the
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retention, management, and disposition of agency records by the
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EOP. Records disposition schedules and directives for the Office
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of the United States Trade Representative, the Office of Science
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and Technology, and other EOP components are prepared and issued
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by the Records Management Office of the Office of Administration.
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Defendant Office of the United States Trade Representative ("USTR"),
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is a component agency of the EOP which, inter alia, is responsible
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for administering trade agreements, coordinating trade policy, and
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setting and administering overall trade policy. It has custody and
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control of word processing and electronic mail records created by
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USTR staff using the USTR Data General Computer System.
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_____________________________________________________________
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STATUTORY FRAMEWORK
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The Disposal of Records Act, 44 U.S.C. Sec. 3301-3314, provides that
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agency records may not be disposed of without the authorization of
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the Archivist of the United States.
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The requirements of the Disposal of Records Act apply to all agency
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records, regardless of physical form or characteristics, including
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records created, received or stored in electronic format. 44
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U.S.C. Sec. 3301.
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The disposal of most agency records is authorized by agency
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disposition schedules in which agencies submit to the Archivist
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for approval lists or schedules proposing the disposal of specific
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agency records after the lapse of specified periods of time
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pursuant to 44 U.S.C. Sec. 3303a(a). Authorization to dispose of
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records through such agency disposition schedules requires:
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(a) That the agency responsible for the records prepare a schedule
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describing the records and certify that the records do not or will
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not have sufficient administrative, legal, or financial value to
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the agency to warrant retention beyond the expiration of the
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specified period;
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(b) That notice of the agency proposal to dispose of records be
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published in the Federal Register, and interested persons are
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given an opportunity to comment on the proposal. 44 U.S.C. Sec.
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3303a(a).
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(c) That the Archivist independently appraises the records and
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concurs in the agency's determination that the records do not, or
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will not, after the lapse of the period specified, have sufficient
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administrative, legal, research, or other value to warrant their
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continued preservation. 44 U.S.C. Secs. 3303(3), 3303a(a), 36
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C.F.R. Secs. 1228.26, 1228.30.
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Agency disposition schedules are not required where the Archivist
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authorizes disposal through "General Records Schedule." 36 C.F.R.
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Sec. 1228.40. The Disposal of Records Act authorizes the Archivist
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to promulgate General Records Schedules authorizing the disposal
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of records common to several or all agencies after specified
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periods of time if such records will not, at the end of the
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specified periods specified, have sufficient administrative,
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legal, research or other value to warrant their further
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preservation. 44 U.S.C. Sec. 3303a.
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Federal agencies are required to destroy records in accordance with
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the disposition instructions in the General Records Schedules
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unless they specifically request and obtain an exception from the
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Archivist. 44 U.S.C. 3303a(b); 36 C.F.R. 1228.42(b). The
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provisions of the General Records Schedules may also be applied to
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agency records in the custody of NARA at NARA's discretion. 36
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C.F.R. Sec. 1228.42(c).
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Authorizing the disposal of agency records by a General Records
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Schedule
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(a) Allows the records to be destroyed without the agency
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preparing a schedule describing the records and certifying that
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the records the records do not, or will not, warrant retention:
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(b) Eliminates the public's right to notice and comment on the
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disposal of records of a particular agency pursuant to 44 U.S.C.
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Sec. 3303a(a); and
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(c) Allows the records to be destroyed without the Archivist
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independently appraising the value of the records.
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_____________________________________________________________
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FACTS GIVING RISE TO PLAINTIFFS' CLAIM FOR RELIEF
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Agency Electronic Mail and Word Processing Records
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Nearly all federal agencies now use electronic mail and word
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processing systems to transact government business.
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The electronic mail and word processing systems used by government
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agencies store, in electronic format, agency "records" as defined
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in 44 U.S.C. Sec. 3301.
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The agency records stored in agency electronic mail and word
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processing systems include records that document the unique,
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substantive functions for which each agency is responsible,
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including substantive information on the organization, functions,
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policies, decisions, procedures, operations, and other activities
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of an agency that uses the system.
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Records in electronic format have advantages over records recorded
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on paper or microform because the records and the information that
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they contain can be searched, manipulated and stored in ways that
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paper or microform records cannot. Among other advantages, (a)
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records stored in electronic format may be more accessible to and
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useful to researchers and historians than identical records in
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paper or microform format; and (b) records stored in electronic
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format may have unique data or information that is not preserved
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when the record is converted to paper or microform format.
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The unique properties of records stored in electronic format affect
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the administrative, legal, research or other value of the records
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and may make records in electronic format more valuable than
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identical records in paper or microform format.
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The Archivist is responsible for ensuring that the records created,
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received and stored by agencies using word processing and
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electronic mail systems are not destroyed unless the records do
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not have sufficient administrative, legal, research, or other
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value to warrant their continued preservation by the Government.
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This responsibility includes considering whether the records have
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sufficient administrative, legal research, or other value to
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researchers, historians, or other persons outside the agency to
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warrant their continued preservation by the Government.
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_____________________________________________________________
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Revised General Records Schedule 20
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In 1989, in Armstrong v. Executive Office of the President, C.A. No.
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89-142, defendants, including the Archivist of the United States
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at that time, Don W. Wilson, asserted that, even if the electronic
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mail and other records of the EOP at issue in that litigation
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could be deemed to be a "record" under 44 U.S.C. Sec. 3301,
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General Records Schedules 20 and 23 authorized the destruction of
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all of the types of data found on the EOP systems at issue.
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Plaintiffs in that action alleged that General Records Schedules
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20 and 23 are unlawful and arbitrary and capricious to the extent
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that they authorized, or were construed by defendants to
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authorize, the regular destruction of unique information on the
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electronic mail system at issue having administrative, legal,
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research or historical value which warrant preservation of the
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information. This dispute concerning the General Records Schedule
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was not decided in Armstrong v. Executive Office of the President,
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C.A. No. 89-142, because by 1993 defendants acknowledged that
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neither the EOP nor the National Security Council relied on
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General Records Schedule 23 as authorization for deleting
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information from their respective computer systems or routinely
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destroying backup tapes of information stored on the PROFS
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systems. Armstrong v. Executive Office of the President, 810 F.
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Supp. 335, 342 (D.D.C. 1993).
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In response to the 1993 ruling against the Archivist in Armstrong v.
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Executive Office of the President, 1 F.3d 1274 (D.C. Cir. 1993),
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NARA sought to expand the coverage of General Records Schedules
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for electronic mail messages.
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On October 7, 1994, the Acting Archivist, Trudy Peterson, proposed a
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new version of General Records Schedule 20 that would, among other
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things, explicitly authorize all federal agencies to destroy
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agency records stored on word processing and electronic mail
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systems if the records have been converted to paper or microform
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for recordkeeping purposes and the agency no longer needs the
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electronic version of the record. The Acting Archivist requested
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public comment on the proposal.
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All of the comments submitted in response to the Acting Archivist's
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proposal from the public, professional organizations and state
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archivists were critical of the proposal because the commenters
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believed that the proposed General Records Schedule would result
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in the destruction of valuable Federal records. The only entities
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to submit comments in favor of the proposal were Federal agencies.
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Despite the comments opposing the proposal, the Acting Archivist's
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proposal was adopted, with little modification, by the current
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Archivist, John J. Carlin, and on August 28, 1996, the Archivist
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promulgated revised General Records Schedule 20 by publishing a
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notice in the Federal Register. 60 Fed. Reg. 44643 (1995).
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Item 13 of revised General Records Schedule authorizes agencies to
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delete the only electronic version of agency word processing
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records after the records have been copied to paper or microform
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for recordkeeping purposes and the agency no longer needs the
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electronic record for updating or revision.
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Item 14 of revised General Records Schedule authorizes agencies to
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delete the only electronic version of agency records stored on
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electronic mail systems after the records have been copied to
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paper or microform for recordkeeping purposes.
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The Disposal of Records Act requires that, in order to promulgate a
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General Records Schedule, the Archivist must determine that the
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records covered by the schedule will not, at the end of the
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periods specified, have sufficient administrative, legal,
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research, or other value to warrant their further preservation by
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the United States Government. 44 U.S.C. Sec. 3303a(d).
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In promulgating revised General Records Schedule 20, the Archivist
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did not make a determination that all the electronic mail and word
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processing records covered by the schedule will not, at the time
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the Schedule authorizes destruction of these records, have
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sufficient administrative, legal, research, or other value to
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warrant their further preservation by the Government.
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In revised General Records Schedule 20, the Archivist leaves it to
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agencies to decide whether word processing and electronic mail
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records stored in electronic format have sufficient value that
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they should be maintained in electronic format for recordkeeping
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purposes. In making this decision, agencies are under no
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obligation to consider whether the administrative, legal, research
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or other value of the electronic records to those outside the
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agency warrants their further preservation by the Government.
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NARA manuals and guidance documents state that General Records
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Schedules should be applied only to administrative records common
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|
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. Subscriptions are
|
|
available at no cost electronically.
|
|
|
|
CuD is available as a Usenet newsgroup: comp.society.cu-digest
|
|
|
|
Or, to subscribe, send post with this in the "Subject:: line:
|
|
|
|
SUBSCRIBE CU-DIGEST
|
|
Send the message to: cu-digest-request@weber.ucsd.edu
|
|
|
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DO NOT SEND SUBSCRIPTIONS TO THE MODERATORS.
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|
|
|
The editors may be contacted by voice (815-753-0303), fax (815-753-6302)
|
|
or U.S. mail at: Jim Thomas, Department of Sociology, NIU, DeKalb, IL
|
|
60115, USA.
|
|
|
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To UNSUB, send a one-line message: UNSUB CU-DIGEST
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Send it to CU-DIGEST-REQUEST@WEBER.UCSD.EDU
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(NOTE: The address you unsub must correspond to your From: line)
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Issues of CuD can also be found in the Usenet comp.society.cu-digest
|
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news group; on CompuServe in DL0 and DL4 of the IBMBBS SIG, DL1 of
|
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LAWSIG, and DL1 of TELECOM; on GEnie in the PF*NPC RT
|
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libraries and in the VIRUS/SECURITY library; from America Online in
|
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the PC Telecom forum under "computing newsletters;"
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On Delphi in the General Discussion database of the Internet SIG;
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on RIPCO BBS (312) 528-5020 (and via Ripco on internet);
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and on Rune Stone BBS (IIRGWHQ) (860)-585-9638.
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CuD is also available via Fidonet File Request from
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ftp.eff.org (192.88.144.4) in /pub/Publications/CuD/
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wuarchive.wustl.edu in /doc/EFF/Publications/CuD/
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EUROPE: nic.funet.fi in pub/doc/CuD/CuD/ (Finland)
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ftp.warwick.ac.uk in pub/cud/ (United Kingdom)
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The most recent issues of CuD can be obtained from the
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Cu Digest WWW site at:
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URL: http://www.soci.niu.edu/~cudigest/
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COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing
|
|
information among computerists and to the presentation and debate of
|
|
diverse views. CuD material may be reprinted for non-profit as long
|
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as the source is cited. Authors hold a presumptive copyright, and
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they should be contacted for reprint permission. It is assumed that
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non-personal mail to the moderators may be reprinted unless otherwise
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relating to computer culture and communication. Articles are
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preferred to short responses. Please avoid quoting previous posts
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DISCLAIMER: The views represented herein do not necessarily represent
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the views of the moderators. Digest contributors assume all
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responsibility for ensuring that articles submitted do not
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violate copyright protections.
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------------------------------
|
|
|
|
End of Computer Underground Digest #9.12
|
|
************************************
|
|
|