would not cause any harm because an NSC March 21, 1994 Declaration ensures the preservation of the records. (Defs.' Mot. for Stay at 5). The Defendants' assertion is incorrect because, as demonstrated by past experience, the Defendants' assurances that the records will be preserved are unreliable.
On November 20, 1992 the Court in Armstrong v. Bush, 807 F. Supp. 816, 823 (D.D.C. 1992) entered a Temporary Restraining Order ("TRO") which required that backup tapes containing NSC records be preserved. The TRO expired shortly before the Court decided the merits in which the Court entered a permanent injunction requiring preservation of the materials. During the interval in which no Court Order was in effect, three backup tapes were overwritten. (Mem. of Roy King, Deputy Commander of Data Systems Unit on "Summary - Overwritten CPU A Backup Tapes" dated January 8, 1993). In response to the Court's show cause Order requiring an accountability for the destruction of the tapes, the Defendants argued that they should not be held responsible for the erasure because no Court Order was in effect at the time. (See Defs.' Oppos. to Pls.' Combined Mots. to Show Cause and Enforce This Court's Orders at 23 n.20, 25 n.23).
Furthermore, at the beginning of this litigation the Defendants ignored a TRO and an agreement they had with the Plaintiffs. In 1989 Judge Parker of this Court entered a TRO requiring the Defendants to preserve the electronic records of the Reagan Administration. Plaintiffs initially filed a Motion for a preliminary injunction but later withdrew the Motion after the Defendants' agreed to preserve the materials pending the Court's decision on the merits. See Armstrong v. Bush, 721 F. Supp. 343, 348, 348 n.9 (D.D.C. 1989). Despite the agreement, the Defendants destroyed several of the backup tapes in violation of the TRO and the agreement. (See Order of January 14, 1993 in Armstrong v. Executive Office of the President, Civil Action 89-142 at 6 n.6). As this past experience indicates, there is a strong possibility that should the Court grant the Stay, the Defendants will begin disposing of the records at issue. Therefore, the Court finds that the Plaintiffs' rights and the public interest would be harmed if a Stay were granted in this case.
Finally, as this Court's Order and Opinion of February 14, 1995 made clear, the Plaintiffs' argument made in its papers and at oral argument about the distinction between declaratory and injunctive relief under the terms of this Court's Order, is persuasive as well as dispositive of the issue as to whether the Defendants are entitled to a Stay, herein. (Pls.' Oppos. to Defs.' Mot. for Stay Pending Appeal at 6-8). Therefore, the Defendants should immediately adopt guidelines consistent with the Court's February 14, 1995 Opinion and Order. The Court observes that this does not place any undue burden on the Defendants because up until the March 25, 1994 Declaration, the Defendants had in place guidelines with respect to the Presidential Records Act and the Federal Records Act.
II. The Portion Of The Court's February 14, 1995 Order Requiring New Guidelines To Be Adopted By February 27, 1995 Shall Be Extended To Allow The Defendants Until March 2, 1995 Within Which To Comply.
Notwithstanding the foregoing, the Court shall enlarge the time within which Defendants must issue new guidelines. At a status call held on February 24, 1995, the parties entered into an oral stipulation that allows the Defendants until March 2, 1995 to comply with the Court's February 14, 1995 Order. The parties indicated that the grant of such an extension will allow the Defendants a full opportunity to present their case to the Court of Appeals should they so choose. Accordingly, this Court shall grant the enlargement of time to allow the Defendants until March 2, 1995 to adopt new guidelines for the National Security Council.
For the reasons set forth herein, the Court shall deny the Defendants' Motion for a Stay pending Appeal as the same is wholly without merit in this instance. Accordingly, the Court shall issue an Order of even date herewith in accordance with this Memorandum Opinion.
Dated: February 25, 1995
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
Upon careful consideration of the parties' papers, 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 25 day of February, 1995,
ORDERED that the Defendants' Motion for a Stay shall be, and hereby is, DENIED; and it is
FURTHER ORDERED that the Court's February 14, 1995 shall remain in full force and effect except as herein modified in accordance with the following Ordered paragraph; and it is
FURTHER ORDERED that the Defendants shall have until March 2, 1995 within which to comply with that portion of the Court's February 14, 1995 Order requiring the Executive Office of the President and the Archivist to adopt new guidelines for the National Security Council, in place of those vacated and nullified on March 25, 1994.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
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