As the Defendants record keeping procedures violate the FRA, the Defendants are enjoined from removing, deleting or altering their electronic records systems until such time as the Archivists takes action pursuant to Section 2905 of the FRA to prevent the destruction of federal records, including those records saved on backup tapes pursuant to the two Temporary Restraining Orders entered in this case. See footnote 4.
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.
The Court is limited by the Court of Appeals decision in framing the scope of relief in this case. See Armstrong, 288 U.S. App. D.C. 38, 924 F.2d 282 (D.C. Cir. 1991). The Circuit Court, while providing for judicial review under the FRA, expressly held that there was no review under the PRA. Id. at 289. This distinction is an important one for, while the Court has power to review the recordkeeping guidance of federal agencies under the FRA, it can not delve into record management practices under the PRA.
The Circuit also provided the methodology for separating the FRA and the PRA as it applies here: The Circuit noted that EOP components whose sole responsibility is to advise the President are subject to the PRA and create presidential records. Armstrong, 924 F.2d at 286 n.2. Similarly, the components of the EOP that have statutory responsibility are subject to the FRA. Id. Thus the Order of the Court today only applies to agencies that have statutory responsibility and not those that solely advise the President.
The parties have disputed the scope of this Court's Temporary Restraining Order. See Defendants' Statement to the Court dated December 8, 1992, Plaintiffs' Response dated December 10, 1992. The parties disagree as to whether the electronic material produced by various components of the EOP are federal or presidential records. Under the Court of Appeals mandate, this Court has no power to review compliance with the PRA, and thus, no power to review the record keeping procedures of EOP components whose "sole responsibility is to advise the President." Armstrong 924 F.2d at 286 n.2. It was for this reason that the Court exempted such components, containing only presidential records, from the Temporary Restraining Order requiring the preservation of electronic records. See Order dated November 23, 1992.
In the court's decision today on the merits of the Plaintiffs' FRA claims, the same logic applies. The Defendants shall not be required to preserve material which are presidential records produced by components of the EOP whose sole responsibility is to advise the President. However, in components that produce both types of records, this Court does have jurisdiction to authorize the preservation of these materials until the Archivist can ensure that federal records are not destroyed. Once again, the Defendants must err on the side of preservation.
The Court finds that the EOP and NSC have violated the Federal Records Act and that their record keeping practices are arbitrary and capricious under the Administrative Procedures Act. The Court also finds that the United States Archivist has failed to fulfill his statutory duties under the Federal Records Act. The Court will remand this case to the Archivist to take immediate action with the assistance of the Attorney General pursuant to the FRA with notice to Congress to take all necessary steps to preserve the electronic federal records here in question.
The Court shall issue an Order of even date herewith consistent with the foregoing Opinion.
DATE: January 6, 1993
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
ORDER - January 6, 1993, Filed
Upon consideration of all the papers filed in this case, the applicable law, the oral arguments of counsel, and pursuant to and for the reasons set forth in the Opinion of the Court, issued of even date herewith, it is, by the Court, this 6th day of January, 1993,
ORDERED, that the Plaintiff shall have a Declaratory Judgment that the guidelines issued by and at the direction of the Defendant Agencies are inadequate and not reasonable and are arbitrary and capricious and contrary to law in that they permit the destruction of records contrary to the Federal Records Act; and it is
FURTHER ORDERED, that the Defendant Archivist shall immediately, upon receipt of today's opinion and this Order, seek the assistance of the Attorney General with notice to Congress, and take all necessary steps to preserve, without erasure, all electronic Federal Records generated at the defendant Agencies to date, except purely Presidential Records; and it is
FURTHER ORDERED, that the parties shall process the pending Freedom of Information Act claim administratively, with all deliberate speed, and advise the Court at the earliest practicable date of when that phase of this case may be made ripe for Judicial resolution.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE