
Computer underground Digest    Wed  Feb 26, 1997   Volume 9 : Issue 12
                           ISSN  1004-042X

       Editor: Jim Thomas (cudigest@sun.soci.niu.edu)
       News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu)
       Archivist: Brendan Kehoe
       Shadow Master: Stanton McCandlish
       Field Agent Extraordinaire:   David Smith
       Shadow-Archivists: Dan Carosone / Paul Southworth
                          Ralph Sims / Jyrki Kuoppala
                          Ian Dickinson
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CONTENTS, #9.12 (Wed, Feb 26, 1997)

File 1--PROFS Case: Public Citizen V Carlin 12/23/96
File 2--Cu Digest Header Info (unchanged since 13 Dec, 1996)

CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.

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Date: Sat, 11 Jan 1997 14:53:10 -0500 (EST)
From: Eddie Becker <ebecker@CNI.ORG>
Subject: File 1--PROFS Case: Public Citizen V Carlin 12/23/96

   Enclosed please find the legal complaint against the National
   Archives and Records Administration (NARA) over the issue
   of the electronic retention and retrievability of Federal
   Records.  At the end of the brief I have appended a
   description of the case by Page Putnam Miller, Director of
   the National Coordinating Committee for the Promotion of
   History.
   If you are not on the PROFS Case: mailing list,
   send e-mail to ebecker@cni.org
   put Join in the Subject line and your name and e-mail
   address in the text.
   You may also want to check out
 http://www.cpsr.org/cpsr/government_info/info_access/PROFS_CASE
   and
 http://www.citizen.org/public_citizen/litigation/briefs/carlin.html
   for past postings. Eddie Becker   ebecker@cni.org
________________________________________________________________
         Public Citizen v. Carlin: Complaint Challenging GRS 20
 Submitted 12/23/96  Judge: Charles R. Richey  Case # 1:96CV02840
                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
     _________________________________________________________________
                            PUBLIC CITIZEN, INC.
                            1600 20th Street, NW
                           Washington, DC 20009,
                      AMERICAN HISTORICAL ASSOCIATION
                             400 A Street, S.E.
                            Washington DC 20003,
                        AMERICAN LIBRARY ASSOCIATION
                            50 East Huron Street
                          Chicago, Illinois 60611,
                    CENTER FOR NATIONAL SECURITY STUDIES
                       2130 H Street, N.W., Suite 701
                           Washington, DC 20037,
                         NATIONAL SECURITY ARCHIVE
                         Gelman Library, Suite 701
                      The George Washington University
                             2130 H Street, NW
                            Washington DC 20037,
                    ORGANIZATION OF AMERICAN HISTORIANS
                           112 North Bryan Street
                        Bloomington, IN 47408-4199,
                              SCOTT ARMSTRONG
                          2620 Quebec Street, N.W.
                            Washington DC 20008,
                                    and
                                EDDIE BECKER
                         1844 Mintwood Place, N.W.
                            Washington DC 20009,
                                Plaintiffs,
                                     v.
                        JOHN CARLIN, in his official
                          capacity as Archivist of
                             the United States,
                     7th and Pennsylvania Avenue, N.W.
                            Washington DC 20408,
                     EXECUTIVE OFFICE OF THE PRESIDENT,
                           725 17th Street, N.W.
                          Washington, D.C. 20503,
                          OFFICE OF ADMINISTRATION
                           725 17th Street, N.W.
                          Washington, D.C. 20503,
                                    and
                        OFFICE OF THE UNITED STATES
                            TRADE REPRESENTATIVE
                           600 17th Street, N.W.
                          Washington, D.C. 20506,
                                Defendants.
     _________________________________________________________________
              COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
     This action challenges the Archivist's promulgation of a "General
       Records Schedule" authorizing all federal agencies, at their
       discretion, to destroy the only electronic version of Federal
       agency records stored on agency electronic mail and word
       processing systems provided the agency has printed a hard copy of
       the electronic record on paper or microform. Plaintiffs charge
       that by promulgating the General Records Schedule the Archivist
       has improperly ignored the unique value of electronic records, has
       abdicated his statutory responsibility to appraise the historical
       value of such electronic records, and has unlawfully attempted to
       use General Records Schedule to authorize the destruction of
       records concerning individual agency programs without the public
       notice and comment required by law.
     This action presents an issue first raised by defendants in
       Armstrong v. Executive Office of the President, C.A. No. 89-142,
       in 1989 when the predecessor to the current Archivist argued, in
       the alternative, that the General Records Schedules authorized the
       destruction of electronic mail records of the Executive Office of
       the President at issue in that litigation. The issue was not
       decided in that case because, after the General Records Schedule
       claim was challenged, the Archivist and other defendants abandoned
       any reliance on it. On August 28, 1995, however, this claim
       reappeared when the Archivist promulgated a General Records
       Schedule purporting to authorize destruction of electronic mail
       and word processing records at all federal agencies if a hard copy
       of the record had been created on paper or microform. On or about
       December 17, 1996, the Archivist endorsed the Executive Office of
       the President's decision to rely on this revised General Records
       Schedule to dispose of electronic records, including certain
       electronic records of the Office of the United States Trade
       Representative that were preserved pursuant to the injunctions
       entered in Armstrong v. Executive Office of the President.
     This action arises under the Disposal of Records Act, 44 U.S.C.
       Secs. 3301-3314, and the Administrative Procedure Act, 5 U.S.C.
       Sec. 706.
     This Court has jurisdiction pursuant to 28 U.S.C. Sec. 1331.
         _____________________________________________________________
                                    PARTIES
     . Plaintiff Public Citizen, Inc. ("Public Citizen") is a national
       nonprofit corporation and membership organization with
       approximately 100,000 members which, among other activities,
       conducts research and educational programs on government
       regulatory and information policies. Public Citizen makes
       extensive use United States government records, including records
       held by the National Archives and Records Administration ("NARA"),
       units of the Executive Office of the President, the Department of
       Justice, the Department of State, and other federal agencies.
       Public Citizen intends to make use of records created in
       electronic form by units of the Executive Office of the President,
       the Department of Justice, the Department of State, and other
       federal agencies.
     . Plaintiff American Historical Association is the oldest and
       largest association of historians in this country. It was founded
       in 1884 and incorporated by the Congress in 1889 for the promotion
       of historical studies, the collection and preservation of
       historical manuscripts, and the dissemination of historical
       research. It is a non-profit association, with a membership of
       approximately 15,000 historians. It brings this action on behalf
       of itself and its members, many of whom use records made available
       to the public through the Freedom of Information Act or at
       facilities operated by NARA. The Association and its members have
       a strong interest in ensuring that historically important
       government electronic records are preserved and, where
       appropriate, are available for use by researchers and historians
       in electronic format.
     Plaintiff American Library Association, founded in 1876, is the
       world's oldest and largest library association. It is a non-profit
       educational association of approximately 58,000 members, including
       libraries, archives, librarians, library trustees, and library
       users. Part of the Association's mission is to enhance learning
       and ensure access to information for all. It brings this action on
       behalf of itself and its members, who have a direct interest in
       ensuring that historically important government electronic records
       are preserved and, where appropriate, are preserved and made
       available to libraries, librarians, and the public, in electronic
       format.
     Plaintiff Center for National Security Studies is a non-profit
       public interest scholarly research institute. It is organized and
       operated as a project of the Fund for Peace, Inc., a New York
       non-profit corporation. The Center for National Security Studies
       makes extensive use of United States government records,
       especially on national security issues, and makes such records
       available to scholars, journalists, and other interested persons
       as part of its program of public education. The Center for
       National Security Studies intends to use records created in
       electronic form by units of the Executive Office of the President,
       the Department of State, and other federal agencies for its
       research and public education activities and has an interest in
       ensuring that, where appropriate, such records are preserved and
       available for research in electronic form.
     Plaintiff National Security Archive is a non-profit public interest
       research institute and library. It is organized and operated as a
       project of the Fund for Peace, Inc., a New York non-profit
       corporation. The National Security Archive collects, catalogues,
       indexes, and publishes declassified and unclassified government
       documentation on national security and foreign affairs policy,
       practices, and activities, and it makes such records available to
       historians, researchers, and individuals throughout the country.
       Through its research and publication activities, the National
       Security Archive intends to use, and to make available to
       historians, journalists and researchers, records on national
       security issues created in electronic form by units of the
       Executive Office of the President, the Department of State, and
       other federal agencies, and has a direct interest in ensuring
       that, where appropriate, these records are available for research
       and dissemination in electronic format.
     Plaintiff Organization of American Historians was founded as the
       Mississippi Valley Historical Association in 1907. It is today the
       largest association devoted to research and teaching on the
       history of the United States. Its 12,000 members are drawn from
       colleges and universities, historical societies, museums,
       elementary and secondary schools, and other institutions. The
       Organization is committed to ensuring access to, and preservation
       of, records which are basic to understanding American history. The
       Organization of American Historians brings this action on behalf
       of itself and its members, many of who will use historically
       significant government agency records in their research and
       historical work, and have direct interest in ensuring that, where
       appropriate, such records will be preserved for researchers and
       historians in electronic format.
     Plaintiff Scott Armstrong is a journalist, author, foreign policy
       researcher, and founder of the National Security Archive. He makes
       extensive use of records about United States government operations
       that are made available to the public through the Freedom of
       Information Act or at NARA facilities. He intends to use records
       created in electronic form by units of the Executive Office of the
       President, the Department of Justice, the Department of State, and
       other federal agencies, and has a direct interest in ensuring
       that, where appropriate, historically significant electronic
       records are preserved and retained by NARA in electronic form.
     Plaintiff Eddie Becker is a professional researcher specializing in
       documentary reconstruction of historical events, with a particular
       expertise in computerized information. He is employed by
       documentary filmmakers, scholars, and journalists. He makes
       extensive use of NARA facilities to obtain access to information
       about historical events, and he wishes to use records created in
       electronic form by government agencies in electronic format.
     Defendant John J. Carlin is the Archivist of the United States, and
       is sued solely in his official capacity. As Archivist, Mr. Carlin
       is responsible for the supervision and direction of NARA. 44
       U.S.C. Sec. 2102. The Archivist's duties include authorizing the
       disposal of records of federal agencies after a specified period
       of time through the approval of schedules submitted to him by
       individual agencies, or by promulgating General Records Schedules.
     Defendant Executive Office of the President ("EOP") is an agency of
       the United States which supervises and coordinates the activities
       of various component agencies that provide support to the
       President of the United States. These components include the
       Office of Science and Technology, the Office of the United States
       Trade Representative, the Office of Management and Budget, and the
       Office of Administration. Records disposition schedules for EOP
       components, including the Office of Science and Technology and the
       Office of the United States Trade Representative, are submitted in
       the name of the EOP.
     Defendant Office of Administration is a component agency of the EOP
       which, inter alia, promulgates guidelines and directives on the
       retention, management, and disposition of agency records by the
       EOP. Records disposition schedules and directives for the Office
       of the United States Trade Representative, the Office of Science
       and Technology, and other EOP components are prepared and issued
       by the Records Management Office of the Office of Administration.
     Defendant Office of the United States Trade Representative ("USTR"),
       is a component agency of the EOP which, inter alia, is responsible
       for administering trade agreements, coordinating trade policy, and
       setting and administering overall trade policy. It has custody and
       control of word processing and electronic mail records created by
       USTR staff using the USTR Data General Computer System.
         _____________________________________________________________
                              STATUTORY FRAMEWORK
     The Disposal of Records Act, 44 U.S.C. Sec. 3301-3314, provides that
       agency records may not be disposed of without the authorization of
       the Archivist of the United States.
     The requirements of the Disposal of Records Act apply to all agency
       records, regardless of physical form or characteristics, including
       records created, received or stored in electronic format. 44
       U.S.C. Sec. 3301.
     The disposal of most agency records is authorized by agency
       disposition schedules in which agencies submit to the Archivist
       for approval lists or schedules proposing the disposal of specific
       agency records after the lapse of specified periods of time
       pursuant to 44 U.S.C. Sec. 3303a(a). Authorization to dispose of
       records through such agency disposition schedules requires:
       (a) That the agency responsible for the records prepare a schedule
       describing the records and certify that the records do not or will
       not have sufficient administrative, legal, or financial value to
       the agency to warrant retention beyond the expiration of the
       specified period;
       (b) That notice of the agency proposal to dispose of records be
       published in the Federal Register, and interested persons are
       given an opportunity to comment on the proposal. 44 U.S.C. Sec.
       3303a(a).
       (c) That the Archivist independently appraises the records and
       concurs in the agency's determination that the records do not, or
       will not, after the lapse of the period specified, have sufficient
       administrative, legal, research, or other value to warrant their
       continued preservation. 44 U.S.C. Secs. 3303(3), 3303a(a), 36
       C.F.R. Secs. 1228.26, 1228.30.
     Agency disposition schedules are not required where the Archivist
       authorizes disposal through "General Records Schedule." 36 C.F.R.
       Sec. 1228.40. The Disposal of Records Act authorizes the Archivist
       to promulgate General Records Schedules authorizing the disposal
       of records common to several or all agencies after specified
       periods of time if such records will not, at the end of the
       specified periods specified, have sufficient administrative,
       legal, research or other value to warrant their further
       preservation. 44 U.S.C. Sec. 3303a.
     Federal agencies are required to destroy records in accordance with
       the disposition instructions in the General Records Schedules
       unless they specifically request and obtain an exception from the
       Archivist. 44 U.S.C. 3303a(b); 36 C.F.R. 1228.42(b). The
       provisions of the General Records Schedules may also be applied to
       agency records in the custody of NARA at NARA's discretion. 36
       C.F.R. Sec. 1228.42(c).
     Authorizing the disposal of agency records by a General Records
       Schedule
       (a) Allows the records to be destroyed without the agency
       preparing a schedule describing the records and certifying that
       the records the records do not, or will not, warrant retention:
       (b) Eliminates the public's right to notice and comment on the
       disposal of records of a particular agency pursuant to 44 U.S.C.
       Sec. 3303a(a); and
       (c) Allows the records to be destroyed without the Archivist
       independently appraising the value of the records.
         _____________________________________________________________
               FACTS GIVING RISE TO PLAINTIFFS' CLAIM FOR RELIEF

             Agency Electronic Mail and Word Processing Records
     Nearly all federal agencies now use electronic mail and word
       processing systems to transact government business.
     The electronic mail and word processing systems used by government
       agencies store, in electronic format, agency "records" as defined
       in 44 U.S.C. Sec. 3301.
     The agency records stored in agency electronic mail and word
       processing systems include records that document the unique,
       substantive functions for which each agency is responsible,
       including substantive information on the organization, functions,
       policies, decisions, procedures, operations, and other activities
       of an agency that uses the system.
     Records in electronic format have advantages over records recorded
       on paper or microform because the records and the information that
       they contain can be searched, manipulated and stored in ways that
       paper or microform records cannot. Among other advantages, (a)
       records stored in electronic format may be more accessible to and
       useful to researchers and historians than identical records in
       paper or microform format; and (b) records stored in electronic
       format may have unique data or information that is not preserved
       when the record is converted to paper or microform format.
     The unique properties of records stored in electronic format affect
       the administrative, legal, research or other value of the records
       and may make records in electronic format more valuable than
       identical records in paper or microform format.
     The Archivist is responsible for ensuring that the records created,
       received and stored by agencies using word processing and
       electronic mail systems are not destroyed unless the records do
       not have sufficient administrative, legal, research, or other
       value to warrant their continued preservation by the Government.
       This responsibility includes considering whether the records have
       sufficient administrative, legal research, or other value to
       researchers, historians, or other persons outside the agency to
       warrant their continued preservation by the Government.
         _____________________________________________________________
                      Revised General Records Schedule 20
     In 1989, in Armstrong v. Executive Office of the President, C.A. No.
       89-142, defendants, including the Archivist of the United States
       at that time, Don W. Wilson, asserted that, even if the electronic
       mail and other records of the EOP at issue in that litigation
       could be deemed to be a "record" under 44 U.S.C. Sec. 3301,
       General Records Schedules 20 and 23 authorized the destruction of
       all of the types of data found on the EOP systems at issue.
       Plaintiffs in that action alleged that General Records Schedules
       20 and 23 are unlawful and arbitrary and capricious to the extent
       that they authorized, or were construed by defendants to
       authorize, the regular destruction of unique information on the
       electronic mail system at issue having administrative, legal,
       research or historical value which warrant preservation of the
       information. This dispute concerning the General Records Schedule
       was not decided in Armstrong v. Executive Office of the President,
       C.A. No. 89-142, because by 1993 defendants acknowledged that
       neither the EOP nor the National Security Council relied on
       General Records Schedule 23 as authorization for deleting
       information from their respective computer systems or routinely
       destroying backup tapes of information stored on the PROFS
       systems. Armstrong v. Executive Office of the President, 810 F.
       Supp. 335, 342 (D.D.C. 1993).
     In response to the 1993 ruling against the Archivist in Armstrong v.
       Executive Office of the President, 1 F.3d 1274 (D.C. Cir. 1993),
       NARA sought to expand the coverage of General Records Schedules
       for electronic mail messages.
     On October 7, 1994, the Acting Archivist, Trudy Peterson, proposed a
       new version of General Records Schedule 20 that would, among other
       things, explicitly authorize all federal agencies to destroy
       agency records stored on word processing and electronic mail
       systems if the records have been converted to paper or microform
       for recordkeeping purposes and the agency no longer needs the
       electronic version of the record. The Acting Archivist requested
       public comment on the proposal.
     All of the comments submitted in response to the Acting Archivist's
       proposal from the public, professional organizations and state
       archivists were critical of the proposal because the commenters
       believed that the proposed General Records Schedule would result
       in the destruction of valuable Federal records. The only entities
       to submit comments in favor of the proposal were Federal agencies.
     Despite the comments opposing the proposal, the Acting Archivist's
       proposal was adopted, with little modification, by the current
       Archivist, John J. Carlin, and on August 28, 1996, the Archivist
       promulgated revised General Records Schedule 20 by publishing a
       notice in the Federal Register. 60 Fed. Reg. 44643 (1995).
     Item 13 of revised General Records Schedule authorizes agencies to
       delete the only electronic version of agency word processing
       records after the records have been copied to paper or microform
       for recordkeeping purposes and the agency no longer needs the
       electronic record for updating or revision.
     Item 14 of revised General Records Schedule authorizes agencies to
       delete the only electronic version of agency records stored on
       electronic mail systems after the records have been copied to
       paper or microform for recordkeeping purposes.
     The Disposal of Records Act requires that, in order to promulgate a
       General Records Schedule, the Archivist must determine that the
       records covered by the schedule 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. Sec. 3303a(d).
     In promulgating revised General Records Schedule 20, the Archivist
       did not make a determination that all the electronic mail and word
       processing records covered by the schedule will not, at the time
       the Schedule authorizes destruction of these records, have
       sufficient administrative, legal, research, or other value to
       warrant their further preservation by the Government.
     In revised General Records Schedule 20, the Archivist leaves it to
       agencies to decide whether word processing and electronic mail
       records stored in electronic format have sufficient value that
       they should be maintained in electronic format for recordkeeping
       purposes. In making this decision, agencies are under no
       obligation to consider whether the administrative, legal, research
       or other value of the electronic records to those outside the
       agency warrants their further preservation by the Government.
     NARA manuals and guidance documents state that General Records
       Schedules should be applied only to administrative records common
       to most or all agencies, rather than program records.
       "Administrative records" are records relating to budget,
       personnel, supply, and similar housekeeping or facilitative
       functions common to most agencies. "Program records" are records
       documenting the unique, substantive functions for which an agency
       is responsible.
     Revised General Records Schedule 20 does not limit its provisions
       concerning word processing and electronic mail records to
       administrative records. Items 13 and 14 of General Records
       Schedule 20 also apply to the electronic version of program
       records documenting the unique, substantive functions for which
       the agency that created the records is responsible.
     Revised General Records Schedule 20 applies to word processing and
       electronic mail records of all agencies, regardless of the
       importance of an agency's mission or the legal, research or
       historical value of the records created and received by personnel
       of a particular agency on word processing and electronic mail
       systems.
     The revised General Records Schedule does not specify the period or
       periods of time after which disposal of electronic records is
       authorized and, instead, provides that records shall be deleted at
       some unspecified time to be determined by the agency.
         _____________________________________________________________
                    Destruction of Agency Electronic Records
   Under Revised General Records Schedule 20

   EOP Electronic Records
     USTR has computer tapes containing word processing records that were
       retained and preserved to comply with injunctions entered in
       Armstrong v. Executive Office of the President, C.A. No. 89-142.
       These tapes contain the only electronic version of agency records
       with substantive information on the organization, functions,
       policies, decisions, procedures, operations, and other activities
       of the agency from 1986 through 1992.
     USTR also has custody of word processing documents, including
       letters, messages, memoranda, reports, directives, and related
       drafts, recorded by USTR officials in electronic format from 1993
       to the present using the USTR computer systems.
     The EOP submitted a statement to the Archivist, attached to a
       proposed records disposition schedule, which states that USTR
       intends to rely on revised General Records Schedule 20 to dispose
       of USTR word processing records in electronic format, including
       word processing records that were preserved to comply with
       injunctions entered in Armstrong v. Executive Office of the
       President, C.A. No. 89-142. On or about December 17, 1996, the
       Archivist approved the USTR disposition schedule to which this
       statement was attached.
     The EOP submitted a statement to the Archivist, attached to a
       proposed records disposition schedule, which states that the
       Office of Science and Technology Policy ("OSTP") also intends to
       rely on revised General Records Schedule 20 to dispose of
       electronic word processing records created by OSTP officials. On
       or about December 17, 1996, the Archivist approved the USTR
       disposition schedule to which this statement was attached.
     The statements proposing to destroy USTR and OSTP electronic records
       in reliance on General Records Schedule 20 were submitted by the
       Records Management Office of the Office of Administration in the
       name of the EOP.
     The USTR and OSTP electronic records that the EOP has proposed to
       destroy based on General Records Schedule 20 include program
       records containing substantive information on the organization,
       functions, policies, decisions, procedures, operations, and other
       activities of these agencies.
     The USTR and OSTP electronic records that the EOP has proposed to
       destroy based on General Records Schedule 20 include records that
       should not be destroyed because they have sufficient
       administrative, legal, research or other value to warrant their
       continued preservation by the Government in electronic format.
         _____________________________________________________________
     Cabinet Department Electronic Records
     Cabinet-level agencies that create records that are particularly
       valuable to plaintiffs and other researchers and historians,
       including the Departments of Justice, State and Defense, use word
       processing and electronic mail systems to create, receive, and
       store agency records containing substantive information on the
       organization, functions, policies, decisions, procedures,
       operations, and other activities of these agencies.
     The word processing and electronic mail records of the Departments
       of Justice, State, and Defense are not preserved in electronic
       format as each of these agencies instructs its personnel that the
       electronic version of records may be deleted if a copy has been
       printed on paper and placed in the agency's files.
         _____________________________________________________________
     Plaintiffs' Injury
     Pursuant to the Disposal of Records Act, plaintiffs have the right
       to notice and the opportunity to comment on proposals by EOP
       agencies and Cabinet agencies to destroy particular series of
       agency records, including agency word processing and electronic
       mail records in electronic format, and the right to try to
       convince the Archivist that such records should not be destroyed
       because they have sufficient administrative, legal, research or
       other value to warrant their continued preservation.
     If agencies are permitted to destroy word processing and electronic
       mail records pursuant to General Records Schedule 20, plaintiffs
       will be denied their right to notice and an opportunity to comment
       on the destruction of such records, and will be denied the benefit
       of the Archivist's independent appraisal of whether the records
       have sufficient administrative, legal, research or other value to
       warrant their continued preservation.
     Pursuant to the Freedom of Information Act, 5 U.S.C. Sec. 552, and
       the National Archives and Records Administration Act, 44 U.S.C.
       Secs. 2101-11, plaintiffs have a right of access to agency records
       that have been, or will in the future be, recorded on agency
       electronic mail or word processing systems of federal agencies,
       including the Office of the United States Trade Representative,
       the Office of Science and Technology Policy, the Departments of
       Justice, State, and Defense, except to the extent that such
       records are exempt from disclosure by law. While the agency
       records are in the custody of the agencies, the information which
       constitutes "agency records" is subject to disclosure by the
       agency under the Freedom of Information Act unless it is covered
       by one of the specific statutory exceptions. 5 U.S.C. Sec. 552.
       Once the records are no longer needed by the agencies, those
       agency records having permanent historical value are transferred
       to the Archives for preservation. 44 U.S.C. Sec. 2107. The
       Archivist must make such transferred records available to the
       public, unless they are exempt from examination by statute or
       other restriction. 44 U.S.C. Secs. 2108, 2110.
     Plaintiffs' right of access to agency records under the Freedom of
       Information Act includes the right to request that records be made
       available in electronic format where the records are readily
       reproducible by the agency in that format. See P.L. 104-231, Sec.
       5.
     Plaintiffs intend to exercise their rights to seek access to agency
       records recorded on electronic mail and word processing systems,
       but will be unable to access the records in electronic format if
       agencies are permitted to destroy such information pursuant to
       revised General Records Schedule 20.
         _____________________________________________________________
     FIRST CLAIM FOR RELIEF

   (General Records Schedule 20)
     Revised General Records Schedule 20 is contrary to law because it
       authorizes agencies to destroy the only copy of word processing
       and electronic mail records in electronic format without a
       determination by the Archivist that the records will not, at the
       time that destruction of the records is authorized, have
       sufficient administrative, legal, research, or other value to
       warrant their further preservation.
     Revised General Records Schedule 20 is arbitrary and capricious
       because any determination that all of the word processing and
       electronic mail records of all federal agencies will not, at the
       time destruction of the records is authorized, have sufficient
       administrative, legal, research or other value to warrant their
       further preservation would be arbitrary and capricious.
     Revised General Records Schedule 20 is contrary to law and arbitrary
       and capricious because the Archivist has abdicated his
       responsibility to determine whether records in electronic format
       have sufficient administrative, legal, research or other value to
       warrant their further preservation in electronic format, and has
       unlawfully delegated decisions concerning whether records in
       electronic format should be retained to the agencies with custody
       over the records. Furthermore, the Archivist has authorized
       agencies to determine whether records in electronic format should
       be destroyed based entirely on the agencies' own wishes, without
       any consideration of the legal, research or other value of the
       records to those outside the agency.
     Revised General Records Schedule 20 is contrary to law because it is
       not limited to records that are common to several or all federal
       agencies but, instead, authorizes the destruction of word
       processing and electronic mail records that contain information on
       the particular functions, policies, decisions, procedures,
       operations, and other activities of the agencies that created or
       received the records.
     Revised General Records Schedule 20 is arbitrary and capricious
       because it is inconsistent with NARA's position that General
       Records Schedules should only be applied to administrative records
       of federal agencies, and should not be applied to program records
       documenting the unique, substantive functions for which an agency
       is responsible.
     Revised General Records Schedule 20 is contrary to law because it
       does not provide for disposal of records after the lapse of a
       specified period of time, as required by 44 U.S.C. Sec. 3303a(d),
       but authorizes destruction of records without specifying any
       particular time.
     Revised General Records Schedule 20 is contrary to law because the
       electronic version of word processing and electronic mail records
       may contain unique information of administrative, legal, research
       and historical value that is not recorded in paper or microform
       copies of the records, and will be permanently lost if the
       electronic version of the records is destroyed.
     Plaintiffs' rights to notice and the opportunity to comment on the
       proposed destruction of agency records, and plaintiffs' rights of
       access to agency records will be irreparably harmed if agencies
       are permitted to destroy electronic mail and word processing
       records in reliance on General Records Schedule 20.
         _____________________________________________________________
     SECOND CLAIM FOR RELIEF

   (Destruction of USTR Word Processing Records)
     The disposal of word processing records created by the USTR from
       1986 through 1992 and stored on backup tapes preserved pursuant to
       the injunction in Armstrong v. Executive Office of the President,
       C.A. No. 89-142, pursuant to revised General Records Schedule 20
       is unlawful because revised General Records Schedule 20 is
       inconsistent with the Disposal of Records Act and is arbitrary and
       capricious.
     The disposal of word processing records created by the USTR from
       1986 through 1992 and stored on backup tapes preserved pursuant to
       the injunction in Armstrong v. Executive Office of the President,
       C.A. No. 89-142, based on revised General Records Schedule 20 is
       unlawful because these records contain unique information of
       administrative, legal, research and historical value that is not
       recorded in paper or microform copies of the records, and will be
       permanently lost if the tapes are destroyed.
     The disposal of word processing records created by the USTR from
       1986 through 1992 and stored on backup tapes preserved pursuant to
       the injunction in Armstrong v. Executive Office of the President,
       C.A. No. 89-142, based on revised General Records Schedule 20 is
       unlawful because these records were not copied in accordance with
       the requirements set forth in revised General Records Schedule.
     Plaintiffs' rights of access to the word processing records created
       by the USTR from 1986 through 1992 and stored on backup tapes
       preserved pursuant to the injunction in Armstrong v. Executive
       Office of the President, C.A. No. 89-142, will be irreparably
       harmed if the records are destroyed in reliance on General Records
       Schedule 20.

     _________________________________________________________________
   PRAYER FOR RELIEF

   WHEREFORE, plaintiffs pray that this Court enter a judgment and order:

     Declaring that General Records Schedule 20 are null and void;
     Enjoining the defendant Archivist from taking any steps to implement
       General Records Schedule 20;
     Enjoining the defendant agencies EOP, Office of Administration, and
       USTR from destroying electronic records created, received or
       stored on electronic mail or word processing systems pursuant to
       General Records Schedule 20;
     Awarding plaintiffs their costs and a reasonable attorney's fee; and
     Granting such other and additional relief as the Court may deem just
       and proper.

     _________________________________________________________________
   Respectfully submitted,

   Michael Tankersley and Alan B. Morrison, Attorneys for Plaintiffs

   PUBLIC CITIZEN LITIGATION GROUP

   1600 20th Street, NW

   Washington, DC 20009 Dated: December 23, 1996
 __________________________________________________
2)
Date--   Sat, 28 Dec 1996 14:11:26 -0600
From--   H-DIPLO <hdiplo@ouvaxa.cats.ohiou.edu>
Subject--NCC Washington Update, v. 2, #43, 12/27/96

NCC Washington Update, vol. 2, #43,  December 27, 1996
   by Page Putnam Miller, Director of the National Coordinating
      Committee for the Promotion of History <pagem@capaccess.org>

Public Citizen, Historians, and Librarians File Suit Against The
Archives Challenging Policies that Allow Destruction of Electronic Records
-- On December 23 Public Citizen, joined by the American Historical
Association, the Organization of American Historians, and the American
Library Association, filed a complaint against the National Archives in
the United States District Court for the District of Columbia.  The suit
challenges the Archivist's promulgation of a "General Records Schedule"
authorizing all federal agencies, at their discretion, to destroy the
only electronic version of Federal agency records stored on agency
electronic mail and word processing systems provided the agency has
printed a hard copy of the electronic record on paper of microform.

The complaint states that the Archivist has "improperly ignored the unique
value of electronic records" and "has abdicated his statutory
responsibility to appraise the historical value of such electronic
records."  The complaint asks the court to declare the General Records
Schedule 20 null and void and to prevent agencies from destroying
electronic records created, received or stored on electronic mail or word
processing systems pursuant to General Records Schedule 20.

This new lawsuit builds on the Armstrong v. Executive Office of the
President (Civil Action No. 89-0142). The inadequacy of National Archives
guidance to agencies on the preservation of e-mail was at the heart of
that case, frequently called the PROFS case.  In 1989 the National
Security Council, as well as other agencies, routinely destroyed e-mail,
which according to the National Archives did not meet the standard of a
"record" which must by definition be appraised for retention or
destruction.  Various court orders in the PROFS case led on August 25,
1995 to the announcement by U.S. Archivist John Carlin of final
regulations on managing records created or received on electronic mail
systems and to the issuing of the revised General Records Schedule 20,
which provides guidance to federal agencies about the kinds of records
that may be destroyed and those that must be preserved.  In general
practice before a government agency may destroy its records, it must give
public notice and the Archivist must appraise the records to determine
whether they warrant continued preservation.  The "General Records
Schedule," however, lists categories of records which agencies may destroy
without notice or appraisal if the agency determines that such records
"are no longer needed for administrative, legal, audit, or other
operational purposes."

Many in the historical and archival community commented on this schedule
prior to its adoption and stressed that the National Archives was
abdicating its role in appraising records with these regulations.  There
are values to records that go beyond their administration and operational
use and agencies are sometimes shortsighted in apprising the long term and
historical value of records.  The regulations give enormous authority to
agency heads.  The "General Records Schedule" raises issues of both what
constitutes a federal record and what are the parameters of the
Archivist's authority.  Additionally, with the changes in technology some
archivists are now recommending that information systems be appraised, not
just individual records.  The National Archives, however, did not use the
opportunity of the revision of the "General Records Schedule 20" to adopt
a more forward looking approach to appraisal.

The reasons that the issue of the inadequacy of NARA's guidance was not
resolved as part of the PROFS case are complex.  Judge Charles Richey was
unhappy in 1995 that he still had a case on his docket that began in 1989,
and he urged the lawyers for the government and the plaintiffs to work
together on guidance with which both sides could live.  There was much
negotiation on the guidance.  From the plaintiffs' point of view there was
some refinement, but not enough. However, the plaintiffs realized that
Judge Richey didn't want to prolong this case.  Also they knew that a
stronger case could be made against the General Records Schedule once it
was put into effect and the pending destruction of some specific records
could be challenged.

At particular issue in this new case is the Archivist's authorization of a
proposed records disposition schedule from the Office of the United States
Trade Representative and the Office of Science and Technology Policy which
rely on the revised General Records Schedule 20 and which call for the
destruction of electronic record that the plaintiffs' view as having
substantive information on the organization, functions, policies,
decisions, procedures, and operations of the agencies.

 * * * * * * * * * * * * * * * ** * * * * * * * * * * * * * * * * *
NCC invites you to redistribute the NCC Washington Updates.
A complete backfile of these reports is maintained by H-Net.
See World Wide Web: http://h-net.msu.edu/~ncc/

------------------------------

Date: Thu, 15 Dec 1996 22:51:01 CST
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Subject: File 2--Cu Digest Header Info (unchanged since 13 Dec, 1996)

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