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Citizens for Responsibility and Ethics in Washington v. Executive Office of the President

November 10, 2008

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, PLAINTIFF,
v.
EXECUTIVE OFFICE OF THE PRESIDENT, ET AL., DEFENDANTS.
THE NATIONAL SECURITY ARCHIVE, PLAINTIFF,
v.
EXECUTIVE OFFICE OF THE PRESIDENT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION AND ORDER

Citizens for Responsibility and Ethics in Washington ("CREW") and National Security Archive ("Archive") bring these consolidated actions against the Executive Office of the President ("EOP"), the Office of Administration ("OA"), Alan R. Swendiman, in his capacity as Head of the Office of Administration, the National Archives and Records Administration (NARA), and Dr. Allen Weinstein, in his capacity as Archivist of the United States. Both suits raise claims under the Administrative Procedure Act, 5 U.S.C. § 706, and the Federal Records Act, 44 U.S.C. §§ 2201 et seq., 3010 et seq., and 3301 et seq., challenging defendants' failure to recover, restore, and preserve electronic communications created and/or received within the White House in violation of the Federal Records Act ("FRA") and their failure to establish an electronic records management system that complies with FRA. Before the court is defendants' consolidated motion to dismiss [# 39]. Upon consideration of the motion and the oppositions thereto, the court concludes that defendants' motion should be denied.

I. BACKGROUND

A. Parties

CREW is "a non-profit, non-partisan ethics watchdog group that seeks to deter the unethical and illegal conduct of public officials by publicly disseminating information regarding their conduct." CREW's Opp'n to Defs.' Mot. to Dismiss at 6. To achieve this goal, CREW "uses a combination of research, litigation, and public advocacy." CREW's Compl. ¶ 5. CREW's research is accomplished in part through requests for government records under the Freedom of Information Act. Id. ¶ 6. The Archive is "a non-partisan, non-profit . . . research institute and library" that "collects, catalogues, indexes, and publishes declassified and unclassified government documentation on national security and foreign affairs policies, practices and activities, and makes such records available to historians, researchers, and individuals throughout the country." Archive's Opp'n to Defs.' Mot. to Dismiss at 8-9.

CREW and the Archive bring these actions against the EOP, including the agency known as the EOP, as well as its individual components that are subject to FRA. CREW's Compl. ¶ 9; Archive Compl. ¶ 7. Plaintiffs name as defendants one of these components, the OA, and its head, Alan R. Swendiman. Crew's Compl. ¶¶ 10-11; Archive's Compl. ¶¶ 8-9. Also named as defendants are the National Archives and Records Administration ("NARA") and Archivist of the United States, Dr. Allen Weinstein, who supervises and directs NARA. Crew's Compl. ¶¶ 12-13; Archive's Compl. ¶¶ 10-11.

B. Statutory Background

The Federal Records Act ("FRA") is a collection of statutes that sets forth federal agencies' records creation, management, and disposal duties. See 44 U.S.C. §§ 2101 et seq., 22901 et seq., 3101 et seq., 3301 et seq. FRA "is intended to assure, among other things, "[a]ccurate and complete documentation of the policies and transactions of the Federal Government," "[c]ontrol of the quantity and quality of records produced by the Federal Government," and "[j]udicious preservation and disposal of records." Armstrong v. Executive Office of the President, 1 F.3d 1274, 1278 (D.C. Cir. 1993) (Armstrong II) (citing 44 U.S.C. §§ 2902(1), (2), (5)).

To accomplish FRA's goals, each agency head must (1) "'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,'" (2) "establish and maintain an active, continuing program for . . . economical and efficient [records] management,'" and (3) "'establish safeguards against the removal or loss of records [the agency head] determines to be necessary and required by regulations of the Archivist.'" Id. (quoting 44 U.S.C. §§ 3101, 3102, 3105, respectively).

FRA also requires an agency to obtain the Archivist's approval before disposing of any federal record. Id.; see also 44 U.S.C. § 3303. To receive this approval, an agency "may submit a schedule of records sought to be discarded to the Archivist, who will sign off on the records' destruction only if she concludes that they do not 'have sufficient administrative, legal, research, or other value to warrant their continued preservation.'" Armstrong II, 1 F.3d at 1279 (quoting 44 U.S.C. § 3303a(a)). Alternatively, the agency may destroy "certain common types of records pursuant to disposal schedules promulgated in advance by the Archivist (the disposal schedules are, of course, designed to take into account the FRA's goal of preserving documents of "administrative, legal, research, or other value")." Id. (quoting 44 U.S.C. § 3303a(d)).

The Archivist has additional duties besides approving records for disposal. The Archivist must (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,'" (2) "'promulgate standards, procedures, and guidelines with respect to records management,'" and (3) "'conduct inspections or surveys of the records and the records management programs and practices within and between Federal agencies.'" Id. (quoting 44 U.S.C. §§ 2904(a), 2904(c)(1), 2904(c)(7), respectively).

The Archivist also plays a role in FRA's enforcement:

If she 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 within a reasonable time, submit a written report to Congress and the President. Id. § 2115(b). Also, should the Archivist become aware of any "actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of [an] agency," she must notify the agency head of the problem and assist the agency head in initiating an action through the Attorney General for the recovery of wrongfully removed records or for other legal redress. Id. § 2905(a) . . . If the agency head is recalcitrant in pursuing legal remedies, the Archivist herself is to (1) request the Attorney General to initiate action and (2) inform Congress that she has made that request. Id. § 2905(a).

Id.

Similarly, agency heads are required to notify the Archivist of any unlawful destruction or removal of records and to seek legal action through the Attorney General to recover the records. Id. (citing 44 U.S.C. § 3106).

C. Factual Background

Plaintiffs' claims for relief are based on the following factual allegations.*fn1 From 1994 to 2002, the Automated Records Management System ("ARMS") "automatically captured, preserved and categorized all e-mail sent through the White House e-mail system," and separately segregated, categorized and archived records subject to FRA and those subject to the Presidential Records Act ("PRA"). CREW's Compl. ¶ 31; Archive's Compl. ¶ 29. ARMS also had controls that "prevented the accidental or intentional deletion of e-mails." Id.

In 2002, the EOP discontinued ARMS and did not replace it with any other system to automatically preserve White House e-mails or to categorize and separately archive FRA and PRA records. CREW's Compl. ¶ 32; Archive's Compl. ¶ 30. "As a result, since 2002, it has been possible for any e-mails housed on the White House servers to be manually deleted by anyone who has access to the servers." CREW's Compl. ¶ 32. OA determined that "hundreds of days" of White House e-mails created between March 2003 and October 2005 were missing, amounting to at least five million e-mails that "had been deleted from the servers and were recoverable only on back-up tapes." Crew's Compl. ¶ 34; Archive's Compl. ¶ 32. OA concluded that either server malfunction or manual deletion caused the loss of the e-mails. Crew's Compl. ¶ 35; Archive's Compl. ¶ 33. Although OA developed a plan to recover the missing e-mails and both OA and EOP developed a new records management system, "the White House has failed to implement any course of action to either recover the deleted e-mails from existing back-up tapes or implement an appropriate and effective electronic management system. Crew's Compl. ¶¶ 37-39.

D. Plaintiffs' Complaints

Plaintiffs bring these suits alleging that the Archivist, the EOP, OA, and the heads of its other components are aware that millions of federal and presidential records have been deleted and that no adequate system is in place to ensure the preservation of such records, and have violated FRA by refusing to take corrective action. Crew's Compl. ¶¶ 44, 45, 48; Archive's Compl. ¶¶ 39, 40, 43. Claims One through Four seek to compel the Archivist, EOP, and OA to initiate action through the attorney general to restore the deleted e-mails before they become irrecoverable. Specifically, Claim One alleges that the Archivist has violated his duty under FRA to request that the attorney general take action to recover the missing e-mails, and seeks an order compelling the Archivist to request such action. Claim Two alleges that the EOP and OA have violated their duty as agency heads to request that the attorney general take action to recover the missing e-mails and ...


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