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ARMSTRONG v. EXECUTIVE OFFICE OF THE PRESIDENT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


February 14, 1995

SCOTT ARMSTRONG, et al., Plaintiffs,
v.
EXECUTIVE OFFICE OF THE PRESIDENT, et al., Defendants.

The opinion of the court was delivered by: RICHEY

MEMORANDUM OPINION OF CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE

 TABLE OF CONTENTS

 INTRODUCTION

 PROCEDURAL HISTORY

 STATEMENT OF QUESTION PRESENTED

  FACTS

 

A. THE RECORDKEEPING STATUTES

 

B. THE STRUCTURE OF THE NATIONAL SECURITY COUNCIL

 DISCUSSION

 I. THE "LAW OF THE CASE" DOCTRINE DOES NOT BAR THE COURT FROM DECIDING THE STATUS OF THE NSC BECAUSE THE ISSUE HAS NOT BEEN PREVIOUSLY DECIDED

 II. THE COURT FINDS THAT THE NSC IS AN AGENCY BECAUSE THE NSC IS AN ESTABLISHMENT IN THE EXECUTIVE BRANCH AND EXERCISES SUBSTANTIAL INDEPENDENT AUTHORITY SUCH THAT IT DOES NOT SOLELY RENDER ADVICE AND ASSISTANCE TO THE PRESIDENT

 

A. The NSC Meets The First Prong Of The Agency Test Because It Is An Establishment In The Executive Branch That Has A Separate Staff And A Firm Structure

 

B. The NSC Meets The Second Prong Of The Agency Test Because It Exercises Substantial Independent Authority Through The Performance Of The Traditional Agency Tasks Of Rulemaking And Adjudication, And Because It Performs Many Functions Independently Of the President

 

1. The NSC Performs The Traditional Agency Functions Of Rulemaking And Adjudication

 

2. The NSC Exercises Substantial Authority Independently Of The President In Key Policy Areas

 III. THE COURT'S FINDING THAT THE NSC IS AN AGENCY FOLLOWS THIS CIRCUIT'S PRECEDENT

 IV. IN FINDING THAT THE NSC IS AN AGENCY, SUBJECT TO THE FOIA, THE COURT HOLDS THAT THE NSC MUST MAINTAIN AND PRESERVE ITS RECORDS IN ACCORDANCE WITH THE FEDERAL RECORDS ACT, EXCEPT WHEN HIGH LEVEL OFFICIALS OF THE NSC ACT SOLELY TO ADVISE AND ASSIST THE PRESIDENT. IN THAT LIMITED CIRCUMSTANCE, THE PRA, RATHER THAN THE FRA SHALL APPLY

 V. THE NSC HAS FAILED TO PROVIDE A REASONABLE EXPLANATION AS TO WHY IT HAS SUDDENLY DECLARED THAT IT IS NOT AN AGENCY

 VI. THE COURT'S FINDING THAT THE NSC IS AN AGENCY DOES NOT UNCONSTITUTIONALLY INTRUDE ON THE POWERS OF THE PRESIDENT, BECAUSE APPLYING THE FOIA TO THE NSC WOULD NOT CAUSE UNDUE DISCLOSURE OF SENSITIVE NATIONAL SECURITY DOCUMENTS

 CONCLUSION

 EXHIBIT A: PRESIDENT CLINTON'S MEMORANDUM

 

A. MEMORANDUM OF PRESIDENT CLINTON ON "ACCESS TO NSC RECORDS" DATED MARCH 24, 1994

 EXHIBIT B: NATIONAL SECURITY COUNCIL MEMORANDA

 

A. MEMORANDUM OF WILLIAM H. ITOH, NATIONAL SECURITY COUNCIL EXECUTIVE SECRETARY, ON "INSTRUCTIONS ON PRESIDENTIAL STATUS OF THE NATIONAL SECURITY COUNCIL AND REVISED DISCLOSURE AND DISPOSITION POLICY" DATED MARCH 25, 1994

 

B. MEMORANDUM OF WILLIAM H. ITOH, NATIONAL SECURITY COUNCIL EXECUTIVE SECRETARY, ON "RECORDKEEPING GUIDANCE" DATED MAY 8, 1993

 EXHIBIT C: GUIDELINES FOR COMPONENTS OF THE EXECUTIVE OFFICE OF THE PRESIDENT

 

A. LETTER FROM JASON R. BARON, ATTORNEY FOR UNITED STATES DEPARTMENT OF JUSTICE, TO MICHAEL TANKERSLEY, ATTORNEY FOR PUBLIC CITIZEN LITIGATION GROUP

 

B. OFFICE OF ADMINISTRATION'S MEMORANDUM ON "DIRECTIVE ON RECORDS MANAGEMENT OF ELECTRONIC COMMUNICATIONS"

 

C. OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE'S MEMORANDUM ON "ELECTRONIC COMMUNICATIONS SYSTEMS"

 

D. OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE'S MEMORANDUM ON "ELECTRONIC MAIL MODIFICATIONS"

 

E. OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE'S MEMORANDUM ON "MONITORING ELECTRONIC MAIL"

 

F. OFFICE OF SCIENCE AND TECHNOLOGY POLICY'S MEMORANDUM ON "ELECTRONIC COMMUNICATIONS SYSTEMS"

 

G. OFFICE OF MANAGEMENT AND BUDGET'S MEMORANDUM ON "NEW RECORDKEEPING GUIDANCE"

 

H. OFFICE OF NATIONAL DRUG CONTROL POLICY'S MEMORANDUM ON "NEW RECORDKEEPING GUIDANCE"

 

I. COUNCIL ON ENVIRONMENTAL QUALITY'S MEMORANDUM ON "NEW RECORD-KEEPING DIRECTIVE ISSUED"

 EXHIBIT D: PROPOSED REGULATIONS ISSUED BY THE NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

  INTRODUCTION

 Despite a long history of acting as an "agency," and after admitting it was an agency, and thus subject to the Federal Records Act in this litigation, and notwithstanding a long practice of processing records pursuant to the Freedom of Information Act, the President and the Executive Secretary of the National Security Council suddenly changed course in 1994 declaring that the National Security Council is not an agency and thus not subject to the Federal Records Act. (Copies of the declarations are attached hereto and made a part hereof as Exhibit A, Mem. of President Clinton on "Access to NSC Records" dated March 24, 1995, and Exhibit B, Mem. of William H. Itoh, National Security Council Executive Secretary, on "Instructions on Presidential Status of the National Security Council and Revised Disclosure and Disposition Policy" dated March 25, 1994). In doing this on March 24 and 25, 1994, (See Exhibits A and B), the Defendants would have the Court ignore the facts that the National Security Council ("NSC") performs rulemaking and adjudication and functions independently of the President in many areas. Moreover, the NSC has operated as an agency, subject to the Freedom of Information Act, which requires that it must maintain and preserve its records in accordance with the Federal Records Act.

 In particular, the Defendants contend that the NSC it not an agency, because its sole function is to advise and assist the President. The Court finds, however, that this contention is incorrect because the NSC performs traditional agency functions and operates independently of the President in many areas. Moreover, their contention that this decision will intrude on the exercise of Presidential powers and responsibilities is also wrong because Congress, in enacting the Freedom of Information Act ("FOIA"), specifically provided that material relating to national security shall not be disclosed.

 In this case, the Plaintiffs claim that the Defendants are barred from asserting that the NSC is not an agency, because the Defendants conceded that it is an agency in the two prior Court of Appeals' opinions. See Armstrong v. Bush, 288 U.S. App. D.C. 38, 924 F.2d 282 (D.C. Cir. 1991); Armstrong v. Executive Office of the President, 303 U.S. App. D.C. 107, 1 F.3d 1274 (D.C. Cir. 1993). In addition, the NSC has stated that:

 

The NSC does . . . acknowledge 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 171 (December 8, 1992)).

 The Plaintiffs also claim that the NSC is an agency because the NSC is an establishment in the Executive Branch that exercises authority independently of the President by performing adjudicatory and rulemaking functions and by performing duties in many key areas. Last, the Plaintiffs assert that a finding by the Court that the NSC is an agency does not raise any constitutional concerns because the FOIA exempts from disclosure 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 *fn1" , 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.

 PROCEDURAL HISTORY

 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 *fn2" 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. *fn3" 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. *fn4"

 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 *fn5" 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?" *fn6"

 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, *fn7" Oppositions, and Replies thereto, which are now before the Court. *fn8" 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.

 FACTS

 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. . . .

 44 U.S.C. § 2203 (emphasis added).

 The PRA further provides that the President may only dispose of his Presidential Records after he "obtains the views, in writing, of the Archivist concerning the proposed disposal of such Presidential Records," and the Archivist consults with Senate and House Committees "with respect to any proposed disposal of Presidential Records." Id.

 In addition, after the President leaves office, the PRA provides that:

 

The Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President. The Archivist shall have an affirmative duty to make such records available to the public as rapidly and completely as possible consistent with the provisions of this Act. . . .

 

[Moreover,] the Archivist is authorized to dispose of such Presidential records which he has appraised and determined to have insufficient administrative, historical, informational, or evidentiary value to warrant their continued preservation. Notice of such disposal shall be published in the Federal Register at least 60 days in advance of the proposed disposal date. Publication of such notice shall constitute a final agency action for purposes of review under chapter 7 of title 5, United States Code.

 Id. In addition, before the conclusion of his term of office, the President is to specify a duration, "not to exceed twelve years, for which access shall be restricted with respect to information, in a Presidential Record." The restriction on access to Presidential Record material applies to certain categories of information contained in a Presidential Record, such as personnel and medical files, the disclosure of which would clearly constitute an unwarranted invasion of personal privacy, or information involving confidential advice between the President and his advisors, etc. 44 U.S.C. § 2204.

 B. The Structure Of The National Security Council

 The National Security Act of 1947 established the NSC. 50 U.S.C. § 402 Pursuant to the Reorganization Plan No. 4 of 1949, the NSC was transferred to the Executive Office of the President ("EOP"). As an entity within the EOP, the NSC has a separate budget and staff, and a firm structure.

 From fiscal years 1983 to 1995, the NSC's budget has ranged from approximately $ 4,000,000 to $ 7,000,000. (See Budget of the United States Government (1985); Mem. from J. Robert Manzanares, Director of Administration, to Robert S. Dotson, Chief, Air Force Branch of National Security Division Office of Management and Budget, entitled "FY 1995 Submission" (1993)). In fact, last week President Clinton transmitted his budget to Congress requesting $ 6,648,000 for the operation of the NSC. (Fiscal Year 1996 Budget Submission (February, 1995)).

 Pursuant to the National Security Act of 1947, the NSC has its own staff, consisting of approximately one hundred fifty individuals drawn from various executive departments and agencies, and from outside the government. (Defs.' Resp. and Supplemental Resp. to Inter. No. 2). Internal documents created before March, 1994, state that the NSC staff acts as members of an agency. (Letter from Stephen J. Rademaker, NSC Deputy Legal Adviser, to Mark M. Richard, Deputy Assistant Attorney General, United States Department of Justice (August 26, 1992); NSC Mem. on "United States of America v. Caspar Weinberger" (1992)).

 With respect to its structure, the NSC, pursuant to various Presidential Directives, is divided into a three-tiered system of committees or groups consisting of: (1) a principals' committee; (2) a deputies' committee; and (3) interagency working groups.

 Various statutes, regulations, Executive Orders and Directives prescribe the functions that the NSC performs independently of the President, such as rulemaking and adjudication, and its role in specific policy areas. E.g., National Security Act of 1947 § § 102, et seq.; Exec. Order No. 12,333, 46 Fed. Reg. 59942 (1981); National Security Decision Directive 65 (1982).

 DISCUSSION

 This case comes before the Court on Cross-Motions for Summary Judgment. Summary judgment shall be rendered upon a showing that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Frito-Lay, Inc. v. Willoughby, 274 U.S. App. D.C. 340, 863 F.2d 1029, 1032 (D.C. Cir. 1988). For the reasons set forth below, the Court shall grant Summary Judgment in favor of the Plaintiffs.

 I. THE "LAW OF THE CASE" DOCTRINE DOES NOT BAR THE COURT FROM DECIDING THE STATUS OF THE NSC BECAUSE THE ISSUE HAS NOT BEEN PREVIOUSLY DECIDED.

 Before the Court can address the gravamen of this dispute, to wit, whether the NSC is an agency, it must first respond to the Plaintiffs' contention that since the NSC has not previously challenged the two prior Court of Appeals' cases allegedly acknowledging that the NSC is an agency, this Court is now barred from deciding the issue under the "law of the case" doctrine.

 The "law of the case" doctrine states that:

 

[A] legal decision made at one stage of litigation, unchallenged in a subsequent appeal when the opportunity to do so existed, becomes the law of the case . . . and the parties are deemed to have waived the right to challenge that decision at a later time.

 Palmer v. Kelly, 305 U.S. App. D.C. 137, 17 F.3d 1490, 1494 (D.C. Cir. 1994); Williamsburg Wax Museum v. Historic Figures, Inc., 258 U.S. App. D.C. 124, 810 F.2d 243, 250 (D.C. Cir. 1987) (internal citation omitted). However, if an issue has not previously been decided, the "law of the case" doctrine does not apply. Quern v. Jordan, 440 U.S. 332, 347 n.18, 59 L. Ed. 2d 358, 99 S. Ct. 1139 (1979) (citing In re Sanford Fork & Tool Co., 160 U.S. 247, 40 L. Ed. 414, 16 S. Ct. 291 (1895)); see Friends of the Earth v. Reilly, 296 U.S. App. D.C. 170, 966 F.2d 690, 696 n.7 (D.C. Cir. 1992). Contrary to the Plaintiffs' arguments, the Court finds that since the issue of the NSC's status has not been decided in the two prior Court of Appeals' decisions, the "law of the case" doctrine does not apply to the instant case, and therefore, this Court is not precluded from deciding the issue.

 The first appeal, Armstrong v. Executive Office of the President, 288 U.S. App. D.C. 38, 924 F.2d 282 (D.C. Cir. 1991), did not decide the issue because the question of whether the NSC is an "agency," subject to the FOIA, first arose only after the Court of Appeals' decision. (See Pls.' Opp'n to Defs.' Mot. for Summ. J. at 50-56 (July 6, 1992)).

 Likewise, the Court of Appeals in Armstrong v. Executive Office of the President, 303 U.S. App. D.C. 107, 1 F.3d 1274 (D.C. Cir. 1993), the second appeal, did not decide the issue either. In remanding back to this Court, the Court of Appeals in that case specifically stated that the issue of the NSC's status as an agency "has never been definitely resolved." Id. at 1296.

 Since the NSC's status as an "agency" has never been previously decided, the Court finds that the "law of the case" doctrine does not bar this Court's determination of the issue.

  The Court shall now turn to the merits of the instant dispute.

  II. THE COURT FINDS THAT THE NSC IS AN AGENCY BECAUSE THE NSC IS AN ESTABLISHMENT IN THE EXECUTIVE BRANCH AND EXERCISES SUBSTANTIAL INDEPENDENT AUTHORITY SUCH THAT IT DOES NOT SOLELY RENDER ADVICE AND ASSISTANCE TO THE PRESIDENT.

  To be an agency, an entity must satisfy a two pronged analysis. First, an entity must be an "establishment in the executive branch." 5 U.S.C. § 552(f). Second, the entity must exercise "substantial independent authority" to the extent that its role is not limited solely to giving advice and assistance to the President. Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067 (D.C. Cir. 1970); see 5 U.S.C. § 551(1) and 552(f).

  In the instant case, the Court finds that both prongs of the agency test are met as applied to the NSC.

  A. The NSC Meets The First Prong Of The Agency Test Because It Is An Establishment In The Executive Branch That Has A Separate Staff And A Firm Structure.

  According to the law of this Circuit, an entity that has a separate staff and a firm structure is an "establishment in the executive branch" and, therefore, meets the first prong of the agency test. Meyer v. Bush, 299 U.S. App. D.C. 86, 981 F.2d 1288, 1293, 1295-96 (D.C. Cir. 1993). In examining the nature of the NSC, the Court concludes that since the NSC has a separate staff and a firm structure, it is an establishment in the executive branch.

  First, the NSC by statute was provided with a separate staff. 50 U.S.C. § 402(c) (the NSC "shall have a staff"). In fact, during the past three Presidential administrations, there have been approximately one hundred fifty individuals on the NSC staff. (Defs.' Resp. and Supplemental Resp. to Inter. No. 2).

  Second, the NSC has a firm structure. The NSC was created by the issuance of an affirmative statutory mandate when Congress stated that "there is established a council to be known as the National Security Council." 50 U.S.C. § 402(a). In its current set-up, the NSC has twenty-five separate interagency working groups operating within its structure and, as indicated by the NSC's organizational chart, the NSC staff is organized into separate offices responsible for particular regions or functions. In addition, the NSC contains multiple "interagency working groups" that report to the NSC. (Joint Statement of Facts P 23). Finally, the Court notes that the NSC has a separate budget, which now totals in excess of $ 6,000,000. (See Budget of the United States Government (1985); Mem. from J. Robert Manzanares, Director of Administration, to Robert S. Dotson, Chief, Air Force Branch of National Security Division Office of Management and Budget, entitled "FY 1995 Submission" (1993)).

  Since the NSC has a separate staff and a firm structure, as indicated by the foregoing facts, the Court concludes that the NSC is an "establishment in the executive branch" and, therefore, satisfies the first prong of the agency test.

  B. The NSC Meets The Second Prong Of The Agency Test Because It Exercises Substantial Independent Authority Through The Performance Of The Traditional Agency Tasks Of Rulemaking And Adjudication, And Because It Performs Many Functions Independently Of The President.

  The second prong of the agency test was established by this Circuit in Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067 (D.C. Cir. 1970). In that case, the Court of Appeals had to decide whether the Office of Science and Technology ("OST") is an agency subject to the FOIA. See Id. at 1070-71. The Court held that despite the fact that the OST advised and assisted the President, it is an agency because it performed additional independent functions. Id. at 1074.

  In finding the OST to be an agency, the Court of Appeals developed what has become known as the "sole function" test. According to this test, the second prong of the agency test, an entity that exercises substantial independent authority aside from advising and assisting the President is an agency. Soucie v. David, 145 U.S. App. D.C. 144, 448 F.2d 1067 (D.C. Cir. 1970); see 5 U.S.C. 552(f) (citing 5 U.S.C. 551(1)).

  It is undisputed that the "sole function" test applies to the instant case. (Defs.' Mot. for Summ. J. at 33-34). The Defendants contend, however, that under that test, the NSC's sole function is to advise and assist the President. Id. at 40-53. The Court finds that the Defendants are simply incorrect.

  1. The NSC Performs The Traditional Agency Functions Of Rulemaking And Adjudication.

  First, because the NSC performs rulemaking and adjudication, it exercises authority independently of the President, the NSC satisfies the sole function test. Under the Administrative Procedure Act ("APA"), entities that perform rulemaking and adjudicatory functions are considered agencies. See 5 U.S.C. §§ 551, 553, 554. A close examination of the facts of this case indicates that the NSC performs the same adjudicatory and rulemaking functions that are indicative of a classic "agency" under the APA.

  In publishing its regulations in the Code of Federal Regulations, the NSC has performed rulemaking. By statute, only the regulations that become published in the Code of Federal Regulations are considered agency documents that have "legal effect." 44 U.S.C. § 1510(a). Consequently, regulations that become published in the Code of Federal Regulations are presumptively deemed rules of an agency. See Brock v. Cathedral Bluffs Shale Oil Co., 254 U.S. App. D.C. 242, 796 F.2d 533, 539 (D.C. Cir. 1986) (Scalia, J.); accord American Mining Congress v. Mine Safety & Health Admin., 302 U.S. App. D.C. 38, 995 F.2d 1106, 1109, 1112 (D.C. Cir. 1993). In this case, the NSC has performed rulemaking by issuing many regulations that have been subsequently published in the Code of Federal Regulations.

  The NSC has, several times, issued regulations governing procedures for requesting information that were published in the Code of Federal Regulations. See generally, 32 C.F.R. §§ 2101-2103. Moreover, in conjunction with the Office of Science and Technology Policy, the NSC has issued regulations, published in the Code of Federal Regulations, governing national security and emergency preparedness. 47 C.F.R. §§ 201-216. Last, pursuant to an Executive Order, the NSC has issued a circular prescribing the procedures for handling telecommunications systems, which has also been published in the Code of Federal Regulations. See 47 C.F.R. § 213.1(b).

  In addition to numerous rulemaking functions, the NSC also performs various adjudicatory functions. With respect to the declassification of national security information, the NSC is empowered to review and overturn declassification decisions made by other agencies. Exec. Order No. 12,356, 47 Fed. Reg. 14879 (1982); 22 C.F.R. § 9.16. With respect to the FOIA, the FOIA regulations of other agencies require that requests for NSC or White House documents be referred to the NSC for review and determination. 32 C.F.R. §§ 286.7; 518.26; 701.8(i). In accordance with this authority, the NSC staff adjudicate approximately 1,500 FOIA and mandatory review requests each year. (Dep. of David Van Tassel, NSC Director of Access Management at 23-24, PP 19-18). In addition, the NSC staff has primary and authoritative review responsibility regarding FOIA requests for material classified and maintained by the NSC, by the President, or by his staff where there is an NSC interest. 32 C.F.R. § 2101.41(a)(1). With respect to government security agreements, the NSC reviews and approves the language used in the agreements in order to protect classified information. See 32 C.F.R. § 2003.20; 48 Fed. Reg. 40849. Moreover, the NSC makes decisions on export license applications that raise nuclear non-proliferation or national security issues. See 56 Fed. Reg. 6701.

  As the above facts indicate, the NSC performs the classic agency functions of rulemaking and adjudication. In performing such functions, the NSC exercises authority independently of the President and thereby satisfies the sole function test.

  2. The NSC Exercises Substantial Authority Independently Of The President In Key Policy Areas.

  In addition to satisfying the sole function test by performing the traditional agency functions of rulemaking and adjudication, the NSC also satisfies the test by virtue of its role in many different policy areas. As required by the sole function test, the NSC in each of these areas operates independently of the President.

  First, the NSC plays a role in Intelligence independent of the President. By statute, the NSC is the head of the Central Intelligence Agency ("CIA"). National Security Act of 1947, ch. 343, Pub. L. 253 (1947). According to the statute, the CIA is "to perform such . . . functions and duties . . . affecting the national security as the National Security Council may from time to time direct." Id. More importantly, pursuant to Executive Order, the NSC is "the highest Executive Branch entity that provides review, guidance and direction to the conduct of all national foreign intelligence, counterintelligence, special activities, and attendant policies and programs." Exec. Order No. 12,333, 46 Fed. Reg. 59942 (1981).

  Second, the NSC plays a role in protecting National Security Information independent of the President. In the area of national security, an information security program governs the responsibilities of federal agencies with respect to classifying, declassifying, and safeguarding sensitive national security information. Exec. Order No. 12,356, 47 Fed. Reg. 14881 (1982). The NSC is charged with providing "overall policy direction" for this program. Id. Furthermore, the NSC is responsible for providing overall policy direction for a National Industrial Security Program, which controls the release of classified information to contractors. Exec. Order No. 12,829. Also, the NSC reviews regulations governing other agencies' security practices, and conducts nearly 1,000 mandatory declassification reviews. See Id.; (Dep. of David Van Tassel, NSC Director of Access Management, at 23-24, PP 19-18).

  Moreover, the NSC plays a role in Telecommunications independent of the President. In 1963, the President established a National Communications System to link the communication facilities of the federal agencies and to conduct planning necessary to provide communications in national emergencies. (President Kennedy's "Memorandum to the Heads of Executive Departments and Agencies" (1963)). Pursuant to an Executive Order, the NSC was given the responsibility for directing, coordinating and developing policies and programs of the National Communications System. Exec. Order No. 12,046. By virtue of a 1990 Directive, an NSC committee is responsible for federal policies with respect to the security of telecommunications systems. National Security Directive (1990).

  Furthermore, an Executive Order and various Directives have vested the NSC with overall responsibility for a national security emergency preparedness policy. See Exec. Order No. 12,656; National Security Decision Directive 47 (1982); National Security Decision Directive 314 (1988).

  In addition, the NSC plays a role in Arms Control Verification independent of the President. Under President Reagan, the NSC was responsible for monitoring arms control compliance and overseeing START and INF verification programs. National Security Decision Directive 65 (1982). Under President Bush, NSC committees were to provide guidance to United States' inspection teams and to "coordinate verification research and development efforts." (NSC Mem. on "Verification Technology Working Group" (1990)).

  The NSC also plays a role in Nonproliferation independent of the President. An NSC sub-group is responsible for reviewing any export licenses that propose to export items that potentially involve nuclear explosives. 42 U.S.C. § 2139a(c). Interagency disputes over such licenses are resolved through the use of NSC procedures. 56 Fed. Reg. 6701 § 5.a(ii) (1991). Further, pursuant to a National Security Directive, the NSC reviews export licenses concerning nonproliferation policy when requested by another agency. National Security Directive 53.

  Finally, the NSC plays a role in Public Diplomacy independent of the President. The NSC coordinates and directs international broadcasting and public affairs to generate support for national security objectives. (NSC Mem. on "NSDD-77 on Public Diplomacy" (1985)). In addition, the NSC provides "aid, training and organizational support for foreign governments and private groups." Id.

  As the above facts indicate, the NSC exercises substantial authority independently of the President. Accordingly, under the sole function test, the Court finds that the NSC is an agency.

  III. THE COURT'S FINDING THAT THE NSC IS AN AGENCY FOLLOWS THIS CIRCUIT'S PRECEDENT.

  This Circuit has, several times, applied the Soucie v. David sole function test to other entities within the Executive Office of the President and found them to be agencies. See, e.g., Sierra Club v. Andrus, 189 U.S. App. D.C. 117, 581 F.2d 895 (D.C. Cir. 1978), rev'd on other grounds, 442 U.S. 347, 60 L. Ed. 2d 943, 99 S. Ct. 2335 (1979); Pacific Legal Found. v. Council on Envtl. Quality, 205 U.S. App. D.C. 131, 636 F.2d 1259 (D.C. Cir. 1980).

  In Sierra Club, the Court of Appeals held that although the Office of Management and Budget assists the President, it is an agency because it performs additional tasks as well, such as preparing the Budget for Congress. Sierra Club, 581 F.2d at 902.

  Two years later, in Pacific Legal Foundation, the Court of Appeals held that the Council on Environmental Quality was an agency. Pacific Legal Found., 636 F.2d at 1263. Although the Council advised the President, it was found to be an agency because, pursuant to Executive Orders, it had additional authority to evaluate federal programs. Id.

  As indicated by Soucie, Sierra Club and Pacific Legal Foundation, the Court need only find that an entity perform one additional role beyond rendering advice and assistance to the President in order to declare that an entity is an "agency." In this case, it is obvious that the NSC does more than render advice and assistance to the President. In fact, this case is even easier to decide than the aforementioned Court of Appeals' decisions. Where those prior Court decisions found entities within the EOP to be agencies on the basis of just one or more additional functions beyond advising and assisting the President, the NSC, in this case, exercises authority independently of the President in numerous areas.

  Nevertheless, despite the facts of this case and the legal precedent of this Circuit, the Defendants argue that the NSC is not an agency, but rather an "alter ego" of the President, in view of such cases as Meyer v. Bush, 299 U.S. App. D.C. 86, 981 F.2d 1288 (D.C. Cir. 1993). *fn9" In Meyer, the Court found that then-President Reagan's Task Force on Regulatory Relief was not an agency because of various factors. In particular, the Court noted that because the Task Force did not direct anyone, did not have substantial independence, was not expected to resolve disputes, and lacked a separate staff, it was not an independent entity. Id. at 1292-95.

  However, this case is readily distinguishable from Meyer for several reasons. First, the Task Force in Meyer was established by the President acting alone. Id. at 1289. The NSC, however, was created by statute. 50 U.S.C. § 402(a). Thus, the President has no authority to eliminate, sua sponte, the NSC. Second, crucial to the Meyer Court's decision was a finding that the Task Force did not have a separate staff. Meyer, 981 F.2d at 1295. In contrast, the NSC, by statute, was provided with a separate staff. 50 U.S.C. § 402(c). More importantly, the Task Force in Meyer was also found not to be an agency, in part, because it was not expected to resolve disputes without presenting the disputes to the President directly. Meyer, 981 F.2d at 1294. However, the NSC has independent adjudicatory powers. As indicated supra, the NSC adjudicates in many areas such as declassification determinations, export licensing, and FOIA requests without the participation of the President.

  Because the NSC was created by statute, has a separate staff, and exercises independent adjudicatory power, the NSC is unlike the Task Force in Meyer and, instead, is like the entities in Sierra Club and Pacific Legal Foundation that were found to be agencies. Thus, according to this prior precedent, the NSC is an agency.

  IV. IN FINDING THAT THE NSC IS AN AGENCY, SUBJECT TO THE FOIA, THE COURT HOLDS THAT THE NSC MUST MAINTAIN AND PRESERVE ITS RECORDS IN ACCORDANCE WITH THE FEDERAL RECORDS ACT, EXCEPT WHEN HIGH LEVEL OFFICIALS OF THE NSC ACT SOLELY TO ADVISE AND ASSIST THE PRESIDENT. IN THAT LIMITED CIRCUMSTANCE, THE PRA, RATHER THAN THE FRA SHALL APPLY.

  In deciding this case, the Court finds that in holding that the NSC is an agency, it must give affect to both the FRA and the PRA. *fn10" The FRA consists of a series of statutes, starting in 1943 with the Disposal of Records Act, ch. 192, 57 Stat. 380, and in 1950 with the Federal Records Act, ch. 849, 64 Stat. 583. Subsequently, these acts were amended by the Government Records Disposal Amendments of 1970, 84 Stat. 320, the Federal Records Management Amendments of 1976, 90 Stat. 2723, and the National Archives and Records Administration Act of 1984, 98 Stat. 2280. See Armstrong v. Bush, 288 U.S. App. D.C. 38, 924 F.2d 282, 284 n.1 (D.C. Cir. 1991) (citing 44 U.S.C. §§ 2101 et seq., 2901 et seq., 3101 et seq., 3301 et seq.) Subsequent to the original passage of the FRA, the PRA was enacted in 1978. See 44 U.S.C. § 2201 et seq.

  When faced with two statutes, the general rule is that a repeal by implication is dis-favored. E.g., Morton v. Mancari, 417 U.S. 535, 549-50, 41 L. Ed. 2d 290, 94 S. Ct. 2474 (1974); United States v. Hansen, 249 U.S. App. D.C. 22, 772 F.2d 940, 944 (D.C. Cir. 1985) (Scalia, J.), cert. denied, 475 U.S. 1045, 89 L. Ed. 2d 571, 106 S. Ct. 1262 (1986). Accordingly, a court is to give affect to both statutes, unless the statutes conflict or Congress specifically indicates otherwise. E.g., Morton, 417 U.S. at 551 (1974); see, e.g., Mail Order Ass'n of America v. United States Postal Serv., 300 U.S. App. D.C. 46, 986 F.2d 509, 515 (D.C. Cir. 1993). In examining both statues, the Court finds that in holding that the NSC is an agency, the Court must recognize both statutes as applied to the NSC.

  First, the operation of the PRA and the FRA does not conflict because the statutes deal with different categories of records. Under the FRA, records that are subject to the Act are defined as:

  

Documentary materials . . . made or received by an agency of the United States Government under federal law or in connection with the transaction of public business and preserved or appropriate for preservation . . . as evidence of the . . . activities of the Government or because of the informational value of data in them.

  44 U.S.C. § 3301. In contrast, records subject to the PRA are defined as:

  

Documentary materials . . . created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.

  44 U.S.C. § 2201(2). Moreover, the PRA does not apply to "any documentary materials that are . . . official records of an agency." Id. at § 2201(2)(B)(i). Since the PRA applies to non-agency records, while the FRA applies to agency records, the statutes have distinct applications and do not conflict.

  Furthermore, Congress has not indicated that the passage of the PRA repealed the FRA. See 44 U.S.C. § 2201 et seq. Although the PRA was promulgated after the FRA, neither the legislative history nor the language of the PRA indicate any Congressional intent to overturn the FRA Id. Because the PRA did not repeal the FRA in its passage, and the statutes apply to different categories of records, the Court, under the settled law of the Circuit, must recognize the operation of both statutes as applied to the NSC. Thus, the PRA shall apply to the NSC in certain circumstances, in addition to the FRA.

  Due to its unique duties, high level officials of the NSC sometimes act not as members of an agency but, solely as advisors to the President. See, e.g., Exec. Order No. 12,333, 46 Fed. Reg. 59942 (1981). In fact, the NSC's previous recordkeeping guidelines recognized this distinction when they segregated records as Presidential and Federal. (Exhibit B). Thus, since the PRA applies to documents that are created by an individual whose "function is to advise and assist the President," 44 U.S.C. § 2201(2), the PRA must apply to NSC officials whenever they act solely to advise and assist the President. In all other circumstances the FRA shall apply to the NSC because it is an agency.

  Accordingly, under the settled law of this Circuit and the actual practice of the NSC, the Court holds that the NSC is an agency, subject to the FOIA, that must maintain and preserve its records in accordance with the FRA. However, in the limited circumstance in which a high level official of the NSC acts solely to advise and assist the President, the PRA, rather than the FRA shall apply.

  V. THE NSC HAS FAILED TO PROVIDE A REASONABLE EXPLANATION AS TO WHY IT HAS SUDDENLY DECLARED THAT IT IS NOT AN AGENCY.

  Even if the NSC did not perform rulemaking and adjudication, and otherwise exercise substantial authority independently of the President, the Court would still have to set aside the agency's declaration that it is not an agency as arbitrary and capricious.

  Whenever an agency changes its position or policy, the general rule is that the agency must "supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored . . . ." 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). The rule espoused by Greater Boston has been repeatedly applied in this Circuit. See, e.g., Cross-Sound Ferry Services, Inc. v. I.C.C., 290 U.S. App. D.C. 39, 934 F.2d 327, 329 (D.C. Cir. 1991) (internal citations omitted). Thus, although an agency is free to alter its policies, it must give a satisfactory explanation as to why it has done so. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983); National Audubon Soc'y v. Hester, 255 U.S. App. D.C. 191, 801 F.2d 405, 408 (D.C. Cir. 1986); see International Fabricare Inst. v. EPA, 297 U.S. App. D.C. 331, 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).

  The Court observes that, while the aforementioned rule concerns judicial review of an agency's change in policy, the seminal issue in this case is whether the NSC is an agency at all. Nevertheless, the Court finds this basic principle of administrative law applicable to the instant case as the NSC has admitted to being, and has operated as, an agency prior to its declaration. In turn, the Court finds that the NSC has failed to give a satisfactory or reasoned explanation as to why it has altered its position regarding its recordkeeping practices by declaring that it is not an agency.

  Since 1975, the NSC has operated as an agency by allowing its records to be FOIA accessible. (Exhibit B). Since that time, the NSC has processed hundreds of FOIA requests. (See Dep. of David Van Tassel, NSC Director of Access Management at 23-24, PP 19-18). Moreover, the NSC has previously acknowledged that it is an agency. (Letter from Stephen J. Rademaker, NSC Deputy Legal Adviser, to Mark M. Richard, Deputy Assistant Attorney General, United States Department of Justice (August 26, 1992); NSC Mem. on "United States of America v. Caspar Weinberger" (1992); see Joint Statement of Facts P 171 (December 8, 1992)).

  Nevertheless, regardless of the NSC's prior admissions and past practice, on March 25, 1994, the NSC declared that it was not an agency and, therefore, could maintain all of its records solely under the Presidential Records Act. (Exhibit A, B). According to this declaration, all of the NSC's records would no longer be subject to the FOIA. Id. However, nowhere in the March 25, 1994 declaration is there a reasoned explanation as to the NSC's abrupt change in position. See Id. Under the settled law of this Circuit, the NSC must provide a reasoned explanation for this shift. Since the NSC has not done so here, its declaration that it is not an agency must be set aside as arbitrary and capricious. 5 U.S.C. § 706(2)(A); Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 39, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983).

  VI. THE COURT'S FINDING THAT THE NSC IS AN AGENCY DOES NOT UNCONSTITUTIONALLY INTRUDE ON THE POWERS OF THE PRESIDENT, BECAUSE APPLYING THE FOIA TO THE NSC WOULD NOT CAUSE UNDUE DISCLOSURE OF SENSITIVE NATIONAL SECURITY DOCUMENTS.

  The Defendants' final argument is that the Court can not find the NSC to be an agency subject to the FOIA, because such a finding would constitute an unconstitutional intrusion into the powers of the President over foreign and military affairs by causing undue disclosure of documents relating to national security. (Defs.' Mot. to Dismiss, or, in the alternative for Summ. J. at 58 (1994)). This is simply incorrect.

  It is true that, in construing a statute, a court should avoid a construction that raises constitutional problems. Public Citizen v. Department of Justice, 491 U.S. 440, 466, 105 L. Ed. 2d 377, 109 S. Ct. 2558 (1989). However, in construing the statute establishing the NSC, a finding that the NSC is an agency subject to the FOIA would not result in an unconstitutional intrusion into the powers of the President for several reasons.

  First, the NSC has previously admitted to being an agency. (See, e.g., Joint Statement of Material Facts P 158 (1992)). Thus, the Defendants' argument, that there are constitutional concerns in finding that the NSC is an agency, when the NSC has previously admitted to being an agency, is disingenuous, at best.

  Second, the NSC has processed many FOIA requests notwithstanding their current claim that subjecting the NSC to the FOIA would raise constitutional conflicts. In 1966, Congress enacted the FOIA. 5 U.S.C. § 552. Since 1975 until the March 25, 1994 declaration, the NSC has subjected itself to the FOIA. (Exhibit B (citing 32 C.F.R. § 2101.1, 40 Fed. Reg. 7316 (1975))). During those nineteen years, the NSC never asserted that subjecting itself to the FOIA creates constitutional problems.

  More importantly, the FOIA itself prevents disclosure of sensitive national security documents, thereby protecting the President from any undue infringement on his authority over national security matters. In enacting the FOIA, Congress specifically provided for nine categories of information that would be exempt from disclosure. In particular, the FOIA exempts from disclosure information falling into any of the following categories: (1) national security; (2) internal agency rules; (3) material that is exempted by another federal statute; (4) trade secrets; (5) inter and intra agency memoranda; (6) personal privacy; (7) law enforcement records; (8) records of financial institutions; and (9) geological or geophysical information. 5 U.S.C. § 552(b)(1)-(9). With respect to the instant case, the FOIA specifically exempts from disclosure documents that relate to sensitive national security issues. 5 U.S.C. § 552(b)(1), (5). Indeed, counsel for the NSC has been unable to name a single instance in which sensitive national security material was released under the FOIA after an agency's invocation of one of the FOIA exemptions. Therefore, because Congress has specifically provided that materials relating to national security affairs shall not be disclosed, the holding of this Court that the NSC is an agency will not interfere with the President's powers over foreign and military matters.

  CONCLUSION

  Based on the foregoing, the Court finds that the NSC is an agency subject to the FOIA, and is obligated to preserve all of 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. The Court further finds that to the extent the NSC's current guidelines allow all of its records to be classified as "Presidential" records, the guidelines are contrary to law. The NSC and the Archivist must adopt new guidelines for the NSC in place of those vacated and nullified on March 25, 1994, so as to ensure that non-Presidential Records are preserved under the Federal Records Act and not destroyed under the guise of the Presidential Records Act.

  Obviously, the Court, in issuing this Opinion, does not intend to require Presidential Records or documents, written or electronic, that are designed solely to advise and assist the President to be preserved except as required by the Presidential Records Act. Nevertheless, the Archivist and records personnel in the NSC have a duty to adopt guidelines ensuring that records under the Federal Records Act are preserved. The Court observes that since other components of the EOP have already adopted new guidelines, this will not impose any undue burden. Accordingly, the Archivist is hereby directed forthwith to perform her obligations under the Federal Records Act with respect to the NSC's records. The Court shall issue an Order of even date herewith in accordance with this Memorandum Opinion.

  Dated: February 14, 1995

  CHARLES R. RICHEY

  UNITED STATES DISTRICT JUDGE

  ORDER

  Upon careful consideration of the parties' submissions, the arguments of Counsel, the record in the case and the underlying law, and for the reasons articulated in the Opinion of the Court of even date herewith, it is, by the Court, this 14th day of February 1995,

  ORDERED that the parties' Motion to exceed page limitations shall be, and hereby is, GRANTED; and it is

  FURTHER ORDERED that Defendants' Motion to withdraw and amend prior responses to Requests for Admissions shall be, and hereby is, DENIED; and it is

  FURTHER ORDERED that Plaintiffs' Motion for Summary Judgment shall be, and hereby is, GRANTED; and it is

  FURTHER ORDERED that Defendants' Motion for Summary Judgment shall be, and hereby is, DENIED; and it is

  FURTHER ORDERED that the Court hereby declares that to the extent the NSC's current recordkeeping guidelines classify all of its records as "Presidential," those guidelines are contrary to law and the Archivist is hereby directed to perform her obligations under the Federal Records Act; and it is

  FURTHER ORDERED that the Court hereby declares that the NSC is an agency subject to the FOIA, within the meaning of the Federal Records Act, with the limited exception mentioned in the Court's Opinion of even date herewith, and the records created and received on the NSC's electronic communications systems shall be maintained and preserved in accordance with the Federal Records Act; and it is

  FURTHER ORDERED that on or before 4:00 p.m. on February 27, 1995, the Executive Office of the President and the Archivist shall forthwith adopt new guidelines for the National Security Council, in place of those vacated and nullified on March 25, 1994, in accordance with the Court's Opinion issued on even date herewith; and it is

  FURTHER ORDERED that Counsel for the parties shall appear before the Court at 2:00 p.m. on February 21, 1995, for a Rule 16 status conference to discuss any and all remaining aspects of this case that need Judicial resolution.

  CHARLES R. RICHEY

  UNITED STATES DISTRICT JUDGE

  EXHIBIT A

  THE WHITE HOUSE

  WASHINGTON

  March 24, 1994

  MEMORANDUM FOR ANTHONY LAKE

  WILLIAM H. ITOH

  SUBJECT: Access to NSC Records

  I understand that the status of the National Security Council (NSC) under the Freedom of Information Act (FOIA) and the Presidential Records Act will be the subject of further litigation in the case of Armstrong v. Executive Office of the President. I further understand our position is that the NSC is an entity within the Executive Office of the President that exists solely to advise and assist me in the discharge of my constitutionally based responsibilities over the national security affairs of the United States. If this legal position prevails, I understand that one consequence is that NSC records would not, as a matter of law, be subject to disclosure under the Freedom of Information Act.

  Notwithstanding this legal conclusion, I strongly support the policy of past Administrations of permitting public access to certain NSC records, and of leaving certain NSC records to the incoming Administration in order to ensure a smooth transition on national security matters. Therefore, to provide for continued access to NSC records and their appropriate disposition at the end of my Administration, I direct you to take the following steps:

  1. Establish procedures for continued access by the public to those NSC records previously transferred by one Administration to another for transition and continuity purposes.

  2. Establish procedures for access by the public to appropriate NSC records of the current Administration.

   3. Develop a plan to provide copies of appropriate NSC records to the next Administration in order to provide for smooth transition and continuity of essential foreign policy and national security matters.

  William J. Clinton

  EXHIBIT B

  NATIONAL SECURITY COUNCIL

  WASHINGTON, D.C. 20506

  March 25, 1994

  ACTION

  MEMORANDUM FOR WILLIAM H. LEARY

  FROM: WILLIAM H. ITOH

  SUBJECT: Instruction on Presidential Status of the National Security Council and Revised Disclosure and Disposition Policy

  A. Summary

  The purpose of this memo is to direct you to revoke the National Security Council's existing FOIA guidelines, 32 C.F.R. § 2101 and simultaneously to issue voluntary disclosure guidelines consistent with President Clinton's memorandum to me and Tony Lake, dated March 24, 1994. The President's memorandum sets forth his instruction to provide for continued public access to NSC records that were left at the NSC by prior Administrations, to provide for public access to appropriate records of this NSC, and to transfer copies of appropriate NSC records to the next Administration.

  This memo reflects that the NSC is an entity within the Executive Office of the President that solely advises and assists the President and therefore is not subject as a matter of law to the FOIA. However, the NSC's new voluntary disclosure policy is to provide that the NSC will continue to process pending FOIA requests, including during the pendency of the Armstrong v. EOP litigation, and will receive and process future document requests.

  B. Prior NSC FOIA and Recordkeeping Practices

  Since its inception, each administration has left behind certain records for the purpose of promoting continuity in national security matters. In recent years, such records have been filed and maintained separately. Previously, they were referred to as "institutional" records and, over time, they came to be searched in response to FOIA requests. In addition, such records have been disposed of according to the Federal Records Act, 44 U.S.C. § 3301.

  Most NSC records have not been searched by NSC in response to FOIA requests. These Presidential records have been transferred to the Presidential Library of the respective President upon completion of his term in office. Under the Presidential Records Act ("PRA"), which went into effect on January 20, 1981, Presidential records are ultimately subject to the FOIA, though not until at least five years after the end of an administration.

  On February 19, 1975, the National Security Council ("NSC") issued regulations intended to guide NSC staff in response to requests for classified material under the amended Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to the extent that Act is applicable to the National Security Council. See 32 C.F.R. § 2101.1; 40 Fed. Reg. 7316 (February 19, 1975). Since that time, the NSC has responded to FOIA requests for those institutional records mentioned above, although the specific question of its legal obligation to do so has not been ultimately resolved.

  C. Armstrong v. EOP Litigation

  In the pending Armstrong v. EOP litigation, NSC's record-keeping and FOIA practices of treating distinct categories of records have been challenged. On August 13, 1993, the Court of Appeals for the District of Columbia Circuit issued a decision which held in part that NSC's recordkeeping guidelines defining what are Presidential records are subject to judicial review. Armstrong v. EOP, 303 U.S. App. D.C. 107, 1 F.3d 1274, 1290 (D.C. Cir. 1993). The court of appeals ordered that the case be remanded to the district court for further proceedings "to determine whether NSC's guidelines inappropriately classify as presidential records materials that would otherwise be subject to the FOIA." Id. at 1296.

  In reaching its decision, the court of appeals noted that the definition of a Presidential record in the PRA specifically excludes any documentary materials of an "agency" as that term is defined under the FOIA. 44 U.S.C. 2201(2)(B)(i). Armstrong v. EOP, 303 U.S. App. D.C. 107, 1 F.3d 1274, 1290. Accordingly, the court found that the Presidential Records Act would apply only to records that fall outside the scope of the FOIA because they are not agency records. Id. at 1292.

  In analyzing whether the definition of a Presidential record intrudes upon the definition of an agency record subject to the FOIA, the court said that the inquiry is whether the entity at issue which maintains the records is an "agency" whose records are subject to the FOIA. Armstrong v. EOP, 1 F.3d at 1294. Relying on Supreme Court and D.C. Circuit case law, the court noted that "only entities 'whose sole function is to advise and assist the President' are not separate agencies subject to the FOIA." Id. at 1295.

  D. NSC Status as a Presidential Entity

  The NSC was created by Congress in the National Security Act of 1947, 50 U.S.C. 402. By statute, the National Security Council includes the President, the Vice President, and the Secretaries of State and Defense. Id. Other high-ranking officials may be designated by the President as Council members, or to attend Council meetings. The 1947 Act sets forth the NSC's statutory functions. Subsection (a) of the Act provides, in part that the "function of the Council shall be to advise the President with respect to the integration of domestic, foreign, and military policies relating to the national security so as to enable the military services and the other departments and agencies of the Government to cooperate more effectively in matters involving national security." 50 U.S.C. § 402(a).

  The 1947 Act also provides for the creation of a staff to support the NSC. The NSC staff advises and assists the President, under the direction of the Assistant to the President for National Security Affairs ("APNSA") and the Deputy Assistant to the President for National Security Affairs ("DAPNSA").

  Taking into account the historical and current functions and purposes of the NSC, the NSC is an entity within the Executive Office of the President that exists solely to advise and assist the President in the discharge of his constitutionally based responsibilities over the national security affairs of the United States. As a matter of law, therefore, the NSC is not an "agency" as that term has been defined and construed under the Freedom of Information Act. Therefore, the NSC's disclosure policies and practices should reflect that the NSC shall maintain its records in accordance with the Presidential Records Act, and the NSC's existing FOIA guidelines should be revoked.

  E. New Disclosure and Disposition Policy

  On March 24, 1994, President Clinton sent a memorandum to me and Tony Lake directing us to provide for continued public access to those NSC records that have previously been left to an incoming administration to promote continuity in national security matters. Pursuant to this Presidential memorandum, the NSC shall establish a disclosure policy under which procedures will be developed to make these records available on a discretionary basis. These records, which previously would have been searched by NSC in response to FOIA requests, shall continue to be searched and, subject to the exemptions from disclosure set forth in the FOIA, made available to requesters on a discretionary basis -- notwithstanding the NSC's status as a Presidential entity within the EOP.

  In addition, the President's memorandum directed the NSC to provide for the release of appropriate NSC records of the current Administration. Therefore, the NSC will continue to respond to document requests regarding appropriate Clinton administration records, subject to the exemptions from disclosure set forth in the FOIA. A statement of the NSC's new disclosure policy and procedures should be prepared for my signature and subsequent publication in the Federal Register.

   Finally, the President's memorandum directed the NSC to transfer to the next Administration copies of appropriate NSC records in order to provide for a smooth transition and continuity of important foreign policy and national security matters. Accordingly, you should develop a plan to provide for identifying and transferring copies of such records.

  NATIONAL SECURITY COUNCIL

  WASHINGTON, D.C. 20506

  May 8, 1993

  MEMORANDUM FOR NATIONAL SECURITY COUNCIL STAFF

  FROM: WILLIAM H. ITOH

  ALAN J. KRECZKO

  SUBJECT: Recordkeeping Guidance

  Pursuant to the Presidential Records Act, the Federal Records Act, and pending court orders, all staff within the Executive Office of the President are obligated to create, maintain, and preserve records of their activities. The attached memoranda reflect the general guidance being provided to all EOP staff. All NSC staff should review carefully and comply with the guidance in these memoranda.

  Because the NSC both advises and assists the President and is an agency, the issue of which NSC records are presidential and which are federal is an important one. The Office of the Legal Adviser and the Information Management staff will be providing shortly additional training to assist all NSC staff in implementing the attached guidance.

  Attachments

  Tab A Memorandum on Federal Records

  Tab B Memorandum on Presidential Records

  NATIONAL SECURITY COUNCIL

  WASHINGTON, D.C. 20506

  MEMORANDUM FOR ALL NATIONAL SECURITY COUNCIL STAFF

  FROM: WILLIAM ITOH

  ALAN KRECZKO

  SUBJECT: Federal Records

  INTRODUCTION

  The offices within the Executive Office of the President generate two categories of records: "Presidential Records" and "Federal Records."

  Records are "Presidential" if they are "created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory or other official or ceremonial duties of the President." Such Presidential records are subject to the provisions of the Presidential Records Act, 44 U.S.C. § 2201. Presidential records remain in the custody and control of the President during his term of office and are not accessible to the public until five years after the end of the Administration, at the earliest. The treatment of Presidential records will be addressed in a separate memorandum.

  It is the purpose of this memorandum to discuss the identification, maintenance and disposition of "federal" records. Materials are "federal records" if (1) the materials have been created or received by agency personnel in connection with their official duties in a federal agency, and (2) the materials are appropriate for preservation as evidence of the agency's activities or because they contain information of value. Federal records are subject to the provisions of the Federal Records Act, 44 U.S.C. Chapters 29, 31 and 33. Unlike Presidential records, federal records are accessible to the public during the Administration's term, unless exempt from disclosure under the provisions of the Freedom of Information Act.1a

   The Federal Records Act imposes certain legal obligations with respect to the creation and receipt, custody and maintenance, and disposition of federal records. The responsibilities apply regardless of whether the records are generated in paper form or by automated systems.

  It is critical that staff members in offices, such as the National Security Council, that create or receive both federal and Presidential records, file those records separately in clearly designated files. Documents subject to the Federal Records Act may be subject to public disclosure under the Freedom of Information Act. Presidential records, by contrast, are not subject to the Federal Records Act and are not subject to the provisions of the Freedom of Information Act during the President's term of office. Personal records (defined and discussed below) also should be segregated, and filed separately, from official records.

  The guidance that follows will assist EOP staff in complying with the Federal Records Act, which is designed to ensure that documentation of official activities is adequately created and preserved. See 44 U.S.C. § 3101. As explained below, not every document that you create or receive will be subject to the Federal Records Act, and it is therefore important to review this guidance to understand when federal records act obligations do apply. In preparing this guidance, we have consulted with officials of the National Archives and Records Administration.

  DEFINITION OF FEDERAL RECORDS

  The Federal Records Act defines federal records as:

  

All books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States under Federal law or in connection with the transaction of public business and preserved or appropriate for preservations by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them.

  

-- 44 U.S.C. § 3301.

  Under this definition, federal records are documentary materials that meet two tests. First, the materials must have been created or received by agency personnel in connection with their official duties in a federal agency. Second, the materials must be appropriate for preservation as evidence of the agency's activities or because they contain information of value. Federal records may be in any physical form, including paper, film and disk. The method used to record information may be manual, mechanical, photographic, electronic, or any combination of these or other technologies.

  A document created in any agency normally becomes a federal record once it is circulated to others in the course of conducting agency business, or once it is placed in files accessible to others. Moreover, even documents that are not circulated can become federal records if, in the judgment of the agency, those documents are needed to conduct agency business -- and whether or not those documents are accommodated by current filing systems employed by the agency.

  Materials received by agency personnel are federal records when they are received in the course of official business. Materials received can become federal records whether they have been transmitted in person, by messenger, by mail, by electronic communication, or by any other means.

  At the same time, certain types of documentary materials are not subject to the Federal Records Act. The Act specifically excludes (1) library and museum materials created, or acquired and preserved, solely for reference or exhibit purposes; (2) extra copies of documents kept only for convenience of reference; and (3) stocks of publications and processed documents. These and other types of transitory or duplicate records are considered "nonrecord" because they are not "appropriate for preservation" as defined in the Act. Such materials are not needed to provide full and accurate documentation of an agency's policies, decisions, procedures, and program activities. These materials need not be maintained in official files, and, unlike federal records, may be destroyed when no longer needed and without prior approval of the National Archives and Records Administration.

  Other examples of "nonrecord" materials not covered by the Federal Records Act may include:

  -- Preliminary drafts, that are not circulated to any other individual, of correspondence, reports, and studies.

  -- Preliminary drafts, work sheets and informal notes that contain information reflected in final documents and that do not document policy development or execution.

  -- Tickler, follow-up or suspense copies of correspondence, provided there are copies of documents in the official files.

  -- Newspaper clippings or news summaries, particularly if they are not annotated.

  -- Copies of printed or processed agency materials, such as operating and procedural manuals, directives, and notices, distributed for the information or use of agency employees.

  -- Shorthand and other notes that have been transcribed or converted to formal documents that have been verified for accuracy and completeness.

  -- Catalogs, trade journals, and other publications that are received from other government agencies, commercial firms, or private institutions and that are maintained for reference purposes.

  In addition, certain "personal papers" fall outside the scope of the Federal Records Act. Personal papers are documentary materials that are not used in the transaction of agency business. Examples include:

  -- Papers and other materials accumulated by a staff member before joining government service.

  -- Materials that relate to a staff member's private affairs, such as personal financial records, insurance forms, and materials relating to an individual's professional activities and outside business and political pursuits.

  -- Personal photographs.

  -- Materials that may refer to official duties but are not directly used to carry out those duties. These include diaries, personal calendars, journals, and notes intended for an individual's personal use (memory aids and personal observations on work-related matters).2a

  It is important to remember, however, that certain informal documents may be federal records. In the Executive Office of the President, to a greater extent than in many other government offices, drafts, notes, background materials or working papers can be considered federal records because they document policy development, significant decisions, major activities, or other matters basic to an understanding of the office and its role in government operations. Such records should be treated as federal records and maintained in official files if they were circulated for review or clearance, and if they have been modified substantively.When it is difficult to determine whether documents or other records should be treated as federal records, you should tentatively treat them as federal records and contact the appropriate EOP agency records management office for a final determination. Legal questions will be referred by the records management office to appropriate counsel.RECORDS CREATION AND MAINTENANCE REQUIREMENTSWhen acting in their capacity as employees of a federal agency, such agency employees are responsible for complying with the Federal Records Act and related regulations.The law requires that adequate and proper records be created and preserved to document the organization, functions, policies, decisions, procedures and essential transactions of the agency. The law also specifically requires that records be kept for appropriate periods if they can be used to protect the legal and financial rights of the Government or individuals directly affected by the agency's activities.In order to ensure that agency records contain an adequate and proper account of policy development, implementation and decision-making, each employee, must document those discussions, meetings and telephone conversations that are necessary to understand these functions. Where appropriate, in formal settings, minutes or notes should be taken for the purpose of including them in official files.All staff members are responsible for complying with procedures that result in adequate and proper records creation and maintenance. All materials meeting federal records criteria must be incorporated into appropriate agency files or records systems. EOP staff members should consult with the appropriate EOP agency records management office to address any questions concerning the creation and maintenance of federal records.ELECTRONIC FEDERAL RECORDSIncreasingly, federal records may be created electronically. Records may be generated on word processing, or electronic mail ("e-mail"), systems, or other computer applications.Records generated electronically must be incorporated into an official recordkeeping system. Thus, no word processing or e-mail document that is a federal record should be deleted unless it has been (a) printed and placed in an appropriate file, or (b) preserved in an appropriate electronic system.On January 6 and 11, 1993, in the case of Armstrong v. Executive Office of the President, United States District Judge Charles R. Richey directed the National Archives and Records Administration to work with components of the EOP to develop further recordkeeping guidance both for e-mail communications in the EOP and for disposition of EOP electronic federal records generally. Pursuant to these orders, and until further instructions from the Counsel's office, the following special rules should be observed by components of the EOP that generate federal records:1. Material may not be deleted from any e-mail file unless (a) the material has been retained in full on a back-up tape or other comparable medium, and (b) the retained version includes both full text and all available transmittal information; and2. EOP staff members with records management responsibility must monitor the implementation of guidance on federal records (including the status of records) to ensure consistent application of the court's order.Questions concerning the status of electronic records, or the application of these rules to particular computer systems, should be directed to the appropriate EOP agency records management office. That office will periodically monitor electronic records systems to ensure that correct records status determinations have been made.DESTRUCTION OR REMOVAL OF FEDERAL RECORDSFederal records, as defined by the Federal Records Act, may not be destroyed, or permanently removed from appropriate official files, without the prior approval of the National Archives and Records Administration.Federal records should be maintained in organized files and may not be damaged or altered by any staff member, except where required by statute or regulation. Nor may federal records be temporarily removed from official files except for official purposes, and only if returned to the official files upon completion of that official function.Policies and procedures governing the disposition of federal records are prescribed by the National Archives and Records Administration and are incorporated into the EOP records management program. Further information concerning these policies and procedures should be obtained from the appropriate EOP records management office.REMOVAL OF NONRECORD AND PERSONAL MATERIALSPurely personal, unclassified materials may be removed from the office by staff members at any time, subject to any agency procedures regulating such removal.Unclassified nonrecord materials, with the exception of copies of records, may be removed with the prior approval of the agency official with records management responsibility.Except where expressly authorized by appropriate agency officials, copies of federal records, regardless of the reason for which they have been duplicated, may not be taken by staff members for any purpose other than an official purpose related to the staff members' official duties and responsibilities.No classified materials may be removed from the office at any time, without compliance with the rules applicable to such materials.TRAININGEOP agency records management offices and other appropriate personnel will be providing records management training for all employees who generate or receive federal records.EXHIBIT CU.S. Department of JusticeCivil DivisionWashington, D.C. 20530 EAP:jrb145-1-2062Telephone:(202) 514-4336July 15, 1994BY MESSENGERMichael E. Tankersley, Esq.Public Citizen Litigation GroupSuite 7002000 P Street, N.W.Washington, D.C. 20036Re: Armstrong v. Executive Office of the PresidentDear Michael:Enclosed please find recordkeeping guidance issued on July 14, 1994, by the Office of Administration (OA), the Office of the U.S. Trade Representative (USTR), the Office of Science and Technology Policy (OSTP), as well as cover transmittals based on OA's Directive from the Office of Management and Budget (OMB), the Office of National Drug Control Policy (ONDCP), and the Council on Environmental Quality (CEQ) (see Tabs A-F).With respect to designations of "high-level officials" for purpose of electronic calendar recordkeeping requirements pursuant to the above guidance, I can confirm that OA, USTR, OSTP, OMB, and CEQ have designated their "high-level officials" in accordance with the listing produced by defendants in the attachment to our settlement correspondence of March 24, 1994. A complete listing of "high-level officials" for the purpose described above is attached at Tab G. ONDCP also confirms their prior designations, as modified due to changes in their organization subsequent to the March 24 correspondence. See id.Sincerely yours,JASON R. BARONTrial AttorneyFederal Programs BranchCivil DivisionEnclosuresEXECUTIVE OFFICE OF THE PRESIDENTOFFICE OF ADMINISTRATIONWashington, D.C. 20503July 14, 1994MEMORANDUM FOR OASIS ALL-IN-1 USERS WITH FEDERAL RECORD RESPONSIBILITIES FROM: PATSY L. THOMASSONDIRECTOROFFICE OF ADMINISTRATIONSUBJECT: DIRECTIVE ON RECORDS MANAGEMENT OF ELECTRONIC COMMUNICATIONSThe attached directive is a very important document that describes what each OASIS ALL-IN-1 user must do to ensure that records of our business processes are made. This directive applies to all EOP agencies with Federal records responsibilities that use OA's electronic communication system. Officials of subscriber agencies have concurred in the contents of this directive.This directive is being distributed in several ways. First, each OASIS subscriber with Federal records responsibilities will receive an electronic version. New users will receive a copy when their account is activated. A permanent copy of the latest directive will be stored on the Bulletin Board of OASIS for easy reference for all users. Also, a supply of paper copies will be distributed to administrative contacts within the next two weeks for reference copies in the administrative offices. Finally, additional copies may be obtained from the Office of General Counsel by calling extension 52273.If you should have questions about the material contained within this directive, you should first contact your agency records liaison staff. If questions still remain, please contact the OA Records Management Office at extension 56471.Attachmentcc: J. Cressman, OAG. Weaver, OAS. Aitken, OMBE. Blaug, CEQC. Cerf, OAH. Gwin, OSTPE. Jurith, ONDCPM. Krislov, WHOFFICE OF ADMINISTRATION DIRECTIVEIST.01-0SUBJECT: The OASIS ALL-IN-1 Electronic Communication System and Federal Records ProceduresIntroduction 1 Purpose. To establish records management objectives and responsibilities for the creation, maintenance, use, and disposition of Federal records on the OASIS ALL-IN-1 system.2. Personnel Concerned. ALL OASIS ALL-IN-1 users with Federal records responsibilities.3. Directive or Bulletin Cancelled. None; paragraph 7.b of Directive LISD.04-0, "Records Management Program," is replaced by this Directive.4. Authority. 44 U.S.C. Chapters 21, 29, 31, and 33; 36 CFR Parts 1220, 1222, 1228, and 1234.5. Originator. Information Management Division 6 Review. Annually; whenever substantive modifications to the OASIS ALL-IN-1 system are contemplated; before any new electronic mail systems are implemented by EOP agency users; and any new electronic records management systems are implemented.The following directive is hereby issued.Patsy L. ThomassonDirector of the Office of Administration 7/13/94DateTABLE OF CONTESTSOVERVIEW1. Purpose2. DefinitionsTHE ELECTRONIC MESSAGING (E-MAIL) SYSTEM3. Policy4. Identifying E-Mail Communications That Are Federal RecordsExamples of e-mail communications that are Federal recordsExamples of nonrecord messages on e-mailOASIS ALL-IN-1 FEATURES5. E-mail Messages6. Calendars7. Personnel Directories8. Desk Management9. Telephone Messaging, Paging and WAVES Appointments10. Information Management11. The Bulletin BoardThe Suggestion Box12. Interactive Training13. User Set-Up Functions14. System Backup TapesMONITORING RECORDS DISPOSITIONRESPONSIBILITIES APPENDIX 1 - TEMPORARY RECORDS ON ELECTRONIC COMMUNICATIONS SYSTEMSOVERVIEW1. Purpose.To establish policy, responsibilities, guidelines, requirements, and procedures for the preservation of Federal records created and transmitted on the OASIS ALL-IN-1 system among the agencies of the Executive Office of the President.This directive supersedes previous records management instructions on Federal records on electronic mail (e-mail) systems.2. Definitions.Basic records management terms are defined in OA Directive LRS.04-0 (44 U.S.C. 3301). The definitions listed below are specific to the purpose of this directive.a. Electronic Mail. A document created or received on an e-mail system including brief notes, more formal or substantive narrative documents, and any attachments, such as word processing documents, which may be transmitted with the message. (NARA definition)b. Electronic Records. This term includes numeric, graphic, and text information, which may be recorded on any medium capable of being read by a computer and which satisfies the definition of a Federal record in 44 U.S.C. 3301. This includes, but is not limited to, magnetic media, such as tapes and disks, and optical disks. (36 CFR 1234.1)c. Recordkeeping System. A system for collecting, organizing, and storing records in order to facilitate their preservation, retrieval, use, and disposition and to fulfill recordkeeping requirements. (NARA definition)d. Electronic Mail System. As used in this directive, the application available on OASIS ALL-IN-1 that is used to create, receive and transmit messages and other documents or create calendars that can be used by multiple staff members. Excluded from this definition are file transfer utilities (software that transmits files between users but does not retain any transmission data), data systems used to collect and process data that have been organized into data files or data bases on either personal computers or mainframe computers, and word processing documents not transmitted on an e-mail system.e. Federal Records. As defined in the law (44 U.S.C. 3301), Federal records are:All books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them.The phrase "regardless of physical form or characteristics" means that the records may be paper, film, disk, or any other physical type or form; and that the method used to record information may be manual, mechanical, photographic, electronic, or any combination of these or other technologies.Documentary materials are Federal records when they meet both of the following conditions:(1) They are made or received by an agency of the United States Government under Federal law or in connection with the transaction of agency business; and(2) They are preserved or are appropriate for preservation as, evidence of agency organization and activities or because of the value of the information they contain. (36 CFR 1222.34)In this context, the term "preserved" means the record is deliberately filed, stored, or otherwise systematically maintained for future use, including being stored in electronic files, folders, or logs.The phrase "appropriate for preservation" means documentary materials made or received which in the judgment of the agency should be filed, stored, or otherwise systematically maintained by the agency because of the evidence of agency activities or information they contain, even though the materials may not by covered by its current filing or maintenance procedures. (36 CFR 1222.12)f. Temporary Record. Any record which has been determined by the Archivist of the United States to have insufficient value (on basis of current standards) to warrant its preservation in the National Archives of the United States. This determination may take the form of:(1) A series of records designated as disposable in an agency records disposition schedule approved by NARA (Standard Form 115, Request for Records Disposition Authority); or(2) A series of records designated as disposable in a General Records Schedule. (36 CFR 1220.14)Appendix 1 of this document contains a list of typical temporary Federal records.g. Permanent Record. Any Federal record that has been determined by NARA to have sufficient value to warrant its preservation in the National Archives. (36 CFR 1220.14)h. Nonrecord Material. U.S. Government-owned documentary materials, other than Presidential records, that do not meet the statutory definition of Federal records (44 U.S.C. 3301), or that have been excluded from coverage by the definition. Excluded materials are: (1) Extra copies of documents preserved only for convenience of reference.(2) Stocks of publications and of processed documents. However, each agency must create and maintain records sets of processed documents and publications, including annual and special reports, directives, special studies, brochures, pamphlets, books, handbooks, manuals, and posters.(3) Library and museum materials made or acquired and preserved solely for reference or exhibition purposes.i. Records Management. The planning, controlling, directing, organizing, training, promoting, and other managerial activities involved with respect to records creation, records maintenance and use, and records disposition in order to achieve adequate and proper documentation of the policies and transactions of the Federal Government and effective and economical management of agency operation. (36 CFR 1220.14)j. Records Schedule. A document describing and providing instructions for the disposition of Federal records. It consists of one of the following:(1) An SF 115, Request for Records Disposition Authority, that has been approved by NARA to authorize the disposition of Federal records;(2) A General Records Schedule (GRS) issued by NARA; or(3) A printed agency manual or directive containing the records descriptions and disposition instructions approved by NARA on one or more SF-115s or issued by NARA in the GRS. (36 CFR 1220.14)k. General Records Schedules. Schedules authorizing the disposal, after the lapse of specified periods of time, of records of a specified form or character common to several or all agencies if such records will not, at the end of the periods specified, have sufficient administrative, legal, research, or other value to warrant their further preservation by the United States Government. (44 U.S.C. 3303a(d))l. Transmission and Receipt Data. (1) Transmission Data. Information in e-mail systems regarding the identities of sender and addressee(s), date and time messages were sent.(2) Receipt Data. Information in e-mail systems regarding date and time of receipt of a message, and/or acknowledgement of receipt or access by addressee(s).m. System Backups. Copies on off-line media of software and data stored on direct access storage devices in a computer system to provide a means of recreating a system and its data in the event of unintentional loss of data or software.n. Records Liaison. Individual designated to oversee records management procedures for the agency.o. High-level officials. Heads of independent agencies; their deputies and assistants; the heads of program offices and staff offices; staff assistants to those aforementioned officials, such as special assistants, confidential assistants, and administrative assistants; and career Federal employees, political appointees, and officers of the Armed Forces serving in equivalent or comparable positions. (GRS 23, item 5.a., as applied to positions within the EOP)THE ELECTRONIC MESSAGING (E-MAIL) SYSTEM3. Policy.The Office of Administration is developing a records management system which will support electronic storage, retrieval and disposition of OASIS ALL-IN-1 electronic messages that are determined to be Federal records. In addition it will segregate Presidential materials from Federal records. This system is currently being implemented in stages, the first of which is allowing a user to determine record status (i.e., record or nonrecord) of an e-mail message. Paragraph 5 below shows how this is being implemented. From time to time, new stages of the recordkeeping system will be implemented at which time appropriate guidance will be provided to users.In the interim, users should know that other materials created within OASIS ALL-IN-1 and/or sent to other ALL-IN-1 users will be automatically tagged as record material in both sending and receiving components. This means that users do not need to print materials from OASIS only unless either of the following conditions applies: the materials are Federal record calendars of high-level officials (see Paragraph 16 below); or it is required for other documentary purposes.4. Identifying E-Mail Communications That Are Federal Records.The features of OASIS ALL-IN-1 are discussed below. This discussion includes a description of the feature, user records management responsibilities and the proposed disposition of record material.Users may create Federal records by using the following OASIS ALL-IN-1 features: . E-mail messages (internal as well as external communications through FAX, X.400 and Internet), with or without word processing documents, spreadsheets or other attachments . Executive word processing . Calendar entries (meetings or appointments) . Task entries . Phone messages . WAVES Appointments . Pager RequestsThe OASIS ALL-IN-1 e-mail application automatically saves all communications created by users in Presidential components (e.g., White House, Office of Policy Development and the Office of the Vice President). Materials created in Presidential components that are sent to Federal component(s) will be tagged and stored as Federal records when received by the Federal component(s).In general, the above materials are Federal records when they meet two conditions. They are made or received by an agency of the United States Government under Federal law or in connection with the transaction of agency business; and they are preserved or are appropriate for preservation as evidence of agency organization and activities or because of the value of the information they contain. (36 CFR 1222.34; see also definition of Federal record)When determining whether e-mail material is a record, keep in mind that multiple copies of messages or messages incorporated into other electronic messages may all be records if they are used for different purposes in the conduct of official business or filed in different files. More than one office may take action or otherwise use copies of a message. The copy would be a record in each of those offices, and would be subject to NARA-approved disposition schedules.Examples of e-mail communications that are Federal records on the e-mail system are: . Messages and any attachments containing information developed in preparing position papers, reports and studies; . Messages and any attachments reflecting official actions taken in the course of conducting agency business; . Messages and any attachments conveying information on programs, policies, decisions, and essential transactions; . Messages and any attachments concerning statements of policy or the rationale for official decisions or actions; . Messages and any attachments documenting oral exchanges, such as meetings or telephone conversations, during which policy was discussed or formulated or other agency activities were planned, discussed, or transacted; . Messages and any attachments documenting the use of leave, agency procurement activities, personnel actions, or official agency financial actions.Users should also be aware that preliminary drafts of final documents, rough notes and similar materials, as well as updates to drafts, notes or similar materials, must be maintained for purposes of adequate and proper documentation if(1) they contain unique information, such as annotations or comments, that helps explain the formulation and execution of basic policies, decisions, actions or responsibilities; and(2) they were circulated or made available to employees other than the creator for the purpose of approval, comment, action or to keep staff informed about agency business.The above guidance about determining the record status of drafts transmitted via e-mail also applies to word processing documents shared on a network. Because drafts of such shared documents may be records, their record status must be reevaluated as changes are made. Substantive updates to such drafts that constitute records must be preserved by printing and filing, with the final paper copy while minor changes do not need to be preserved. Such substantive updates should identify the author, recipient(s), and date of the draft, as well as similar data documenting substantive updates.Users should also be aware that documents created in any word processing application that are transmitted through OASIS ALL-IN-1 may also be records. When an attached document is transmitted to any user, it is automatically captured by the electronic recordkeeping system and tagged as record or nonrecord according to the users' determination.Nonrecord e-mail communications. Messages created on the e-mail system may contain information that either fails to meet the general conditions of record status or is covered by one of the three exemptions in the statutory definition of records. Examples of nonrecord messages on e-mail typically include: . Reminders of meeting and appointments that contain no information of value about such events; . Telephone messages (unless the message contains information of value); . Duplicate copies of records retained elsewhere in electronic format, if the copies are saved only for personal convenience of reference; . Preliminary drafts of correspondence, reports or studies that were not circulated to any other individual; . Preliminary drafts, work sheets and informal notes that contain the same information as in the final document provided that they do not contain substantive annotations or comments that add to a proper understanding the agency's formulation and execution of basic policies, decisions, actions or responsibilities. 36 CFR 1222.34] . Personal notes that relate solely to an individual's personal and private affairs or are used exclusively for that individual's convenience; . Invitations to unofficial social functions.If users choose to retain nonrecord business material and personal material in the OASIS ALL-IN-1 system, they should not be commingled; that is, they must be filed in separate OASIS folders. Refer to the OASIS Reference Manual, refile document (rfd) command, for more information on how to transfer documents to separate folders. For additional guidance on personal papers employees should refer to the NARA Guide on Personal Papers of Executive Branch Officials.OASIS ALL-IN-1 FEATURES5. E-mail MessagesWithin the OASIS ALL-IN-1 system, E-mail messages are communications between a sender and some number of recipients, generally containing textual material and optionally containing attachments of word processing documents, spreadsheets or the like. They are created under the EM function within OASIS ALL-IN-1.Preserving e-mail messages electronicallyThe actual e-mail screen includes an entry to tag the message and appears like the screen below:Message HeaderEnter the name of one or more addresses:TO:TO:TO:TO:TO:TO:Enter the names of people to receive copies:CC:CC:CC:CC:CC:CC:Record: Y [Y/N]Subject:Priority: FIRST]CLASS Delivery Receipt: NO Read Receipt: NOEnter information and press ENTER, to GOLD-M for menu In the Record field above, it will be necessary for the entry to be either Y or N before the user can continue with creating a message. If creating record material, the user may leave the entry as Y, the default value this field takes on when the screen first appears. If the message will be nonrecord, the user should enter N as the correct value in this field. Before preparing the message itself, the user may tab back to the field and change its value if necessary. Once a message is created, but before it is sent, the user may also modify this field through the use of the modify header (mh) command. See the OASIS Reference Manual or OASIS Quick Reference Guide for specifics of this command.A similar process will occur when the user creates a response to a message. After issuing the send command, the question, "Is the document you are sending a Record? [Y/N]" will appear. As above, only one of the two responses will be accepted.In either case, the message is kept electronically for later monitoring by the component's records liaison or records management staff. Thus, there is no requirement to print the message and any word processing attachments if it was designated as a record and prepared in either WordPerfect or the OASIS internal word processing application.By way of a reminder, users may also request a read or a delivery receipt for the message by entering "YES" in the corresponding field(s) on the screen. Read receipts should be requested when it is necessary to confirm that an addressee has read a message by a certain time, such as when you assign tasks with a deadline or need concurrence by a definite time.A special note: Users need to be aware of recordkeeping requirements for attachments that are not viewable within OASIS (e.g., spreadsheets, graphics, binary data, and the like); these attachments may be records and should be managed as part of the application under which they are viewed or processed.If the user wishes to save messages for personal reference, the material contained in electronic personal folders is no longer treated as Federal records for future agency use. However, users are reminded that the contents of the folders (paper or electronic) may not be taken when terminating employment, unless approval is obtained according to agency procedures. Once approval is obtained, the materials will be reviewed by the records liaison to ensure that incorrectly designated nonrecord material is properly designated and filed and only approved materials are removed.Indices to folders, such as the inbox and outbox, are dynamically changing lists and will be scheduled for disposition with NARA. Users do not need to take steps to save any index.Users should be aware that drafts may be records on shared word processing systems as well as in e-mail. Record status should be evaluated in accordance with the definitions of records and preserved as follows:. Print the document. If not included with the document, annotate it or attach a separate sheet that includes information on the author name, recipients, and date of creation or other such information documenting substantive updates.. Forward the document to the appropriate individual for inclusion in the agency's system of official files.6. CalendarsThe ALL-IN-1 system offers a calendar option to users as part of the Desk Management function. The calendar function allows users to schedule meetings with other users, as well as to maintain their own record of meetings, events, and other appointments. Calendars may be displayed and printed by the day, week, or month. This function also provides users with the capability of maintaining a task or "to do" list. The following guidance on calendars applies only to the calendar option of the desk management function of the ALL-IN-1 system: Calendars and task lists created using this system may be Federal records if they meet the criteria explained in paragraphs 2e and 4 of this directive.Calendars and task lists that contain only personal business are personal records and thus are not Federal records. Personal calendars do not need to be scheduled and may be updated, changed or deleted at the discretion of the individual user.Calendars and task lists that contain, information about government business are Federal records when they are circulated to or shared with others or are placed in files that allow others in the EOP to access and view the calendars in connection with official business.C

  Electronic records must be scheduled even if the same information is available in another medium, including paper printouts of electronically stored records. Information in electronic records may have greater research utility than similar information stored on another medium because it is easier to access and manipulate. Also, it may be more efficient to capture transmission and receipt data in electronic systems. Thus, the disposition of electronic records may differ from the disposition of paper records with the same information. The disposition of all records, regardless of medium (paper, magnetic, microform, etc.) must be in accordance with an approved schedule.

  A. Records on the E-Mail System

  If an agency has an E-mail system that is designed for or is adaptable for use as an agency recordkeeping system as well as a communications system, users must be instructed on the required steps to be taken to ensure that the record on the user's screen or in his or her mailbox is forwarded to the recordkeeping feature of the system. If, on the other hand, an agency has an E-mail system that cannot also serve as a recordkeeping system, users should be instructed to forward all records from the E-mail system to an appropriate recordkeeping system to ensure that the records are preserved and the E-mail system continues to operate efficiently. When the necessary steps have been taken to preserve the record by using the recordkeeping feature or by forwarding it to an appropriate recordkeeping system, the identical version that remains on the user's screen or in the user's mailbox has no continuing value to the agency or for future research. Therefore, NARA considers the version of the record on the "live" E-mail system appropriate for deletion after it has been preserved on a recordkeeping system along with all appropriate transmission data. NARA will revise General Records Schedule 23 to authorize deletion of the copy of the record on the "live" E-mail system after the necessary preservation steps have been taken. This general authorization will apply only to the E-mail record on the "live" E-mail system. There is no formal authorization at this time for agencies to delete E-mail records from the E-mail system if they are stored only on the system itself or if they have been transferred to an electronic recordkeeping system. The revised General Records Schedule will extend the authorization to these categories of records.

  B. Records in Recordkeeping Systems

  Because E-mail records must be maintained for varying retention periods and, when appraised as permanent, transferred to NARA, it is not appropriate for NARA to issue a General Records Schedule that pertains to all E-mail records in recordkeeping systems. Consequently, those E-mail records that have been incorporated into a recordkeeping system that includes records from other sources or systems must be managed in accordance with the records schedule of the recordkeeping system in which they are filed. Alternatively, those E-mail records that are maintained as a separate system must be separately scheduled. Agencies must develop and submit to NARA schedules that identify the categories of E-mail records in their systems if they are maintained separately so that NARA can appraise the records and provide appropriate disposition authority.

  As indicated previously, it is established NARA policy that agencies that maintain records in paper and electronic formats must receive the approval of NARA before disposing of either format. This will ensure that future use considerations enter into determinations of the most appropriate format for the preservation of permanent records.

  13. Security of E-Mail Records

  Agencies must take adequate measures to protect records in E-mail systems (36 CFR 1234.26). Security measures must protect E-mail records from unauthorized alterations or deletions. Agencies should regularly back up messages stored on-line to off-line media to guard against system failures or inadvertent erasures.

  14. Training Employees

  Agencies must ensure that all employees are familiar with the legal requirements for creation, maintenance, and disposition of records on E-mail systems. The agency's directives must provide sufficient guidance so that agency personnel are familiar with the agency's specific recordkeeping requirements and can distinguish between records and nonrecord materials on E-mail systems (36 CFR 1222.30). Because Federal records may be created using an E-mail system, each agency using an E-mail system should provide records management training and guidance for all employees which includes criteria for determining which E-mail messages are records. As indicated above, it may be useful for agencies to have designed into their E-mail systems a feature that helps users to identify Federal records.

  15. Monitoring Implementation of Recordkeeping Guidance for the E-Mail System

  Agencies are responsible for monitoring the implementation of records management guidance to ensure that E-mail users are accurately identifying records and properly maintaining them. Each agency must ensure that the implementation of directives concerning records on its E-mail system is carried out by reviewing the systems periodically for conformance to established agency procedures. These reviews should consist of auditing or reviewing representative samples of all electronic communications, conducting periodic staff interviews, and internal records management evaluations. The purpose of these reviews is to ensure that E-mail users properly determine record status and that record messages are being properly maintained. These reviews would determine whether permanent and temporary records are segregable and schedules are being implemented properly. Such reviews should be used to correct errors when they are found, and to evaluate, clarify, and update agency recordkeeping directives, disposition schedules, and training for agency staff (36 CFR 1234.10(l)). Reports concerning the results of the reviews should be made available to NARA upon request and when it conducts evaluations of the agency's records management program.

  16. Conclusion

  E-mail systems provide unprecedented communications convenience. However, agencies must take the necessary measures to ensure that there is no diminution of their records resulting from the use of E-mail systems. E-mail systems have become important tools for the transmission of substantive information, and, therefore, they are used to create Federal records. Agencies must take special care that employees understand their responsibilities when using E-mail to ensure the adequate creation and proper maintenance and disposition of Federal records.

  As specified in 44 U.S.C. 3102, NARA and the agencies shall cooperate in the implementation of NARA standards. Agencies should amend their recordkeeping policies and procedures where necessary to meet these standards. NARA will assist agencies in implementing these standards by reviewing agency directives concerning E-mail and by participating in agency considerations of maintaining permanent E-mail records electronically. NARA and the agencies will work together to ensure that recordkeeping policies and programs for E-mail records serve the needs of the agencies and the needs of future researchers.

  Dated: March 18, 1994.

  Trudy Huskamp Peterson,

  Acting Archivist of the United States.

  [FR Doc. 94-6939 Filed 3-23-94; 8:45 am]

  BILLING CODE 7515-01-P


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