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PUBLIC CITIZEN v. CARLIN

October 22, 1997

PUBLIC CITIZEN, et al., Plaintiffs,
v.
JOHN CARLIN, in his official capacity as Archivist of the United States, et al., Defendants.



The opinion of the court was delivered by: FRIEDMAN

OPINION

 This case involves a challenge to General Records Schedule ("GRS") 20, promulgated by the Archivist of the United States in 1995. Plaintiffs assert that GRS 20 -- a regulation governing the disposal of electronic records created by agencies of the federal government -- is arbitrary and capricious, irrational and contrary to law. Currently before the Court are defendants' motion to dismiss and the parties' cross-motions for summary judgment. Upon consideration of the papers submitted, the arguments of counsel, the entire record and the applicable law, the Court concludes that in promulgating GRS 20 the Archivist exceeded his authority under Section 3303a(d) of the Records Disposal Act, 44 U.S.C. §§ 3301 et seq. The Court therefore grants plaintiffs' motion for summary judgment and denies defendants' motions to dismiss and for summary judgment.

 I. BACKGROUND

 In 1993, the United States Court of Appeals for this Circuit in Armstrong v. Executive Office of the President ("Armstrong II "), 303 U.S. App. D.C. 107, 1 F.3d 1274, 1287 (D.C. Cir. 1993), held that electronic versions of documents are records that must be created, managed and disposed under the rules set forth in the Federal Records Act, 44 U.S.C. §§ 2101 et seq., 2901 et seq., 3101 et seq., and 3301 et seq. This holding left undisturbed the "agencies' ability to purge incidental electronic records from their files by acting, with the Archivist's approval, to dispose of those documents that lack 'sufficient administrative, legal, research, or other value to warrant their continued preservation.'" Armstrong II, 1 F.3d at 1287 (emphasis in original).

 In 1972, the Archivist began authorizing disposal of electronic records through general schedules in very limited circumstances. In October, 1994, the Acting Archivist proposed revisions to GRS 20 to explicitly authorize all federal agencies to destroy agency records stored on word processing and electronic mail systems, as well as other electronic records, once the records have been printed in "hard copy" on paper or microform, and if the agency determines that it no longer needs the electronic version. See Notice of Proposed Records Schedule; Request for Comments, 59 Fed. Reg. 52,313 (1994) (included in Admin. Rec., Vol. I at 89-92). *fn1"

 On August 14, 1995, the Archivist issued the present version of GRS 20. See Notice of Issuance of General Records Schedule, 60 Fed. Reg. 44,643 (1995). *fn2" GRS 20 authorizes the disposal of electronic records in fifteen enumerated categories, including electronic records created by computer operators, programmers, analysts, systems administrators and government staff using office automation applications. Specifically, GRS 20, Item 13 provides that word processing files recorded on electronic media, "after they have been copied to an electronic recordkeeping system, paper, or microform for recordkeeping purposes," may be deleted from the word processing system "when no longer needed for updating or revision." Notice of Issuance of General Records Schedule, 60 Fed. Reg. at 44,649. GRS 20, Item 14, covering electronic mail records, provides that senders' and recipients' versions of electronic mail messages and attachments thereto may be deleted from the electronic mail system after they have been copied to an electronic recordkeeping system, paper or microform for recordkeeping purposes. Id.3

 The government argues that (1) plaintiffs lack standing to bring this action; (2) the second count in plaintiffs' complaint -- relating to the Office of the United States Trade Representative ("USTR") -- is moot; and (3) the Executive Office of the President ("EOP") is not a proper party and should be dismissed from this action. In addition, the government maintains that it is entitled to summary judgment because the promulgation of GRS 20 did not violate the Administrative Procedure Act, while plaintiffs argue that the promulgation of GRS 20 was arbitrary and capricious, irrational and contrary to law.

 II. STATUTORY FRAMEWORK

 The records creation, management and disposal duties of federal agencies are set out in a collection of statutes known collectively as the Federal Records Act (the "FRA"), 44 U.S.C. §§ 2101 et seq., 2901 et seq., 3101 et seq., and 3301 et seq. The FRA is intended to assure, among other things, "accurate and complete documentation of the policies and transactions of the Federal Government," "control of the quantity and quality of records produced by the Federal Government," and "judicious preservation and disposal of records." 44 U.S.C. § 2902. *fn4"

 The FRA prescribes the exclusive mechanism for disposal of federal records: no records may be "alienated or destroyed" except in accordance with the FRA's provisions. See 44 U.S.C. § 3314. If a document qualifies as a record, the FRA prohibits an agency from "discarding it by fiat." Armstrong II, 1 F.3d at 1278 (citing American Friends Serv. Comm. v. Webster, 231 U.S. App. D.C. 265, 720 F.2d 29, 62 (D.C. Cir. 1983) ("Congress did not intend to grant [the agency] . . . a blank check for records disposal.")). Rather, the Records Disposal Act (the "RDA"), 44 U.S.C. §§ 3301 et seq., -- a component of the FRA -- requires the agency to procure the approval of the Archivist before disposing of any record. See 44 U.S.C. § 3303a. In evaluating records for preservation, the agency is to focus on whether the records have any administrative, legal or fiscal use to the agency, see Admin. Rec., Vol. VI at 2316-20 (National Archives and Records Administration ("NARA"), Records Management Handbook: Disposition of Federal Records (1992)), while the Archivist and his staff focus on whether the records have sufficient historic or research value to those outside the agency to warrant their preservation. 1 F.3d at 2319-20. If the Archivist determines that agency records do not hold administrative, legal, research or other value, he can authorize disposal of the records. 44 U.S.C. § 3303a(a), (d) and (e).

 Under the system of individual agency schedules, an agency submits to the Archivist a "request for disposition authority" or a "disposition schedule" in which the agency identifies specific agency records and proposes that they be destroyed after the lapse of specified periods of time. 44 U.S.C. § 3303a(a); Scheduling Temporary Records, 36 C.F.R. § 1228.30 (1997). The Archivist then must issue a notice requesting public comment on the agency's proposal, and the Archivist's staff must assess the value of the records. The Archivist may accept or reject the agency's proposal. 44 U.S.C. § 3303a(a). If the Archivist finds that the records have sufficient value, the records eventually will be transferred to the Archives as "permanent" records. 44 U.S.C. § 2107. Otherwise, the Archivist will approve a schedule authorizing disposition of the records after they have been retained for an appropriate period of time. 44 U.S.C. § 3303a(a). *fn5"

 As an alternative to individual agency schedules, Congress has authorized the Archivist to promulgate General Records Schedules governing the disposition of certain kinds of records only -- records of a "specified form or character common to several or all agencies" that do not, "after a specified period of time" have sufficient administrative, legal, research or other value to warrant their continued preservation. 44 U.S.C. § 3303a(d). *fn6" The General Records Schedules "cover records documenting administrative, or housekeeping, functions rather than program functions." Admin. Rec., Vol. IV. at 2324 (NARA, Records Management Handbook: Disposition of Federal Records). To date, the Archivist has issued twenty-three General Records Schedules, covering the disposal of approximately one-third of the total volume of records created by federal agencies. Admin. Rec., Vol. III at 857 (Introduction to General Records Schedules, NARA Transmittal No. 7, August 1995).

 In addition to his statutory responsibility to judge the suitability of records for disposal, under the FRA the Archivist must also (1) "provide guidance and assistance to Federal agencies with respect to ensuring adequate and proper documentation of the policies and transactions of the Federal Government and ensuring proper records disposition," 44 U.S.C. § 2904(a); (2) "promulgate standards, procedures, and guidelines with respect to records management," 44 U.S.C. § 2904(c)(1); and (3) "conduct inspections or surveys of the records and the records management programs within and between Federal agencies." 44 U.S.C. § 2904(c)(7).

 The Archivist plays "a key role" in the FRA's enforcement scheme. Armstrong II, 1 F.3d at 1279. If he discovers that an FRA provision has been or is being breached, the Archivist must (1) inform the agency head of the violation and suggest corrections, and (2) if ameliorative measures are not undertaken by the agency within a reasonable time, submit a written report to Congress and the President. 44 U.S.C. § 2115(b). In addition, if the Archivist discovers any "actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of [an] agency," he must notify the agency head and assist him or her in initiating an action through the Attorney General for the recovery of wrongfully removed records or for other legal redress. 44 U.S.C. § 2905(a); see also 44 U.S.C. § 3106 (requiring agency heads to notify the Archivist of any unlawful destruction or removal of records and placing upon them an independent duty to seek legal action through the Attorney General to recover the records). If the agency head is recalcitrant in pursuing legal remedies, the Archivist himself is to (1) request the Attorney General to initiate action and (2) inform Congress that he has made that request. 44 U.S.C. § 2905(a). See Armstrong II, 1 F.3d at 1279 (citing 44 U.S.C. § 2905(a)); see also Armstrong I, 924 F.2d at 295 ("if the agency head or Archivist does nothing while an agency official destroys or removes records in contravention of agency guidelines and directives, private litigants may bring suit to require the agency head and Archivist to fulfill their statutory duty to notify Congress and ask the Attorney General to initiate legal action").

 III. DEFENDANTS' MOTION TO DISMISS

 A. Plaintiffs Have Standing

 Article III standing requires that a plaintiff have suffered (1) an "injury in fact--an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical" -- (2) which is "fairly traceable" to the challenged act, and (3) is "likely" to be "redressed by a favorable decision." National Treasury Employees Union v. United States, 322 U.S. App. D.C. 135, 101 F.3d 1423, 1427 (D.C. Cir. 1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992)). These requirements apply to individual plaintiffs, as well as to organizations asserting standing to sue either on their own behalf or on behalf of their members. Havens Realty Corp. v. Coleman, 455 U.S. 363, 378, 71 L. Ed. 2d 214, 102 S. Ct. 1114 (1982). *fn7"

 1. Injury-in-fact

 Plaintiffs in this case are historians, researchers and journalists who conduct research using government records made available under the Freedom of Information Act, 5 U.S.C. § 552, *fn8" or in the collections of the National Archives and Records Administration; and libraries that provide the public with access to electronic records of the government.

 The government claims that plaintiffs have not met the first prong of the standing test -- injury-in-fact -- because their interest in this case is "ideological and abstract." Because plaintiffs have not pointed to specific documents that will be unavailable to them as a result of GRS 20's implementation and have not sued to challenge outright destruction of particular records, the government argues that plaintiffs' alleged injuries are not concrete enough to constitute injury-in-fact. See Defs.' Mem. at 10-16.

 The Court disagrees. The record contains ample evidence that the individual plaintiffs and members of the plaintiff organizations have been or will be directly harmed by the promulgation of GRS 20. For example, plaintiffs assert that specific research projects, for which plaintiff Scott Armstrong has made FOIA requests for electronic versions of government records, will be affected directly by GRS 20. *fn9" Mr. Armstrong is an author and journalist who has made numerous requests under the FOIA for government records in electronic form and, according to him, is a person who has reason to make future requests for such records for research projects on topics including U.S. national security policy from 1978 to the present; Saudi-U.S. relations; Cuba-U.S. relations; Middle East arms sales; U.S. nuclear posture and nuclear arms control; the Native Hawaiian Sovereignty Movement; and labor rights and anti-corruption efforts. Declaration of Scott Armstrong at P 5 ("Armstrong Decl."). Mr. Armstrong points to specific Cabinet departments and components of the Executive Office of the President that have adopted the "print and delete" method of preserving e-mail and word processing records in accordance with GRS 20 and whose electronic records he has requested in the past and plans to request in the future. Armstrong Decl. PP 4-8. He further states that destruction of electronic versions of documents makes it more difficult to retrieve and manipulate documents he seeks under the FOIA. Id. P 8.

 The injuries to Mr. Armstrong's interests as researcher, author and journalist are concrete enough to constitute injury-in-fact. See American Friends Serv. Comm. v. Webster, 720 F.2d at 46 (plaintiffs who had claimed a need for agency documents arising "'out of their professions as historians, journalists, teachers, film writers, or attorneys'" had standing to challenge the Archivist's approval of individual agency disposition schedules where they had made past FOIA requests, had other requests pending and intended to request records from the agency in the future); see also Competitive Enterprise Institute v. NHTSA, 284 U.S. App. D.C. 1, 901 F.2d 107 (D.C. Cir. 1990) (consumer group sufficiently demonstrated injury-in-fact by showing that federal agency's decision to reduce automobile fuel economy standards hampered consumer group's members' ability to purchase larger passenger vehicles).

 Plaintiffs Scott Armstrong, Eddie Becker, the National Security Archive, Public Citizen and members of the Organization of American Historians have made FOIA requests for electronic documents in the past and intend to request records in electronic form in the future. *fn10" They have demonstrated through their declarations that they face a real risk that records will not be available to them in electronic form because of the implementation of GRS 20, even though the 1996 amendments to the FOIA specifically allow the plaintiffs to request records in electronic form. See 5 U.S.C. § 552(a)(4) (as amended by the Electronic FOIA Amendments of 1996, P.L. 104-231, § 5, 104 Stat. 2422 (1996)). *fn11" The Court concludes that the plaintiff historians, researchers, journalists and authors have sufficiently pled injury-in-fact. See American Friends Serv. Comm. v. Webster, 720 F.2d at 46.

 The Court also finds that plaintiffs have sufficiently pled injury-in-fact to the members of the American Library Association ("ALA"), which will be directly and dramatically affected by the compliance of federal agencies with GRS 20. *fn12" Many member libraries provide access to government records by (1) serving as depositories for government publications under the Government Printing Office's ("GPO") Federal Depository Library Program; (2) providing on-line access to government records; and (3) providing access to private collections, books, periodicals or other publications that contain government records. Declaration of Elizabeth Martinez, Executive Director of the ALA, at P 7 ("Martinez Decl."). Many Federal Depository Libraries provide public users with computer work stations that are able to access government information via the World Wide Web, and the GPO has opened 41 gateways in Depository Libraries to give the public access to many federal documents via an Internet connection. Id. PP 8-9. Some ALA members are also responsible for establishing archives of government records in electronic form, which the libraries then make available to the public on-line. Id. P 10. The Martinez declaration demonstrates that many institutions and individuals will suffer distinct and palpable injury if government agencies are permitted to destroy pursuant to GRS 20 electronic versions of documents that have been preserved in paper or microfiche recordkeeping systems.

 2. Redressability and Causation

 The government next asserts that striking down GRS 20 will not ensure that electronic versions of these records will be preserved in an electronic format, since agencies may destroy the electronic versions anyway under individual agency disposition schedules. Thus, it argues that a favorable ruling from this Court will not necessarily or even likely redress the injuries plaintiffs assert. See Defs.' Mem. at 16-17. *fn13"

 It is important to recognize that plaintiffs are not challenging the destruction of electronic records per se. Plaintiffs acknowledge that if GRS 20 is struck down, the Archivist may still approve individual agency schedules authorizing the destruction of electronic mail and word processing records; they concede that destruction of some electronic records certainly will be necessary and practical. *fn14" Plaintiffs only challenge the use of a General Record Schedule to schedule the destruction of electronic records, without distinguishing valuable electronic records from useless ones. Thus, it is likely that a decision striking down GRS 20 would, in fact, fully address the plaintiffs' alleged injury. See Akins v. Federal Election Commission, 322 U.S. App. D.C. 58, 101 F.3d 731, 738 (D.C. Cir. 1990) (en banc) (so long as error was one upon which challenged agency decision rests, injury to plaintiff is redressable by court, notwithstanding that agency might well "subsequently legitimately decide to reach the same result through different reasoning"). The Court therefore concludes that plaintiffs have standing. *fn15"

 B. Plaintiffs' Claim Against The USTR Is Not Moot

 Plaintiffs' second claim for relief involves the disposal of word processing records created by the Office of the United States Trade Representative ("USTR") from 1986 to 1992 and stored on backup tapes preserved pursuant to an injunction issued in Armstrong II. Compl. PP 65-68. Shortly after the complaint in this action was filed, the USTR received authority to withdraw a schedule under which the word processing records at issue would be destroyed. *fn16" The government asserts that the withdrawal of the schedule has ...


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