4. The relief requested, the saving of the electronic records, is an appropriate remedy here because it maintains the status quo until the Court can decide the case on the merits and because it is not overbroad.
The Defendants say that even if the Plaintiffs win the suit, they are not entitled to this remedy, and thus the Temporary Restraining Order is improper. The Defendants contend the only relief available if the Plaintiffs win on the merits is a remand to the Defendants for new record keeping procedures, not the saving of documents. This is wrong as our Court of Appeals in this case allowed the Plaintiffs to sue to require the agency head and Archivist to fulfill their statutory duty under the FRA. Id. at 287-88. This suit would be futile if the records the Plaintiffs seek are destroyed.
In American Friends Service Committee v. Webster, 231 U.S. App. D.C. 265, 720 F.2d 29 (D.C. Cir. 1983), our Circuit Court held that a private party can sue under the APA to challenge the adequacy of an agency's records disposal schedules and system where the private plaintiffs are complaining that the agency administrators and the Attorney General have breached a duty to enforce the FRA. In that case, the court said that where the FBI had disposition schedules that where improper under the FRA, the appropriate relief was a preliminary injunction prohibiting the FBI from destroying the records until it complied with the statute. The Defendants attempt to distinguish American Friends, arguing there is no disposal schedule at issue here, is not persuasive because the Plaintiffs allege, and the Defendants do not contest, that the records at issue in this case are being and will continue to be destroyed. Thus, the relief requested in the Temporary Restraining Order is proper under American Friends Service Committee v. Webster and the Circuit Court's remand in this case.
The Defendants also argue that granting the Temporary Restraining Order will interfere with presidential records because it does not distinguish between presidential records not subject to this suit and federal records that are.
The Defendants contend that this Temporary Restraining Order will run afoul of our Circuit Court's holding that there is no judicial review of the President's compliance with the Presidential Records Act (PRA). See Armstrong v. Bush, 924 F.2d 290 at 290-91 . This Court, while aware of our Circuit Court's holding as to the PRA, does not agree with Defendants' contention. The Circuit was well aware that:
there is little practical difference between an agency official decision to delete, and thus destroy, a PROFS note because he believes it is not a "record" for purposes of the FRA and his decision to delete a PROFS note that he believes is a "record" without first obtaining the permission of the Archivist.
Id. at 288.
This rational is applicable to this case. The Court today shall not address finally "the adequacy of the President's records management practices or overrule his records creation, management, and disposal decisions." Armstrong v. Bush, 924 F.2d at 290. However, until the Court rules on the merits of the parties' summary judgment motions, it is impossible to know if the Defendants record keeping procedures are arbitrary and capricious. That being the case, it does not make any sense to allow the Defendants, whose record keeping is the subject of this suit, to decide what materials are presidential records, federal records or non-records. Furthermore, the Defendants have not provided the Court with any method of determining, at this juncture, which of the materials produced by these systems are subject only to the PRA.
Therefore, the Court concludes that our Circuit Court's decision in this case does not deprive this Court of jurisdiction to issue a Temporary Restraining Order where the parties dispute the adequacy of the government's record keeping procedure and disagree whether records are covered by the PRA.
As it is impossible to know what materials are presidential or federal, it is proper to order the information on these electronic systems be saved until the Court examines these issues further or decides the case on the merits.
5. A limited amount of security is required under Rule 65(c).
Pursuant to Federal Rule of Civil Procedure 65(c), the Plaintiffs shall only be required to post $ 100 security because the public interest favors granting the Temporary Restraining Order under these circumstances. See Natural Resources Defense Council v. Morton, 337 F. Supp. 167 (D.D.C. 1971), aff'd on other grounds, 148 U.S. App. D.C. 5, 458 F.2d 827 (D.C. Cir. 1972).
Because the Court is enormously busy with its criminal and complex civil cases at this time and while it is satisfied that the temporary relief requested by the Plaintiffs here is appropriate and proper, the Court still needs further argument and the opportunity to have counsel discuss and argue the merits of the competing claims here. Accordingly, for the reasons set forth herein, the Temporary Restraining Order issued today preserves the status quo for a limited time so as to gave the Court and the parties a better opportunity to thoroughly consider the contentions of the parties and further aspects of the merits of the case.
The Court shall issue an Order of even date herewith consistent with the foregoing Opinion.
DATE: November 20, 1992
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
ORDER - November 20, 1992, Filed
Upon consideration of the Plaintiffs' motion for a Temporary Restraining Order, Defendants' Opposition thereto, the Plaintiffs' Reply, the applicable law, the oral arguments of counsel, and for the reasons articulated in this Court's Opinion of even date herewith, it is, by the Court, this 20th day of November, 1992,
ORDERED that Plaintiffs' Motion to Amend the complaint is GRANTED; and it is further
ORDERED that Plaintiffs' request for a Temporary Restraining Order be and hereby is GRANTED; and it is further
ORDERED that the Defendants, including the President, his agents, servants, and employees, are hereby directed and ordered from this day forward to preserve all the current and existing computer backup tapes in their custody as of the date of this order or hereafter created from the electronic communications systems known as "PROFS" or "Office Vision," "OASIS," and "All-in-One" or "A-1,"; and it is further
ORDERED that the Defendants are not to write-over, erase, or destroy any of the information on the aforementioned tapes; and it is further
ORDERED that this Order shall be effective immediately upon payment by the Plaintiffs of cash or a surety bond that meets the satisfaction of the Clerk of the Court in the amount of $ 100 pursuant to Federal Rule of Civil Procedure 65(c). See Natural Resources Defense Council v. Morton, 337 F. Supp. 167 (D.D.C. 1971), aff'd on other grounds, 148 U.S. App. D.C. 5, 458 F.2d 827 (D.C. Cir. 1972).
ORDERED that this Order shall expire ten (10) days after entry hereof unless the Court is shown good cause to modify or extend it for an additional ten (10) days; and it is further
ORDERED that the parties are directed to advise the Court, in writing, by 10 a.m. on November 23, 1992 as to the most feasible means, consistent with the ends of justice, of disposing of this entire matter on the merits at the earliest practical date.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE