Public Citizen v. Carlin, Civil Action No. 96-2840(PLF).
| Decision Date | 22 October 1997 |
| Docket Number | Civil Action No. 96-2840(PLF). |
| Citation | 2 F.Supp.2d 1 |
| Parties | PUBLIC CITIZEN, et al., Plaintiffs, v. John CARLIN, in his official capacity as Archivist of the United States, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Michael E. Tankersley, Public Citizen Litigation Group, Washington, DC, for Plaintiffs.
Neil H. Koslove, Anne L. Weismann, Alina S. Kofsky, Jason R. Baron, U.S. Department of Justice, Washington, DC, for Defendants.
This case involves a challenge to General Records Schedule ("GRS") 20, promulgated by the Archivist of the United States in 1995. Plaintiffs assert that GRS 20—a regulation governing the disposal of electronic records created by agencies of the federal government —is arbitrary and capricious, irrational and contrary to law. Currently before the Court are defendants' motion to dismiss and the parties' cross-motions for summary judgment. Upon consideration of the papers submitted, the arguments of counsel, the entire record and the applicable law, the Court concludes that in promulgating GRS 20 the Archivist exceeded his authority under Section 3303a(d) of the Records Disposal Act, 44 U.S.C. §§ 3301 et seq. The Court therefore grants plaintiffs' motion for summary judgment and denies defendants' motions to dismiss and for summary judgment.
In 1993, the United States Court of Appeals for this Circuit in Armstrong v. Executive Office of the President ("Armstrong II"), 1 F.3d 1274, 1287 (D.C.Cir.1993), held that electronic versions of documents are records that must be created, managed and disposed under the rules set forth in the Federal Records Act, 44 U.S.C. §§ 2101 et seq., 2901 et seq., 3101 et seq., and 3301 et seq. This holding left undisturbed the "agencies' ability to purge incidental electronic records from their files by acting, with the Archivist's approval, to dispose of those documents that lack `sufficient administrative, legal, research, or other value to warrant their continued preservation.'" Armstrong II, 1 F.3d at 1287 (emphasis in original).
In 1972, the Archivist began authorizing disposal of electronic records through general schedules in very limited circumstances. In October, 1994, the Acting Archivist proposed revisions to GRS 20 to explicitly authorize all federal agencies to destroy agency records stored on word processing and electronic mail systems, as well as other electronic records, once the records have been printed in "hard copy" on paper or microform, and if the agency determines that it no longer needs the electronic version. See Notice of Proposed Records Schedule; Request for Comments, 59 Fed.Reg. 52,313 (1994) (included in Admin. Rec., Vol. I at 89-92).1
On August 14, 1995, the Archivist issued the present version of GRS 20. See Notice of Issuance of General Records Schedule, 60 Fed.Reg. 44,643 (1995).2 GRS 20 authorizes the disposal of electronic records in fifteen enumerated categories, including electronic records created by computer operators, programmers, analysts, systems administrators and government staff using office automation applications. Specifically, GRS 20, Item 13 provides that word processing files recorded on electronic media, "after they have been copied to an electronic recordkeeping system, paper, or microform for recordkeeping purposes," may be deleted from the word processing system "when no longer needed for updating or revision." Notice of Issuance of General Records Schedule, 60 Fed.Reg. at 44,649. GRS 20, Item 14, covering electronic mail records, provides that senders' and recipients' versions of electronic mail messages and attachments thereto may be deleted from the electronic mail system after they have been copied to an electronic record-keeping system, paper or microform for recordkeeping purposes. Id.3
The government argues that (1) plaintiffs lack standing to bring this action; (2) the second count in plaintiffs' complaint—relating to the Office of the United States Trade Representative ("USTR")—is moot; and (3) the Executive Office of the President ("EOP") is not a proper party and should be dismissed from this action. In addition, the government maintains that it is entitled to summary judgment because the promulgation of GRS 20 did not violate the Administrative Procedure Act, while plaintiffs argue that the promulgation of GRS 20 was arbitrary and capricious, irrational and contrary to law.
The records creation, management and disposal duties of federal agencies are set out in a collection of statutes known collectively as the Federal Records Act (the "FRA"), 44 U.S.C. §§ 2101 et seq., 2901 et seq., 3101 et seq., and 3301 et seq. The FRA 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. § 2902.4
The FRA prescribes the exclusive mechanism for disposal of federal records: no records may be "alienated or destroyed" except in accordance with the FRA's provisions. See 44 U.S.C. § 3314. If a document qualifies as a record, the FRA prohibits an agency from "discarding it by fiat." Armstrong II, 1 F.3d at 1278 (). Rather, the Records Disposal Act (the "RDA"), 44 U.S.C. §§ 3301 et seq.,—a component of the FRA—requires the agency to procure the approval of the Archivist before disposing of any record. See 44 U.S.C. § 3303a. In evaluating records for preservation, the agency is to focus on whether the records have any administrative, legal or fiscal use to the agency, see Admin. Rec., Vol. VI at 2316-20 (National Archives and Records Administration ("NARA"), Records Management Handbook: Disposition of Federal Records (1992)), while the Archivist and his staff focus on whether the records have sufficient historic or research value to those outside the agency to warrant their preservation. Id. at 2319-20. If the Archivist determines that agency records do not hold administrative, legal, research or other value, he can authorize disposal of the records. 44 U.S.C. § 3303a(a), (d) and (e).
Under the system of individual agency schedules, an agency submits to the Archivist a "request for disposition authority" or a "disposition schedule" in which the agency identifies specific agency records and proposes that they be destroyed after the lapse of specified periods of time. 44 U.S.C. § 3303a(a); Scheduling Temporary Records, 36 C.F.R. § 1228.30 (1997). The Archivist then must issue a notice requesting public comment on the agency's proposal, and the Archivist's staff must assess the value of the records. The Archivist may accept or reject the agency's proposal. 44 U.S.C. § 3303a(a). If the Archivist finds that the records have sufficient value, the records eventually will be transferred to the Archives as "permanent" records. 44 U.S.C. § 2107. Otherwise, the Archivist will approve a schedule authorizing disposition of the records after they have been retained for an appropriate period of time. 44 U.S.C. § 3303a(a).5
As an alternative to individual agency schedules, Congress has authorized the Archivist to promulgate General Records Schedules governing the disposition of certain kinds of records only—records of a "specified form or character common to several or all agencies" that do not, "after a specified period of time" have sufficient administrative, legal, research or other value to warrant their continued preservation. 44 U.S.C. § 3303a(d).6 The General Records Schedules "cover records documenting administrative, or housekeeping, functions rather than program functions." Admin. Rec., Vol. IV. at 2324 (NARA, Records Management Handbook: Disposition of Federal Records). To date, the Archivist has issued twenty-three General Records Schedules, covering the disposal of approximately one-third of the total volume of records created by federal agencies. Admin. Rec., Vol. III at 857 (Introduction to General Records Schedules, NARA Transmittal No. 7, August 1995).
In addition to his statutory responsibility to judge the suitability of records for disposal under the FRA the Archivist must also (1) "provide guidance and assistance to Federal agencies with respect to ensuring adequate and proper documentation of the policies and transactions of the Federal Government and ensuring proper records disposition," 44 U.S.C. § 2904(a); (2) "promulgate standards, procedures, and guidelines with respect to records management," 44 U.S.C. § 2904(c)(1); and (3) "conduct inspections or surveys of the records and the records management programs within and between Federal agencies." 44 U.S.C. § 2904(c)(7).
The Archivist plays "a key role" in the FRA's enforcement scheme. Armstrong II, 1 F.3d at 1279. If he discovers that an FRA provision has been or is being breached, the Archivist must (1) inform the agency head of the violation and suggest corrections, and (2) if ameliorative measures are not undertaken by the agency within a reasonable time, submit a written report to Congress and the President. 44 U.S.C. § 2115(b). In addition, if the Archivist discovers any "actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of [an] agency," he must notify the agency head and assist him or her in initiating an action through the Attorney General for the recovery of wrongfully removed records or for other legal redress. 44 U.S.C. § 2905(a); see also 44 U.S.C. § 3106 (...
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