Armstrong v. Bush
| Citation | 288 U.S.App.D.C. 38,924 F.2d 282 |
| Decision Date | 25 January 1991 |
| Docket Number | No. 90-5173,90-5173 |
| Parties | Scott ARMSTRONG, et al., Appellees, v. George BUSH, et al., Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 89-CV-00142).
Patricia M. Bryan, Deputy Asst. Atty. Gen., with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Leonard Schaitman, Freddi Lipstein and Matthew M. Collette, Attys., Dept. of Justice, were on the brief, for appellants.
Alan B. Morrison, with whom Michael E. Tankersley, Patti A. Goldman and Kate Martin were on the brief, for appellees.
Before WALD, D.H. GINSBURG and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
Plaintiffs-appellees, journalist Scott Armstrong, the National Security Archive, and several other individuals and organizations, brought suit to prohibit defendants-appellants President George Bush, Archivist of the United States Don Wilson, and the National Security Council ("NSC") from erasing any material stored on the NSC computer system during the last two weeks of the Reagan Administration. Appellees allege that some of these materials are "records" within the meaning of the Presidential Records Act ("PRA"), 44 U.S.C. Secs. 2201 et seq., and the Federal Records Act ("FRA"), 44 U.S.C. Secs. 2101-2118, 2901-2910, 3101-3107, and 3301-3324, and, therefore, cannot be erased without the approval of the Archivist. The district court held that Sec. 702 of the Administrative Procedure Act ("APA"), 5 U.S.C. Sec. 702, authorized review of the President's and NSC's compliance with the PRA and the FRA and that there are unresolved factual issues regarding whether the appellants have complied with the recordkeeping statutes. Armstrong v. Bush, 721 F.Supp. 343 (D.D.C.1989). Accordingly, the district court denied appellants' motion to dismiss the complaint or, in the alternative, for summary judgment.
The district court subsequently certified its order for interlocutory appeal under 28 U.S.C. Sec. 1292(b), and this court granted appellants' petition for permission to take an interlocutory appeal. We now reverse in part, affirm in part, and remand to the district court for proceedings consistent with this opinion.
The FRA governs the creation, management and disposal of federal records. 1 In enacting the FRA, Congress sought to ensure inter alia: (1) "efficient and effective records management"; (2) "[a]ccurate and complete documentation of the policies and transactions of the Federal Government"; and (3) "[j]udicious preservation and disposal of records." 44 U.S.C. Sec. 2902. Accordingly, the FRA requires "[t]he head of each Federal agency [to] make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency...." Id. Sec. 3101. Each agency head shall also "establish and maintain an active, continuing program for the economical and efficient management of the records of the agency," id. Sec. 3102, and "shall establish safeguards against the removal or loss of records he determines to be necessary and required by regulations of the Archivist." Id. Sec. 3105.
The FRA also mandates that "[t]he Archivist shall provide guidance and assistance to Federal agencies," 44 U.S.C. Sec. 2904(a), shall "promulgate standards, procedures, and guidelines with respect to records management," id. Sec. 2904(c)(1), and shall "conduct inspections or surveys of the records and records management programs and practices within and between Federal agencies." Id. Sec. 2904(c)(7). If the Archivist discovers that any provision of the FRA
has been or is being violated, the Archivist shall (1) inform in writing the head of the agency concerned of the violation and make recommendations for its corrections; and (2) unless satisfactory corrective measures are inaugurated within a reasonable time, submit a written report of the matter to the President and Congress.
Id. Sec. 2115(b).
The FRA similarly regulates the disposal of "records," which it defines to include
all books, papers, maps, photographs, machine readable 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 the data in them.
44 U.S.C. Sec. 3301. No records may be "alienated or destroyed" except pursuant to the disposal provisions of the FRA. Id. Sec. 3314. The Archivist plays a key role in the disposal of records. Upon the request of an agency head, the Archivist may authorize the disposal of records that are no longer needed by the agency and that do not have "sufficient administrative, legal, research, or other value to warrant their continued preservation by the Government...." Id. Sec. 3303a. In addition, the Archivist
shall notify the head of a Federal agency of any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of the agency that shall come to his attention, and assist the head of the agency in initiating action through the Attorney General for the recovery of records wrongfully removed and for other redress provided by law.
Id. Sec. 2905(a); see also id. Sec. 3106 (). If, however, the agency head does not initiate an action, the Archivist "shall request the Attorney General to initiate such action, and shall notify the Congress when such a request has been made." Id. Sec. 2905(a).
The PRA directs the President to "take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records...." 44 U.S.C. Sec. 2203. The statute defines "Presidential records" as
documentary materials ... created or received by the President, his immediate staff, or a unit or individual in the Executive Office of the President whose function is to advise and assist the President in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.
Id. Sec. 2201(2).
Like the FRA, the PRA also regulates the disposal of presidential records. "During his term of office, the President may dispose of those of his Presidential records that no longer have administrative, historical, informational, or evidentiary value." Id. Sec. 2203(c). If the Archivist thinks it advisable, he may notify Congress of the President's intent to dispose of the records; and if the Archivist notifies Congress, the President must submit the disposal schedules to the appropriate congressional committees and wait sixty days before destroying the records. Id. Secs. 2203(c), 2203(d). The PRA gives neither the Archivist nor the Congress the authority to veto the President's decision to destroy the records.
Somewhat different disposal provisions apply after the President has left office. Upon the conclusion of the President's term of office, the Archivist assumes control of the presidential records and, after giving notice in the Federal Register, may dispose of the records that have "insufficient administrative, historical, informational, or evidentiary value to warrant their continued preservation." 44 U.S.C. Secs. 2203(f)(1), (f)(3). "Publication of such notice shall constitute a final agency action" for purposes of judicial review under the APA. Id. Sec. 2203(f)(3).
Plaintiffs-appellees allege that defendants-appellants intend to delete material from the White House computer systems in violation of the FRA and the PRA. 2 Several components of the Executive Office of the President ("EOP"), including the NSC, utilize the "PROFS" computer system, "an inter-computer communications system marketed by the IBM Corporation." Armstrong, 721 F.Supp. at 345. EOP and NSC staff use the PROFS system to create and send to other staff connected to the system three types of documents: "(1) short 'notes' or 'mail'; (2) larger documents, which the recipients can revise; and (3) individual calendars." Id. Both the sender and recipient can make a hard-copy printout of a PROFS document or delete the document from their PROFS files. If both the sender and recipient delete the document from their PROFS files, the document is deleted from the PROFS system; unless a hard-copy printout was made, "it is possible that no record would exist of its ever having been created." Id.
The disputed material in this case consists of computer "backup" tapes compiled pursuant to the normal EOP and NSC backup procedure. Each Saturday night the NSC makes a backup tape that records all the information on the PROFS system at the time the tape is made. The NSC keeps these backup tapes for two weeks before erasing their contents and recycling them. Id. Other components of the EOP make nightly backup tapes and keep the tapes for two to six weeks before recycling. Id.
On January 19, 1989--the last day of the Reagan Administration--the National Security Archive filed three Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552,...
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