The opinion of the court was delivered by: CHARLES R. RICHEY
Before the Court is the Defendants' Motion for a Stay Pending Appeal of this Court's Order of May 21, 1993. The Court's Order of May 21, 1993, found the Defendants in civil contempt for failing to comply with this Court's Orders of January 6 and 11, 1993, and it ordered the Defendants to take certain steps to comply with those Orders by June 21, 1993. The Defendants argue that the balance of the equities favor a stay of the Contempt Order.
After careful consideration of the Defendants' Motion, the Plaintiffs' Opposition, and the entire record in this action, the Court, in its discretion, shall deny the Motion because the actions required by this Court's Contempt Order do not impose any irreparable injury on the Defendants, the public interest weighs against a stay of the Order, and the Defendants have not shown a likelihood of success on appeal.
The crux of this lawsuit is the preservation of the history of this country beginning with the Administrations of Presidents Reagan and Bush and, more specifically, the preservation of electronic federal records created by the Defendant agencies, including, but not limited, to the National Security Council and the Executive Office of the President. These electronic federal records include, but are not limited to, e-mail, transmit and receive logs that contain information that historians and others need to know about what essential people in the Government knew and when they knew it. The Court finds that the Defendants have dillydallied, done little and delayed for the past five months rather than make serious efforts to comply with this Court's prior Orders and the mandate expressed by the Congress of the United States in the Federal Records Act to preserve these federal records. In addition, the Court finds that the Plaintiffs' pending Freedom of Information Act claim in this suit regarding these same records weighs heavily against granting a stay because such a stay will definitely delay, and may irrevocably impair, the Plaintiffs access to these electronic federal records.
On January 6 and 11, 1993, the Court granted Summary Judgment to the Plaintiffs on Counts II and III of their Third Amended Complaint, alleging claims under the Federal Records Act ("FRA"), 44 U.S.C. §§ 2101-2118, 2901-2910, 3101-3107, and 3301-3324, and the Administrative Procedures Act ("APA"). 5 U.S.C. § 701 et seq. The Court's Orders and Opinions on those dates held, inter alia, that the information on the Defendants' electronic communications systems at issue in this litigation are subject to the FRA and that the federal record keeping guidelines promulgated by the Defendant agencies violated the FRA and were arbitrary and capricious under the APA because they permitted the destruction of these electronic federal records. See Armstrong v. Executive Office of the President, 810 F. Supp. 335 (D.D.C. 1993). The Court ordered, inter alia, the Defendant agencies and the Archivist to take all necessary steps to preserve, without erasure, all electronic federal records that were the subject of this lawsuit. These materials were preserved onto backup computer tapes pursuant to agreements between the parties, and this Court's Orders. Id. The Defendants requested a stay pending appeal of the January 6 and 11, 1993, Orders, which this Court and the Court of Appeals denied. See Armstrong v. Executive Office of the President, No. 89-142, slip op. 1993 U.S. App. LEXIS 356 (D.D.C. January 14, 1993); Armstrong v. Executive Office of the President, No. 93-5002, slip op. (D.C. Cir. January 15, 1993).
On May 21, 1993, upon motion by the Plaintiffs and after a hearing, the Court found the Defendants in civil contempt because the Defendants had not taken steps to preserve the backup tapes which contain the electronic federal record material that were ordered preserved in this litigation and because they had not promulgated new guidelines under the FRA to replace those struck down by this Court. See Armstrong v. Executive Office of the President, 821 F. Supp. 761, 1993 WL 179785 (D.D.C. 1993). The Court ordered that, in order to purge themselves of contempt, the Defendants must promulgate new guidelines and take steps to preserve the backup tapes by June 21, 1993. Id.
The question now before the Court is whether the balance of the equities favors a stay of the Contempt Order and its requirements. The Court finds that the Defendants' request for a stay must be denied because: 1) compliance with this Court's Contempt Order will not cause irreparable injury to the Defendants; 2) the public interest does not favor a stay; and 3) the Defendants have not demonstrated a likelihood of success on the merits.
The Court further notes that, since this Court's decision on the merits of the Plaintiffs' FRA claims on January 6 and 11, 1993, the proceeding in this case have been one of avoidance of responsibility by the Government bureaucracy rather than an attempt to implement the congressional mandate of the FRA. Therefore, the Court shall not sanction any further delay by the Government in meeting its requirements under the FRA and shall deny the Motion for a Stay.
III. THE COURT FINDS THAT THE BALANCE OF THE EQUITIES DOES NOT FAVOR A STAY OF THE CONTEMPT ORDER AS IT PERTAINS TO THE PRESERVATION OF THE BACKUP TAPES BECAUSE THE DEFENDANTS HAVE BEEN ON NOTICE THROUGHOUT THIS LITIGATION OF THEIR OBLIGATION TO PRESERVE THIS MATERIAL AND BECAUSE THEY DO NOT PRESENT ANY COGNIZABLE BASIS FOR A STAY.
In finding the Defendants in civil contempt, the Court found that the Defendants had not taken sufficient steps to preserve the backup tapes at issue in this litigation. In particular, the Court found that the transfer of some 6,000 of these tapes from the Defendant agencies to the Archivist had impaired the Defendants' ability to preserve these materials and that some 300 of these tapes were in need of immediate preservation copying. Armstrong v. Executive Office of the President, 821 F. Supp. 761, 1993 WL 179785, at *7 (D.D.C. 1993).
The Defendants now argue that the June 21, 1993, deadline imposed by this Court for preservation copying and other remedial measures for these backup tapes places too great a burden on them. They contend that "it may not be possible to ensure that all necessary steps to preserve those tapes can be carried out by June 21." Memorandum in Support of Defendants' Motion to Stay, at 2.
The Court finds that the Defendants will not suffer irreparable injury by taking steps to preserve these tapes by June 21, 1993. The Defendants themselves admit that the preservation copying ordered by this Court is "possible if no unforeseen problems arise," but they claim that "there is little margin for error in this schedule, and additional time to complete the task would be preferable and more efficient."
Id. at 12. However, simply because the Defendants may suffer harm or inconvenience, which must be de minimis at this stage, in complying with this Court's Orders does not mean that the balance of the equities favors a stay. Furthermore, the Defendants have recopied 114 reel tapes onto 63 new tapes, and performed a search of these materials, in just ten days in connection with a case before another Judge of this Court, United States v. Weinberger, Crim. No. 92-235, which demonstrates that such copying can be done quickly. Plaintiffs' Memorandum in Opposition to the Defendants' Motion to Stay, Exhibits A and B.
A stay is particularly inappropriate in this case because the difficulties alleged have been created by the Defendants themselves, who transferred the tapes from the Defendant agencies that have the capability to preserve these materials to the Defendant Archivist, who is only now taking steps to acquire this capability. Armstrong v. Executive Office of the President, 821 F. Supp. 761, 1993 WL 179785, at *7 (D.D.C. 1993). Therefore, the Defendants' desire for additional time is not enough, at this late stage of the litigation, to merit a stay of the Contempt Order.
In addition, the Court's Order of January 11, 1993 clearly stated that the Defendants must "take all necessary steps to preserve, without erasure, all electronic federal records generated at the Defendant agencies to date." Armstrong v. Executive Office of the President, 810 F. Supp. 335, 336 (January 1993). The Order also stated that the Defendants "are enjoined from removing, deleting, or altering information . . . including those records saved on backup tapes pursuant to two Temporary Restraining Orders entered in this case." Id. at 2. Furthermore, the Defendants have been on notice of their obligation to preserve these backup tapes since the granting of the first Temporary Restraining Order in this case in 1989 and the various stipulations and orders entered in this case. See Armstrong v. Executive Office of the President, 810 F. Supp. 335, 338 n.4 (D.D.C. 1993). Therefore, in light of this Court's Orders and the prior history of this case, the Defendants' cannot credibly argue that preservation of ...