Public Citizen v. Carlin
| Decision Date | 06 August 1999 |
| Docket Number | No. 97-5356,97-5356 |
| Citation | 184 F.3d 900 |
| Parties | (D.C. Cir. 1999) Public Citizen, et al.,Appellees v. John Carlin, Archivist of the United States, et al.,Appellants Consolidated with 98-5173 |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia(No. 96cv02840)
Matthew M. Collette, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were
Frank W. Hunger, Assistant Attorney General, Douglas N. Letter, Appellate Litigation Counsel, and Miriam Nisbet, Special Counsel for Information Policy, National Archives and Records Administration.
Michael E. Tankersley argued the cause for appellees. With him on the brief was Alan B. Morrison.
Before: Silberman, Williams, and Ginsburg, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
In 1995 the Archivist of the United States promulgated General Records Schedule 20 pursuant to his authority under the Records Disposal Act. See 44 U.S.C. § 3303a(d). GRS 20 requires each federal agency to which the RDA applies to dispose of word processing and electronic mail files located in personal computers once it has copied them to a paper or an electronic record keeping system. See General Records Schedule 20; Disposition of Electronic Records, 60 Fed. Reg. 44,643 (1995).
Public Citizen and others sued the Archivist, the Executive Office of the President, and two components of the EOP (hereinafter collectively referred to as the Archivist) under the Administrative Procedure Act, alleging that GRS 20 violates the RDA and is arbitrary and capricious. The district court agreed and, on cross-motions for summary judgment, entered a declaratory judgment holding the schedule invalid. See Public Citizen v. Carlin, 2 F. Supp. 2d 1 (D.D.C. 1997) (Carlin I).
The Archivist now appeals. We hold that GRS 20 is valid and therefore reverse the judgment of the district court. Because we uphold GRS 20, we need not decide whether, as the Archivist maintains, the Executive Office of the President may not properly be sued as an "executive agency" subject to the Federal Records Act, see id. at 8-9, nor whether the district court lacked the power to enter an injunction ordering the Archivist to comply with its declaratory judgment holding the schedule invalid. See Public Citizen v. Carlin, 2 F. Supp. 2d 18, 20 (D.D.C. 1998) (Carlin II).
The Federal Records Act is a collection of statutes governing the creation, management, and disposal of records by federal agencies. See 44 U.S.C. §§ 2101-18, 2901-09, 3101-07, 3301-24. The RDA portion of the FRA establishes the exclusive means by which records subject to the FRA may be discarded. See id. § 3314; see also id. § 3301 (defining "records").
The RDA requires an agency to get the approval of the Archivist before disposing of any record. See Armstrong v. EOP, 1 F.3d 1274, 1279 (D.C. Cir. 1993). This is ordinarily done in either of two ways. In one the agency submits to the Archivist a list or schedule of records it proposes to discard, see § 3303, which the Archivist may approve only if he determines that the records "do not, or will not after the lapse of the period specified, have sufficient administrative, legal, research, or other value to warrant their continued preservation by the Government." § 3303a(a). In the other the Archivist promulgates a schedule listing types of records held by multiple agencies, which he has determined pursuant to the same standard of value should be discarded. See § 3303a(d). Whether the agency or the Archivist initiates the process, however, for the Archivist to authorize the disposal of a record is to order its disposal. See § 3303a(b). If the Archivist errs in authorizing disposal, therefore, valuable federal records could be lost forever.
Items 13 and 14, the only parts of GRS 20 challenged here, authorize the disposal of word processing and electronic mail files that have been copied to an agency record keeping system from a personal computer (whether stand-alone or networked). See GRS 20, 60 Fed. Reg. at 44,649/1.* In the 13. Word Processing Files preamble to GRS 20 the Archivist explained that a federal agency needs the authority to delete files from personal computers in order "to avoid system overload and to ensure effective records management." Id. at 44,644/2. He also explained that for
records to be useful they must be accessible to all authorized staff, and must be maintained in record keeping systems that have the capability to group similar records and provide the necessary context to connect there cord with the relevant agency function or transaction. Storage of electronic mail or word processing records on electronic information systems that do not have these attributes will not satisfy the needs of the agency or the needs of future researchers.
Public Citizen argues that in promulgating GRS 20 the Archivist exceeded his statutory authority in two respects: Delete from the word processing system when no longer needed for updating or revision.14. Electronic Mail Records Senders' and recipients' versions of electronic mail messages that meet the definition of Federal records, and any attachments to the record messages after they have been copied to an electronic record keeping system, paper or microform for record keeping purposes. Delete from the e-mail system after copying to a record keeping system.(Note: Along with the message text, the record keeping system must capture the names of sender and recipients and date(transmission data for record keeping purposes) and any receipt data when required.)first, by applying the schedule to so-called "program" records, as opposed to "housekeeping" or administrative records, and second, by failing to set a specific time period for the retention of records before their disposal. Public Citizen also challenges as arbitrary and capricious the Archivist's determination that electronic mail and word processing files lack sufficient value to warrant continued preservation after they have been copied and placed in an agency record keeping system.
Because the Archivist, as head of the National Archives and Records Administration, is charged with administering the RDA, see 44 U.S.C. § 3302, we review his interpretation of the Act under the two-step analysis of Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). Under step one, we ask "whether Congress has directly spoken to the precise question at issue." Id. at 842. If so, "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43.If, however, the statute is silent or ambiguous with respect to the specific issue, then at step two we "must defer to the agency's interpretation so long as it is reasonable, consistent with the statutory purpose, and not in conflict with the statute's plain language." OSG Bulk Ships, Inc. v. United States, 132 F.3d 808, 814 (D.C. Cir. 1998).
1.Housekeeping versus program records
According to Public Citizen, "GRS 20 is contrary to law because it ... authorizes destruction of all types of word processing and electronic mail records without regard to content." More specifically, Public Citizen claims § 3303a(d) applies only to an agency's "housekeeping" records--that is, records that relate to routine administrative chores such as personnel and procurement--and that the Archivist exceeded his statutory authority by promulgating a general records schedule covering "program" records, which document an agency's substantive functions.
We begin the interpretive enterprise, as always, with the text of the statute. See Republican Nat'l Comm. v. FEC, 76 F.3d 400, 405 (D.C. Cir. 1996). As the Archivist observes, § 3303a(d) makes no reference either to program or to housekeeping records; rather, it authorizes him to schedule for disposal "records of a specified form or character." Because this term is nowhere defined in the RDA, "our task is to construe it in accord with its ordinary or natural meaning."Director, Office of Workers' Comp. Pgms., Dep't of Labor v. Greenwich Collieries, 512 U.S. 267, 272 (1994). And § 3303a(d) is naturally read to authorize the Archivist to schedule records in the "form" of word processing and electronic mail files. See Webster's New Int'l Dictionary Unabridged 992 (2d ed. 1942) ("In general, form is the aspect under which a thing appears, esp. as distinguished from substance" (emphasis in original)). Moreover, as the Archivist observes, elsewhere in the RDA "form" is used to describe the physical attributes of a record rather than its content. See § 3301 (). Indeed, we notice that in 1976 the Congress amended § 3301 to provide that "records" may be in the "form" of "machine readable materials." Federal Records Management Amendments of 1976, Pub. L. No. 94-575, § 4(c)(2), 90 Stat. 2723, 2727.
Although Public Citizen would have us read § 3303a(d) so as not to authorize the Archivist to schedule a record in the form of a word processing or electronic mail file if its content relates to a program function of the agency, it offers no interpretation of the statutory term "form." On the contrary, Public Citizen concedes that the "phrase ['of a specified form or character'] in isolation includes program records." Apparently, then, it means to suggest either that the term "form" really means "content" or that it should be ignored. We can not accept either suggestion. See Edison Elec. Inst. v. EPA, 996 F.2d 326, 335 (D.C. Cir. 1993) ().
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