1 F.3d 1274 (D.C. Cir. 1993), 93-5002, Armstrong v. Executive Office of the President, Office of Admin.

Docket Nº:93-5002, 93-5048, 93-5156 and 93-5177.
Citation:1 F.3d 1274
Party Name:Scott ARMSTRONG; Gary M. Stern; Eddie Becker; National Security Archive; Center for National Security Studies, American Historical Association and American Library Association, Plaintiffs-Appellees, v. EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION; National Security Council; Trudy Peterson, Acting Archivist of the United States; White
Case Date:August 13, 1993
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1274

1 F.3d 1274 (D.C. Cir. 1993)

Scott ARMSTRONG; Gary M. Stern; Eddie Becker; National

Security Archive; Center for National Security Studies,

American Historical Association and American Library

Association, Plaintiffs-Appellees,

v.

EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION;

National Security Council; Trudy Peterson, Acting

Archivist of the United States; White House Communications

Agency, Defendants-Appellants.

Scott ARMSTRONG; Gary M. Stern; Eddie Becker; National

Security Archive; Center for National Security

Studies, Plaintiffs-Appellees,

v.

EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION;

National Security Council; Trudy Peterson, Acting

Archivist of the United States; White House Communications

Agency, Defendants-Appellants. (Two Cases)

Scott ARMSTRONG; Gary M. Stern; Eddie Becker; National

Security Archive; Center for National Security Studies;

American Historical Association; American Library

Association, Plaintiffs-Appellants,

v.

EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF ADMINISTRATION;

National Security Council; Trudy Peterson, Acting

Archivist of the United States; White House Communications

Agency, Defendants-Appellees.

Nos. 93-5002, 93-5048, 93-5156 and 93-5177.

United States Court of Appeals, District of Columbia Circuit

August 13, 1993

Argued June 15, 1993.

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[303 U.S.App.D.C. 110] Appeal from the United States District Court for the District of Columbia (Civil Action No. 89cv00142).

Freddi Lipstein, Attorney, U.S. Dept. of Justice, Washington, DC, argued the cause for appellants-cross-appellees. With her on the joint brief were Stuart E. Schiffer, Acting Asst. Atty. Gen., J. Ramsey Johnson, U.S. Atty., Leonard Schaitman, Matthew M. Collette, and Patricia A. Millett, Attorneys, U.S. Dept. of Justice, Washington, DC.

Michael E. Tankersley, Washington, DC, argued the cause for appellees-cross-appellants. With him on the joint brief were David C. Vladeck and Alan B. Morrison, Washington, DC. Patti Ann Goldman, Kate Abbott Martin and Katherine Anne Meyer, Washington, DC, entered appearances.

Before MIKVA, Chief Judge; WALD and HENDERSON, Circuit Judges.

Opinion for the Court filed PER CURIAM. 1

PER CURIAM:

This consolidated appeal presents us with important questions of federal agencies' statutory obligations to manage electronic records as well as issues related to the appropriate use of the civil contempt power to coerce conformity with district court orders.

In the flagship portion of the appeal, defendants-appellants--the Executive Office of the President ("EOP"), the Office of Administration, the National Security Council ("NSC"), the White House Communications Agency, and Trudy Peterson, Acting Archivist of the United States--challenge the district court's conclusion that EOP and NSC guidelines for managing electronic documents do not comport with Federal Records Act ("FRA" or the "Act") requirements. More specifically, these government agencies and officials contend that, contrary to the court's ruling, they have, in the past, reasonably discharged their FRA obligations by instructing employees to print out a paper version of any electronic communication that falls within the statutory definition of a "record" and by managing the "hard-copy" documents so produced in accordance with the Act. We reject the government's argument on this score. The government's basic position is flawed because the hard-copy print-outs that the agencies preserve may omit fundamental pieces of information which are an integral part of the original electronic records, such as the identity of the sender and/or recipient and the time of receipt.

The defendants also appeal the district court's order holding them in civil contempt of its prior order enjoining the Archivist to "take all necessary steps" to preserve federal records and requiring the defendant agencies not to remove, alter, or delete any information until the Archivist takes action to prevent the destruction of federal records. More specifically, they contest the district court's contempt citation grounded in the court's conclusions that (1) the defendant agencies failed to issue adequate recordkeeping instructions to employees in the four months after their former guidelines were held invalid and (2) the transfer of nearly 6,000 backup tapes to the Archivist "adversely affected" those tapes. Because the district court orders on which the contempt citation rests did not specify that the defendants had an affirmative duty to create new guidelines by a date certain, the district court abused its discretion in holding the defendants in contempt at least in part because of their failure to issue such guidelines within four months. We remand to allow the district court to determine whether, in light of the defendants' speeded-up attempts in recent months to assure preservation of the tapes, its second ground, the failure to preserve these tapes, by itself, justifies a contempt citation.

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[303 U.S.App.D.C. 111] Finally, we are presented with a cross-appeal. The plaintiffs-cross-appellants--Scott Armstrong, the National Security Archive, and several other researchers and nonprofit organizations--take issue with the district court's conclusion that federal courts have no authority to review NSC and Office of Science & Technology Policy ("OSTP") guidelines differentiating federal records subject to the FRA from presidential records subject to the Presidential Records Act ("PRA"), 44 U.S.C. Sec. 2201 et seq. Contrary to the district court, we conclude that the PRA allows limited review to assure that guidelines defining presidential records do not improperly sweep in nonpresidential records. Accordingly, we remand to the district court to determine whether the relevant NSC and OSTP directives categorize nonpresidential records as subject to the PRA.

I. BACKGROUND

  1. Statutory Framework

    Federal agencies' records creation, management, and disposal duties are set out in a collection of statutes known collectively as the Federal Records Act. See 44 U.S.C. Secs. 2101 et seq., 2901 et seq., 3101 et seq., 3301 et seq. The FRA, Congress informs, is intended to assure, among other things, "[a]ccurate and complete documentation of the policies and transactions of the Federal Government," "[c]ontrol of the quantity and quality of records produced by the Federal Government," and "[j]udicious preservation and disposal of records." 44 U.S.C. Sec. 2902(1), (2), (5); see also Armstrong v. Bush, 924 F.2d 282, 292 (D.C.Cir.1991) ("Armstrong I ") (the FRA is intended to guarantee that agencies' records management programs "strike a balance 'between developing efficient and effective records management, and the substantive need for Federal records' ") (quoting S.REP. NO. 1326, 94th Cong., 2d Sess. 2 (1976)). To achieve those ends, the FRA burdens the heads of federal agencies with several obligations. Most basically, each agency head must "make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency's activities." 44 U.S.C. Sec. 3101. Moreover, under the Act, agency chiefs must also "establish and maintain an active, continuing program for ... economical and efficient [records] management," id. Sec. 3102, and "establish safeguards against the removal or loss of records [the agency head] determines to be necessary and required by regulations of the Archivist." Id. Sec. 3105; see also Armstrong I, 924 F.2d at 293 (noting that these provisions, as well as others, furnished "law to apply" under the Administrative Procedure Act ("APA"), see 5 U.S.C. Sec. 701(a)(2), and thus permitted judicial review of agency recordkeeping guidelines' conformity with the FRA).

    Besides assigning specific duties to agency heads, the FRA prescribes the exclusive mechanism for disposal of federal records. See 44 U.S.C. Sec. 3314 (no records may be "alienated or destroyed" except in accordance with the FRA's provisions). For these purposes, "records" are defined as

    all books, papers, maps, photographs, machine readable [i.e., electronic] materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency ... as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them. Library and museum material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of processed documents are not included.

    Id. Sec. 3301. If a document qualifies as a record, the FRA prohibits an agency from discarding it by fiat. See American Friends Service Committee v. Webster, 720 F.2d 29, 62 (D.C.Cir.1983) ("Congress did not intend to grant [the agency] ... a blank check for

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    [303 U.S.App.D.C. 112] records disposal."). Instead, the FRA requires the agency to procure the approval of the Archivist before disposing of any record. Cf. id. at 63. Normally, that approval may be obtained in one of two ways. First, an agency may submit a schedule of records sought to be discarded to the...

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