Court ruling won't end debate over archiving

By Christopher J. Dorobek

GCN Staff

An appeals court's decision to let agencies print and delete electronic records has two groups mulling their next moves.

Last week, the National Archives and Records Administration officials were discussing how agencies should interpret the court decision, which effectively overturned the amalgam of unofficial policies that agencies have used to archive electronic records during the past two years.

Public Citizen, the Washington public interest group that spearheaded the lawsuit seeking the preservation of electronic records in their original form, is also considering its legal options.

The U.S. Court of Appeals for the District of Columbia on July 30 overturned a District Court decision that had voided General Records Schedule 20. GRS-20 lets agencies delete an electronic version of a document once a copy has been placed in a record-keeping system, a system that need not be electronic.

Public Citizen attorneys contend that paper records do not preserve many of the important characteristics inherent in electronic formats.

Seems reasonable

Ultimately, the appeal judges disagreed. GRS-20 'seems to embody a reasoned approach' to the laws that require agencies to preserve records, Judge Douglas Ginsburg wrote in the opinion for the three-judge panel.

'Agencies must maintain their records in organized files that are designed for their operational needs,' Ginsburg said. 'All agencies by now, we presume, use personal computers to generate electronic mail and word processing documents, but not all have taken the next step of establishing electronic record-keeping systems in which to preserve those records. It may well be time for them to do so, but that is a question for the Congress or the executive, not the judiciary, to decide.'

The decision on whether to use an electronic or a paper system should be based on what works best for the agency, Ginsburg said. Some agencies 'may determine that paper record-keeping will continue to be adequate and cost-effective,' he said.

During oral arguments last year, Public Citizen attorney Michael Tankersley told the appeals court that it was irrational to give NARA the power to authorize the destruction of records without regard to the medium or the technology used to create them.

U.S. Attorney Matthew Collette countered that nothing of significance is lost by deleting a record once its has been printed out or otherwise stored.

Ginsberg said the Public Citizen argument 'is based upon a misunderstanding of GRS-20 and the archivist's rationale for adopting it.'

'GRS-20 does not authorize disposal of electronic records per se,' he said, but it does let agencies discard those records after they have been copied and saved in some format.

Robert Gellman, a Washington privacy and information policy consultant, said the court took a narrow-minded approach while District Court Judge Paul L. Friedman looked more broadly at the policy and objectives of the law.

'The Court of Appeals seemed to be saying that even if it is a bad policy, it was within the purview of the archivist to make the choice. Depending on your view of the role of the courts, both decisions could be correct,' he said.

Immediately following the decision, NARA officials said they needed time to review the decision before commenting on it.

'NARA welcomes the opportunity provided by this decision to continue an orderly way to develop practical, workable strategies and methods for managing and preserving records in the electronic age and ensuring ready access to them,' NARA said in a statement. 'NARA remains committed to working aggressively toward that goal.'

Public Citizen must decide its next move by mid-September. The options include requesting a review of the decision by the full Court of Appeals or an appeal to the Supreme Court.

There's a difference

Tankersley said he was not surprised by the ruling because it was evident during the arguments that 'the judges did not appreciate the difference between electronic records and having paper copies.'

Public Citizen was not arguing that all agencies need electronic record-keeping systems, he said, but rather that it was appropriate in some cases that records be saved in their original format and that NARA should make the determination.

In the nearly two years since Friedman's decision, NARA has been working on a records policy that would comply with his order. Archivist John Carlin convened an Electronic Records Work Group that issued a series of recommendations for dealing with electronic records [GCN, Feb. 22, Page 3]. In March, NARA instructed agencies to submit their plan for electronic records by Feb. 1.

Gellman, however, said the legal decision is not as important as how NARA interprets the ruling. After all, Congress has never paid much attention to the issue of maintaining records, he said. The critical question is what NARA will now do about the disposition of electronic records.

Friedman's decision forced NARA to move on an issue where it had taken virtually no action, Gellman said. 'This takes the pressure off the archives to do better,' he said.

The full text of the appellate decision can be found online at www.cadc.uscourts.gov/common/opinions/199908/97-5356a.txt.