PROFS case

January. 6, 1993.  Judge Charles Richey

United States District Court,
for the District of Columbia.

)
SCOTT ARMSTRONG, et al., )
)
Plaintiffs, )
)
v. C.A. No. 89-0142 CRR
)
EXECUTIVE OFFICE OF THE PRESIDENT, et al., )
)
Defendants. )

Plaintiffs Counsel: Michael E.
Tankersley, with Alan B. Morrison, Public Citizen
Litigation Group, Washington, DC, were on the
briefs,

Defendants Counsel Jason R. Baron, Atty.,
U.S. Dept. of Justice, Civil Div., Washington, DC,
with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B.
Stephens, U.S. Atty., District of Columbia, and
David J. Anderson, Elizabeth A. Pugh, Peter D.
Coffman, and Stephen G. Harvey, Attys., U.S. Dept.
of Justice, Civil Div., Washington, DC, were on the
briefs, .

TABLE OF CONTENTS

I. INTRODUCTION .............................3

II. DISCUSSION ...............................7

A. THE STATUTORY COMMAND FROM 1943 THROUGH THE LAST
AMENDMENT BY CONGRESS IN 1984 SHOWS A CLEAR
LEGISLATIVE PURPOSE THAT RECORDS OF HISTORICAL VALUE
INVOLVING THE PUBLIC, REGARDLESS OF PHYSICAL FORM,
SHALL BE PRESERVED, PARTICULARLY WHERE SUCH MATERIAL
REFLECTS THE FUNCTION, POLICIES, DECISIONS,
PROCEDURES, OPERATIONS OR OTHER ACTIVITIES OF THE
GOVERNMENT OR BECAUSE OF THEIR INFORMATIONAL
VALUE.......................................... 8

B. THE INFORMATION ON THE DEFENDANTS' PROFS, OASIS
AND A-1 SYSTEMS IS SUBJECT TO THE FRA BECAUSE IT
MEETS THE STATUTORY DEFINITION OF A
RECORD.......................................... 9

C. THE ELECTRONIC MATERIAL CREATED OR STORED ON
THE DEFENDANTS' PROFS, OASIS AND A-1 SYSTEMS
CONTAIN INFORMATION THAT IS NOT REPRODUCED ON ANY
PAPER COPIES. THEREFORE, PRINTING THE SUBSTANCE OF
THESE MATERIALS IN PAPER FORM DOES NOT SATISFY THE
REQUIREMENTS OF THE FRA AS IT DOES NOT SHOW WHO HAS
RECEIVED THE INFORMATION AND
WHEN........................................ 11

D. THE DEFENDANT'S RECORD KEEPING PROCEDURES ARE
ARBITRARY AND CAPRICIOUS BECAUSE THERE IS NO
ADEQUATE MANAGEMENT PROGRAM OR SUPERVISION BY RECORD
KEEPING PERSONNEL OF THE STAFF'S DETERMINATION OF
RECORD OR NON-RECORD STATUS OF COMPUTER
MATERIAL.................................... 15

E. THE EOP'S RECORD KEEPING GUIDELINES AT THE
TIME THIS SUIT WAS FILED WERE ARBITRARY AND
CAPRICIOUS BECAUSE THE GUIDELINES DID NOT PROVIDE
SUFFICIENT GUIDANCE TO DETERMINE WHAT WAS A FEDERAL
RECORD THAT MUST BE PRESERVED AND THEY ALSO PERMIT
THE DESTRUCTION OF FEDERAL RECORDS.......... 18

F. THE NSC'S RECORD KEEPING GUIDELINES AT THE
TIME THIS SUIT WAS FILED WERE ARBITRARY AND
CAPRICIOUS BECAUSE THE GUIDELINES DID NOT PROVIDE
SUFFICIENT GUIDANCE TO DETERMINE WHAT WAS A FEDERAL
RECORD THAT MUST BE PRESERVED AND TO DETERMINE THE
DIFFERENCE BETWEEN FEDERAL RECORDS, PRESIDENTIAL
RECORDS AND NON-RECORD MATERIAL........ 22

G. THE COURT SHALL REMAND THIS CASE TO THE
ARCHIVIST FOR IMMEDIATE REMEDIAL ACTION UNDER THE
FRA TO PREVENT THE DESTRUCTION OF FEDERAL
RECORDS.................................. 28

H. THIS COURT HAS JURISDICTION TO ORDER THE
PRESERVATION OF THE DEFENDANTS' ELECTRONIC RECORDS
UNTIL THE ARCHIVIST CAN TAKE APPROPRIATE ACTION
REQUIRED BY II(G) ABOVE. HOWEVER, THE COURT CANNOT
ORDER THE PRESERVATION OF RECORDS CREATED BY EOP
COMPONENTS WHOSE SOLE RESPONSIBILITY IS TO ADVISE
THE PRESIDENT BECAUSE THERE IS NO JUDICIAL REVIEW OF
THE PRA................................... 30

III. CONCLUSION ........................ 32

OPINION OF CHARLES RICHEY

UNTIED STATES DISTRICT COURT

I. INTRODUCTION

This case is before the Court on the merits of
the Plaintiffs' claims under Counts II and III of
the Third Amended Complaint. [Footnote 1] This case
was filed in 1989 against Ronald Reagan, President
of the United States, inter alia, just before his
term of office ended. [Footnote 2] In September
1989, this Court denied the Defendants' motion to
dismiss or, in the alternative, for summary
judgment. This Court held that s 702 of the
Administrative Procedure Act ("APA") provided for
judicial review of the Defendants' compliance with
the Presidential Records Act ("PRA"), 44 U.S.C. s
2201 et seq., and the Federal Records Act ("FRA"),
44 U.S.C. ss 2101-2118, 2901- 2910, 3101-3107,
and 3301-3324. In addition, the Court determined
that there were unresolved factual issues regarding
whether the Defendants had complied with the record
keeping statutes. Armstrong v. Bush, 721 F.Supp.
343 (D.D.C.1989).

Footnote 1. The Defendants have also filed a
motion for summary judgment as to the Plaintiffs'
claim under the Freedom of Information Act ("FOIA"),
5 U.S.C. ss 552, et seq., contained in Count I of
the Third Amended Complaint. However, as the
Plaintiffs have recently filed an amended FOIA
request with the Defendants, this claim is not yet
ripe for review. In addition, the Plaintiffs'
Complaint had originally included a claim under the
Presidential Records Act. However, this claim has
been omitted from the Third Amended Complaint and
therefore need not be considered by the Court.

Footnote 2. The Plaintiffs present suit is
against the Executive Office of the President
("EOP"), the National Security Council ("NSC"), and
the Archivist of the United States.

Thereafter, an appeal was taken. The Court of
Appeals for the District of Columbia Circuit
approved of this Court's holding that the APA
provides for limited review of the adequacy of the
NSC's and EOP's record keeping guidelines and
instructions pursuant to the FRA. Armstrong v.
Bush, 924 F.2d 282, 291- 293 (1991). The Court of
Appeals also held that the APA does not provide
judicial review of the President's compliance with
the PRA. Id. at 288- 291. Finally, the Court of
Appeals remanded for further development of the
record to determine whether the electronic
communications systems operated and controlled by
the Defendants were within appropriate and proper
guidelines as required by law and regulations issued
thereunder by the Archivist of the United States,
who is also a Defendant here. Id. at 296-297.
[Footnote 3]

Footnote 3. After remand, the Plaintiffs filed
a Third Amended Complaint to include information
about new electronic communication systems used by
the Defendants. In the Third Amended Complaint, the
Plaintiffs allege that the guidelines issued by the
Defendants are arbitrary and capricious in violation
of the FRA because they authorize destruction of
agency records and that the Archivist has violated
his statutory duty to initiate action to stop
improper destruction of agency records on these
electronic communications systems. See Third
Amended Complaint at 13-15. The Third Amended
Complaint dropped the President as a Defendant, and
set forth the following Defendants: the EOP, the
Office of Administration ("OA"), the NSC, and the
White House Communications Agency ("WHCA").

In other words, the basic question is whether
on this record, which counsel for the parties agree
is ready for a decision on the merits, the
Defendants have complied with the statutory
requirements and whether the guidelines are
reasonable or sufficiently clear as to provide
adequate guidance to personnel employed by the
Defendants in their maintenance and preservation of
federal records. The other issue is whether the
United States Archivist has fulfilled his statutory
duties under the Federal Records Act. 44 U.S.C. s
2905.

In light of the foregoing, the Plaintiffs
particularly seek preservation of and access to the
Defendants' computerized systems known as PROFS,
OASIS, and A-1, on which the Defendants send
e-mail, write documents, transmit messages inter-
and intra-agency and perhaps even to people outside
the official government payroll. [Footnote 4] These
computerized systems contain transmit logs
indicating to whom messages and documents were sent
by date, time and hour. [Footnote 5] They also have
Receipt logs containing the same or similar
information.

Footnote 4. Both the EOP and the NSC copy the
information on their electronic communication
systems (PROFS, OASIS, and A-1) onto backup tapes.
The backup tapes contain a snapshot of the
information stored on the these systems at a given
moment and can be used to retrieve data that is
captured on the tape. The purpose of the backup
tapes is to ensure that agency personnel are able to
recover data as quickly and efficiently as possible
if the computer system fails or files stored on it
are inadvertently deleted. The same day this suit
was filed, the Plaintiffs received a Temporary
Restraining Order prohibiting the Defendants from
erasing certain material stored on the National
Security Council's ("NSC") Professional Office
("PROFS") computer system during the Reagan
administration. As a result of the Temporary
Restraining Order and a stipulation entered on
January 31, 1989, the Defendants have preserved the
computer tapes of the material stored in 1989. A
second Temporary Restraining Order was entered on
November 20, 1992 requiring the Defendants to
preserve all the current and existing computer
backup tapes in their custody from their electronic
communication systems. At a status conference on
December 4, 1992, the Defendants agreed to maintain
these backup tapes until January 7, 1993.

Footnote 5. The systems are also used to
transmit electronic mail and to generate calendars
of appointments and meetings. They are also used
for creating and editing of memoranda, and
transferring files and documents in electronic
format. The creation and transmittal of electronic
mail, in the form of "notes" is the most commonly
used function of the systems.

While Plaintiffs are now on the Third Amended
Complaint and while each side has filed cross
motions for summary judgment, the Court, with
consent of counsel, has combined the parties cross
motions for Summary Judgment with a decision on the
merits. [Footnote 6] The Court also determined that
it was reasonable to make findings of fact and
conclusions of law on the basis of the joint
submissions of the parties because it was unclear,
based on the parties separate submissions, whether
there was a material issue of fact in dispute.
[Footnote 7] Celotex Corp. v. Catrett, 477 U.S.
317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Local Rule
108(h).

Footnote 6. The parties did not wish to present
any witnesses or further evidence beyond what has
been presented to the Court in their papers.

Footnote 7. Pursuant to a request by the Court
made at a status conference on December 4, 1992, the
parties filed a Joint Statement of Facts on December
8, 1992.

After careful consideration of the foregoing,
the Court, with the consent of counsel, has combined
the Plaintiffs' request for a Preliminary Injunction
with their request for Declaratory and Injunctive
relief on the merits pursuant to Rule 52(a) of the
Federal Rules of Civil Procedure. Accordingly, this
opinion shall constitute the Court's findings of
fact and conclusion of law pursuant to Rule 52(a) of
the Federal Rules of Civil Procedure.

II. DISCUSSION

The Defendants' record keeping guidance
pursuant to the FRA is subject to review under the
APA. Under the APA, the reviewing court shall
compel "agency action unlawfully withheld or
unreasonably delayed" 5 U.S.C. s 706(1), and "hold
unlawful and set aside agency action, findings, and
conclusions found to be arbitrary and capricious, an
abuse of discretion, or otherwise not in accordance
with law." 5 U.S.C. s 706(2)(A). In examining an
agency's action under the APA, the first question is
whether the agency properly interpreted the statute
involved. The second question is whether the agency
action was arbitrary and capricious. Under this
second inquiry, an agency action can be set aside if
it fails to offer an adequate explanation for its
action or fails to consider a relevant factor in
reaching its decision, see International Fabricare
Institute v. EPA, 972 F.2d 384, 389 (D.C.Cir.1992);
Federal Election Comm'n v. Rose, 806 F.2d 1081, 1089
(D.C.Cir.1986), but the reviewing court is not to
substitute its judgment for that of the agency. See
Motor Vehicle Manufacturers Ass'n v. State Farm
Mutual Automobile Insurance Co., 463 U.S. 29, 43,
103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983); Adams
House Health Care v. Sullivan, 895 F.2d 767, 770
(D.C.Cir.1990); Center for Auto Safety v. Peck, 751
F.2d 1336, 1342 (D.C.Cir.1985).

A. THE STATUTORY COMMAND FROM 1943 THROUGH THE
LAST AMENDMENT BY CONGRESS IN 1984 SHOWS A CLEAR
LEGISLATIVE PURPOSE THAT RECORDS OF HISTORICAL VALUE
INVOLVING THE PUBLIC, REGARDLESS OF PHYSICAL FORM,
SHALL BE PRESERVED, PARTICULARLY WHERE SUCH MATERIAL
REFLECTS THE FUNCTION, POLICIES, DECISIONS,
PROCEDURES, OPERATIONS OR OTHER ACTIVITIES OF THE
GOVERNMENT OR BECAUSE OF THEIR INFORMATIONAL VALUE.

The Federal Records Act governs the creation,
management and disposal of federal records.
[Footnote 8] The FRA defines a federal record as:

Footnote 8. The FRA is a series of statutes,
beginning with the 1943 Disposal of Records Act, ch.
192, 57 Stat. 380, and the Federal Records Act of
1950, ch. 849, 64 Stat. 583. These acts were
subsequently amended by the Government Records
Disposal Amendments of 1970, 84 Stat. 320, the
Federal Records Management Amendments of 1976, 90
Stat. 2723, and the National Archives and Records
Administration Act of 1984, 98 Stat. 2280. See
Armstrong v. Bush, 924 F.2d 282, 284 n. 1
(D.C.Cir.1991).

all books, papers, maps, photographs, machine
readable materials, or other documentary materials,
regardless of physical form or characteristics, made
or received by an agency of the United States under
Federal law or in connection with the transaction of
public business and preserved or appropriate for
preservation by that agency ... as evidence of the
organization, functions, policies, decisions,
procedures, operations, or other activities of the
Government or because of the informational value of
the data in them. 44 U.S.C. s 3301 (emphasis added).
The plain language of the statute and legislative
history show a clear legislative purpose to allow
private researchers and those whose rights may have
been affected by the actions of government to have
access to the records under the FRA. See American
Friends Service Comm'n v. Webster, 720 F.2d 29
(D.C.Cir.1983); Armstrong v. Bush, 924 F.2d 282,
287-88.

Therefore, each agency head must "maintain an
active, continuing program for the economical and
efficient management of the records of the agency,"
44 U.S.C. s 3102, and establish "safeguards against
the removal or loss of records he determines to be
necessary and required by the Archivist." Id. s
3105. In turn, the Archivist is to provide
"guidance and assistance to the Federal agencies
with respect to ensuring adequate and proper
documentation of the policies and transactions of
the Federal government and ensuring proper record
disposition." Id. s 2904(a). Federal records may
only be destroyed after the Archivist's review and
approval. [Footnote 9] Id. s 3314.

Footnote 9. The FRA establishes procedure in
which the agencies submit lists and schedules of
records to be disposed of to the Archivist. 44
U.S.C. s 3302(1). The Archivist must examine the
lists or schedules submitted to him by agencies to
determine whether or not any of the records "have
sufficient administrative, legal, research, or other
value to warrant their continued preservation by the
Government...." Id. s 3303a.

B. THE INFORMATION ON THE DEFENDANTS' PROFS,
OASIS AND A-1 SYSTEMS IS SUBJECT TO THE FRA BECAUSE
IT MEETS THE STATUTORY DEFINITION OF A RECORD.

The threshold issue before the Court is
whether the material created or saved on the
Defendants' computer systems falls under the FRA's
definition of federal records. On the one hand, the
Defendants urge the Court to rule that none of the
material on the PROFS, OASIS, and A-1 systems are
records under the FRA. The Defendants also argue
that any record material on the systems has been
saved by its staff in "hard" or paper copy and thus
any materials on these electronic communications
systems records are simply copies preserved for the
convenience of reference. [Footnote 10] See 44
U.S.C. s 3301. On the other hand, the Plaintiffs
argue that all the material contained on the
Defendants' computer systems meet the statutory
definition of records under the FRA and cannot be
destroyed without approval of the Archivist. See 44
U.S.C. ss 3302, 3303, 3303a.

Footnote 10. The Defendants argue that it has
instructed its staff that all material on these
computer systems that constitutes a federal record
must be printed out in paper form and saved and,
therefore, all materials on these computer systems
are copies saved only for convenience.

The Court does not agree with the extreme
positions taken by either party. On the one hand,
the Court will not and cannot read the FRA to
exclude computer systems such as those at issue
here. The statutory language makes clear that the
FRA was intended to include materials "regardless of
physical form or characteristic." 44 U.S.C. s 3101.
Furthermore, the Court cannot assume that the
Defendants' staff are being advised to save all
computer records in paper form because the
Plaintiffs have explicitly challenged this
contention. See Joint Statement of Facts, No. 83, at
25. In addition, the Defendants' argument assumes
that a federal record on these systems is exactly
the same as a version printed out on paper, a
contention that the Plaintiffs dispute as well.

However, it would also be inconsistent to
declare that all materials on these electronic
communications systems are records, as the
Plaintiffs request, where it is clear that these
systems produce many non-record or presidential
record materials that are not the subject of this
suit. The factual record before the Court shows
that while these computer systems can be and are
used for substantive communications by staff, they
are also used to convey information that does not
rise to the level of a record. [Footnote 11] Under
the APA, it is not for this Court to second guess
the wisdom of agency policies, but simply to
determine if the policies are arbitrary and
capricious or not in accordance with the law.

Footnote 11. Even the Plaintiffs admit that
some PROFS communications convey information that
does not constitute federal records. The
Plaintiffs' position is that a substantial amount of
the electronic mail is record material. See Joint
Statement of Fact at 16-18.

C. THE ELECTRONIC MATERIAL CREATED OR STORED
ON THE DEFENDANTS' PROFS, OASIS AND A-1 SYSTEMS
CONTAIN INFORMATION THAT IS NOT REPRODUCED ON ANY
PAPER COPIES. THEREFORE, PRINTING THE SUBSTANCE OF
THESE MATERIALS IN PAPER FORM DOES NOT SATISFY THE
REQUIREMENTS OF THE FRA AS IT DOES NOT SHOW WHO HAS
RECEIVED THE INFORMATION AND WHEN.

[4] With the two extreme positions above
rejected, the Court concludes that some of the
material stored on these computer systems do meet
the definition of record under the FRA and must be
saved, regardless of whether a paper or hard copy of
the material has been printed out.

The Defendants' record keeping guidelines give
its staff the responsibility of deciding whether
material on the PROFS, OASIS, and A-1 systems are
records under the FRA. Once it has been determined
that a certain PROFS, OASIS or A-1 note or document
is a federal record, the Defendants allegedly
instruct their staff to print out this information
in paper form. However, even assuming arguendo,
that the staff are properly preserving computer
material that are federal records by printing out a
copy of the material on paper, the Defendants
nevertheless have not complied with FRA. The
electronic material on the PROFS, OASIS, and A-1
systems are qualitatively different than a copy
printed out in paper form and, therefore, the
Defendants' record keeping system violates the FRA
because it does not save all the information
contained in these electronic records.

A paper copy of the electronic material does
not contain all of the information included in the
electronic version. For example, a note distributed
over these computer system includes information that
is not reproduced on the paper copy regarding who
has received the information and when the
information was received, neither of which is
reproduced on the paper copy. See Affidavit of
Eddie Becker, Plaintiffs' Exhibit Q. In addition,
distribution lists contained on these computer
systems are used by staff to route documents. These
lists are maintained separately from the material
being sent, which will simply designate a code that
tells the systems which distribution list to use.
The distribution lists are not necessarily printed
out when the material is saved in paper form.

Such information can be of tremendous
historical value in demonstrating what agency
personal were involved in making a particular policy
decision and what officials knew, and when they knew
it. [Footnote 12] Requiring the preservation of
such information is consistent with the legislative
history of the FRA, which clearly shows that
"Congress intended, expected, and positively desired
private researchers and private parties whose rights
may have been affected by government actions to have
access to the documentary history of the federal
government." American Friends Service Comm'n v.
Webster, 720 F.2d 29, 57 (D.C.Cir.1983).

Footnote 12. The Court does not agree with the
Defendants' contention that this information has no
value. The question of what government officials
knew and when they knew it has been a key question
in not only the Iran-Contra investigations, but
also in the Watergate matter. The historical value
of this information is best illustrated by the
amount of information contained in PROFS notes that
was used during the Iran- Contra investigation.
See Plaintiffs' Exhibits B, Q, R, T.

Secondly, Congress was aware that, when left
to themselves, agencies have a built-in incentive
to dispose of records relating to their mistakes or
simply do not think about preserving information.
Id. at 41. Thus, the FRA requires the Archivist to
"establish standards for the selective retention of
records of continuing value, and assist Federal
agencies in applying the standards to records in
their custody." 44 U.S.C. s 2905. Pursuant to this
authority, the Archivist has issued regulations and
a Records Management Handbook containing additional
criteria for appraising records of permanent value.
The regulations issued by the National Archives and
Records Administration ("NARA") [Footnote 13] are
persuasive authority in considering what is
reasonable conduct under the FRA. The NARA is
unquestionably concerned about the creation of
federal records on electronic medium: "Special
attention must be given to machine-readable
records.... Unquestionably, those media are slowly
replacing paper records." NARA Handbook,
Disposition of Federal Records, 1989, at 1.

Footnote 13. Because the NARA is administered
under the supervision and direction of the
Archivist, 44 U.S.C. s 2102, the Court will refer to
the NARA and the Archivist interchangeably.

In fact, even if this electronic information
was the same as that produced on paper, the NARA has
issued several guidelines on the disposition of
records stating that "[i]f the same information is
stored on more than one medium (such as paper and
disk), agencies, in consultation with the NARA
should schedule the disposition of all copies." See
NARA Bulletin No 85-2, dated June 18, 1985,
(Plaintiffs' Exhibits, Vol. I., No. 1, attachment A,
at 5, P e); NARA Bulletin 87-5, dated February 2,
1987 (Plaintiffs' Exhibits, Vol. I., No. 2,
attachment A, at 5, P e).

In common terms, a record is defined as "an
account made in an enduring form, especially in
writing, that preserves the knowledge or memory of
events or facts" and "something on which such an
account is made." The American Heritage Dictionary,
1976. These computer materials certainly fit into
an everyday understanding on a record.

The Defendants contend "[s]tanding by
themselves, such miscellania such as lists of
individual senders and recipients, times of
acknowledgment, and accounting records of log-on
and log-off times, do not rise to the level of a
federal 'record.' " Defendants' Reply Memorandum in
Support of Summary Judgment, August 8, 1992, at 35
n. 33. However, the Defendants' argument misses the
point because this information does not stand alone.
This information must be saved because, in
combination with the substantive information
contained in the electronic material, it will convey
information about who knew what information and when
they knew it.

The Defendants also cite General Record
Schedule 23 for the proposition that after an
electronic medium is used to produce a hard copy
which is maintained in organized files, the
electronic version may be deleted. Joint Statement
of Facts No. 83, at 25. The Court does not find
such reasoning persuasive. Neither the EOP nor the
NSC relies on General Record Schedule 23 as
authorization for deleting information from their
respective computer systems or routinely destroying
backup tapes of information stored on the PROFS
systems. Id. No. 84, at 25.

Given the record before the Court, it is clear
that once the Defendants staff decide that a note or
other computer material on these computer systems
constitutes a federal record, that material must be
saved in a way that includes all the pertinent
information contained therein. As any paper copies
of these materials do not include all of the
relevant information, the Defendants record keeping
guidance are contrary to law under the FRA and
arbitrary and capricious under the APA.

D. THE DEFENDANTS' RECORD KEEPING PROCEDURES
ARE ARBITRARY AND CAPRICIOUS BECAUSE THERE IS NO
ADEQUATE MANAGEMENT PROGRAM OR SUPERVISION BY RECORD
KEEPING PERSONNEL OF THE STAFF'S DETERMINATION OF
RECORD OR NON-RECORD STATUS OF COMPUTER MATERIAL.

The Court also finds that the Defendants
record keeping procedures are arbitrary and
capricious because there is no oversight of the
agency staff by the record keeping personnel. The
agency staff make the decision in every instance
whether computer material is a federal record that
must be saved. The Plaintiffs argue that the
Defendants' record keeping personnel should at least
provide supervision to the agency staff to ensure
that federal records are being preserved.

The Court agrees. "Federal agency records
management programs must be in compliance with
regulations promulgated by ... NARA." 36 C.F.R. s
1220.2. "Each Federal Agency, in providing for
effective controls over the maintenance of records,
shall: (1) Establish and implement standards and
procedures for classifying, indexing and filing
records as set forth in GSA and NARA handbooks."
The National Archives Records Management Handbook,
"Disposition of Federal Records," promulgated by the
Archivist, states: Within the agency, only records
officers should determine the record or non- record
status of files. No officials at agency staff or
operating levels should be given the authority to do
so. Such authority weakens the disposition program
by indiscriminate use of the non record label and
can result in the loss of valuable records. Records
Management Handbook, Plaintiff's Appendix, Tab 8, at
2-3. Therefore, the Court is convinced that the
Defendants are not permitted to allow its staff to
make its record keeping decisions under the FRA
without some supervision from record keeping
personnel. Such a determination is consistent with
the written and authoritative guidance of the NARA.
It is also consistent with the purpose and history
of the FRA. [Footnote 14]

Footnote 14. For this reason and because the
Archivist and the agencies have not initiated an
enforcement action with the Attorney General to
ensure the preservation of these federal records,
the Court shall remand this case to Archivist. See
Section II(G) infra.

It is notable that the EOP and NSC perform
such supervision and review for paper records but
not electronic records. [Footnote 15] Therefore,
while the Defendants' review of paper materials
prevents the destruction of misclassified paper
files, there is no such safeguard in the case of
electronic records. Such a practice is consistent
with the Defendants' position that once a paper copy
of a computer e-mail is printed out, the computer
material is a convenience copy and therefore not a
record under the FRA. However, since the Court has
determined that computer materials are not simply
convenience copies, these computer materials are
subject to the FRA and the Archivist and the
Defendants must institute immediate provisions for
periodic review to ensure the adequacy,
effectiveness and efficiency of the record keeping
program. See 44 U.S.C. ss 3102, 3105; 36 C.F.R. ss
1220.54, 1222.10, 1222.20, 122.32, 122.50.

Footnote 15. At the end of the Reagan
Administration, officers of the NSC Information and
Policy Directorate reviewed all paper files,
including all files that employees believed to be
personal in nature, to assure that staff members had
complied with their record keeping obligations.
However, no such review of electronic material was
performed.

The lack of supervision and review is of
particular concern because the NSC instruct their
staff that "the most common types of electronic mail
notes are non-record materials" and that
"non-record materials are notes that relate to
official business but do not need to be made a
matter of record because of their insignificance or
because they are duplicated elsewhere." NSC
Memorandum dated May 13, 1992 (Second Menan
Declaration, Exhibit 1 and Tab C). This encourages
staff to classify materials as non-record, thus
exempting them from preservation.

Requiring that records personnel provide
supervision in records decisions is also consistent
with the level of difficulty in discerning whether
the Defendants' computer materials are federal
records, presidential records or non-record.
Finally and perhaps most importantly, given the
FRA's goal of the preservation of records for
historical purposes, the Defendants should err, if
at all, on the side of preservation.

E. THE EOP'S RECORD KEEPING GUIDELINES ARE
ARBITRARY AND CAPRICIOUS BECAUSE THE GUIDELINES DO
NOT PROVIDE SUFFICIENT GUIDANCE TO DETERMINE WHAT IS
A FEDERAL RECORD THAT MUST BE PRESERVED AND THEY
ALSO PERMIT THE DESTRUCTION OF FEDERAL RECORDS.

[6] The Court finds that the record keeping
guidelines provided to the EOP staff at the time
this suit was filed in 1989 were arbitrary and
capricious. [Footnote 16]

Footnote 16. The NSC has a PROFS system for its
staff that is maintained separately from other
components of the EOP. For this reason, any
reference to the EOP is intended to refer only to
EOP components other than the NSC, which shall be
referred to separately.

The written records management guidelines for
the components of the EOP using these computer
communication systems are contained in the "Federal
Records Manual," first issued in 1979. [Footnote 17]
The 1982 edition of the Manual was in use when PROFS
first was introduced at the EOP in 1986 and when the
Plaintiffs filed this suit. [Footnote 18] It does
not provide a reasonable method of ensuring
compliance with the FRA. While it quotes the
definition of a federal record contained in the
statute, it simply refers to those materials meeting
the statutory definition as "records" and does not
distinguish between federal and presidential
records. [Footnote 19] It also does not instruct
staff on how to go about saving record material in
electronic form. For example, after providing a
definition of the term record, the 1982 Manual
proceeds to discuss a central filing system, without
discussing the way that records make their way into
such a filing system. Neither does it discuss the
format that such record material must or can take
when being placed in these files.

Footnote 17. The Library and Information
Services Division ("LISD") within the EOP maintains
a records management program for the OA, the Council
on Environmental Quality, the Office of Management
and Budget, the Office of Science and Technology
Policy, Office of the United States Trade
Representative and, since 1989, the Office of
National Drug Control Policy. LISD issues written
guidelines on the retention, management, and
disposition of Federal records for these component
agencies.

Footnote 18. The Manual was later updated in
1989, after this suit was filed. The 1982 and 1989
Federal Records Manuals were the exclusive written
guidance on record keeping for the EOP staff from
1982 through June 1991.

Footnote 19. This distinction is an important
one. Presidential records are "[d]ocumentary
materials produced or received by the President, his
staff, or units or individuals in the Executive
Office of the President the function of which is to
advise and assist the President, shall, to the
extent practicable, be categorized as Presidential
records or personal records upon their creation or
receipt and shall be filed separately." 44 U.S.C. s
2203(b). Presidential records are stored, and
disposed of differently than federal records.
Compare 44 U.S.C. s 2203 with 44 U.S.C. ss 3301 et
seq. Finally and perhaps most importantly, federal
records are made available to the public through
FOIA while presidential records are not. See 44
U.S.C. s 2201(2)(B).

In addition, the memoranda issued to the EOP
staff during 1988 concerning record management at
the close of the Reagan Administration simply
reference the Manual and does not clarify or improve
the record keeping guidance. [Footnote 20]
Similarly, the oral guidance provided to the EOP
staff does not remedy the adequacy of the record
keeping procedures because it was based on the
written guidance. In light of the foregoing, the
Court concludes that the EOP's record keeping
guidance to the staff, at the time this suit was
filed, was not reasonably calculated to achieve the
goals of the FRA.

Footnote 20. At the close of the Reagan
Administration, a memorandum issued by OA asked the
staff to print out "any notes or documents that may
be covered under the Presidential Records Act or
that may be transferred to the next Administration."
Joint Statement of Facts No. 97.

However, the Court finds that the 1989 Manual
is a far better presentation of record keeping
requirements than the 1982 version and provides
better guidance to EOP staff. The 1989 Manual,
unlike the 1982 version, differentiates between
federal and presidential records and cites the
statutory language of both the FRA and the PRA.
While the 1989 edition of the Manual defines a
federal record in the same language used in the 1982
Manual, it further defines documentary material to
include: all media containing recorded information,
regardless of the nature of the medium or the method
or circumstances of recording. The related phrase
"regardless of physical form or characteristics"
means that the medium may be paper, film, disk, or
other physical type or form; and that the method of
recording may be manual, mechanical, photographic,
electronic, or any other combination of these or
other technologies. Anton Dec., Exhibit B, at 5
(emphasis in the original). Therefore, the Court
finds that while the 1982 Manual violates the APA,
the 1989 Manual does not. [Footnote 21]

Footnote 21. The Plaintiffs also contend that
both the 1982 and 1989 Manuals are unreasonable
because they do not instruct the staff to print out
in paper form all federal record material contained
or created on these computer systems. The
Defendants contend that such an instruction is
implicit in the Manuals and also has been made
explicitly in other memoranda to their staff.
However, since the Court has already held that such
an instruction does not satisfy the requirements of
the FRA because the paper and the computer versions
of these electronic records are different, the Court
does not need to address this particular issue.

[7] However, this does not end the Court's
inquiry. The Plaintiffs have also challenged
various instructions given to the EOP staff as being
contrary to law in violation of the explicit mandate
of the FRA. The Court again agrees. In June 1991,
the Defendant Office of Administration, a component
of the EOP, issued a new directive on its record
management program to its staff. The June 1991
directive contains the first and only record keeping
instruction by the OA explicitly mentioning
electronic mail. The Directive states: Electronic
mail should not be used to convey official records
information. If an employee creates or receives an
electronic message that contains such information,
the message should either be incorporated into a
memorandum, or reduced to paper. The electronic
mail function is not designed to replace the
existing system of document production and
retention.

Other EOP components, including the Office of
Management and Budget, have adopted this directive
and issued similar instructions to their staff.
[Footnote 22] The Court finds that this June 1991
instruction is impermissible under the FRA because
it tells staff that they have complied with the FRA
simply by incorporating record material into a
memorandum. It is unclear from this directive
whether such memorandum should be in paper form or
on the computer and what steps should be taken to
preserve the information incorporated into the
memorandum. Such a vague instruction is not
reasonably calculated to preserve federal record
material and will lead to the destruction of record
material, particularly those previously discussed
herein on computers which indicate who said what to
whom and when.

Footnote 22. The 1989 Manual is still the
exclusive written guidance on record keeping for
those EOP components that have not adopted the June
1991 OA Directive.

F. THE NSC'S RECORD KEEPING GUIDELINES AT THE
TIME THIS SUIT WAS FILED WERE ARBITRARY AND
CAPRICIOUS BECAUSE THE GUIDELINES DID NOT PROVIDE
SUFFICIENT GUIDANCE TO DETERMINE WHAT WAS A FEDERAL
RECORD THAT MUST BE PRESERVED AND TO DETERMINE THE
DIFFERENCE BETWEEN FEDERAL RECORDS, PRESIDENTIAL
RECORDS AND NON- RECORD MATERIAL.

The Court finds that the record keeping
guidelines given to NSC staff at the time this suit
was filed was arbitrary and capricious. The FRA's
definition of a federal record, contained in 44
U.S.C. s 3301, does not appear in any of the NSC's
written record keeping guidance used by its staff.
[Footnote 23] While some memoranda quote parts of
the definition, they do not quote the definition in
its entirety. At the very least, compliance with
the FRA requires that the staff be fully advised of
the definition of a federal record. None of the
written materials provided to the staff provide this
definition. [Footnote 24]

Footnote 23. From the time PROFS was introduced
in 1985 until March 1987, the NSC written guidelines
on record keeping obligations were contained in the
1984 "National Security Council Administrative
Manual." The Manual has a section entitled "Records
Management," which states: All materials received or
developed by an employee, detailee, or consultant
during his/her tenure with the NSC Staff are
official records of either the NSC or the President,
and they may not to be removed or destroyed. NSC
1984 Administrative Manual, at 33, Defendants Motion
for Summary Judgment, Exhibit A, Tab D. The Manual
also states that: The following procedures should be
followed with regard to all files maintained by each
individual: 1. All originals of logged items ...
and other NSC institutional documents must be
separated and sent to the Secretariat. The
originals are Federal records and must be law be
included in either the NSC institutional records,
which will remain with the NSC, or Presidential
records, which will be sent to the National Archives
for the President's Library. Id. Finally, the 1984
Manual contains instructions on non-record
materials: Unclassified, wholly personal items,
i.e., not related to White House or NSC business,
should be filed separately and may be removed and
retained.... The remaining files should be boxed
according to established procedures ... and turned
over to the Secretariat. Id., at 34. In addition to
the 1984 Manual, various memoranda were given to the
staff on the subject of records management before
the Plaintiffs filed this suit in January 1989.

Footnote 24. A May, 19, 1988 memorandum
requests that the staff begin reviewing their
records in "preparation for the eventual transfer of
all officials records to a depository at the end of
the administration." It states that all
presidential and NSC records will be reviewed before
the start of the new administration and that
electronic data "will be subject to a similar
process of review and disposition." The memorandum
goes on to divide files into 3 categories: personal
records, presidential records and NSC records and
states that personal records must be reviewed by
records personnel before their removal. A
memorandum dated November 11, 1988 restates the
information contained in this May memorandum.

The Defendants contend that it is unnecessary
for NSC staff to be given more detailed instructions
because the staff is instructed to save all their
records other than personal records for the
Secretariat staff to review. However, the record
belies this assertion. The guidelines do not
instruct staff that all electronic materials, other
than personal records, must be saved. In fact, only
one memorandum tells the NSC staff to save computer
materials that meet the definition of a federal
record. [Footnote 25] Therefore, the NSC guidelines
during this time period gave the staff the
responsibility of deciding whether electronic
material constituted a federal record even though
the staff has not been given the statutory
definition. A complete explanation of what
constitutes a record under the FRA is necessary.

Footnote 25. A memorandum dated December 20,
1988 reminds staff of its responsibilities under the
FRA. It states that the FRA "requires the creation
of records reflecting the 'organization, functions,
policies, decisions, procedures and essential
transactions' of an agency." It states that
Consistent with long-standing NSC policy and
practice, information meeting the definition of a
federal or presidential record is required to be
formally entered into the Secretariat's record
systems and may not be maintained solely be staff in
convenience files or in electronic mail or other
computer files. The memorandum also states: I ask
that you review your computer files prior to your
departure or January 20, 1989, whichever comes
first. Should you identify therein any federal or
presidential record as defined above, that you
believe is not contained in the Secretariat systems,
please forward it in hard copy....

The oral guidance the NSC provided to its
staff during this time did not ensure compliance
with the FRA. The oral guidance addressed the
record keeping issue in the same manner as the
written guidance. While the Defendants claim that
the oral guidance might go beyond the written
guidance, there is no evidence in this record that
this oral guidance uniformly provides substantive
guidance complementing the written.

The NSC issued additional instruction to its
staff after this action was filed. The Court finds
that these guidelines define what constitutes a
federal record to its staff. [Footnote 26] However,
they are still arbitrary and capricious because the
staff are told that electronic mail does not
constitute record material and need not be saved
once a paper copy has been printed out. See Section
II(B) supra. [Footnote 27] Moreover, the record
keeping personnel do not exercise adequate
supervision over the staff's determination of what
constitutes a federal record. See Section II(D)
supra. [Footnote 28] While the NSC's practice of
requiring departing employees to attest that they
have complied with record keeping laws may be a good
practice, it does not aid the staff in their
day-to-day determinations of record keeping
status. [Footnote 29]

Footnote 26. On March 20, 1989, a memorandum
was issued to the NSC staff on "Presidential Records
and NSC Agency Records." The memorandum quotes the
statutory definition of a federal record and
presidential records. This memorandum, along with
other materials, are still distributed to new
employees and used by NSC staff as the official
record keeping guidelines of the agency.

Footnote 27. For example, a March 18, 1989,
memorandum to the NSC staff on "Use of Electronic
Mail" states: Electronic mail should not be used to
convey substantive information about policy issues
when such information is not already contained or
will not otherwise be contained in a written federal
or presidential record....... As stated in [the]
memorandum of January 25, 1989, information meeting
the definition of a federal or presidential record
should not be maintained solely in electronic mail
files.

Footnote 28. For example, on May 18, 1992, the
NSC installed a new program for electronic mail on
the PROFS and A-1 systems. The program requires
that when a user creates an electronic mail note, he
or she must enter a code identifying the note as a
presidential record, a federal record, or non-
record material. The computer automatically routes
copies of notes identified as Presidential or
Federal records to Records Management for entry into
NSC's records system. Significantly, if a user
identifies a note as non-record material, it is not
copied or routed to Records Management.

Footnote 29. Since February, 1990, departing
NSC employees have been required to sign a
certificate attesting: I have reviewed my computer
memory files, including my electronic mail files,
and have forwarded to the Secretariat any materials
containing information that constituted a
Presidential record or an agency record which was
not otherwise recorded in a presidential or agency
record.... All material remaining in my computer
memory files, including my electronic mail file,
constitutes non-record material, or information
already recorded in another record, and can be
deleted.

The Plaintiffs also contend that the NSC's
record keeping guidance is contrary to law because
it instructs the staff to save certain material as
presidential records when, in fact, they are federal
records. [Footnote 30] The Plaintiffs argue that,
under the "sole function" test announced in Soucie
v. David, 448 F.2d 1067 (D.C.Cir.1971), the NSC is
an agency and therefore, all records made or
received by its staff whether they are used to
assist the President or perform the statutory
functions of the NSC, are federal records subject to
the FOIA, exempt from the PRA and covered by the
FRA. [Footnote 31] Therefore, the Plaintiffs contend
that the NSC cannot designate certain records as
presidential simply because the staff member was
advising the President. See Ryan v. Department of
Justice, 617 F.2d 781, 788 (D.C.Cir.1980).

Footnote 30. In the Plaintiffs' view, the NSC
does not produce presidential records. See
Plaintiffs' Opposition to the Defendants' Motion for
Summary Judgment, July 6, 1992, at 45-52. The
Plaintiffs argue that because the NSC is an agency
for purposes of the FOIA, it produces agency records
and not presidential records. Soucie v. David, 448
F.2d 1067 (D.C.Cir.1971) (depending on its general
nature and functions, a particular unit is either an
agency or it is not). Footnote 31. The Plaintiffs note that the PRA specifies that it does not cover official records of an agency that fall under FOIA. 44 U.S.C. s 2201(2)(B). The Court disagrees. The clear language of the PRA and the history of this lawsuit clearly demonstrate that the NSC is entitled to segregate presidential and federal records. The clear language of the PRA provides that EOP components, which include the NSC, produce presidential records: "[d]ocumentary materials produced or received by the President, his staff, or units or individuals in the Executive Office of the President the function of which is to advise and assist the President, shall, to the extent practicable, be categorized as Presidential records or personal records upon their creation or receipt and shall be filed separately." 44 U.S.C. s 2203(b). Furthermore, our Circuit Court explicitly stated that, because the NSC advises the President and has statutory obligations, the NSC produces both presidential and federal records. Armstrong v. Bush, 924 F.2d 282, 284 n. 2 (D.C.Cir.1991). Our Circuit Court also held that the PRA precludes judicial review and this Court has no power to review actions taken by the President to ensure that presidential records are maintained. Id. at 289-90; see 44 U.S.C. s 2203. This Court stated that the question of how the NSC classified presidential records was not before the Court because the PRA precludes judicial review of the President's record keeping practices and decision, which includes the guidelines used in keeping Presidential records. Armstrong v. Bush, 139 F.R.D. 547, 551 (D.D.C.1991). G. THE COURT SHALL REMAND THIS CASE TO THE ARCHIVIST FOR IMMEDIATE REMEDIAL ACTION UNDER THE FRA TO PREVENT THE DESTRUCTION OF FEDERAL RECORDS. The duty of the Archivist and the defendant agency heads to prevent the destruction of federal records has been violated in this case with the result that the Court is compelled to grant the Plaintiffs a declaratory judgment to that effect. The Court finds that the Archivist has breached his statutory duty to prevent the destruction of federal records. The Archivist responsibilities are triggered once an unlawful destruction of federal records has or will likely occur. See 44 U.S.C. s 2905(a); Armstrong v. Bush, 924 F.2d 282, 295. [Footnote 32] Injunctive relief under s 706(1) of the APA is appropriate where a reviewing court concludes that the "defendant official has failed to discharge a duty that Congress intended him to perform." Covelo Indian Community v. Watt, 551 F.Supp. 366 (D.D.C.1982) (citations omitted); see Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275 (D.C.Cir.1981). Footnote 32. The Archivist shall notify the agency head of "any actual, impending or threatened unlawful removal ... or destruction of records ... that shall come to his attention...." 44 U.S.C. s 2905(a) (emphasis added). It is not the Court's place to instruct the Defendants on exactly what procedures must be followed to comply with the FRA. [Footnote 33] Instead, the FRA requires that, where actual, impending unlawful removal or destruction of records in the custody of an agency comes to the attention of the Archivist, the Archivist shall notify the head of the agency and: Footnote 33. The Supreme Court has held that there is no implied right of action for private litigants under the FRA. See Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). However, our Court of Appeals concluded that "it would not be inconsistent with Kissinger and the FRA to permit judicial review of the agency head's or Archivist's refusal to seek the initiation of an enforcement action by the Attorney General." Armstrong, 924 F.2d 282, 295. This is why the Court today will remand this case to the Archivist who shall notify the Attorney General and the Congress. assist the head of the agency in initiating action through the Attorney General for the recovery
of records unlawfully removed and for other redress
provided by law. In any case in which the head of
the agency does not initiate action for such
recovery or other redress within a reasonable period
of time after being notified of any such unlawful
action, the Archivist shall request the Attorney
General to initiate such an action, and notify the
Congress when such a request has been made. 44
U.S.C. s 2905; see Armstrong v. Bush, 924 F.2d at
294-296. [Footnote 34] Therefore, the Court shall
remand this case to the agencies and the Archivist
for appropriate and immediate action to preserve
these electronic federal records consistent with
this opinion.

Footnote 34. The 1984 amendments to the FRA
strengthened the administrative enforcement
mechanism to prevent the unlawful removal or
destruction of records by requiring the Archivist to
notify Congress and independently request that the
Attorney General initiate an action if the agency
refused to do so. H.R.Conf.Rep. No. 98-1124, 98th
Cong.2d Sess. 28 (1984), reprinted in 1984 U.S.Code
Cong. & Admin.News 3865, 3894, 3903. Congress
enhanced the administrative enforcement mechanism
because "of the frequency of incidents of removal or
destruction of records in recent years." Id. at 28,
1984 U.S.Code Cong. & Admin.News 3903.

As the Defendants record keeping procedures
violate the FRA, the Defendants are enjoined from
removing, deleting or altering their electronic
records systems until such time as the Archivists
takes action pursuant to Section 2905 of the FRA to
prevent the destruction of federal records,
including those records saved on backup tapes
pursuant to the two Temporary Restraining Orders
entered in this case. See footnote 4.

H. THIS COURT HAS JURISDICTION TO ORDER THE
PRESERVATION OF THE DEFENDANTS' ELECTRONIC RECORDS
UNTIL THE ARCHIVIST CAN TAKE APPROPRIATE ACTION
REQUIRED BY II(G) ABOVE. HOWEVER, THE COURT CANNOT
ORDER THE PRESERVATION OF RECORDS CREATED BY EOP
COMPONENTS WHOSE SOLE RESPONSIBILITY IS TO ADVISE
THE PRESIDENT BECAUSE THERE IS NO JUDICIAL REVIEW OF
THE PRA.

The Court is limited by the Court of Appeals
decision in framing the scope of relief in this
case. See Armstrong, 924 F.2d 282 (D.C.Cir.1991).
The Circuit Court, while providing for judicial
review under the FRA, expressly held that there was
no review under the PRA. Id. at 289. This
distinction is an important one for, while the Court
has power to review the record keeping guidance of
federal agencies under the FRA, it can not delve
into record management practices under the PRA.

The Circuit also provided the methodology for
separating the FRA and the PRA as it applies here:
The Circuit noted that EOP components whose sole
responsibility is to advise the President are
subject to the PRA and create presidential records.
Armstrong, 924 F.2d at 286 n. 2. Similarly, the
components of the EOP that have statutory
responsibility are subject to the FRA. Id. Thus
the Order of the Court today only applies to
agencies that have statutory responsibility and not
those that solely advise the President.

The parties have disputed the scope of this
Court's Temporary Restraining Order. See
Defendants' Statement to the Court dated December 8,
1992; Plaintiffs' Response dated December 10, 1992.
The parties disagree as to whether the electronic
material produced by various components of the EOP
are federal or presidential records. Under the
Court of Appeals mandate, this Court has no power to
review compliance with the PRA, and thus, no power
to review the record keeping procedures of EOP
components whose "sole responsibility is to advise
the President." Armstrong 924 F.2d at 286 n. 2. It
was for this reason that the Court exempted such
components, containing only presidential records,
from the Temporary Restraining Order requiring the
preservation of electronic records. See Order dated
November 23, 1992.

In the court's decision today on the merits of
the Plaintiffs' FRA claims, the same logic applies.
The Defendants shall not be required to preserve
material which are presidential records produced by
components of the EOP whose sole responsibility is
to advise the President. However, in components
that produce both types of records, this Court does
have jurisdiction to authorize the preservation of
these materials until the Archivist can ensure that
federal records are not destroyed. Once again, the
Defendants must err on the side of preservation.

III. CONCLUSION

The Court finds that the EOP and NSC have
violated the Federal Records Act and that their
record keeping practices are arbitrary and
capricious under the Administrative Procedures Act.
The Court also finds that the United States
Archivist has failed to fulfill his statutory duties
under the Federal Records Act. The Court will
remand this case to the Archivist to take immediate
action with the assistance of the Attorney General
pursuant to the FRA with notice to Congress to take
all necessary steps to preserve the electronic
federal records here in question.

The Court shall issue an Order of even date
herewith consistent with the foregoing Opinion.

ORDER

Upon consideration of all the papers filed in
this case, the applicable law, the oral arguments of
counsel, and pursuant to and for the reasons set
forth in the Opinion of the Court, issued of even
date herewith, it is, by the Court, this 6th day of
January, 1993,

ORDERED, that the Plaintiff shall have a
Declaratory Judgment that the guidelines issued by
and at the direction of the Defendant Agencies are
inadequate and not reasonable and are arbitrary and
capricious and contrary to law in that they permit
the destruction of records contrary to the Federal
Records Act; and it is

FURTHER ORDERED, that the Defendant Archivist
shall immediately, upon receipt of today's opinion
and this Order, seek the assistance of the Attorney
General with notice to Congress, and take all
necessary steps to preserve, without erasure, all
electronic Federal Records generated at the
defendant Agencies to date, except purely
Presidential Records; and it is

FURTHER ORDERED, that the parties shall
process the pending Freedom of Information Act claim
administratively, with all deliberate speed, and
advise the Court at the earliest practicable date of
when that phase of this case may be made ripe for
Judicial resolution.

END



The Defendents failed to abide by Judge Richeys
January 6, 1993 order. This resulted in the court
action which follows.

May 21, 1993. As Amended June 9, 1993

United States District Court,

District of Columbia.

SCOTT ARMSTRONG, et al., )

)

Plaintiffs, )

)

v. )

C.A. No. 89-0142 CRR

)

EXECUTIVE OFFICE OF THE PRESIDENT, et al., )

)

Defendants. )

Plaintiffs Counsel: Michael E. Tankersley, Public
Citizen Litigation Group, with David C. Vladeck,
Public Citizen Litigation Group, Washington, DC were
on the briefs, for plaintiffs.

Defendants Counsel: David J. Anderson, Atty. U.S.
Dept. of Justice, Civ. Div., Washington, DC, with
whom Stuart E. Schiffer, Acting Asst. Atty. Gen., J.
Ramsey Johnson, U.S. Atty. for the District of
Columbia, and Elizabeth A. Pugh, Jason R. Baron,
Anthony J. Coppolino, Peter D. Coffman, and Pamela
A. Moreau, U.S. Dept. of Justice, Civ. Div.
Washington, DC, were on the briefs, for defendants.

OPINION

I. INTRODUCTION

Before the Court are the Defendants' and the
Plaintiffs' responses to this Court's Order of April
6, 1993, where this Court ordered the Defendants to
show cause as to whether they should be held in
civil contempt for their failure to comply with this
Court's Orders of January 6 and 11, 1993. The Court
held a hearing on this matter on May 17, 1993.

After careful consideration of the parties'
submissions, the arguments of counsel, the record in
the case and the underlying law, the Court finds
that the Defendants are in contempt of this Court's
Orders of January 6 and 11, 1993, because they have
failed to promulgate new, appropriate, and proper
guidelines for the preservation of electronic
federal records under the Federal Records Act and
because the Defendants have damaged some of the
backup tapes which store the electronic federal
records that this Court has ordered to be preserved.
The following shall constitute this Court's findings
of fact and conclusions of law.

II. BACKGROUND

The Plaintiffs brought this suit alleging that
the Executive Office of the President ("EOP"), the
National Security Council ("NSC"), and the Archivist
of the United States, [Footnote 1] inter alia, were
violating the Federal Records Act ("FRA"), 44 U.S.C.
ss 2101-2118, 2901-2910, 3101-3107, and
3301-3324, and the Administrative Procedure Act
("APA"), 5 U.S.C. s 701 et seq. More specifically,
the Plaintiffs alleged that the record keeping
practices of the Defendant federal agencies violated
the FRA and were arbitrary and capricious under the
APA. Furthermore, the Plaintiffs alleged that the
Archivist of the United States failed to fulfill his
statutory duties under the FRA. [Footnote 2]

Footnote 1. The Archivist is head of the
National Archives and Records Administration
("NARA"), 44 U.S.C. s 2102.

Footnote 2. The Plaintiffs also alleged in
Count I of their Complaint that they are entitled to
certain information stored on computer tapes under
the Freedom of Information Act ("FOIA"), 5 U.S.C. s
552. The Court has not yet addressed this FOIA
claim.

On January 6 and 11, 1993, [Footnote 3] this
Court granted the Plaintiff Summary Judgment as to
Counts II and III of their Third Amended Complaint
and held, inter alia, that the guidelines issued by
and at the direction of the Defendant Agencies were
arbitrary and capricious and contrary to law
because, inter alia, they permitted the destruction
of records contrary to the FRA. In its January 6
and 11, 1993 Orders, the Court granted the
Plaintiffs declaratory and injunctive relief and
required the Defendants to take all necessary steps
to preserve, without erasure, all electronic federal
records generated by the Defendant Agencies pursuant
to the Orders of this Court, and the stipulations
and representations of the parties. Armstrong v.
Executive Office of the President, 810 F.Supp. 335
(D.D.C.1993).

Footnote 3. The Court issued its original
Opinion and Order on January 6, 1993. On January 11,
it granted the Plaintiffs' motion to amend the
January 6, 1993 Order to clarify the scope of the
Defendants' responsibilities.

The question before the Court is whether the
Defendants have taken appropriate and proper action
to comply with the Orders of this Court. The Court
finds that the Defendants have failed to promulgate
new guidelines under the FRA to replace those struck
down over four months ago by this Court.
Furthermore, the Court finds that the Defendants
have damaged the backup tapes which stores
electronic federal records that this Court has
ordered to be preserved for the duration of this
lawsuit. Thus, the Defendants have violated the
spirit and letter of this Court's Orders pursuant to
the FRA and the APA that require them to preserve
the valuable historical information that is stored
on these backup tapes.

III. THIS COURT HAS JURISDICTION IN THIS CASE TO
ISSUE AN ORDER OF CONTEMPT TO ENFORCE ITS ORDERS.

[1][2][3] It is an established principle of
law that once a court issues an injunction, those
persons subject to it must obey the terms of the
Order as long as the injunction remains in effect.
See SEC v. Diversified Growth Corp., 595 F.Supp.
1159, 1170 (D.D.C.1984) (it is within the court's
civil contempt power to coerce obedience to a lawful
Order). A court has the inherent power to enforce
compliance of an injunction through civil contempt.
Spallone v. United States, 493 U.S. 265, 276, 110
S.Ct. 625, 632, 107 L.Ed.2d 644 (1990); Shillitani
v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531,
1535, 16 L.Ed.2d 622 (1966). Where an injunction
imposes a "duty to obey specified provisions of [a]
statute," failure to abide by the injunction
constitutes contempt. McComb v. Jacksonville Paper
Co., 336 U.S. 187, 191-92, 69 S.Ct. 497, 499-500,
93 L.Ed. 599 (1949).

[4][5][6] Civil contempt is a remedial
sanction used to obtain compliance with a Court
Order or to compensate for damage sustained as a
result of noncompliance. NLRB v. Blevins Popcorn,
Co., 659 F.2d 1173, 1184 (D.C.Cir.1981). A civil
contempt proceeding is a three stage process: 1) a
court must issue an Order directing a party to take
or not take certain action; 2) following
disobedience of that Order, the court must issue a
conditional Order finding the recalcitrant party in
contempt and threatening to impose a specified
penalty unless the recalcitrant party complies with
prescribed conditions set forth in a "purgation
Order;" and 3) execution of the threatened penalty
if the conditions are not fulfilled. NLRB v.
Blevins Popcorn, Co., 659 F.2d 1173 (D.C.Cir.1981).
In a proceeding for civil contempt, the moving party
has the burden of proving by clear and convincing
evidence that the alleged contemptor has violated
the court's Order. Id. at 1183.

In requesting an Order of contempt, the
Plaintiffs have made several specific allegations
regarding the Defendants' violations of this Court's
Orders. The Court shall address each of these
allegations separately.

IV. THE DEFENDANTS ARE IN CIVIL CONTEMPT FOR FAILING
TO PROMULGATE NEW REGULATIONS FOR THE PRESERVATION
OF ELECTRONIC FEDERAL RECORDS.

The Plaintiffs allege that the Defendants have
not implemented proper procedures to identify and
preserve electronic federal records on their
electronic communications systems. The Court agrees
with the Plaintiffs and finds that the Defendants
have failed to comply with this Court's Orders.
More specifically, the Court finds that the
Defendants have not substantially complied with this
Court's Orders because they have failed to issue
appropriate and proper new guidelines for the
preservation of electronic federal records to
replace those struck down by this Court.

A. THE COURT'S OPINIONS AND ORDERS IN THIS CASE, AS
WELL AS THE DEFENDANTS' OWN CORRESPONDENCE, CLEARLY
SHOW THAT THE DEFENDANTS ARE REQUIRED TO PROMULGATE
NEW GUIDELINES FOR THE PRESERVATION OF ELECTRONIC
FEDERAL RECORDS.

[7] The Defendants have been on notice since
the beginning of this lawsuit in 1989, some four
years ago, that they might be obligated to preserve
materials on their electronic communications systems
pursuant to the FRA, and have been aware since then
that they might be required to develop new and
proper regulations in that regard. In addition, on
January 6 and 11, 1993, this Court specifically held
that: the guidelines issued by and at the direction
of the Defendant agencies are inadequate and not
reasonable and are arbitrary and capricious and
contrary to law in that they permit the destruction
of records contrary to the Federal Records Act.
Armstrong v. Executive Office of the President, 810
F.Supp. 335, 350 (D.D.C.1993). By striking down the
Defendants' guidelines as inadequate and ordering
the preservation of all electronic records, the
Court has made it clear that the Defendants are
required, under the FRA, to promulgate appropriate
and proper new guidelines.

Moreover, the Defendants requested a stay of
this Court's Orders pending appeal, which was
denied. Armstrong v. Executive Office of the
President, No. 89-142, slip op. (D.D.C. January 14,
1993) (Order denying the Defendants' Motion for a
stay Pending Appeal). Therefore, the Defendants are
still bound by this Court's Orders of January 6 and
11, 1993. In denying the Motion for a Stay, this
Court was careful to point out that the Defendants
must not delete materials on their electronic
communication systems "until the Archivist and the
Defendant agencies develop proper guidelines so as
to comply with the law." Id. slip op. at 3.

Furthermore, Chief Judge Mikva and Judges
Sentelle and Williams of the United States Court of
Appeals for the District of Columbia also refused to
stay this Court's Orders pending appeal. [Footnote
4] Therefore, under these circumstances, the Court
concludes that its Orders were specific enough to "
'create a predicate for contempt,' " NAACP,
Jefferson County Branch v. Brock, 619 F.Supp. 846,
849 (D.D.C.1985) (quoting Aero Corp. v. Department
of the Navy, 558 F.Supp. 404, 418 (D.D.C.1983)),
because the terms of the Orders clearly spelled out
what actions the Defendants were enjoined from
taking and what actions the Defendants were required
to take. See id.

Footnote 4. The Court of Appeals granted the
Defendants' Motion for a Stay pending appeal only:
insofar as [the district court's orders] enjoin[ ]
defendants from 'removing, deleting, or altering
information on their electronic communications
systems.' Amended Order at 1-2. Defendants may
remove, delete, or alter such information as they
see fit, so long as the information is preserved in
identical form, pending the disposition of this
appeal. Armstrong v. Bush, No. 93-5002, slip op. at
1 (D.C.Cir. Jan. 15, 1993) (order granting in part
and denying in part the defendant appellants'
emergency motion for stay pending appeal). Thus, the
Court of Appeals has left undisturbed this Court's
finding that the Defendants' record keeping
guidelines are arbitrary and capricious and the
accompanying mandate that the Defendants promulgate
appropriate and proper guidelines for the
preservation of electronic federal records.

In addition, the Defendants' own
correspondence and submissions to this Court confirm
that they are aware of their responsibility to
promulgate new guidelines. For example, James W.
Moore, the Assistant Archivist for Records
Administration, wrote that: [t]he Court's orders in
the Armstrong case contemplate that, while interim
guidance on electronic records is in place,
components of the Executive Office of the President
will work with the National Archives and Records
Administration to develop further guidance in
conformance with the requirements of the court's
order. Letter from James W. Moore, dated May 7,
1993, Exhibit 22A, Defendants' Supplemental
Exhibits, filed on May 12, 1993.

However, the Defendants claim that they had in
place the means to comply with this Court's Orders
before the Orders were issued because they had been
saving onto backup tapes all electronic
communications that might contain federal records.
The Defendants claim that by preserving all the
electronic communications material on tape, they are
preserving the status quo in this action along with
all of the Plaintiffs' rights to this material and
thus satisfying this Court's Orders. However, such
a claim is misplaced. It ignores the fact that the
Defendants are required by this Court's Orders to
promulgate new guidelines for the preservation of
electronic computer records.

B. THE RECORD KEEPING INSTRUCTIONS ISSUED BY THE
DEFENDANTS DO NOT FULFILL THE REQUIREMENTS OF THIS
COURT'S ORDER.

[8][9] Once a predicate for contempt has been
established, a court must consider whether a party
can be held in civil contempt in light of the
evidence before it and any mitigating factors.
NAACP, Jefferson County Branch v. Brock, 619 F.Supp.
846, 849 (D.D.C.1985). A violation need not be
willful or intentional because the intent of the
party is irrelevant in a civil contempt proceeding.
NLRB v. Blevins Popcorn Co., 659 F.2d 1173, 1184
(D.C.Cir.1981). This Circuit has considered good
faith compliance efforts or a party's inability to
comply with a court's Orders as defenses which call
for mitigation of contempt sanctions. See NAACP,
Jefferson County Branch v. Brock, 619 F.Supp. 846
(D.D.C.1985).

[10] The Defendants contend they have
demonstrated "substantial compliance with the orders
of this Court" by promulgating some new instructions
regarding the management and preservation of
electronic federal records. Defendants' Proposed
Findings of Fact and Conclusions of Law, filed May
12, 1993, at 27-28, 35. They also contend that
they are not in contempt because "no clear deadlines
were imposed by the Court for compliance."
Defendants' Memorandum in Opposition to the
Plaintiffs' Motions, filed April 19, 1993, at 59.

The Court does not agree. The three new sets
of instructions to which the Defendants refer do not
support their claim that they have "substantially"
complied with this Court's Orders. None of these
instructions were issued to the staff at the
Defendant agencies. [Footnote 5] Moreover, the
Court is particularly skeptical of the Defendants'
efforts to comply because the three sets of record
keeping instructions referred to were all issued by
the Defendants after the Plaintiffs requested that
the Defendants be held in contempt. [Footnote 6]
See Glover v. Johnson, 934 F.2d 703, 708 (6th
Cir.1991). [Footnote 7]

Footnote 5. The three sets of instructions that
the Defendants rely on are memoranda between the
NARA and the EOP or NSC. The cover letter from the
NARA accompanying two of these instructions
explicitly states that "[t]he attached guidance is
not intended for direct circulation to EOP staff
but, rather, is being provided to you in
anticipation that we will work with you to develop
more specific staff guidelines on electronic
communications for each EOP component." Letters
from James W. Moore, Assistant Archivist, Exhibit
22A and 22B, Defendants' Supplemental Exhibits in
Opposition, filed on May 12, 1993.

Footnote 6. The Plaintiffs filed their Motion
for an Order to Show Cause as to whether the
Defendants should not be held in contempt on April
1, 1993. The instructions referred to by the
Defendants were issued on April 12, May 7, and May
12, 1993. Defendants' Proposed Findings of Fact and
Conclusions of Law, filed May 12, 1993, at 27-28,
35.

Footnote 7. The Court in Glover found that the
facts did not support the defendants' contention
that they had diligently tried to comply with the
Court's orders. The Court noted that the defendants
actions in complying "displayed an evident sense of
non urgency bordering on indifference, contrasting
vividly with the spurt of activity on the heals of
the plaintiffs' motion for a finding of contempt."
Glover, 934 F.2d at 708.

In addition, the Defendants themselves admit
that they have failed to issue new guidelines to
replace those guidelines struck down by this Court.
See Letter from James W. Moore, dated May 7, 1993,
Exhibit 22A of the Defendants' Supplemental
Exhibits, filed on May 12, 1993. [Footnote 8] In
fact, the record before this Court shows that only
one set of new instructions were provided to EOP and
NSC staff. However, these "new guidelines" consist
of less than one page of text. The guidelines
provided to the EOP and NSC staff state simply that:

Footnote 8. The Defendants also admitted at the
hearing that they had not put together a new set of
guidelines and procedures to replace those struck
down by this Court.

Records generated electronically must be
incorporated into an official record keeping system.
Thus no word processing or e-mail document that is
a federal record should be deleted unless it has
been (a) printed and placed in an appropriate file,
or (b) preserved in an appropriate electronic
system. Plaintiffs' Show Cause Motion, Exhibit 64.
The guidelines go on to state that: Pursuant to
[court] orders, and until further instructions from
the Counsel's office, the following special rules
should be observed by components of the EOP that
generate federal records: 1. Material may not be
deleted from any e-mail file unless (a) the
material has been retained in full on a back-up
tape or other comparable medium, and (b) the
retained version includes full text and all
available transmittal information: and 2. EOP staff
member with records management responsibility must
monitor the implementation of guidance on federal
records (including the status of records) to ensure
consistent application of the court's order. Id.
The Plaintiffs argue, and the Court agrees, that
this guidance falls short of what is required by
this Court's Orders.

Pursuant to Orders and stipulations in this
case, the Defendants have been storing information
from their electronic communications systems onto
backup tapes for some time. The backup tapes are
designed to preserve the information from the
electronic communication systems and to ensure that
any federal records on these systems are preserved
pending the resolution of this lawsuit. Similarly,
the interim guidance issued on May 7 and 8, 1993 to
EOP and NSC staff ensures that all the information
created on the electronic communication systems at
the Defendant agencies will also be preserved on
backup tapes.

However, the interim guidance does not fully
comply with the statutory command of the FRA and the
Orders of the Court. This interim guidance makes no
effort to separate federal records from other
material or to integrate the Defendants' electronic
record keeping systems and their record keeping
guidance. Thus, this interim guidance is incomplete
and does not absolve the Defendants of their
responsibility to promulgate appropriate and proper
guidelines to replace those struck down by this
Court. [Footnote 9]

Footnote 9. In addition, the first part of
these interim instructions does not, by its plain
language, comport with this Court's Orders. The
first part of these instructions provides that a
federal record should not be deleted unless it has
been printed out or preserved on an appropriate
electronic system. However, as this Court's January
6, 1993 Opinion and Order made clear, instructing
staff to print out electronic federal records in
paper form does not satisfy the requirements of the
FRA because often the paper copy does not contain
all the information contained in these electronic
records. Armstrong v. Executive Office of the
President, 810 F.Supp. 335, 841-42 (D.D.C.1993).
In other words, the paper copies do not show who
knew what and when they knew it. Id. The second
part of these instructions, which provides that
material may not be deleted from the electronic
communication system unless it has been retained in
full elsewhere and the retained version includes all
transmittal information is consistent with this
Court's Orders and the partial stay granted by our
Court of Appeals because it ensures that any
electronic federal record, and all the information
contained therein, will be preserved. While the
second part of these instructions are not contrary
to this Court's Orders, they do not fulfill the
Defendants' obligation to promulgate new appropriate
and proper guidelines to replace those struck down
by this Court.

[11] Therefore, the undisputed evidence before
this Court shows that, despite the passage of over
four months time since this Court's Orders, the
Defendants still have not put together appropriate
and proper new guidelines for their staff designed
to preserve electronic federal records. See 44
U.S.C. ss 3102, 3105, 2904. In light of these
circumstances, it cannot be said that the Defendants
have taken " 'all reasonable steps within their
power to insure compliance' with the Court's
Orders." Stone v. City and County of San Francisco,
968 F.d 850, 856 (9th Cir.1992); see Peppers v.
Barry, 873 F.2d 967, 969 (6th Cir.1989); Glover v.
Johnson, 934 F.2d 703, 708 (6th Cir.1991) (upholding
a finding of contempt where the defendants
"neglected to marshall their own resources, assert
their high authority, and demand the results needed
from subordinate persons and agencies in order to
effectuate the course of action required.")

Therefore, the Court finds that the Plaintiffs
have proved by clear and convincing evidence that
the Defendants are in civil contempt for their
failure to promulgate new appropriate and proper
regulation for the preservation of electronic
federal records. The Court shall order the
Defendant agencies to promulgate new guidelines by
June 21, 1993 or they shall be subject to sanctions.

The Court is very concerned with respect to
the delay in complying with its Orders, and is
considering the possibility of appointing a Special
Master, pursuant to Federal Rule of Civil Procedure
53, to oversee the task of developing new and proper
regulations to carry out not only this Court's
Orders but for the purposes of complying with the
FRA in order that the valuable lessons of our recent
history will not be lost.

V. THE MERE FACT THAT THE DEFENDANTS TRANSFERRED THE
BACKUP TAPES TO THE ARCHIVIST DOES NOT CONSTITUTE
CONTEMPT OF THIS COURT'S ORDERS. HOWEVER, THE
DEFENDANTS ARE IN CONTEMPT OF THIS COURT'S ORDERS
BECAUSE THE TRANSFER HAS ADVERSELY AFFECTED THE
CONDITION OF THE TAPES AND THE FEDERAL RECORD
INFORMATION STORED ON THEM.

[12] Throughout this lawsuit, the backup tapes
that have been created by the Defendant agencies
have also been stored by the individual Defendant
agencies who created the tapes. On January 19,
1993, the Defendant agencies transferred
approximately 5,839 of these backup tapes to the
Archivist. [Footnote 10] See Archives General Plan
for Preservation at 2, Defendants' Exhibit 19A,
filed April 19, 1993. The Court finds that the
transfer has damaged some of the backup tapes and
has impaired the Defendants' ability to preserve the
information on these tapes. Therefore, the Court
finds that the Defendants are in contempt because
they have violated this Court's Orders that require
these backup tapes to be preserved.

Footnote 10. This transfer occurred from 10:30
p.m. on January 19, 1993 until 5 p.m. the next day.

The Court notes that the Plaintiffs are
historians seeking to preserve the documentary
history of the United States. It has already been
shown that backup tapes in this lawsuit contain
valuable historical information. In addition to
previously being used during the Iran-Contra
investigations, these tapes have just recently been
subpoenaed by Independent counsel Joseph E. diGenova
for his investigation of a preelection search of
State Department documents for information on
President Clinton. Exhibit 9, Defendants' Exhibits
in Opposition, filed April 19, 1993. Therefore, it
is clear that by failing to preserve these tapes,
the Defendants are failing to preserve history and
the lessons to be learned from it.

A. THERE IS NO LEGAL PROHIBITION PREVENTING THE
TRANSFER OF THESE BACKUP TAPES TO THE ARCHIVIST AS
LONG AS THE TRANSFER DOES NOT DAMAGE THE FEDERAL
RECORD MATERIAL ON THESE TAPES AND ADVERSELY AFFECT
THE PLAINTIFFS' RIGHTS.

These backup tapes were transferred to the
Archivist pursuant to an agreement between the
Archivist, President Bush, the NSC, and the EOP's
Office of Administration ("the Agreement").
Defendants' Proposed Findings of Fact and
conclusions of Law, filed May 12, 1993, at 13-14.
The Agreement provides that former President Bush
retains exclusive "legal control" over all
presidential information on the backup tapes
transferred to the Archivist. Memorandum of
Agreement at 2, Plaintiffs' Exhibit 24, filed April
1, 1993. The Agreement also provides that the
Archivist segregate all presidential from non-
presidential information on the tapes before
providing another party access to any
non-presidential information contained on the
tapes. Id.

The Defendants maintain that the transfer
conducted pursuant to the Agreement is consistent
with former President Bush's legal right to
exclusive legal custody of any presidential records
stored on these tapes. [Footnote 11] The Plaintiffs
complain that the transfer to the Archivist is a
contempt of this Court's Orders because it illegally
limits access to the tapes in the Archivist's
possession.

Footnote 11. The Court notes that the Agreement
defines "presidential materials" as: information,
contained on the materials, that was created or
received by the President, any individual or unit in
the Executive Office of the President (including but
not limited to, all staff of the White House Office
and the Office of Policy Development) whose sole
function is to advise and assist the President,
and/or the NSC staff in their functions as advisors
and assistant to the President. Id. at 5. This
definition is consistent with that of a presidential
record under the Presidential Records Act, 44 U.S.C.
ss 2201 et seq.

Unfortunately, our Court of Appeals has held
that there is no judicial review of the Presidential
Records Act ("PRA"), 44 U.S.C. ss 2201 et seq. See
Armstrong v. Bush, 924 F.2d 282, 288-89
(D.C.Cir.1991). Therefore, the Court has no
authority to address the fate of records created
pursuant to that statute or any arrangements made
for the maintenance or custody of such presidential
records. If the transferred tapes at issue here
contained only presidential records, this Court
might have no jurisdiction to address the legality
of this transfer.

However, it is undisputed that these tapes
contain both presidential and federal records.
Defendants' Findings of Fact and Conclusions of Law,
filed May 12, 1993, at 13. Furthermore, these tapes
were created, and continue to be created, in order
to save electronic federal records pursuant to the
Orders of this Court and the Stipulations entered
into by the parties. Thus, under this set of
circumstances, there is no legal prohibition
preventing this transfer of tapes to preserve
President Bush's rights to presidential material so
long as the transfer does not damage the federal
record material on these tapes and adversely affect
the Plaintiffs' rights. Of course, notwithstanding
any agreements by the Archivist with former
President Bush, the tapes preserved as a result of
this lawsuit should not be transferred to the
custody of a third party who is not subject to this
suit until such time as the FRA claims in this
lawsuit are resolved and the pending investigation
of the Independent counsel has been completed. In
addition, such an agreement also does not provide a
defense to undue delay in segregating federal and
presidential materials on these tapes or further
delaying the resolution of this already protracted
lawsuit. [Footnote 12]

Footnote 12. In their oral argument before this
Court, the Plaintiffs argued that this transfer
violates stipulations in this case in which the
parties agreed that certain backup tapes would be
preserved by the Defendant agencies. See
Plaintiffs' Exhibit 36, 37. However, the Court is
not persuaded that any of the prior stipulations of
this Court prohibit this transfer. These orders and
stipulations were designed to preserve electronic
federal records on backup tapes pending a decision
by this Court on the Plaintiffs' FRA claim in this
case. In its Opinion and Orders of January 6 and
11, 1993, the Court acted to preserve these
electronic federal records by ordering the Archivist
to take appropriate action. Armstrong v. Executive
Office of the President, 810 F.Supp. 335, 348
(D.D.C.1993). As the Court noted in its earlier
decision, there is no implied right of action under
the FRA and it is not this Court's place to instruct
the Defendants on exactly how to comply with the
FRA. Id. Therefore, as long as the Defendants are
acting to ensure the preservation of the electronic
federal records on these tapes, the Court will not
proscribe exactly how the Defendants must achieve
this objective.

B. THE COURT FINDS THE DEFENDANTS IN CONTEMPT
BECAUSE THE TRANSFER OF THE TAPES TO THE ARCHIVIST
HAS JEOPARDIZED THE FEDERAL RECORD MATERIAL
CONTAINED THEREIN.

While the transfer, per se, does not run afoul
of this Court's Orders, the Court finds the
Defendants in contempt of this Court's Orders
because the method of transferring of these tapes
has adversely affected the condition of the tapes
and the information stored on them. As such, the
Defendants' actions are contrary to this Court's
Orders to preserve the tapes and federal records
contained on them.

1. This Court's Orders clearly required the
Defendants to preserve the electronic federal record
material that is stored on the backup tapes in the
custody of the Archivist.

This Court's Orders clearly required the
Defendants to "preserve, without erasure, all
electronic federal records generated at the
defendant agencies" and "to prevent the destruction
of federal records, including those records saved on
backup tapes." Armstrong v. Executive Office of the
President, No. 89-142, Amended Order at 1-2
(D.D.C. January 11, 1993).

However, at the same time that the Defendants
contend that they are complying with this Court's
Orders by producing such backup tapes, they are also
acting in a way to jeopardize the information on
those tapes.

2. The record shows that as many as 300 of
these tapes must be copied immediately in order to
ensure their preservation but that the Defendants
have no immediate plans to copy them.

The medium on which these tapes are recorded
is very sensitive and certain measures must be taken
to safeguard that information on the tapes is
preserved. See 36 C.F.R. s 1228.188(a) ("Computer
magnetic tape is a fragile medium, highly
susceptible to the generation of error by improper
care and handling."). For example, the average life
span of one of these tapes is ten years and,
therefore, care must be taken to copy tapes before
they become too old. The record here shows that as
many as 300 tapes may require immediate copying
because they have either exceeded their life span or
there are other indications that they have
deteriorated. Deposition of Kenneth Thibodeau at
88:5-89:1, Plaintiffs' Reply, Exhibit 59, filed May
12, 1993. However, the Archivist has taken no
action to begin such preservation copying nor is
there any immediate plan to do so. Id. at
52:5-53:15. [Footnote 13]

Footnote 13. It is also uncontroverted that the
Defendants transferred such tapes from the agencies,
that had the means to copy these tapes, to the
Archivist, who currently does not have the capacity
to do so.

3. The record shows that a number of these
tapes have been physically damaged but the
Defendants have no immediate plans to repair these
tapes.

The record before the Court shows that a
number of these tapes were physically damaged in the
process of being moved to the Archives. [Footnote
14] Id. at 43:9-44:8. While the Defendants
contend that these tapes can be repaired, they have
not yet attempted to do so. Id. at 52:5-53:15.
Furthermore, at the hearing before this Court, the
Defendants admitted that they would not know if it
is possible to fully repair the tapes until they try
to repair them. In addition, it is unclear whether
such damage may become worse over time. Id. at 122.
Therefore, the Court cannot rely on the Defendants'
representations as to the well-being of the tapes,
especially given the sensitive nature of the medium.

Footnote 14. At the hearing before the court,
the Defendants contended that these tapes may have
been damaged before the transfer and that the damage
was only discovered when the tapes were moved. Even
assuming that this is true, the fact remains that
many of these tapes have been damaged and that the
Defendants have an obligation to ensure that they
are repaired before the federal record information
stored on them is lost.

4. The Preservation Plan approved by the
Archivist is inadequate because it does not call for
any immediate action to preserve these backup tapes.

The Court does acknowledge that the Archivist
has finally announced a "plan" to ensure
preservation of these tapes and their contents (over
three months after being Ordered to do so).
Preservation Plan, Exhibit 19A, Defendants' Exhibits
in Opposition, filed April 19, 1993. The
Preservation Plan provides, inter alia, for the
proper storage of these tapes, preservation copying,
and maintenance. Id. The Acting Archivist approved
the Plan on April 16, 1993. Deposition of Kenneth
Thibodeau at 2, Defendants' Exhibits in Opposition,
filed April 19, 1993. However, the Court concludes
that the so-called Preservation Plan does not
constitute substantial compliance with this Court's
Orders. The Court notes that it has taken the
better part of three months to come up with a
detailed "plan" to preserve these tapes. [Footnote
15] More importantly, the Defendants acknowledge
that no action has been taken to preserve these
tapes under this Plan and that the matter of funding
for the Plan has not yet been resolved. Deposition
of Kenneth Thibodeau at 24:22-25:22, Plaintiffs'
Reply, Exhibit 59, filed May 12, 1993. Furthermore,
at the hearing, the Defendants could not tell the
Court when the Defendants would begin to take action
under the Preservation Plan would take effect.
Thus, there is no guarantee that any of the actions
under the "Plan" will take place anytime soon or,
for that matter, ever. The Court finds that,
because of the delay in putting together and
carrying out this "Preservation Plan," many of these
tapes may be irreparably damaged.

Footnote 15. The Archivist acquired custody of
these tapes on January 20, 1993; the Preservation
Plan was approved by the Acting Archivist on April
16, 1993. Id.

Based on this record, the Court finds that
this behavior and lack of action does not comply
with this Court's Order to "preserve without erasure
all electronic federal records generated at the
defendant agencies" and to prevent the destruction
of federal records, including those records saved on
backup tapes." Armstrong v. Executive Office of the
President, No. 89-142, Amended Order at 1-2
(D.D.C. January 11, 1993). While the Defendants may
not have intended the transfer to damage these
tapes, they are still responsible for the results of
their actions. "Even where the court does not
command a certain method of compliance, nevertheless
there is 'an obligation to provide full and prompt
compliance' by whatever means is felt appropriate"
United States v. Greyhound Corp., 363 F.Supp. 525,
557 (N.D.Ill.1973), supplemented by 370 F.Supp. 881
(N.D.Ill.1974), aff'd 508 F.2d 529 (7th Cir.1974).
"Having chosen a course of action, [the defendant]
must bear the responsibility for the failure of that
course of action to achieve its desired end." Id.,
at 559.

Therefore, the Court finds the Defendants in
contempt for their failure to take proper care of
these tapes during and after the transfer to the
Archivist. The Court shall order the Defendants to
take all necessary steps by June 21, 1993 to
preserve these tapes, including preservation
copying. Furthermore, the Court shall order the
Defendants to demonstrate that the materials are
being stored under conditions that will ensure their
preservation. As mentioned previously, the Court is
considering appointing a Special Master to ensure
that the Defendants comply with the Court's Orders
and the FRA and preserve history.

VI. THE DEFENDANTS' ERASURE OF SIX BACKUP TAPES AND
ANY DELAY IN COMPLYING WITH THE ORDERS OF THIS COURT
ARE MATTERS THAT MAY MORE PROPERLY BE THE SUBJECT
OF A CRIMINAL CONTEMPT PROCEEDING, WHICH THE COURT
RESERVES THE RIGHT TO INITIATE AT A LATER DATE.

[13] In their Motion for an Order to show
Cause, the Plaintiffs complain that the Defendants
erased six backup tapes from the NSC and thus
destroyed tapes that this Court had ordered
preserved in this lawsuit. The Plaintiffs also
complain that the Defendants unreasonably delayed
complying with this Court's Orders in a variety of
ways. [Footnote 16]

Footnote 16. The Plaintiffs allege that the
Defendant agencies did not take any steps for 9 days
after this Court's January 6, 1993 Memorandum and
Order to instruct individuals that they should not
erase or delete information from the electronic
communications systems used by the agencies. In
addition, the Plaintiffs complain that the Defendant
agencies also took over a week to disable programs
that permit users to delete information (known as
the "empty wastebasket" function) and other programs
that automatically delete messages (known as
"purging"). They also contend that the instructions
that were given to staff at that point were not
adequate because they still allow staff to delete
certain materials subject to the Order (such as
distribution lists). Similarly, the Plaintiffs
contend that the Archivist failed to take any steps
to make sure that electronic records were not erased
during the final days of the Bush administration,
contrary to the January 6th Order's explicit
directions. No instructions were issued by the
Archivist until January 15, 1993. According to the
Plaintiffs, these letters did not reach the heads of
EOP components until January 28 and 29, 1993 and
still did not instruct the agencies properly. Again,
these matters may very well call for the appointment
of a Special Master by the Court to see that the
requirements of the law are met and carried out
without further delay.

[14][15] It is inappropriate for the Court to
address these contentions at this time. Civil
contempt proceedings are reserved for those
instances where the court acts to ensure compliance
by a recalcitrant party. As these allegation
concerning past destruction of tapes and delay on
the part of the Defendants cannot be remedied at
this time, they are not appropriate in a civil
contempt proceeding. Malfeasance of this sort that
cannot be rectified is a matter of criminal
contempt, which is designed to punish the offending
party. Roe v. Operation Rescue, 919 F.2d 857,
868-69 (3d Cir.1990). However, the Court reserves
the right to bring such a criminal contempt
proceeding in the future. [Footnote 17]

Footnote 17. The Court notes that in the Motion
for an Order to Show Cause, the Plaintiffs stated
that "much of the harm caused by the defendants'
delay in implementing the requirements of the
injunction is irreparable. The only remedy
available for the deliberate delay in complying with
the Court's order during the final weeks of the Bush
administration is criminal contempt." Plaintiffs'
Memorandum in Support, dated April 1, 1993, at 24.

VII. HAVING FOUND THE DEFENDANTS IN CIVIL CONTEMPT,
THE COURT SHALL IMPOSE A MONETARY SANCTION UNLESS
THEY COMPLY BY JUNE 21, 1993.

[16][17][18][19] Once a court finds a party to
be in civil contempt, it must decide what sanctions
are appropriate. The penalty imposed may consist of
either a monetary fine or imprisonment. Douglass v.
First National Realty Corp., 543 F.2d 894
(D.C.Cir.1976). [Footnote 18] A monetary sanction
can be imposed so long as it is designed to coerce
the offending party to comply with the court's
Orders or to compensate the injured party. In re
Magwood, 785 F.2d 1077 (D.C.Cir.1986). If a
sanction is compensatory, it is payable to the
injured party and must be based proof of actual
loss. See In re Chase & Sanborn Corp. 872 F.2d 397,
400 (11th Cir.1989). If a sanction is coercive, it
is paid into the court registry and is based on "the
character and magnitude of the harm threatened by
continued contumacy and the probable effectiveness
of any suggested sanction in bringing about the
result desired." United States v. United Mine
Workers of America, 330 U.S. 258, 304, 67 S.Ct. 677,
701, 91 L.Ed. 884 (1947).

Footnote 18. Some courts have commented that
"[i]mprisonment should be a sanction of last
resort." Securities and Exchange Comm'n v.
Diversified Growth Corp., 595 F.Supp. 1159, 1172
(D.D.C.1984).

[20] In the instant case, the Plaintiffs have
not argued that the Defendants' failure to comply
with this Court's Orders has resulted in any
monetary damage, moreover, the Court finds that any
injury suffered could not be adequately measured so
as to permit the imposition of a compensatory fine.
Therefore, the Court concludes that imposition of
any compensatory sanctions is not appropriate.
However, the Court's finding that the Defendants are
in contempt nonetheless demands some remedial
action, and the Court shall impose coercive
sanctions in order to ensure future compliance with
its Orders.

The Court concludes that it has the power to
impose coercive sanctions on the federal agency
Defendants in this case. The Court is aware that
imposition of monetary sanctions against the federal
government often is barred by the doctrine of
sovereign immunity. However, the Defendants have
not raised a defense of sovereign immunity in their
papers or arguments before this Court and, in any
event, the Court finds the doctrine inapplicable to
the imposition of coercive fines.

Several courts have held that the doctrine of
sovereign immunity applies to prevent a court from
imposing compensatory fines against a government
entity in a civil contempt proceeding. See Coleman
v. Espy, 986 F.2d 1184 (8th Cir.1993); McBride v.
Coleman, 955 F.2d 571 (8th Cir.1992); Barry v.
Bowen, 884 F.2d 442 (9th Cir.1989). The rational
for applying the doctrine of sovereign immunity in
such cases is to prevent a claimant from being
"positioned to recover an unlimited amount of
compensatory damages from the United States without
being bound by the strictures of the Tucker Act or
the Federal Tort Claims Act." McBride, 955 F.2d at
576.

However, when a court, as in the instant case,
imposes coercive fines upon a government agency in a
contempt proceeding, these fines are deposited into
the court registry and thus, do not allow a party to
recover any damages and thereby circumvent Congress'
express waivers of sovereign immunity under the
Tucker Act or the Federal Tort Claims Act. See
McBride, 955 F.2d at 580-82 (Lay, C.J. concurring
in part and dissenting in part). Furthermore, it
has been argued that when imposing any type of fine
in a civil contempt proceeding, a court is not
granting money damages, and therefore, when the
action arises under the Administrative Procedure Act
(APA), as the instant case does, Congress has
expressly waived all sovereign immunity. See 5
U.S.C. s 702; McBride, 955 F.2d at 580-82 (Lay,
C.J. concurring in part and dissenting in part).

In any case, the Court finds that the doctrine
of sovereign immunity does not prevent the
imposition of coercive sanctions against the federal
agency Defendants for their contempt of this Court's
Orders. In fact, such coercive sanctions are
necessary to ensure that "the executive branch of
government [does not] treat with impunity the valid
orders of the judicial branch." Nelson v. Steiner,
279 F.2d 944, 948 (7th Cir.1960).

Under these circumstances, where public
interest favors the preservation of the historical
material on these tapes, the Court will order the
Defendants to take action within 30 days of this
Order. Failure by the Defendants to take
appropriate action by 4:00 pm. on June 21, 1993,
will result in a fine of $50,000 a day for the first
week of noncompliance. This fine will double every
week thereafter, resulting in fines of $100,000
every day during the second week of noncompliance,
$200,000 a day during the third week of
noncompliance, with increases in such sanctions
reserved thereafter for any further non-compliance
with the Orders of the Court. The Court may use
such sanctions to pay the expenses of a Special
Master appointed to ensure compliance with this
Court's Orders and the Order of the Court of
Appeals.

VIII. CONCLUSION

For the reasons explained above, the Court
finds that the Defendants are in civil contempt for
their failure to fully comply with this Court's
Orders of January 6 and 11, 1993. More
specifically, the Court finds that the Defendants
failed to promulgate new appropriate and proper
regulations for the preservation of electronic
federal records and that the transfer of 5,839
backup tapes to the Archivist adversely affected the
condition of these tapes and the information
contained therein. As the Court has made clear
throughout the duration of this long-standing suit,
the statutes in this case and the interests of this
democratic society mandate that the federal record
material in this suit be preserved for historical
purposes. Thus, the Court must act today to ensure
that these records will be available for the
historians of tomorrow. Armstrong v. Executive
Office of the President, 810 F.Supp. 335, 341-42
(D.D.C.1993).

The Court shall issue an Order of even date
herewith in accordance with this Memorandum Opinion.

ORDER

Before the Court are the Defendants' and the
Plaintiffs' responses to this Court's Order of April
6, 1993, which ordered the Defendants to show cause
whether they should be held in civil contempt for
failure to comply with this Court's Orders of
January 6 and 11, 1993. After careful consideration
of the parties' submissions, the arguments of
counsel, the record in the case and the underlying
law, and for the reasons articulated in this Court's
Opinion of even date herewith, the Court finds that
the Defendants are in contempt of this Court's
Orders of January 6 and 11, 1993, and the Order of
the United States Court of Appeals for the District
of Columbia dated January 15, 1993.

Accordingly, it is, by the Court, this 21st
day of May, 1993,

ORDERED that the Plaintiffs' Motion to Enforce
valid Court Orders of January 6 and 11, 1993, and
the Order of United States Court of Appeals for
District of Columbia dated January 15, 1993, shall
be, and hereby is, GRANTED; and it is

FURTHER ORDERED that the Court finds, by clear
and convincing evidence, that the Defendants are in
Civil Contempt for failing to promulgate new,
appropriate, and proper record keeping regulations
for electronic federal records to replace those
regulations struck down by this Court on January 6,
1993. See Armstrong v. Executive Office of the
President, 810 F.Supp. 335 (D.D.C.1993); and it is

FURTHER ORDERED that the Court finds the
Defendants in Civil Contempt because the transfer of
5,839 tapes from the Defendant agencies to the
Archivist has adversely affected the condition of
the tapes and the information stored therein. As
such, the Defendants' actions are contrary to this
Court's Orders to preserve the tapes and federal
records contained on them; and it is

FURTHER ORDERED, that in order to purge
themselves of this finding of Civil Contempt, that
Defendants shall take appropriate action by 4:00
p.m. on June 21, 1993. Such actions shall include,
but are not limited to: --The Defendants
promulgating new, appropriate, and proper guidelines
for the management of electronic federal records in
the Defendant agencies to replace those guidelines
struck down by this Court's Orders of January 6 and
11, 1993; --The Defendants taking all necessary
steps to preserve the tapes transferred to the
Archivist. These steps shall include all necessary
preservation copying and the repair and enhancement
of any damaged tapes; --The Defendants
demonstrating to the Court that the materials are
being stored under conditions that will ensure their
preservation and future access; and it is

FURTHER ORDERED that, in order to purge itself
of this Civil Contempt finding, the Defendants shall
notify the Court of their remedial efforts in a
written status report, which shall be filed with
this Court by 4:00 p.m. on June 21, 1993.

FURTHER ORDERED that failure by the Defendants
to take the above-mentioned remedial steps by 4:00
p.m. on June 21, 1993, shall lead to the imposition
of a fine of $50,000 a day for the first week of
noncompliance. This fine will double every week
thereafter, resulting in fines of $100,000 every day
during the second week of noncompliance, $200,000 a
day during the third week of noncompliance, and with
increases in such sanctions reserved thereafter for
any further noncompliance with Court Orders; and it
is

FURTHER ORDERED that, in the event that the
Defendants do not purge themselves of this finding
of Civil Contempt, the appropriate fine shall be
paid to the Registry of this Court, and, as
indicated, the Court will give serious consideration
to appointing a Special Master, pursuant to Rule 53
of the Federal Rules of Civil Procedure, to assist
the Court in seeing that its Orders are carried out
without further delay. END

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