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AMERICAN FRIENDS SERV. COMM. v. WEBSTER

January 10, 1980

AMERICAN FRIENDS SERVICE COMMITTEE et al.
v.
William H. WEBSTER et al.



The opinion of the court was delivered by: GREENE

This is an action to enjoin the disposal of records of the Federal Bureau of Investigation. Plaintiffs are individuals and organizations which claim that the FBI's record destruction program violates various laws and interferes in a number of respects with their rights and interests. The defendants, officials of the National Archives and Records Service (NARS) *fn1" and of the Federal Bureau of Investigation, claim that the Court lacks jurisdiction; that plaintiffs have no standing to bring this action; and that the records destruction program is being carried out as a housekeeping measure, strictly in accordance with law, with a purpose to eliminate from storage obsolete documents and files. Presently before the Court are defendants' motion to dismiss and plaintiffs' motion for a preliminary injunction. Voluminous memoranda and other documents have been filed with the Court, and an evidentiary hearing has been held.

I

 The government's contentions regarding jurisdiction and standing may be disposed of summarily.

 The government argues that the Court lacks jurisdiction over the subject matter of the complaint because the various records management statutes (see Part II infra ) do not create private rights of action enforceable in the courts. However, in the cases relied on by the government in support of that argument, *fn2" the private remedy issue arose because both plaintiffs and defendants were private parties and no official misconduct was alleged. The present suit, on the other hand, involves various governmental entities and officials who are claimed to have violated their statutory duties. In that context it is largely irrelevant whether the various records management statutes create a private remedy: where governmental action is being challenged, absent other, specific methods for bringing about judicial consideration, the question is whether review of the challenged agency action is available under the Administrative Procedure Act.

  Sections 10, 10(a), and 10(e) of that Act, 5 U.S.C. §§ 701, 702, 706, provide that the action of an administrative agency is subject to judicial review unless a statute precludes review or the matter is by law committed to agency discretion. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1975). None of the records management statutes expressly or impliedly precludes review of the actions of either the Archivist or the FBI, nor are the actions of the officials of these agencies "committed to agency discretion" as that term is properly understood. Official actions are deemed to be committed to discretion when the statutes involved "are drawn in such broad terms that in a given case there is no law to apply." Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 410, 91 S. Ct. at 821. The records management laws contain specific standards and directives with respect to record preservation which the administrators are required to follow, and there clearly is "law to apply." Thus, review is available under the Administrative Procedure Act to determine whether the official actions were arbitrary or capricious, constituted an abuse of discretion, or failed to meet statutory or procedural requirements, and the Court has jurisdiction under 28 U.S.C. § 1331.

 There is likewise no merit to defendants' standing argument.

 It is settled that a party has standing to sue if (1) a case or controversy exists, that is, if the parties have a sufficiently personal stake in the outcome and are able to demonstrate that they have suffered injury in fact, and (2) there is a fairly traceable causal connection between the claimed injury and the challenged conduct, such as where the claims asserted are within the zone of interests protected or regulated by the statutes involved. *fn3"

 The plaintiffs in this litigation fall basically into three categories: (1) individuals and organizations whose claimed need for FBI documents arises out of their professions as historians, journalists, teachers, film writers, or attorneys; (2) individuals who, as subjects of FBI investigations or alleged victims of FBI activities, claim to have suffered legal wrongs, and (3) organizations whose goals and purposes are alleged to require access to the files and records of the FBI in order to enable them to disseminate information for organizational, educational, and political purposes.

 Plaintiffs in the first category have in the past made requests for FBI documents under the Freedom of Information Act, 5 U.S.C. § 552 et seq., but such documents reportedly were destroyed notwithstanding such requests; they have similar requests for documents pending now; and they assert that they intend to request additional FBI files in the future. These plaintiffs have a need for such documents and files in order to carry out research in their respective professional fields, *fn4" and they will suffer concrete and personal damage if the destruction of the documents is allowed to continue. It may be that the asserted damage to their career pursuits rises to the level of economic harm which has been the traditional test of standing to sue; but at a minimum it is equivalent to the type of non-economic injury recognized by the Supreme Court in United States v. SCRAP, 412 U.S. 669, 686, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1972) *fn5" as sufficient for standing purposes.

 The second category of plaintiffs those who are or have been the subject of FBI investigations and have requested or intend to request FBI files *fn6" may have suffered actionable legal wrongs by virtue or as a consequence of those investigations. Their interest in the preservation of the documents relates to the possibility that, through FOIA requests, they will discover the evidence necessary for legal action to remedy these alleged wrongs. They are harmed by an inability to obtain the FBI documents relating to their particular claims, and accordingly they have the requisite stake in this action.

 The injury claimed by the third group of plaintiffs for standing purposes is more questionable. That group consists of organizations *fn7" which assert that their activities include the furtherance of civil liberties; civil rights; social, cultural, and economic change; and world peace. *fn8" These organizations, suing in their own behalf and on behalf of their members, claim to have a need for access to FBI files under the FOIA to pursue their various goals, and they contend that if the files are destroyed, they will be deprived of raw material for primary research in the areas of their activities.

 It is unsettled whether the requisite injury-in-fact standard is met by a claim that government documents, earmarked for destruction, are needed for organizational political purposes. However, it is not necessary to decide that question here because even if the organizations in this category of plaintiffs have failed in that regard, the plaintiffs in the other groups have adequately shown injury for standing purposes.

 All the plaintiffs satisfy the second prong of the standing test that the claimed rights must be within the zone of interests protected and regulated by the statutes at issue, and that there be a fairly traceable causal connection between the claimed injury and the challenged conduct. As noted, the various laws here involved govern the creation, preservation, maintenance, and disposal of federal records. These laws are designed primarily for the orderly management of government files, but among their other important purposes is the preservation of documents which may be of use to private citizens. In that respect, the three categories of plaintiffs who seek information about agency action that affects or has affected them are within the zone of interest protected by these laws, and their claimed injury is directly traceable to the conduct of defendants. Thus, these plaintiffs, or some of them, have standing to maintain this action.

 Accordingly, the Court must turn to the merits of plaintiffs' claims. Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S.App.D.C. 88, 559 F.2d 841, 843 (1977); Virginia Petroleum Jobbers Assn. v. Federal Power Commission, 104 U.S.App.D.C. 106, 259 F.2d 921, 925 (1958).

  II

 Maintenance and disposal of the records of the United States government is governed by a series of laws codified in title 44 of the United States Code. The Archivist of the United States, under the administrative direction of the General Services Administration, *fn9" has overall responsibility for the management and disposal of governmental records. His duties and those of the various agencies which generate, collect, maintain, and dispose of records, are set forth in the Archival Administration Act (44 U.S.C. § 2101 et seq.); the Records Management by Federal Agencies Act (44 U.S.C. § 3101 et seq.); the Disposal of Records Act (44 U.S.C. § 3301 et seq.); and various regulations promulgated pursuant to these laws.

 These statutes contemplate and require the preservation inter alia of the following categories of records: (1) those which contain "documentation of the organization, functions, policies, decisions, procedures, operations, and essential transactions of an agency" (sections 3101, 3301); (2) those having "sufficient historical or other value to warrant their continued preservation" (section 2103); (3) those which are necessary to protect the financial and legal rights of persons directly affected by an agency's activities (section 3101); and (4) those which have sufficient "administrative, legal, research, or other value to warrant their further preservation" (section 3303).

 Pursuant to these general substantive guidelines, the Archivist is charged by law with the duty to establish records management standards, procedures, and guidelines, as well as the more specific responsibility to set standards for the selective retention of records of continuing value (sections 2901, 2902, 2904). He must also promulgate procedures for the disposal of records authorized to be destroyed (section 3302). The various agencies, in turn, are required to cooperate with the Archivist in applying these standards, procedures, and techniques (section 3102) and to submit to him lists and schedules of records proposed for disposal. The Archivist examines these schedules and lists in order to determine whether the documents have such value as to warrant their preservation under the law (sections 3302, 3303a).

 The Archivist has issued detailed regulations to implement these statutory directives. The regulations require the establishment with respect to each agency of records retention plans and records control schedules (41 C.F.R. § 101-11.401-1, 403-2(c)), *fn10" the maintenance of inventories of the records in the custody of an agency, and periodic inspections by the Archivist to insure that permanent records are being maintained (section 101-11.403-4(e)). Schedules submitted by an agency requesting authority to destroy records must be appraised by the Archivist for possible research or historical value ...


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