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ARMSTRONG v. EXECUTIVE OFFICE OF THE PRESIDENT

January 6, 1993

Scott Armstrong, et al., Plaintiffs, Executive Office of the President, et al., Defendants.


The opinion of the court was delivered by: CHARLES R. RICHEY

 I. INTRODUCTION

 II. DISCUSSION

 A. THE STATUTORY COMMAND FROM 1943 THROUGH THE LAST AMENDMENT BY CONGRESS IN 1984 SHOWS A CLEAR LEGISLATIVE PURPOSE THAT RECORDS OF HISTORICAL VALUE INVOLVING THE PUBLIC, REGARDLESS OF PHYSICAL FORM, SHALL BE PRESERVED, PARTICULARLY WHERE SUCH MATERIAL REFLECTS THE FUNCTION, POLICIES, DECISIONS, PROCEDURES, OPERATIONS OR OTHER ACTIVITIES OF THE GOVERNMENT OR BECAUSE OF THEIR INFORMATIONAL VALUE.

 B. THE INFORMATION ON THE DEFENDANTS' PROF, OASIS AND A-1 SYSTEMS IS SUBJECT TO THE FRA BECAUSE IT MEETS THE STATUTORY DEFINITION OF A RECORD.

 C. THE ELECTRONIC MATERIAL CREATED OR STORED ON THE DEFENDANTS' PROFS, OASIS AND A-1 SYSTEMS CONTAIN INFORMATION THAT IS NOT REPRODUCED ON ANY PAPER COPIES. THEREFORE, PRINTING THE SUBSTANCE OF THESE MATERIALS IN PAPER FORM DOES NOT SATISFY THE REQUIREMENTS OF THE ERA AS IT DOES NOT SHOW WHO HAS RECEIVED THE INFORMATION AND WHEN.

 D. THE DEFENDANTS'S RECORD KEEPING PROCEDURES ARE ARBITRARY AND CAPRICIOUS BECAUSE THERE IS NO ADEQUATE MANAGEMENT PROGRAM OR SUPERVISION BY RECORD KEEPING PERSONNEL OF THE STAFF'S DETERMINATION OF RECORD OR NON-RECORD STATUS OF COMPUTER MATERIAL.

 E. THE EOP'S RECORD KEEPING GUIDELINES AT THE TIME THIS SUIT WAS FILED WERE ARBITRARY AND CAPRICIOUS BECAUSE THE GUIDELINES DID NOT PROVIDE SUFFICIENT GUIDANCE TO DETERMINE WHAT WAS A FEDERAL RECORD THAT MUST BE PRESERVED AND THEY ALSO PERMIT THE DESTRUCTION OF FEDERAL RECORDS.

 F. THE NSC'S RECORD KEEPING GUIDELINES AT THE TIME THIS SUIT WAS FILED WERE ARBITRARY AND CAPRICIOUS BECAUSE THE GUIDELINES DID NOT PROVIDE SUFFICIENT GUIDANCE TO DETERMINE WHAT WAS A FEDERAL RECORD THAT MUST BE PRESERVED AND TO DETERMINE THE DIFFERENCE BETWEEN FEDERAL RECORDS, PRESIDENTIAL RECORDS AND NON RECORD MATERIAL.

 G. THE COURT SHALL REMAND THIS CASE TO THE ARCHIVIST FOR IMMEDIATE REMEDIAL ACTION UNDER THE FRA TO PREVENT THE DESTRUCTION OF FEDERAL RECORDS.

 H. THIS COURT HAS JURISDICTION TO ORDER THE PRESERVATION OF THE DEFENDANTS' ELECTRONIC RECORDS UNTIL THE ARCHIVIST CAN TAKE APPROPRIATE ACTION REQUIRED BY II(G) ABOVE. HOWEVER, THE COURT CANNOT ORDER THE PRESERVATION OF RECORDS CREATED BY EOP COMPONENTS WHOSE SOLE RESPONSIBILITY IS TO ADVISE THE PRESIDENT BECAUSE THERE IS NO JUDICIAL REVIEW OF THE PRA.

 III. CONCLUSION

 OPINION OF CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 This case is before the Court on the merits of the Plaintiffs' claims under Counts II and III of the Third Amended Complaint. *fn1" This case was filed in 1989 against Ronald Reagan, President of the United States, inter alia, just before his term of office ended. *fn2" In September 1989, this Court denied the Defendants' motion to dismiss or, in the alternative, for summary judgment. This Court held that § 702 of the Administrative Procedure Act ("APA") provided for judicial review of the Defendants' compliance with the Presidential Records Act ("PRA"), 44 U.S.C. §§ 2201 et seq., and the Federal Records Act ("FRA"), 44 U.S.C. §§ 2101-2118, 2901-2910, 3101-3107, and 3301-3324. In addition, the Court determined that there were unresolved factual issues regarding whether the Defendants had complied with the recordkeeping statutes. Armstrong v. Bush, 721 F. Supp. 343 (D.D.C. 1989).

 Thereafter, an appeal was taken. The Court of Appeals for the District of Columbia Circuit approved of this Court's holding that the APA provides for limited review of the adequacy of the NSC's and EOP's recordkeeping guidelines and instructions pursuant to the FRA. Armstrong v. Bush, 288 U.S. App. D.C. 38, 924 F.2d 282, 291-293 (1991). The Court of Appeals also held that the APA does not provide judicial review of the President's compliance with the PRA. Id. at 288-291. Finally, the Court of Appeals remanded for further development of the record to determine whether the electronic communications systems operated and controlled by the Defendants were within appropriate and proper guidelines as required by law and regulations issued thereunder by the Archivist of the United States, who is also a Defendant here. Id. at 296-297. *fn3"

 In other words, the basic question is whether on this record, which counsel for the parties agree is ready for a decision on the merits, the Defendants have complied with the statutory requirements and whether the guidelines are reasonable or sufficiently clear as to provide adequate guidance to personnel employed by the Defendants in their maintenance and preservation of federal records. The other issue is whether the United States Archivist has fulfilled his statutory duties under the Federal Records Act. 44 U.S.C. § 2905.

 In light of the foregoing, the Plaintiffs particularly seek preservation of and access to the Defendants' computerized systems known as PROFS, OASIS, and A-1, on which the Defendants send e-mail, write documents, transmit messages inter- and intra-agency and perhaps even to people outside the official government payroll. *fn4" These computerized systems contain transmit logs indicating to whom messages and documents were sent by date, time and hour. *fn5" They also have Receipt logs containing the same or similar information.

  While Plaintiffs are now on the Third Amended Complaint and while each side has filed cross motions for summary judgment, the Court, with consent of counsel, has combined the parties cross motions for Summary Judgment with a decision on the merits. *fn6" The Court also determined that it was reasonable to make findings of fact and conclusions of law on the basis of the joint submissions of the parties because it was unclear, based on the parties separate submissions, whether there was a material issue of fact in dispute. *fn7" Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see Local Rule 108(h).

 After careful consideration of the foregoing, the Court, with the consent of counsel, has combined the Plaintiffs' request for a Preliminary Injunction with their request for Declaratory and Injunctive relief on the merits pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. Accordingly, this opinion shall constitute the Court's findings of fact and conclusion of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

 II. DISCUSSION

 The Defendants' record keeping guidance pursuant to the FRA is subject to review under the APR. Under the APR, the reviewing court shall compel "agency action unlawfully withheld or unreasonably delayed" 5 U.S.C. § 706(1), and "hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In examining an agency's action under the APR, the first question is whether the agency properly interpreted the statute involved. The second question is whether the agency action was arbitrary and capricious. Under this second inquiry, an agency action can be set aside if it fails to offer an adequate explanation for its action or fails to consider a relevant factor in reaching its decision, see International Fabricare Institute v. EPA, 972 F.2d 384, 389 (D.C. Cir. 1992); Federal Election Comm'n v. Rose, 256 U.S. App. D.C. 395, 806 F.2d 1081, 1089 (D.C. Cir. 1986), but the reviewing court is not to substitute its judgment for that of the agency. See Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43 (1983); Adams House Health Care v. Sullivan, 282 U.S. App. D.C. 362, 895 F.2d 767, 770 (D.C. Cir. 1990); Center for Auto Safety v. Peck , 243 U.S. App. D.C. 117, 751 F.2d 1336, 1342 (D.C. Cir. 1985).

 A. THE STATUTORY COMMAND FROM 1943 THROUGH THE LAST AMENDMENT BY CONGRESS IN 1984 SHOWS A CLEAR LEGISLATIVE PURPOSE THAT RECORDS OF HISTORICAL VALUE INVOLVING THE PUBLIC, REGARDLESS OF PHYSICAL FORM, SHALL BE PRESERVED, PARTICULARLY WHERE SUCH MATERIAL REFLECTS THE FUNCTION, POLICIES, DECISIONS, PROCEDURES, OPERATIONS OR OTHER ACTIVITIES OF THE GOVERNMENT OR BECAUSE OF THEIR INFORMATIONAL VALUE.

 The Federal Records Act governs the creation, management and disposal of federal records. *fn8" The FRA defines a federal record as:

 44 U.S.C. § 3301 (emphasis added). The plain language of the statute and legislative history show a clear legislative purpose to allow private researchers and those whose rights may have been affected by the actions of government to have access to the records under the FRA. See American Friends Service Comm'n v. Webster, 231 U.S. App. D.C. 265, 720 F.2d 29 (D.C. Cir. 1983); Armstrong v. Bush, 288 U.S. App. D.C. 38, 924 F.2d 282, 287-88.

 Therefore, each agency head must "maintain an active, continuing program for the economical and efficient management of the records of the agency," 44 U.S.C. § 3102, and establish "safeguards against the removal or loss of records he determines to be necessary and required by the Archivist." Id. § 3105. In turn, the Archivist is to provide "guidance and assistance to the Federal agencies with respect to ensuring adequate and proper documentation of the policies and transactions of the Federal government and ensuring proper record disposition." Id. § 2904(a). Federal records may only be destroyed after the Archivist's review and approval. *fn9" Id. § 3314.

 B. THE INFORMATION ON THE DEFENDANTS' PROF, OASIS AND A-1 SYSTEMS IS SUBJECT TO THE FRA BECAUSE IT MEETS THE ...


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