documents that relate to sensitive national security matters.
Upon a careful consideration of the facts of this case, the Court concludes that the NSC is an agency, subject to the FOIA, and that it must maintain and preserve its records in accordance with the Federal Records Act, except when high level officials of the NSC are acting solely in their capacity to advise and assist the President. Consequently, the Court shall declare the NSC's recently changed guidelines
, classifying its records as "Presidential" Records, contrary to history, past practice and the law. (A copy of the old guidelines that were revoked by the March 25, 1994 declaration is attached hereto and made a part hereof as Exhibit B). Moreover, the Archivist shall be directed to perform her obligations with respect to NSC records under the Federal Records Act and to do so without any further delay as this case is important to the nation and the very credibility of this and future administrations.
This case was filed in 1989 at the close of President Reagan's Administration by journalist Scott Armstrong, the National Security Archive and several other individuals and organizations claiming, inter alia, that the President, the Archivist, and the NSC's recordkeeping practices failed to comply with the Federal Records Act and the Presidential Records Act.
That same year, this Court held as a preliminary matter that the President's and the NSC's compliance with the Federal Records Act and the Presidential Records Act was judicially reviewable. Armstrong v. Bush, 721 F. Supp. 343 (D.D.C. 1989). However, since there were some unresolved factual issues with respect to the Defendants' compliance with those recordkeeping statutes, this Court denied the Defendants' Motion to Dismiss the Complaint, or in the alternative for Summary Judgment, and allowed the parties to proceed with discovery. Armstrong v. Bush, 721 F. Supp. 343 (D.D.C. 1989). At that stage in the litigation, the Court did not address the substantive question of whether the NSC's recordkeeping guidelines appropriately distinguished between Federal and Presidential Records.
On appeal, the Court of Appeals for this Circuit affirmed this Court's ruling by agreeing that the adequacy of the NSC's recordkeeping guidelines was judicially reviewable pursuant to the Federal Records Act. Armstrong v. Bush, 288 U.S. App. D.C. 38, 924 F.2d 282, 291-93 (D.C. Cir. 1991). However, the Court of Appeals remanded for a further development of the record to determine whether the NSC's electronic recordkeeping guidelines were consistent with law. Id.
This Court on remand
ruled on January 6, 1993, inter alia, that the Executive Office of the President's management of their electronic records violated the law because not all the pertinent information from the electronic records was being saved on hard copy or paper. Armstrong v. Executive Office of the President, 810 F. Supp. 335, 341-42 (D.D.C. 1993).
Thereafter, another appeal was taken in which the Court of Appeals for this Circuit held that the NSC's guidelines that initially categorize its records as either a Federal Record or a Presidential Record were judicially reviewable and, accordingly, remanded to this Court to determine whether the NSC's recordkeeping guidelines inappropriately classify some documents as Presidential Records rather than Federal Records.
Armstrong v. Executive Office of the President, 303 U.S. App. D.C. 107, 1 F.3d 1274, 1278, 1296 (D.C. Cir. 1993).
After the Court of Appeals' remand, President Clinton stated in a March 24, 1994 memorandum to Anthony Lake and William Itoh that he was advised of this case and the Government's legal position herein. (Exhibit A). Further, President Clinton's memorandum directed, inter alia, that the NSC:
Establish procedures for access by the public to appropriate NSC records of the current Administration.
However, the next day, on March 25, 1994, NSC Executive Secretary William Itoh issued a written memorandum, which was not wholly consistent with what the President himself stated above. (Joint Statement of Facts P 53; Exhibit B). Mr. Itoh stated that the NSC is not an "agency" and that all of its records are Presidential Records, and thus not subject to the FOIA. Id. Accordingly, the Defendants' memorandum asserts that the NSC may classify all of its records solely under the Presidential Records Act. Id.
STATEMENT OF THE QUESTION PRESENTED
Whether a government entity, namely the NSC, which has historically treated itself as an agency, and has engaged in a multitude of functions independently of "advising and assisting the President," just like other components of the Executive Office of the President, which admittedly are "agencies" subject to the Freedom of Information Act
and the Federal Records Act, can unilaterally after many years of treating itself as an agency, suddenly change its designation without offering a reasoned explanation for the sudden change, and thus declare that it is no longer an "agency?"
If the NSC's declaration that it is not an "agency" is true, then it may classify all of its records solely as Presidential Records. On the other hand, if the Court finds that the NSC is an "agency," the NSC's documents would be subject to the FOIA and it would have to maintain and preserve its records in accordance with the Federal Records Act. Accordingly, the Archivist would be required to fulfill her duties as prescribed by the Federal Records Act.
This case is not a political question but one of statutory construction, and it is one requiring deference to a longstanding practice of an agency. It involves, inter alia, a sudden change in position that is not only contrary to law but without any reasoned explanation for the change. See Greater Boston Television Corp. v. FCC, 143 U.S. App. D.C. 383, 444 F.2d 841, 852 (D.C. Cir. 1971), cert. denied, 403 U.S. 923, 29 L. Ed. 2d 701, 91 S. Ct. 2233 (1971).
This Judge has the highest regard for the other two coordinate Branches of the Government and would not knowingly intrude on their power and the exercise of their constitutional duty. The same is true of this Court's respect for the institution of the Presidency including our current Commander-in-Chief and his predecessors. However, this is a country of laws and not of persons and no one including the President is above the law as set forth in the Constitution and laws of the States. This is also why we have independent Courts with the power of Judicial Review going back to Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60 (1803).
To settle the matter in accordance with the Court of Appeals' remand, the parties filed the instant Cross-Motions to Dismiss, or, in the Alternative, for Summary Judgment,
Oppositions, and Replies thereto, which are now before the Court.
In light of the papers filed by the parties, the underlying law, the entire record herein, and oral argument, the Court shall grant the Plaintiffs' Motion for Summary Judgment, and deny the Defendants' Motion.
Since the early 1980's, the NSC has used electronic mail systems to manage information. (Joint Statement of Facts at P 42). All NSC staff members have access to these systems, which allow users electronically to transmit mail, generate calendars of appointments and meetings, create and edit memoranda, and transfer files and documents. These electronic communications systems contain organizational, functional, policy, procedural, and operational information regarding the NSC. When employing these electronic systems, NSC staff members are not instructed to distinguish between "Presidential" and "Federal" Records. (Responses of NSC to Plaintiffs' Requests for Admissions, RFA 1-11 at 61 (1994)). Copies of the information from these electronic systems are regularly copied onto "backup tapes," which contain information created during the Reagan, Bush, and Clinton administrations. (See Joint Statement of Facts P 46 (October 3, 1994)). Currently, the "backup tapes" are being retained by the Defendants in accordance with previous Court-ordered injunctions. According to the NSC, since it is not an "agency" as defined in the Federal Records Act or the FOIA, the records created on these electronic systems are not agency records that would be subject to the Federal Records Act. (Exhibit B).
Notwithstanding the NSC's current declaration that it is not an agency, in previous pleadings filed with the Court, the NSC has stated that it performs the dual functions of advising and assisting the President, and performs independent functions. (Joint Statement of Facts P 171 (December 8, 1992); see Exhibit B). Moreover, the Defendants have previously acknowledged that "documents received or created pursuant to the inter-agency process of the NSC are agency records for the purposes of the FOIA. . . ." (Joint Statement of Facts P 172 (December 8, 1992) (citing Armstrong v. Bush, 288 U.S. App. D.C. 38, 924 F.2d 282, 286 n.2 (D.C. Cir. 1991))).
A. The Recordkeeping Statutes
Prior to the NSC's March 25, 1994 declaration that it is not an agency, the NSC's recordkeeping guidelines distinguished between Federal and Presidential Records. E.g., Armstrong v. Bush, 288 U.S. App. D.C. 38, 924 F.2d 282 (D.C. Cir. 1991). The Federal Records Act ("FRA") governs a federal agency's duties with respect to managing Federal Records. According to the FRA, the head of each agency is to:
Make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency's activities.
44 U.S.C. § 3101. Moreover, agency heads are to "establish and maintain an active, continuing program for . . . economical and efficient [records] management," and "establish safeguards against the removal or loss of records [the agency head] determines to be necessary and required by regulations of the Archivist." Id. at 3102, 3105. Records that are subject to the Federal Records Act are immediately subject to the FOIA. See 5 U.S.C. § 552. Further, recordkeeping guidelines promulgated under the FRA are subject to judicial review. Armstrong v. Bush, 288 U.S. App. D.C. 38, 924 F.2d 282, 292-92 (D.C. Cir. 1991).
To dispose of a Federal Record, an agency must first garner the approval of the Archivist. The Archivist is vested with the duty to determine if a record is suitable for destruction by deciding if the record has "sufficient administrative, legal, research, or other value to warrant [its] continued preservation." 44 U.S.C. § 3303(a). Consequently, documents that qualify as a Federal Record are subject to specific guidelines and procedures in their management and disposal.
In contrast to Federal Records, the President has greater control over documents generated during his term of office that qualify as a Presidential record. See 44 U.S.C. § 2204. Under the Presidential Records Act ("PRA"):
The President shall take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records. . . .