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ARMSTRONG v. BUSH

September 15, 1989

SCOTT ARMSTRONG, et al., Plaintiffs,
v.
GEORGE H.W. BUSH, et al., Defendants



The opinion of the court was delivered by: RICHEY

 Broadly put, the issue before the Court is whether a private plaintiff may seek the assistance of a federal court to ensure that the President of the United States complies with any of several recordkeeping statutes pertaining to presidential records. Put more narrowly, the issue -- one of first impression -- is whether the plaintiffs here may challenge, under the Presidential Records Act, 44 U.S.C. § 2201 et seq., and other similar recordkeeping statutes, a decision by the President to delete forever the entire contents of an electronic message system maintained by various entities within the Executive Office of the President. Further, if the plaintiffs may maintain such an action as a matter of constitutional law, do these electronic messages qualify for retention under the recordkeeping statutes themselves?

 As described herein, resolution of these questions demands that the Court navigate the muddy waters of separation-of-powers jurisprudence, as well as the equally muddy waters of electronic communications technology. Having done so, the Court concludes that the plaintiffs may maintain such an action. Further, the Court concludes that at least some of the electronic messages at issue may qualify for retention under the pertinent recordkeeping states. The government's motion to dismiss the complaint, or in the alternative for summary judgment, will be denied.

 I.

 A. The PROFS Communications System

 Various entities within the Executive Office of the President (the "EOP") provide computers for their employees. These computers, in turn, utilize the Professional Office System ("PROFS"), an inter-computer communications system marketed by the IBM Corporation. PROFS permits the user of one computer to send any of three types of communications to any other (or all) computers linked to the central EOP network: (1) short "notes," or "mail"; (2) larger documents, which the recipient can revise; and (3) individual calendars. *fn1" Any PROFS communication, regardless of its size, can be printed out in hard copy. However, any PROFS communication can also be deleted immediately by the sender and/or the recipient without printing. If a message is so deleted from the system, it is possible that no record would exist of its ever having been created.

 The EOP employs limited "backup" procedures regarding PROFS communications. For instance, the National Security Council (the "NSC"), an entity within the EOP, creates weekly backup tapes of all PROFS messages that have not been deleted from the system. Each Saturday night, the NSC takes what amounts to a "snapshot" of all messages on the system by preparing a backup tape. This backup tape captures only those messages on the system at the time the tape is prepared; it cannot retrieve messages that may have been prepared during the week but that were either intentionally or inadvertently deleted by the sender or recipients. The NSC keeps backup tapes for two weeks. After two weeks, the backup tapes are recycled and their contents permanently flushed. The remainder of the entities within the EOP commence the above-described backup cycle nightly, and keep the tapes for four to six weeks before disposal of the messages.

 B. The Statutory Framework

 Several federal statutes combine to ensure the permanent retention and public disclosure of a broad variety of federal "records." The most prominent is the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The FOIA directs each "agency" of the federal government to make publicly available, upon request, all "agency records" that do not fall within certain statutory exemptions. 5 U.S.C. § 552(a)(3). FOIA, however, is a disclosure statute, and a disclosure statute only; it imposes no obligations and provides no guidance for the creation or disposal of particular records. See, e.g., Kissinger v. Reporters Committee for the Freedom of the Press, 445 U.S. 136, 152, 63 L. Ed. 2d 267, 100 S. Ct. 960 (1980) ("the agency is not required to create or to retain records under the FOIA").

 On the other hand, the amalgam of statutes codified at Title 44 of the United States Code does govern the creation and disposal of federal records. These statutes (collectively referred to herein as the "Records Laws"), obligate the various components of the federal government to create, retain and, when appropriate, dispose of all "records" within their control.

 Two such statutes are of primary importance here: (1) the Federal Records Act of 1950, as amended, 44 U.S.C. § 2901, et seq. (the "FRA"), *fn2" and (2) the Presidential Records Act of 1978, 44 U.S.C. § 2201, et seq (the "PRA"). *fn3" The FRA provides that the head of each federal agency "shall make and prepare records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency. . . ." 44 U.S.C. at § 3101. It vests in the Archivist of the United States the general responsibility of "guiding and assisting" federal agencies in their compliance with the statute, as well as the responsibility of "promulgat[ing] standards, procedures, and guidelines with respect to records management." Id. at § 2904. The Archivist may inspect an agency's records to ensure proper management. Id. at § 2906(a)(1). *fn4"

 The PRA is directed to the President himself, and provides that he "shall take all such steps as may be necessary" to assure that "Presidential records" are maintained in compliance with the statute. 44 U.S.C. § 2203(a). The statute vests "complete ownership, possession, and control of Presidential records" in the United States. Id. at 2202. The statute defines "Presidential records" to include "documentary materials . . . created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President . . . which relate to or have an effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President." 44 U.S.C. at § 2201(1).

 Like the FRA, the PRA calls upon the Archivist to assist the President in performing his statutory duties. Should a President decide during his term to dispose of Presidential records that "no longer have administrative, historical, informational, or evidentiary value", he must request the Archivist's views as to the wisdom of the disposal. Id. at § 2203(c). The Archivist may notify Congress of the disposal if he deems it appropriate. Id. at § 2203(e). *fn5" After a President leaves office, the Archivist "shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President." Id. at § 2203(f)(1). After notice in the Federal Register, the Archivist may then dispose of such Presidential records as he feels appropriate in light of their value. Id. at § 2203(f)(3). Once he has left office, the President may instruct the Archivist to prohibit public access to certain categories of Presidential records for as long as 12 years. Id. at § 2204. *fn6" Once a Presidential record is in the Archivist's hands, and once any period of prohibited access specified by the (then ex-) President has passed, the Presidential record becomes subject to disclosure under the FOIA, albeit with some restrictions. Id. at § 2204(c).

 Neither the FRA nor the PRA expressly confers a private right of action to enforce compliance; indeed, neither statute anywhere expressly contemplates judicial enforcement of its terms.

 The White House Office Staff Manual (1988) attempts generally to guide EOP staff members as to their duties under the PRA. It provides a synopsis of the Act's requirements, and specifies broad categories of documents which may or may not qualify as Presidential records. The record indicates that the Manual is the only consistent, EOP-wide guideline for compliance with the PRA. However, as a supplement to the Manual, and in anticipation of the transition from the Reagan administration to the Bush administration, the Counsel to the President (Arthur B. Culvahouse) distributed a memorandum dated December 1, 1988, reminding EOP staff of their PRA obligations, and providing additional detail as to how they might comply. The Manual makes no reference to information on the PROFS system; the Culvahouse memorandum, however, reminded staff members to review their computer files to ensure that no Presidential records were inadvertently deleted. *fn7"

 With regard to those components of the EOP that create Federal records under the FRA (as opposed to Presidential records under the PRA), the Files Maintenance Manual offers guidance. Although it is somewhat more detailed than the White House Manual, it too makes no explicit reference to PROFS, or to the possibility that information contained in the PROFS system might qualify as Federal records. Different memoranda sent to staff members of the NSC, however, were intended to alert them to the possibility that the PROFS system might contain Federal records or Presidential records. *fn8"

 C. This Action

 On the eve of the transition from the Reagan administration to the Bush administration, Reagan administration officials began preparing to dispose of the contents of the PROFS system. The plaintiffs learned of the scheduled disposal, and, on January 19, 1989, submitted a FOIA request to the EOP, the NSC and the Archivist for:

 
copies of all tapes, discs, and/or other storage formats for the PROFS System serving the Executive Office of the President and/or National Security Council, and all information contained therein, as well as all records in whatever format derived from the PROFS System, from the date of ...

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