PROFS case

   Plaintiffs 
ORAL ARGUMENT SCHEDULED FOR JUNE 15, 1993
Nos. 93-5002, 93-5048.
____________________
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_________________
SCOTT ARMSTRONG, ET AL.,
Plaintiffs-Appellees,
v.
EXECUTIVE OFFICE OF THE PRESIDENT, ET AL.,
Defendants-Appellants.
_______________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
______________________________
BRIEF FOR THE APPELLEES/CROSS-APPELLANTS
Michael E. Tankersley
David C. Vladeck
Alan B. Morrison
Public Citizen Litigation Group
2000 P Street, N.W., Suite 700
Washington, D.C. 20036
(202) 833-3000
May 3, 1993 Counsel for Appellees.

CERTIFICATE OF PARTIES, RULINGS AND RELATED
CASES
A. Parties and Amici.
Plaintiffs-appellees/Cross-appellants are Scott
Armstrong, a journalist, author, foreign policy
researcher, and founder of the National Security
Archive; the National Security Archive, a non-profit
public interest research institute and library; the
American Historical Association, a non-profit
association, with a membership of approximately 15,000
historians, which is the oldest and largest
association of historians in the United States; the
American Library Association, a non-profit association
with more than 47,000 members, including libraries,
archives, librarians, library trustees, and library
users; the Center for National Security Studies, a
nonprofit public interest scholarly research institute
organized and operated as a division of the American
Civil Liberties Union Foundation and of The Fund for
Peace, Inc.; Eddie Becker, a professional researcher
specializing in documentary reconstruction of
historical events, with a particular expertise in
using computerized information; and Gary Stern, a
research associate at the Center for National Security
Studies who has written articles, reports, and
comments on national security issues for a variety of
publications.
Defendants-appellants/Cross-appellees are the
Executive Office of the President ("EOP"), an agency
of the United States which supervises and coordinates
the activities of various component agencies that
provide support to the President of the United States;
the Office of Administration, a component agency of
the EOP which, inter alia, provides certain computer
services and promulgates recordkeeping guidelines for
components of the EOP; the National Security Council
("NSC"), which is also a component agency of the EOP;
the White House Communications Agency, an agency of
the United States which, inter alia, provides certain
computer services to the National Security Council;
and the Archivist of the United States, who is sued in
her official capacity.
Prior to the ruling on appeal, former Senator
Gaylord Nelson was a plaintiff in the proceedings
below, and former Presidents Ronald Reagan and George
M. Bush were defendants. Ronald Reagan was dismissed
upon the filing of the first Amended Complaint on
February 28, 1989. Gaylord Nelson and George Bush
ceased to be parties upon the filing of the Second
Amended Complaint on April 25, 1991. There are no
amici.
B. Rulings Under Review.
The rulings under review are the decision of the
district court on cross-motions for summary judgment
reported at 810 F. Supp. 335 and set forth at pages
58-91 of the Joint Appendix ("JA"), and the Amended
Order set forth at pages 92-93 of the Joint Appendix.
C. Related Cases.
This case was previously before this Court on an
interlocutory appeal in Armstrong v. Bush, 924 F.2d
282 (D.C. Cir. 1991), No. 90-5173. On January 15,
1993, this Court granted in part, and denied in part,
defendants' motion for stay of the Amended Order of
January 11, 1993, pending appeal. By order of March
3, 1993, this Court expedited the appeal in No. 93-
5002. By order of March 31, 1993, this Court
consolidated appeal No. 93-5002 and plaintiffs' cross-
appeal, No. 93-5048, designated defendants as
appellants for purposes of the consolidated appeals,
and set an expedited briefing schedule. Counsel are
aware of no other related cases.
______________________________
Michael E. Tankersley
Counsel for Appellees/Cross-Appellants

TABLE OF CONTENTS
(Page numbers different in electronic trans. version)
QUESTIONS PRESENTED
ON APPEAL AND CROSS-APPEAL 1
STATUTES AND REGULATIONS INVOLVED 2
STATEMENT OF THE CASE 2
A. Introduction 2
B. The Federal Records Act. 4
C. Defendants' Electronic Communications
Systems 6
D. Prior Proceedings 8
SUMMARY OF THE ARGUMENT 12
ARGUMENT 16
I. DEFENDANTS' ELECTRONIC COMMUNICATIONS
SYSTEMS CONTAIN "RECORDS" THAT DEFENDANTS ARE
OBLIGATED TO MANAGE, SAFEGUARD,
AND DISPOSE OF IN ACCORDANCE WITH THE FEDERAL
RECORDS ACT. 16
A. Agencies Are Required To Manage
ElectronicMaterials That Satisfy The Definition
of "Records" In Accordance With the FRA. 17
B. Defendants' Electronic Communications
Systems Contain "Records" Under the FRA. 23
II. DEFENDANTS' RECORDKEEPING GUIDELINES
PERMIT THE DESTRUCTION OF ELECTRONIC RECORDS
THAT MUST BE PRESERVED UNDER THE FRA. 27
A. Defendants' Recordkeeping Guidelines
Do Not Provide Adequate Instructions On
Identifying Federal Records, Nor Do They
Instruct Staff To Preserve Electronic Records
On Paper 28
EOP Guidance. 29
2. The NSC's Pre-1989 Guidelines 32
3. Post-1989 OA and NSC Recordkeeping
Guidelines. 35
B. Defendants' Contention That Electronic Records May
Be Destroyed As Nonrecord Material Is Erroneous As A
Matter Of Law 38
1. Differences in Content. 40
2. Differences in Format. 42
3. "Preserved Only For Convenience of
Reference." 46
III. THE DISTRICT COURT ERRED IN CONCLUDING THAT THIS
COURT'S PRIOR DECISION PRECLUDED REVIEW OF WHETHER
DEFENDANTS' RECORDKEEPING GUIDELINES VIOLATED THE FRA
BY INSTRUCTING STAFF TO TREAT FEDERAL RECORDS AS
PRESIDENTIAL RECORDS. 46
A. Distinguishing Federal and Presidential
Records. 48
B.This Court's Prior Decision Did Not Adjudicate
Or Preclude Review Of The Validity Of
Defendants'Guidelines. 51
IV. DEFENDANTS' FAILURE TO SUPERVISE OR REVIEW
RECORDKEEPING PRACTICES FOR THEIR ELECTRONIC
RECORDS VIOLATES THE FRA. 54
V. THE DISTRICT COURT'S INJUNCTION IS PROPER. 57
A. Injunctive Relief Against The Archivist. 57
B. The EOP As Defendant. 58
CONCLUSION 60

QUESTIONS PRESENTED ON APPEAL AND CROSS-APPEAL
1. Are electronic communications systems used to
conduct agency business exempt from the Federal
Records Act's mandate that agencies must institute
programs to actively manage, safeguard, and provide
for the proper disposition of all materials that
satisfy the statutory definition of "records"?
2. Do agency recordkeeping guidelines violate the
Federal Records Act by treating electronic
communications systems as exempt from that Act where
(A) the guidelines fail to instruct staff on properly
identifying Federal records and fail to require staff
to print all electronic records; and (B) the premise
of the guidelines -- that materials stored
electronically are nonrecord "extra copies preserved
only for convenience of reference" -- is erroneous as
a matter of law?
3. Does this Court's decision in Armstrong v.
Bush, 924 F.2d 282 (D.C. Cir. 1991), determine the
validity or preclude review of agency guidelines that
distinguish Presidential records from Federal records?
4. Does an agency violate the Federal Records Act
by failing to provide any supervision or review of its
recordkeeping practices for electronic records where
regulations promulgated under the Act require such
safeguards?
5. Did the district court abuse its discretion by
enjoining the Archivist to perform his statutory duty
or by not dismissing the Executive Office of the
President as a defendant?
STATUTES AND REGULATIONS INVOLVED
The provisions of the Federal Records Act ("FRA")
are set forth in the Addendum to Appellants' Brief,
and the regulations under that statute that are
relevant to this action are set forth in the Addendum
to this Brief beginning at page A2. The statutory
definition of Presidential records, 44 U.S.C.
' 2201(2), which is relevant to the issues raised by
the cross-appeal, is set forth at A1 of Appellees'
Addendum.
STATEMENT OF THE CASE
A. Introduction. The principal question presented
by this appeal is whether federal agencies that
utilize electronic systems for transmitting and
storing information concerning government business may
operate those systems as "nonrecord" or unofficial
"off-the-record" systems exempt from the FRA, as
defendants contend, or, as the district court ruled,
agencies must institute programs to manage, safeguard,
and dispose of agency records stored on computer
systems -- just as they must do with paper records.
Beginning in 1985, the NSC and the EOP, like many
federal agencies, installed electronic communications
systems to permit agency staff to create, send, and
store letters, memoranda, schedules, and other
documents electronically. That same year, the
National Archives and Records Administration
("Archives") issued a bulletin observing that "Federal
agencies are relying increasingly upon electronic
office equipment and systems to create, maintain, use
and dispose of records," and, as a result, "many
records, the basis for official policy decisions, may
never appear in paper form." JA 720. To prevent "a
tremendous increase in the unauthorized destruction of
Federal records," the Archives directed that the
"Electronic Recordkeeping Guidelines" attached to the
bulletin be incorporated into agency policy directives
and plans, and urged "a major training effort" to
educate staff on the recordkeeping issues presented by
such systems. JA 721-22, 724.
The NSC and EOP disregarded the Archives' warning
in 1985, and again in 1987, when the same directive
was reissued. JA 193-197, 752-72. Recordkeeping
personnel gave no attention to the materials filed
electronically on these systems, and neither the EOP
nor NSC introduced any new directives, plans, or
programs to preserve records created on their
computers. Even after plaintiffs brought this
challenge in 1989, the agencies continued to treat the
records stored on their electronic communications
systems as "nonrecord" material exempt from the FRA.
No recordkeeping program for electronic records was
instituted, nor were any clear instructions concerning
their preservation issued. Agency personnel continued
routinely to destroy electronic materials concerning
the actions and deliberations of the EOP and the NSC,
without making any effort to appraise their archival
value. JA 184-192.
As the Archives predicted, this inaction led to "a
tremendous increase in the unauthorized destruction of
Federal records." JA 721. Electronic communications
recovered from backup tapes of the NSC's system in
investigating the Iran-Contra Affairs confirm that
these electronic communications systems contain many
important, substantive communications concerning
agency policies, decisions and actions that may be
recorded only in electronic form. Nonetheless, to
this day, no effort has been made by the agencies or
the Archivist to preserve the electronic records on
these tapes. Moreover, the defendants continue to
assert that they are entitled to destroy these tapes,
and all other electronically stored materials, without
following any of the procedures prescribed by the FRA
for the disposal of records.
In this Court, defendants defend this conduct by
arguing that they have instructed staff to transfer
information that is deemed "appropriate" for
preservation from electronic materials to paper, and
that they do not regard the remaining information on
their electronic communications as being "essential"
to documenting the NSC's and EOP's activities. These
claims are contradicted by undisputed facts showing
that defendants' recordkeeping personnel have never
given any consideration to the significance of the
information filed in electronic format, and have never
given clear directives to staff to print out record
material stored on computers. Rather, the facts show
that recordkeeping personnel refuse to apply the FRA
to these electronic systems, and continue to operate
on the premise that computers provide a means to
conduct agency business "off-the-record," and exempt
from the FRA. These practices, the district court
correctly found, are unlawful because they permit the
destruction of electronic records -- including many
records of historical importance -- that must be
managed and preserved in accordance with the FRA.
B. The Federal Records Act. The FRA defines the
obligations of federal agencies and the Archivist for
maintaining complete and accurate documentation of the
actions of the Federal government. 44 U.S.C. ' 2902.
This Court's prior decision in this case identified
the critical provisions of the FRA at issue here.
1. "The FRA contains a detailed definition of the
'records' that agencies must preserve. 44 U.S.C.
'' 2901(1), 3301." Armstrong v. Bush, 924 F.2d at
282, 293 (D.C. Cir. 1991) ("Armstrong I"). The
statutory definition covers all media, "regardless of
physical form or characteristics," including those
recorded in electronic or "machine readable" format.
44 U.S.C. ' 3301. Paper, electronic, or other
documentary materials made or received by an agency
qualify as Federal records if they are:
preserved or appropriate for preservation by that
agency . . . [1] as evidence of the organization,
functions, policies, decisions, procedures,
operations, or other activities of the
Government, or [2] because of informational value
of the data in them.
44 U.S.C. ' 3301. The Archivist's regulations refer
to this as "record status." 36 C.F.R. ' 1222.34(b).
Copies of materials that have record status are exempt
from the definition if they are "extra copies
preserved only for convenience of reference." Id.
' 1222.34(d); 44 U.S.C. ' 3301.
2. For those materials that are records, the
statute "mandates that the head of each agency 'shall
establish and maintain' a records management program,
44 U.S.C. ' 3102, and 'shall establish safeguards
against the removal or loss of records,' 44 U.S.C.
' 3105." Armstrong I, 924 F.2d at 293. Both the
record management programs and safeguards must be
implemented in accordance with the Archivist's
regulations. Id.
3. Not all "records" must be permanently
preserved, but the FRA provides that no record may be
"alienated or destroyed" except pursuant to statutory
procedures. 44 U.S.C. ' 3314; Armstrong I, 924 F.2d at
285. Agencies are not permitted to decide
unilaterally whether or when to dispose of "record"
material, but must submit a proposed disposition
schedule to the Archivist, who may approve or reject
agency requests after opportunity for public comment.
See American Friends Serv. Comm. v. Webster, 720 F.2d
29, 62-63 (D.C. Cir. 1983) ("American Friends"). The
Archivist's staff, through a process known as
"appraisal," is responsible for determining whether
agency records are "permanent" or "temporary" records.
36 U.S.C. '' 1220.14, 1228.28(c), 1228.30(c). Records
with sufficient historical value are eventually
transferred to the Archives as "permanent" records. 44
U.S.C. ' 2107. For temporary records, the Archivist
approves schedules authorizing their disposition after
the records have been retained for an appropriate
period of time. 44 U.S.C. '' 3302-3303a.1
4. The Archivist is also responsible for
preventing improper records practices. The FRA
directs the Archivist to conduct "inspections or
surveys of the records and the records management
programs and practices within and between Federal
agencies." 44 U.S.C. '' 2904(c)(7). He is required
to report violations of the statute and recommend
corrective action. Id. ' 2115(b). If the unlawful
destruction of agency records comes to his attention,
the Archivist is required to notify the head of the
agency and "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." Id. ' 2905(a); Armstrong I,
924 F.2d at 294-96.
C. Defendants' Electronic Communications Systems.
Since 1985, the defendant agencies have used
electronic communications systems for intra- and
inter-office electronic mail, to share appointment
calendars, to create and edit memoranda, and to
transfer files and documents in electronic format.
Two principal electronic communications systems were
installed: (i) a system for the NSC which was designed
to handle classified communications; and (ii) a
separate system used by other components of the EOP
which does not have the security necessary to handle
classified communications.2
These systems provide for the transmission of
electronic mail "notes" which "are comparable to a
written memo, or letter form of correspondence" and
are preserved in electronic "files" that are
comparable to paper files. JA 635-36, 648. Other
features allow staff to create electronic scheduling
"calendars" and formal "documents" that can be
accessed and revised by several users of the computer.
JA 650-55, 172-173, 175-78. In addition, both the EOP
and NSC have instituted procedures for creating daily
"backup tapes" of their electronic mail that are
retained for two weeks or more to recover lost
information in its original, electronic format. JA
637, 176. These systems provide advantages over both
regular interoffice mail and telephone communications,
and are widely used to electronically transmit and
store substantive communications concerning government
business. JA 169-170. Indeed, there is no need to
print communications in order to use these system and,
at least within the NSC, the availability of printers
is very limited. JA 210-6 108.
The importance of these systems as a record of the
activities of the government was dramatized by the use
of backup tapes from the NSC system to reconstruct NSC
activities in connection with the Iran-Contra Affairs.
JA 180, 182-66 56, 61. When this lawsuit was filed in
January, 1989, defendants had no plans to process or
preserve any of the information on the backup tapes
from the NSC or EOP systems as "records" under the
FRA. JA 183. The district court enjoined defendants
not to destroy backup tapes from the Reagan
Administration, which contain communications created
from 1985 to January 20, 1989. Since 1989, the NSC
backup tapes have been used by the Justice Department
to aid in the prosecution of Manuel Noreiga, and by
the NSC to provide information for the confirmation
hearings of the Bush Administration's CIA Director,
Robert Gates. JA 182. Altogether, there have been at
least 26 instances in which the backup tapes have been
used by government officials to recover and print
electronic communications on NSC activities, JA 265-
271, but the NSC did not retain copies of most of the
printed material, and has not examined any of it to
identify those materials that qualify as "records"
under the FRA. JA 183. On November 20, 1992, the
district court entered a temporary restraining order
requiring defendants to retain backup tapes containing
electronic communications created during the Bush
Administration. JA 34-52.
D. Prior Proceedings. On interlocutory appeal,
this Court rejected defendants' contention that the
"establishment of guidelines and directives defining
'records' under the FRA is 'committed to agency
discretion by law,' 5 U.S.C. ' 701(a)(2)," and
affirmed the district court's conclusion that the
record was inadequate to determine the reasonableness
of the guidelines. Armstrong I, 924 F.2d at 293, 296.
The case was remanded for development of the record
and for the district court to determine whether the
"guidelines and directives are 'arbitrary, capricious
an abuse of discretion, or otherwise not in accordance
with law,' 5 U.S.C. ' 706(2)(A), because they permit
the destruction of record material that should be
maintained." Id. at 297.
On remand, both sides submitted extensive
deposition testimony, numerous documents and
declarations, and other materials concerning the
operation of the agencies' electronic communications
systems and the history of the EOP's and NSC's
recordkeeping practices from 1985 through 1992. The
evidence is collected and organized in an 85-page
"Joint Statement of Facts," which the district court
ordered the parties to prepare to identify the
disputed and undisputed facts presented in the motions
for summary judgment. JA 165-261, 63 & n.7.
Defendants conceded that their electronic
communications systems contained information on the
"organization, function policies, decisions,
procedures, operations and other activities of the
federal agencies that use the system," and also
conceded that the procedures set forth in the FRA were
never followed for these systems. JA 183-84.
Recordkeeping personnel have never reviewed or
conducted any survey of the contents of these systems,
and have never sought information from computer
personnel to assess the recordkeeping implications of
the systems. JA 186-189. Training on the use of the
computer system does not include any discussion of
recordkeeping obligations; the "Electronic
Recordkeeping Guidelines" first promulgated by the
Archives in 1985 have never been incorporated into EOP
or NSC directives; and the first EOP written guideline
explicitly mentioning electronic mail was not issued
until June, 1991, shortly after this Court's remand.
JA 193-97, 205, 225. Throughout this action, the
agencies continued to treat all the electronic
materials on these systems as exempt from the FRA, and
disposed of the information without following the
disposition procedures in the FRA. JA 184, 191-193.
To defend this practice, defendants presented two
arguments. First they claimed that none of the
material on the electronic communications systems is
"records" under the FRA because the agencies have the
discretion to conclude that all the information on
these systems is nonrecord material. JA 66. The
district court rejected this contention because the
facts showed that the information stored on the
computer systems satisfies the statutory definition of
a record, and the statute and prior decisions of this
Court make clear that agencies are not permitted to
"read the FRA to exclude computer systems such as
those at issue here." JA 67.
Defendants' second argument was that, even if
communications on the computer systems do qualify as
records, they are still "nonrecord" material under the
exemption for "extra copies preserved only for
convenience of reference," 44 U.S.C. ' 3301, because
staff have been instructed to print electronic
communications of record status. JA 66-67. This
claim, however, required that defendants prevail on
two factual issues, namely that (i) staff were, in
fact, clearly directed to print any electronic
communications of "record status," and (ii) the
resulting printed version captured all of the
information recorded on the computer. Id. The
district court rejected this argument and found that
defendants' practices were unlawful on three grounds.
First, the district court found that the
defendants' argument could be rejected even without
addressing whether defendants had given the
instructions to print electronic records because
electronic records cannot be regarded as nonrecord
"convenience copies" of paper print-outs. The
stipulated facts demonstrated that the printed
versions would not include information recorded
electronically, including the date and time of, and
the identity of parties to, the communication.
Moreover, the Archives' guidelines confirmed that
electronic records must be considered separate records
because they are qualitatively different from paper
records. JA 68-72. Second, the district court ruled
that defendants' conceded failure to provide any
supervision or review to ensure that electronic
records are being preserved by staff violated the
Archives' regulations. JA 72-75. Third, the court
concluded that the guidelines in use from 1985 through
the present did not ensure the proper identification
and preservation of record material. Specifically, the
court found that instructions issued prior to 1989
were arbitrary and capricious because they contained
no instructions, or incomplete or inaccurate
instructions, on what constitutes a Federal record.
After this litigation began, new guidelines were
issued that provided more complete instructions on
identifying Federal records, but the district court
ruled that these guidelines were also arbitrary and
capricious because they erroneously encourage staff to
treat electronic communications as "nonrecord"
material and gave instructions that were, at best,
unclear on how electronic mail communications were to
be preserved. JA 74-83. Finally, the district court
ruled that this Court's prior decision precluded
consideration of plaintiffs' claim that the agencies'
recordkeeping guidelines improperly instruct staff to
treat Federal records as Presidential records. JA 83-
85.
The district court did not, however, decide what
procedures must be followed to comply with the
statute. Rather, it remanded that question to the
Archivist, who, the Court found, had failed to perform
his statutory obligation to prevent the unlawful
destruction of records, and enjoined him to take steps
to preserve the electronic federal records generated
by the defendant agencies. JA 85-87. The agencies
were enjoined from removing, deleting, or altering
information recorded on these electronic systems until
such procedures were in place. This Court
subsequently granted a partial stay that provides that
defendants may remove, delete, or alter such
information, as long as the information is preserved
in identical form on backup tapes or similar magnetic
media. JA 105.
SUMMARY OF THE ARGUMENT
Despite the extensive record in this case,
defendants' brief contains remarkably few citations to
the record, and it frames the issues in a manner that
assumes away many of the critical disputes between the
parties. The dispute in this case is not over the
details of how electronic communications systems are
to be managed under the FRA, but over whether agencies
may refuse to treat them as "records" at all. The
record shows that, despite the growing use and
importance of electronic communications within the
agencies, and repeated warnings by the Archives
concerning the need to manage and preserve electronic
records, the EOP and NSC have ignored the statutory
language providing that their obligations under the
FRA are equally applicable to paper and electronic
media.
In order to resolve the question presented by
this Court's prior decision, namely, whether the
agencies recordkeeping practices "are inadequate
because they permit the destruction of 'records' that
must be preserved under the FRA," 924 F.2d at 291, it
is necessary to address two analytically distinct
issues: (i) do the electronic communications systems
at issue contain "records," and, (ii) if so, have the
agencies failed to comply with their statutory
obligation to manage and preserve such records in
accordance with the FRA?
In Part I, we address the initial question of
whether these systems contain "records" that are
subject to the FRA. Defendants' assertion that they
are entitled to, and have in fact, determined that
these systems should be treated as nonrecord systems
exempt from the FRA is contrary to both law and fact.
The FRA does not afford agencies discretion simply to
exempt entire systems of electronic materials
containing information of record status from the FRA
and to destroy the information without any independent
appraisal, as the agencies seek to do here. Moreover,
defendants' claim that their practice is the result of
a considered judgment is refuted by their
acknowledgement that recordkeeping personnel have
never examined the contents of these electronic
systems, and have never considered whether their
recordkeeping practices are adequate to preserve the
records they contain. The agencies' claim is further
belied by evidence showing that these electronic
systems are designed to, and do, serve as one of the
principal means of recording substantive intra-and
inter-agency communications on government business --
communications that plainly qualify as "records" under
the FRA.
In Part II, we show that the agencies' guidelines
violate the FRA by failing to preserve these
electronic records. Defendants concede that they
permit the regular destruction of substantive
electronic communications, but they argue that they
are entitled to do so because they instruct staff to
convert or transfer electronic information of
"official record" status to paper and, therefore, the
electronic materials are redundant nonrecord material.
The argument is twice flawed. First, the factual
predicate for the argument is missing because
defendants have never issued guidelines instructing
staff to print paper copies of all electronic records.
The pre-1989 EOP and NSC Manuals contain neither an
adequate description of what constitutes a Federal
record, nor an instruction to convert electronic
records to paper, and the guidelines issued after this
suit began still do not require that staff print each
electronic record. Second, even if instructions to
transfer the information in each electronic record to
paper had been given, defendants' premise that the
original electronic records become nonrecord material
is erroneous as a matter of law. Under defendants'
theory, when agencies utilize both paper and
electronic media to conduct government business, they
can exempt the electronic records from the FRA as long
as they issue instructions to transfer information
from that subset of their electronic records that
contain unique information to paper documents. The
FRA, however, applies equally to all recording media
and, because of their distinctive format, content, and
utility, electronic records are not "extra copies
preserved only for convenience of reference," 44
U.S.C. ' 3301, and may not be discarded as nonrecord
material, as defendants contend. Defendants'
guidelines also violate the FRA because they instruct
staff to treat Federal records that must be preserved
under the FRA as Presidential records and, thus,
exempt these records from the safeguards of the FRA,
and from the Freedom of Information Act, 5 U.S.C.
' 552 ("FOIA"). The district court recognized the
importance of this issue but, as we show in Part III,
erred in concluding that this Court's prior decision
precluded review of the validity of the guidelines,
which are directly contrary to Soucie v. David, 448
F.2d 1067 (1971), and related decisions of this Court.
In Part IV, we show that, in addition to their
improper guidelines, the EOP and NSC have violated the
Archivist's regulations, which mandate that agencies
periodically review and evaluate the adequacy of their
program for the preservation of all records --
including electronic records. Neither the EOP nor
NSC conducts any review or supervision of the adequacy
of their recordkeeping practices for electronic
communications systems.
Finally, in Part V, we show that the district court
did not abuse its discretion by ordering the Archivist
to perform his statutory duty, particularly given the
overwhelming evidence that he had abdicated his
responsibilities for the past six years. In addition,
defendants' claim that the EOP is not a proper
defendant was never presented below, and is, in fact,
contrary to their own admissions showing that the EOP
is the "agency" responsible for compliance with the
FRA.

ARGUMENT
I. DEFENDANTS' ELECTRONIC COMMUNICATIONS
SYSTEMS CONTAIN "RECORDS" THAT DEFENDANTS ARE
OBLIGATED TO MANAGE, SAFEGUARD, AND DISPOSE OF
IN ACCORDANCE WITH THE FEDERAL RECORDS ACT.
Defendants' first question and opening argument
combine an appeal to deference to agency decisions
with the assertion that the agencies made a reasoned
determination to institute a recordkeeping program
based on instructions to staff to transfer information
in electronic records to paper and treating their
electronic media as nonrecord material. But the
record below shows that the agencies did not make any
such "determination," and it also refutes their claim
that they repeatedly issued such instructions.
Moreover, defendants' statement of the issue
obscures the pivotal issue in this suit, namely, do
electronic communications systems contain "records"
that agencies are required to manage in accordance
with the FRA? Defendants attempt to trivialize the
case by suggesting that it merely concerns whether
particular bits of information are "essential" to
government recordkeeping. To the contrary, the record
and the decision below make clear that this is not a
case about agencies' failure to save individual
"scraps" of data either for reasons of "efficiency" or
because they determined that the data are not
historically important. Rather, defendants operate
their entire electronic communications systems as
though they are exempt from the FRA. Accordingly,
this case presents fundamental questions regarding
whether agencies are permitted to treat only paper
records as the "official" record, while substantive
business at the highest level of government is being
carried out on electronic media that agencies may
erase whenever they wish -- or, as the district court
held, the FRA precludes such conduct.
We begin by addressing defendants' argument that
they have the discretion to deem electronic systems to
be nonrecord material, exempt from the FRA, by showing
that it is contrary to the law. We then demonstrate
that the electronic systems at issue here are
"records" under the statutory definition.
A. Agencies Are Required To Manage Electronic
Materials That Satisfy The Definition of
"Records" In Accordance With the FRA.
Defendants do not begin with the definition of
"records" or the facts concerning the electronic
systems at issue, but with the proposition that
agencies are obligated to treat as "records" only
those materials that they deem to be "appropriate for
preservation." Brief for Appellants ("Br.") at 19.
This argument merely repeats the claims concerning
agency discretion that this Court rejected in American
Friends and Armstrong I. Indeed, defendants quote the
same legislative history that this Court considered
previously and found did not support the government's
claims concerning agency discretion in those prior
cases. Compare Br. at 25-26 with American Friends, 720
F.2d at 47-48, 52-53 (1950 legislative history), and
compare Br. at 20, with Armstrong I, 924 F.2d at 292
(1984 amendments). Likewise, defendants' claim that
construing the statute to permit agencies to operate
electronic systems outside the FRA is necessary to
avoid a construction that requires retaining "every
scrap of paper," Br. at 16, 19, 21-22, 26-27, has
already been considered and rejected. Armstrong I, 924
F.2d at 293.
As this Court previously observed, "the FRA
contains a detailed definition of the 'records' that
agencies must preserve. 44 U.S.C. '' 2901(1), 3301,"
and it mandates that agencies must establish a
management program and safeguards against the loss of
materials that satisfy the statutory definition.
Armstrong I, 924 F.2d at 293 (emphasis added), (citing
44 U.S.C. '' 3102, 3105). In addition, "records" may
be disposed of only after appraisal of their archival
value under the procedures prescribed by the statute.
Id. at 285, 295 (citing 44 U.S.C. '' 3314, 3105(a),
3303a). Agencies have discretion to decide what
systems to use for communicating and storing
materials, e.g., whether to install an electronic
communications system. But once an agency introduces
a paper or electronic system that produces material
that qualifies as "records" under 44 U.S.C. ' 3301, it
must manage, safeguard, and dispose of the records in
accordance with the FRA.
Indeed, defendants' claim that agencies are
entitled to treat electronic systems as nonrecord
material is based on selective quotations from the
statutory language that omit the very terms of the
statute that limit agency discretion. Rather than
focusing on the definition of "records," defendants'
rely upon 44 U.S.C. ' 3101, which provides an
affirmative obligation to "make" records necessary to
provide "adequate and proper documentation" of agency
proceedings and "essential" transactions. Br. at 19.
If plaintiffs were seeking to compel the agencies to
"make" records, this section might be relevant, but as
this Court observed in the first appeal, "plaintiffs
do not seek the creation of any new records, but
rather ask only that the records already created be
appropriately classified and disposed of pursuant to
disposal schedules approved by the Archivist." 924
F.2d at 288. Other provisions of the FRA that
defendants ignore mandate that agencies must establish
management programs, safeguards, and disposition
schedules for all records -- not just those created
pursuant to section 3101. See 44 U.S.C. '' 3102, 3105,
3314.
The statutory definition of "records" is not
limited to those materials that the agency deems
"appropriate for preservation," as defendants assert,
but includes documentary materials that are, in fact,
"preserved" by the agency. 44 U.S.C. ' 3301. The
Archives' regulations underscore this by stating that
the term "appropriate for preservation" covers those
materials that "in the judgment of the agency should
be filed," 36 C.F.R. ' 1222.12(b)(6), but the term
"preserved" establishes an objective test that
requires that those materials that are "actually filed
or otherwise systematically maintained" by the agency
must also be treated as records. 36 C.F.R.
' 1222.12(b)(5) (emphasis added); accord JA 777; 36
C.F.R. ' 1228.1.
In the face of this statutory language, defendants
argue that agencies must be afforded the discretion
they seek here in the interest of efficiency and
because application of the literal language of the
statute would require that agencies preserve "every
scrap of paper." But this argument ignores the
important distinction between (i) differentiating
nonrecord and record material; and (ii)
differentiating temporary and permanent records under
the FRA. Many "scraps" of paper (including the
telephone slips to which defendants repeatedly refer)
are not "records" because they are immediately
discarded and are not appropriate for preservation.
For those materials that are "records" because they
are preserved (whether in paper or electronic files),
many will be "temporary records" that may be destroyed
after a period of weeks, months, or years, pursuant to
approved schedules. 36 C.F.R. ' 1220.14. When an
agency decides based on "efficiency," or other
concerns, that materials stored on paper or
electronically do not have "sufficient . . . value to
warrant their further preservation," the course
prescribed by the FRA is to schedule the material as
temporary records for disposition under 44 U.S.C.
' 3303 -- not to deem them to be exempt from 44 U.S.C.
' 3301 and destroy them as nonrecord material.3
Defendants' argument that the district court
usurped the Archivist's authority to evaluate the
historical value of materials, Br. at 24, is erroneous
for the same reason. The Archivist's role is in
appraising whether records are temporary or permanent.
By deeming their electronic materials to be
"nonrecords" the agencies circumvented such appraisal,
so that there would never be any assessment of the
value of this material by anyone other than the
agency. The FRA, however, is designed to prevent
agencies from unilaterally discarding their records in
recognition of the fact that "agencies, left to
themselves, have a built-in incentive to dispose of
records relating to [their] 'mistakes'," and to ignore
the value of their records to others. American
Friends, 720 F.2d at 41. The appraisal process
ensures that interests other than the agencies' are
considered, see JA 796-800, and implements the FRA's
mandate that "certain categories of records (e.g., of
historical interest, concerning legal rights) must be
preserved for eventual use by public officials,
scholars, and others." American Friends, 720 F.2d at
43 (emphasis added); see also id. at 52-57; accord
Armstrong I, 924 F.2d at 287, 293. But if agencies
are permitted, as defendants claim here, to treat
entire systems to be "nonrecord," they will be able to
dispose of the information they contain without any
archival review. 36 C.F.R. ' 1222.42. Indeed, the
NSC's assertion that it is entitled to unilaterally
determine that all electronic materials created during
the period of the Iran Contra Affairs are not
"appropriate for preservation" underscores the danger
of allowing agencies to dispose of records on
notorious periods in their history by labeling them
nonrecord material.
Moreover, even if defendants had the discretion
that they claim, it would not assist them here since
their claim is a post hoc rationalization based on
glaring mischaracterizations of the facts. First,
defendants claim that the agencies have "reasonably
determined" that the records created and stored on
electronic systems can be adequately preserved simply
by continuing to manage their paper records system.
Br. at 15, 21-22. This assertion has no basis in
fact. In all the evidence defendants submitted below,
the agencies were unable to tender one document,
declaration, or passage of testimony by any agency
official stating that they had examined the
information on these systems and made such a
determination. To the contrary, the NSC and EOP
conceded that they have never examined the contents of
their electronic communications systems to assess the
types, the amount, or the significance of the record
material they contain -- even when materials were
repeatedly printed-out from the backup tapes for
various investigations. JA 186, 183-6 62. Nor is
defendants' conduct informed by technological or
efficiency concerns since recordkeeping personnel
never consulted with computer personnel concerning the
operation of these systems. JA 188-89. Standing
alone, the fact that the agencies "entirely failed to
consider important aspects of" the recordkeeping
implications of these systems demonstrates that the
agency's actions were "arbitrary and capricious."
Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto.
Ins. Co., 463 U.S. 29, 43 (1984). It also
demonstrates that the "determination" for which
defendants seek deference here is simply a post hoc
rationale "developed for the first time during
litigation." Kansas City, Missouri v. Department of
Housing and Urban Development, 923 F.2d 188, 192 (D.C.
Cir. 1991). Indeed, defendants' position is not only
a post-litigation rationalization, but a different
rationalization from that presented in the district
court litigation. See infra at -28.
Second, the claim that the agencies' conduct was
"endorsed" by the Archivist, Br. at 8, 23, is also
contradicted by the record, which shows that the
Archives admitted that it had never reviewed the
agencies' electronic records or recordkeeping program.
JA 255. In fact, the Archivist refused to take a
position on whether the electronic materials at issue
here are "record" or "nonrecord" materials under the
FRA. JA 273-75, 276-77, 280-81. The only
"endorsement" offered below was in the form of
litigation declarations, prepared specifically as part
of the Archivist's defense as a co-defendant in this
action, in which Archives officials contended that the
Archives blindly accepts whatever the agencies say
concerning the classification of agency files as
"records" or nonrecord material -- even if it is
inconsistent with the statute. See JA 556, 1028-32.
Such litigation declarations do not represent an
"endorsement" entitled to deference. Kansas City v.
HUD, 923 F.2d at 192; Citizens to Preserve Overton
Park v. Volpe, 401 U.S. 402, 419 (1971). Moreover,
this position is inconsistent the Archivist's
independent obligation to identify and direct agencies
to correct violations of the FRA, 44 U.S.C. ' 2115(a);
36 C.F.R. '' 1220.50, 1220.52, and, as we discuss
below, in conflict with the statements in the
Archives' official guidance on electronic records. See
infra -. Defendants' obligations under the FRA are
determined by application of the statutory language to
the facts concerning these electronic systems, and not
by deference to positions developed as part of
defendants' litigation strategy.
B. Defendants' Electronic Communications
Systems Contain "Records" Under the FRA.
Applying the statutory definition to the facts
concerning defendants' electronic communications
systems shows that they clearly contain "records" that
must be managed, safeguarded, and disposed of in
accordance with the FRA. Documentary materials have
"record status" if they meet two conditions:
(1) They are made or received by an agency of
the United States Government under Federal law or
in connection with the transaction of agency
business; and
(2) They are preserved or appropriate for
preservation as evidence of agency organization
and activities or because of the value of the
information they contain.
36 C.F.R. ' 1222.34(b); 44 U.S.C. ' 3301. Virtually
all materials on defendants' electronic mail systems
meet the first condition, and it is undisputed that
these systems store information on the organization
and activities of the federal agencies that use them.
JA 183-6 64. Indeed, these systems serve as one of
the principal means of intra- and inter-agency
communications for these agencies, with significant
advantages over both telephone and paper
communications. JA 169-70. Thus, apart from personal
records, communications stored on this system satisfy
the test for "record status" if they are "preserved or
appropriate for preservation." 44 U.S.C. ' 3301. Both
standards are satisfied here.
1. Preserved. Information stored electronically
by agency personnel in the course of conducting
government business in a government computer system is
"preserved" under the FRA, just as paper letters or
memoranda are "preserved" when stored in a file
cabinet. Defendants' contrary assertions simply
ignore the factual record:
Notes. Electronic mail notes are filed in "note
logs" by individuals using electronic mail in a manner
directly analogous to filing letters or memoranda in a
paper file. JA 648. 174. The NSC requires that each
note be labeled electronically with the same
classification codes used for paper documents, and has
designed its system to secure communications of the
highest level of classification. JA 336, JA 173-6 31.
Documents. More formal documents are filed in a
central storage system of the computer, and may be
retained indefinitely. The EOP instructed staff that
documents would be retained electronically for two
years or more. JA 652-54, 175-6 34.
Calendars. Calendars are also filed in a central
storage area where they can be accessed by any staff
authorized to consult or change information on the
schedule, and may be "archived" for future reference.
JA 650-51, 175-6 35.4
Indeed, these electronic mail systems are also known
as "office automation systems" because they are
modeled after the operation of "paper" files, but
derive their advantage from the fact that they provide
automated, "paperless" communications in which
information is created, received, filed and indexed,
and can be searched, revised and retransmitted
electronically. JA 177-78. Substantial numbers of
inter-office communications are preserved in this
manner. Even though staff are encouraged to delete
notes that are not necessary for their work, JA 174-6
33, the record shows that individual users typically
file scores, and in some cases hundreds, of such
electronic notes for future reference.5 As further
evidence that these electronic files are
"systematically maintained," 36 C.F.R.
' 1222.12(b)(5), the agencies systematically make and
retain "backup tapes" pursuant to a procedures that
NSC recordkeeping personnel consider part of the
agency's program for protection of agency records. JA
176-77-66 36, 37; JA 511.
2. Appropriate for Preservation. Although many
of the materials "preserved" on these systems are
undoubtably "temporary records," the examination of
electronic mail communications from these systems in
the Iran-Contra investigations amply demonstrates that
these systems also contain important communications
reflecting key policy decisions and activities of the
agencies that are "appropriate for preservation"
because of their long-term value and historical
importance. JA 180-82-66 56, 57, 61. Indeed, the fact
that these systems contain information of both
evidentiary and historical value is underscored by
their use, not only in the Iran-Contra related trials,
but by the Justice Department and the NSC to conduct
their own investigations of matters unrelated to the
Iran-Contra Affairs. JA 183.
Furthermore, the evidence shows that the kinds of
communications uncovered during these investigations
are not exceptional but, to the contrary, are
precisely what these systems are designed to
facilitate: "a written memo, or letter form of
correspondence" that can be conveyed with the speed of
a telephone call, and saved for future reference. JA
636, 169. Accordingly, there is every reason to
believe that these systems contain equally important
information on budgetary decisions, trade
negotiations, technology policy, and other activities
of the EOP. Defendants' assertions that the systems
are only used for "brief messages" are belied by the
agencies' own descriptions of the systems, which
declare that these communications can be of "unlimited
length," and encourage staff to view electronic
communications as a more efficient means of conveying
and storing inter-office letters and memos. JA 639,
648; see also JA 172-6 22. As the district court
found, the evidence shows that "these computer systems
can be and are used for substantive communications by
staff." JA 68.
Defendants' assertions to the contrary are not only
entirely unsupported by the record, but are
contradicted by their own statements. The declarants
cited by defendants for their claims that the systems
are principally used for transitory communications
acknowledged that they had no foundation for their
statements because the agencies had never examined how
these systems were being used. See, e.g. JA 970:20-
972:7, 186; compare JA 539-54 (describing Navy
Laboratories study of electronic mail); JA 184-85
(describing World Bank study). Moreover, when
plaintiffs requested a sample of the materials on the
backup tapes to test defendants' assertions,
defendants reversed position, and successfully opposed
the request by attesting that these systems contain
large numbers of substantive communications, including
sensitive classified documents and privileged agency
deliberations that would take years to process for
release.6 Similarly, in opposing entry of a temporary
restraining order and seeking a stay in this Court,
defendants affirmed that these systems contain
"information of the most sensitive nature and extreme
importance," JA 567, and are "critical" to the
operation of the agencies.7 The functions for which
these systems are designed, the historical importance
of the communications stored by them, and the
importance that the agencies themselves attach to
them, all demonstrate that they contain "records" that
are both preserved and appropriate for preservation.
II. DEFENDANTS' RECORDKEEPING GUIDELINES
PERMIT THE DESTRUCTION OF ELECTRONIC RECORDS
THAT MUST BE PRESERVED UNDER THE FRA.
The agencies acknowledge that they not only permit,
but actively engage in, the routine destruction of
electronic mail communications, and manage only their
traditional paper files as "records" under the FRA.
In the district court, defendants argued that the
agencies had issued instructions to print each
electronic record on the computer and, therefore, they
claimed, the information stored electronically was, at
most, nonrecord "extra copies preserved only for
convenience of reference," of material in their paper
files. 44 U.S.C. ' 3301. Unable to sustain this claim
below, on appeal defendants now recast it, and claim
(A) that the agencies' recordkeeping guidelines impose
a special obligation on their staff to transfer
electronic information (but not necessarily the
complete record) subject to the FRA to paper, and (B)
assuming such instructions exist and are followed, it
is within the agencies' discretion to treat the
original, electronic document as a nonrecord material.
The glaring flaw in defendants' argument is that
the electronic systems at issue here are not designed
as means for generating paper documents, but as a
means of eliminating the need for paper by permitting
communications wholly in electronic form. Thus,
defendants' claim here depends upon both a factual
assumption that their guidelines actually impose an
obligation to convert all "record" information to
paper, and a legal contention that the original,
electronic communication is a nonrecord copy if the
information appears elsewhere on paper. As we show,
both are without merit.
A. Defendants' Recordkeeping Guidelines Do Not
Provide Adequate Instructions On Identifying Federal
Records, Nor Do They Instruct Staff To Preserve
Electronic Records On Paper.
As the Archives' guidelines emphasize, ensuring the
retention of records stored electronically requires
both clear articulation of recordkeeping requirements,
and attention to special considerations that are not
present with paper records. JA 727-28, 697; 36 C.F.R.
'' 1222.30(a), 1222.34(a). In order to establish the
factual predicate for their claim here, defendants
must show that their guidelines not only inform staff
that electronic communications are subject to the FRA,
but that the guidelines also (i) provide accurate and
adequate guidance for staff to identify Federal
records; and (ii) contain clear instructions to print
any electronic information of record status to paper.
But review of the manuals and memoranda issued to EOP
and NSC staff prior to 1989 show that they fail on
both counts. After this litigation began, defendants
issued new instructions, with additional guidance on
identifying Federal records. But these new
instructions, which were still in place when the
district court ruled, do not instruct staff to print
all electronic records.
Defendants mischaracterize the district court's
decision by asserting that it faulted only their pre-
1989 guidance and held that the later guidance was
completely adequate. Br. at 38. To the contrary, the
district court held that the post-1989 guidelines
cured only defendants' failure to provide sufficient
instructions on identifying Federal "records," but
that they still did not instruct staff to print all
"records" created electronically. JA 79, 82-83. The
evidence fully supports these holdings. Three
principal sets of guidance are at issue: (1) the pre-
and post- 1989 versions of the EOP's Federal Records
Manual; (2) the pre-1989 guidance used by the NSC; and
(3) the new directives issued by the NSC and the
Office of Administration ("OA") after this suit began.
1. EOP Guidance.{tc \l 3 "1. EOP Guidance."}
The written records management guidance for the
components of the EOP that use PROFS is set forth in a
single manual, known as the EOP "Federal Records
Manual," which was issued in 1982 and revised in 1989.
JA 389-508. The Manual was the exclusive written
guidance on Federal records for EOP from 1982 through
1991, and remains the exclusive guidance for most EOP
components. JA 198-99. The district court found that
the 1982 Manual was inadequate because it provided no
guidance on distinguishing Federal and Presidential
records, but that this omission was remedied in the
1989 Manual. JA 76-77. We address this Presidential
records issue below in Part III. See infra at .
The principal defect in the EOP's recordkeeping
guidance is that neither the 1982 nor the 1989 Manual
contains any explicit instruction that electronic
materials that satisfy the definition of "record" must
be printed for preservation in hard-copy format. JA
199-200. As the district court found, the 1982 Manual
"does not instruct staff on how to go about saving
record material in electronic form." JA 76. The same
is true of the 1989 Manual, although the district
court did not find it necessary to reach the issue. JA
78 n.21. Indeed, the head of the EOP office that runs
the records management program for the EOP
acknowledged that she could not point to any statement
in the Manual that instructed staff that they must
print out electronic mail materials for preservation
in hard-copy format. JA 884-89. Thus, the very
instruction that defendants assert as the basis for
their program for preserving electronic material does
not appear anywhere in the written guidelines.
Nevertheless, defendants argue that because the
1982 Manual was issued before electronic mail was
introduced in 1986, that excuses this omission. Br. at
43. Under the FRA, however, the EOP was obligated to
update its guidance to address the recordkeeping
implications of these systems, as the Archives
emphasized in its 1985 and 1987 bulletins directing
agencies to institute recordkeeping programs for
electronic systems. JA 722, 753. Moreover, the record
shows that the EOP has provided staff with both
written manuals and oral training on how to use the
computer system for years, yet neither includes any
instructions about the necessity of preserving
electronic "records" in paper form. JA 197.
As a fall-back, defendants cite a series of
statements from the Manuals stating that Federal
records include electronic or automated materials, and
argue that these references should be regarded as
adequate. Br. at 43. But these scattered passages and
somewhat oblique statements only advise staff that
computer materials may be records, and there is no
instruction that electronic records must be put into
paper format. As the district court found, the
Manual's discussion that "records" must be preserved
and placed in a filing system does not assure their
preservation on paper because the Manual provides no
discussion of "the format that such record material
must or can take when being placed in these files." JA
76-77; see also JA 415 (files includes machine
readable files).8
Defendants' final argument -- that oral guidance
provided the missing instruction -- betrays the
weakness of their case. Br. at 43-44. The only
citation defendants offer for this proposition is a
declaration that, in fact, does not state that any
such instructions were ever given (Br. at 7 citing JA
387), and testimony that reflects defendants'
characterization of guidance, rather than the guidance
itself (JA 847). Examination of the record that
defendants fail to cite shows that defendants conceded
that the EOP's oral guidance did not go beyond the
instructions in the Manual, and that it included no
specific discussion of preserving electronic mail
communications. JA 207-209, 857-862. Despite their
assertions that their recordkeeping program is based
on repeated, clear instructions to print out
electronic records, defendants are wholly unable to
identify even one explicit instruction in the EOP's
oral guidance or Manuals to support this claim.
2. The NSC's Pre-1989 Guidelines. The NSC's
recordkeeping guidelines prior to 1989, including the
period of the Iran-Contra Affairs (1984-1987), are set
forth in two pages of the "National Security Council
Administrative Manual." JA 322-24. Defendants
concede that neither the Administrative Manual, nor
any of the other documents on recordkeeping issued to
the NSC staff during this period, contained any
definition of Federal records, and, moreover, did not
advise staff that recordkeeping obligations applied
regardless of the format in which materials were
stored. JA 210-6 109(a)-(c). In addition, the NSC
concedes that the Administrative Manual did not
instruct staff that they have an obligation to print
out and preserve electronic communications containing
information that satisfied the definition of a Federal
record. Id. 6 109(d). As the district court found,
the first written NSC guidelines to that effect were
not issued until the very end of the Reagan
Administration, on December 20, 1988, and even those
instructions did not provide staff with a complete
definition of what constitutes a Federal record. JA
81, 215-6 114, 338.
Indeed, the evidence establishes that the fact that
important communications from the Iran-Contra period
appear only on the backup tapes, and not in paper, is
not attributable to any lack of compliance with NSC
recordkeeping guidelines because there was no
guideline instructing staff to treat electronic
communications as Federal records, much less to print
them. This was confirmed during the trial of Oliver
North, in which one of the counts charged violation of
18 U.S.C. ' 2071, which prohibits the willful and
unlawful destruction of any record of a public office.
In support of this claim, prosecutors introduced the
1984 NSC Administrative Manual into evidence and
presented testimony from the NSC's records officer. JA
669-72, 681-84. On cross-examination, the records
officer acknowledged that, under the guidelines in the
Manual, NSC personnel were permitted to delete PROFS
notes from their computer and to throw away printed
copies because electronic mail notes were not
considered "official records" of the agency. JA
676:21-677:21.9
Accordingly, after reviewing all the written
guidance and testimony on oral guidance, the district
court held that the pre-1989 NSC guidance was
arbitrary and capricious because, "[a]t the very
least, compliance with the FRA requires that staff be
fully advised of the definition of federal record,"
and the NSC staff were not provided with the
definition or with instructions that electronic
records are subject to the FRA. JA 79-80. Moreover,
"the guidelines do not instruct staff that all
electronic materials, other than personal records must
be saved," JA 81 -- much less state that electronic
records must be printed.
Defendants attack this holding on two grounds,
neither of which is supported by the evidence. First,
using elliptical quotations from the Administrative
Manual, defendants assert that no definition of
Federal records was necessary because the NSC
instructed employees to route all non-personal
materials to the Secretariat for inclusion in the
official files. Br. at 39. Examination of the Manual
itself shows that this is incorrect. The Manual only
instructs staff to send "institutional documents" to
the Secretariat, and the "institutional documents" is
never defined. JA 323, 6 1.
Second, defendants argue that oral guidance and
briefings provided "substantial additional guidance
specifically in regard to electronic messages." Br.
at 39. The district court rejected this contention
because "[t]he oral guidance addressed the record
keeping issue in the same manner as the written
guidance . . . [and] there is no evidence in this
record that this oral guidance uniformly provides
substantive guidance complimenting [sic] the written."
JA 82. Defendants' selective citations to the
testimony provide no basis for overturning this
finding. To the contrary, the record shows that no
guidance on recordkeeping is given as part of the
training to use the computer systems, and the only
times staff receive regular oral guidance are when
they join the agency and when they depart. JA 225-6
135. Contrary to defendants' assertion that staff
meetings were held to give guidance in 1985 and 1986,
Br. at 40, the NSC recordkeeping staff could not
recall giving any oral guidance that mentioned
electronic records prior to the time the Iran-Contra
Affairs became public in late 1986. JA 229-6 136, 978-
981, 985-88, 994, 939, 941. Even after the
investigations in early 1987 revealed that the NSC's
system was being used for important substantive
communications, the NSC failed to take remedial action
to ensure preservation of electronic records apart
from issuing a single memorandum that only instructed
staff to print electronic communications that assign
new tasks, and encouraged them to delete any others.
JA 214-16, 939-43. Most importantly, the defendants
conceded that the oral instructions do not
"contradict, supplement, or clarify" the instructions
in the written guidelines, JA 232, but simply urge
staff to adhere "as closely as possible to the exact
terms of these [written] guidelines." JA 368-6 5; see
also JA 231-233-66 139-143. Thus, rather than
rectifying the errors and omissions in the written
guidelines, the oral training reinforces them.10
3. Post-1989 OA and NSC Recordkeeping Guidelines.
Throughout most of the Bush Administration the 1989
version of the EOP Federal Records Manual was the
exclusive written recordkeeping guidance for the EOP
and, as discussed above, it contains no instructions
on printing electronic mail. See supra at 29. In June
1991, the OA adopted a separate, additional
recordkeeping directive which provides that, "[i]f an
employee creates or receives an electronic message
that contains [official records] information, the
message should either be incorporated into a
memorandum, or reduced to paper." JA 503 (emphasis
added). Some other EOP components distributed this
instruction after it was adopted by the OA. JA 205-06.
The NSC introduced a substantially similar instruction
in January 25, 1989, see JA 218, and, in May, 1992,
issued a special memorandum on electronic mail
instructing staff that "the most common types of
electronic mail notes are nonrecord materials" and
that "nonrecord 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." JA 224, 535 (emphasis
added). Defendants acknowledge that under these
instructions staff have no obligation to save
electronic communications that contain "record"
information on agency decisions and activities, so
long as the "information" is paraphrased in a separate
memorandum, or is otherwise "reduced" to written form.
JA 206, 880-81.11
The district court correctly found that both the OA
and the NSC instructions are impermissible under the
FRA because they "tell staff that they have complied
with the FRA simply by incorporating record material
in a memorandum" or duplicating the information
elsewhere. JA 79, 74-75. Under the FRA, two distinct
documents that contain the same record status
information are both records. The exemption provided
in the statute only applies if the records are extra
copies of the same document and, even then, applies
only if the copy is used solely for convenience of
reference. 44 U.S.C. ' 3301; 26 C.F.R.
' 1222.34(d)(2). Thus, if two different paper
documents share the same information on the
activities, policies, or decisions of the agency, both
are records under the FRA. An instruction that staff
need only treat a paper document as a "record" if the
information did not appear in another paper document
would plainly be improper. The statute does not treat
electronic materials differently. If an electronic
mail note, document or calendar contains information
on agency activities that is also found in a separate
paper memorandum, both the electronic mail
communication and the paper memorandum are "records"
under the FRA. 44 U.S.C. ' 3301.
Moreover, the distinction between having the same
information and being a copy of the same record is
important. A paper record that contains the same
information as an electronic record may state the
information in a different manner, may have been
written on a different date, or may be addressed to
different individuals. Studies of electronic mail
suggest that electronic communications are often the
first, most candid, and most crucial communication of
the information, see JA 542, and, as Iran-Contra
investigators found, are particularly valuable because
they provide "first-hand, contemporaneous account of
events." Report of the President's Special Review
Board [Tower Commission Report], at III-1 (Feb. 26,
1987). But defendants' guidelines encourage staff to
discard such contemporaneous electronic records as
nonrecord material if the "information" appears
elsewhere or will be "reduced to" a formal, distilled
paper document. As the district court found, "this
encourages staff to classify electronic materials as
nonrecord, thus exempting them from preservation," JA
75, and violates the FRA, which provides that two non-
identical communications that record information on
official business are both records, even if they
record the same information.
Indeed, the flaw in these instructions is
underscored by defendants' admission that they equate
electronic communications with "telephone calls or
face-to-face meetings." Br. at 34. Such oral
communications become part of the agency's "records"
only if staff decide it is necessary to create a
record that will memorialize them in writing. JA 450 6
4.b. But defendants erroneously seek to apply the
same standard to electronic mail communications which
are already written records. See Armstrong v. Bush,
721 F. Supp. 343, 354 (D.D.C. 1989), aff'd in part and
rev'd in part, 924 F.2d. 282 (D.C. Cir. 1991)
(erroneous to equate unrecorded telephone
communications with recorded electronic mail).
Indeed, one of the chief advantages of electronic
systems over telephone calls and oral conversations is
that they provide staff with the ability to retain a
record of the communication in electronic files for
future reference, just like a paper record. JA 636,
648, 169-6 12. Under the FRA, the proper mechanism
for agencies to dispose of different records that
contain the same information is not to deem them to be
nonrecords, but to schedule them for separate
disposition as either temporary records or permanent
records.
B. Defendants' Contention That Electronic Records May
Be
Destroyed As Nonrecord Material Is Erroneous As A
Matter Of Law.
Even if defendants could show that they adequately
instructed staff to convert electronic records into
paper ones, their argument still must be rejected
because it is based on an unlawful interpretation of
the FRA. The basic premise of defendants' claim is
that if an agency transfers record information from
one media to another (e.g., paper to electronic) it is
entitled to treat only the transferred version of the
information as a "record," and the original as
nonrecord -- even though the original plainly
satisfies the statutory definition. 44 U.S.C. ' 3301.
The FRA, however, applies equally to all recording
media and does not permit an agency to establish
artificial distinctions in which the agency utilizes
information on multiple media, but treats only the version of the information recorded on paper as a "record." As the Archivist's guidelines state, "the fact that information is created or stored electronically has no bearing upon whether that information is record or nonrecord" because the statute establishes the same criteria for all media. JA 727. Indeed, in this Court defendants offer no legal basis for their theory that an electronic communication that is a "record" becomes nonrecord material if the "information" it contains is recorded elsewhere on paper. The theory that they argued below, i.e. that the electronic materials are "extra copies preserved only for convenience of reference," 44 U.S.C. ' 3301, has been abandoned, but defendants do not point to any alternative language in the statute as the basis for their claim that agencies that simultaneously use both paper and electronic systems to store information may chose to treat the electronic systems as nonrecord. Defendants also mischaracterize the district court's rejection of their "extra copies" argument as a dispute over whether to save information on "who knew what information and when did they know it," Br. at 19, when the Court's rejection of their "extra copies" claim was based on a much more fundamental point: records maintained in different media are qualitatively different from one another, and these differences are important to agencies, the Archives, and to researchers. The original, electronic materials on the agencies' computer systems differ in content, format, and use, and both the paper and electronic versions are "records" under the FRA. 1. Differences in Content. Defendants conceded that, even if instructions to print "record status" communications had been given and followed, they had no procedures for printing some of the information stored electronically on the computer systems. JA 178- 80. Defendants' argument on appeal -- that an instruction to print electronic mail "notes" would preserve all the information that appears on the "computer screen" -- is disingenuous because the information that is not preserved on paper is, in fact, stored in the computer and displayed for the use of agency staff on the computer screens. For example, printing an electronic mail "note" will often not preserve critical information on the identity of the senders or recipients of the communication, who are identified on the print-out only by codes or by the names of "distribution lists." See, e.g., JA 691, 696. The directories that identify the names associated with the codes and the individuals on the distribution list are readily available to staff, but are displayed on the computer screen in response to a separate command. JA 649. The agencies, however, conceded that they never preserve the information in these directories in printed form. JA 178-79. Similarly, neither the electronic records that serve as the electronic mail equivalent of "certified mail" by reporting to the sender when a message was received, JA 179-6 47, nor the "logs" that display indices of the communications stored in electronic files, are printed out under defendants' procedures. See, e.g., JA 646-49, 174, 177. Defendants' other efforts to assail the district court's ruling on this point also miss the mark. The district court did not import a "quasi-criminal standard" or require "detailed documentation of the communications of every employee," Br. at 23-24 (emphasis omitted). Rather, it simply held that the agencies could not treat their electronic systems as "extra copies" where obviously pertinent information associated with "record" communications, like the participants or time of the communication, was being preserved by the agencies only in electronic form. JA 72. Defendants' suggestion that they made a determination not to preserve this information based on technical considerations, Br. at 31, is also meritless. Not only did defendants fail to make such an argument below and, therefore, have waived it, District of Columbia v. Air Florida, Inc., 750 F.2d
1077, 1084 (D.C.Cir. 1984), but defendants never
offered any evidence that there are any technical
barriers or burdens associated with preserving this
information. In fact, the evidence shows that it is
entirely possible to print this information but the
agencies have no procedures that require that it be
printed, and no need for it to be printed because it
is available to agency staff on the computer.12
Defendants' assertion that the information is of no
value is refuted by its obvious utility to anyone
trying to determine the participants in, and timing
of, important communications transmitted on these
systems -- and by the fact that the agencies
themselves have designed their computer systems to
preserve this information for the use of their staff.
2. Differences in Format. The differences in
content are only part of a more basic error treating
electronic and paper media as equivalent. Documents
recorded in the same format (i.e., duplicate paper
records) may be fungible, but documents recorded in
different formats have unique characteristics that
preclude dismissing either media as an "extra copy."
For example, a photographic negative and a
photographic print may contain the same information,
but the negative cannot be considered merely an "extra
copy" of the print. In the same way, the different
qualities of electronic and paper media mean that each
format has special value and must be separately
managed and appraised as "records."
The Archives' guidelines underscore this by
providing that, when the identical information is
recorded on paper and electronically, both the
electronic and the paper formats are records, and the
agency must obtain separate disposal authorization
from the Archives for each format:
If the same information is stored on more than
one medium (such as paper and disk), agencies, in
consultation with NARA, should schedule the
disposition of all copies.
JA 728 and 759, 6 5.e.; accord JA 235-237-66 146-50.
Different formats are not regarded as nonrecord "extra
copies" precisely because the differences in the
ability to use and access information in electronic
and paper formats means that they have independent
value as records:
When information is converted from paper to a
machine-readable file, the nature, usefulness and
accessibility of the information changes.
Therefore, the disposition of the information
when maintained in machine-readable form may
differ from the disposition when maintained in
paper form. Machine-readable records (including
optical disks) derived from paper records must be
separately scheduled, even though the paper
records may already be scheduled.
JA 718, accord JA 238, 697, 793, 799-800, 1014-15
(format is an important factor appraising the archival
value of records; electronic and paper versions of the
same information may be scheduled for different
retention periods).
The agencies' own practices underscore the
importance of differences in format to the utility of
these records. If material stored electronically was
merely an "extra copy" of paper in an agency's files,
there would be no need for the elaborate backup
procedures instituted to ensure that the agency can
restore the lost information to the computer in its
original, electronic form. Moreover, in the course of
recovering electronic records for various
investigations, the agencies have conducted
computerized searches of the data that would not have
been possible if the records were not in electronic
form. See, e.g., JA 266.13
Defendants do not dispute the importance of the
differences between electronic and paper formats, but
assert that the district court "misread" the Archives'
guidelines mandating that each format be treated as
records, and claim that the Archivist endorses their
view that agencies may treat electronic communications
that satisfy the definition of "records" as nonrecord
material if they instruct staff to incorporate
information that appears on the computer screen into a
paper memorandum. Br. at 22-23, 28. The evidence,
however, shows that defendants' effort to retreat from
the Archivist's explicit statements is revisionist
history. In the proceedings below, defendants
conceded that there is no official statement of
Archives policy that endorses their position. See JA
234-6 144. In all of the Archives' publications, the
only language that defendants have been able to quote
in support of their claim is the following sentence in
an Archives Pamphlet:
Most agencies have decided to meet their
recordkeeping requirements for documents that are
created using word processing or electronic mail
or messaging by printing those documents in hard
copy. JA 806.
Apart from the fact that this is a descriptive, and
not a normative statement, it does not support
defendants' claim for two reasons. First, the quoted
language does not concern the disposal of nonrecord
material but, as the heading in the document
indicates, the application of "General Records
Schedules" which authorize the disposition of certain
specified electronic materials as records after they
are printed. See, e.g., JA 296. Defendants' conduct
here, however, is not based on any disposition
schedules, but on circumventing the disposition
process by treating electronic material as nonrecord
material. JA 72, 192. Second, defendants ignore other
statements in the very same document which, like the
Archives' other guidelines, affirm that all components
of an electronic system must be separately managed and
scheduled as "records":
It is also essential to emphasize that all
components of electronic information systems are
records: inputs, outputs, digital data stored in
a variety of ways, and the related documentation.
Determining how long to save these records
components is one essential recordkeeping
requirement that the scheduling process fulfills.
JA 812-13; see also JA 814.14
The record also refutes defendants' assertion that
requiring agencies to manage their electronic media
would place "undue burdens" on new technologies.
Other agencies have developed various mechanisms for
preserving electronic records, scheduling those that
are "temporary records," and identifying those that
will eventually be transferred as "permanent." See,
e.g. JA 573-86, 539-41. Indeed, the NSC's own conduct
belies any claim that the failure to manage electronic
media is based on technical barriers. For years, the
NSC computers have required that staff label each
"note" with a classification code before it is sent.
JA 173-74. In May, 1992, NSC adopted a variation of
this automated feature by requiring staff to label
each communication as a Federal record, Presidential
record, or nonrecord material when created. Copies of
all materials identified as "records" are now
automatically sent in electronic form to the Records
Management Office. JA 223-6 126, 126A, 536-37. The
NSC's new system is still flawed because (i) it only
applies to "notes," and not to "documents" or
"calendars;" (ii) its success depends upon staff being
able to accurately distinguish record and nonrecord
material but, as discussed elsewhere, staff are given
erroneous guidelines and no supervision; and (iii) the
NSC still discards the electronic copies collected by
the Recordkeeping Office as nonrecord after printing.
Nevertheless, it demonstrates that the NSC's failure
to adopt such measures earlier, and the EOP's
continued failure to adopt any such measures, is not
based on technical considerations but on the agencies'
refusal to treat their electronic materials as
"records" subject to the FRA.15
3. "Preserved Only For Convenience of
Reference." Although the district
court did not reach this ground, defendants' "extra
copies" argument must also be rejected because the
materials on their computer system are not preserved
"only for convenience of reference." The statute, and
the Archivist's regulations, are quite explicit in
providing that materials qualify as nonrecord under
this exemption "only if the sole reason such copies
are preserved is for convenience of reference." JA 777
6 5.d(2). (emphasis in original); accord 36 C.F.R.
' 1222.34(d)(2); JA 784. This narrow exception is
inapplicable here because the advantage of these
electronic systems is that they not only allow staff
to save past communications, but also to revise and
retransmit "notes," update calendars, and edit
documents electronically. See JA 177-78. Indeed,
because the electronic versions that are the records
that are subject to change and further use, if paper
copies are printed it is the paper copies that
represent "extra copies preserved only for convenience
of reference." 44 U.S.C. ' 3301.
III. THE DISTRICT COURT ERRED IN CONCLUDING
THAT THIS COURT'S PRIOR DECISION PRECLUDED
REVIEW OF WHETHER DEFENDANTS' RECORDKEEPING
GUIDELINES VIOLATED THE FRA BY INSTRUCTING STAFF
TO TREAT FEDERAL RECORDS AS PRESIDENTIAL
RECORDS.
While the FRA and FOIA govern the management and
disclosure of Federal records, the Presidential
Records Act, 44 U.S.C. ' 2201-2207 ("PRA"), provides a
separate scheme for the preservation of, and access
to, Presidential records. As the district court
recognized, "[t]his distinction is an important one."
JA 76 n.19. If records are classified as
Presidential, they are not accessible under the FOIA
until several years after the administration leaves
office. See 44 U.S.C. ' 2204; Meyer v. Bush, 981 F.2d
1288 (D.C. Cir. 1993). Moreover, Presidential records
are not subject to the safeguards provided by the FRA
because neither the Archivist nor the courts have the
authority to prevent the improper management or
destruction of "Presidential records." Armstrong I,
924 F.2d at 290.
The district court found that the EOP's pre-1989
recordkeeping guidelines were inadequate because they
provided no guidance on distinguishing Federal and
Presidential records, JA at 76, but declined to review
whether the guidelines that were subsequently issued
improperly instruct staff to treat certain material as
Presidential records which are, in fact, Federal
records. JA 83-85.
The first conclusion, that guidelines on the
distinction between Federal and Presidential records
are essential to an adequate recordkeeping program
under the FRA, is plainly correct. Indeed, defendants
do not dispute the importance of proper instructions,
but instead claim that pre-1989 guidance was given to
the staff of the NSC and Office of Science and
Technology Policy ("OSTP") in other documents. Br. at
42. But examination of the record shows that the
documents that defendants cite either were not issued
to staff, or were issued only at the very end of the
Reagan Administration -- long after many of the
electronic communications stored on the backup tapes
were created and after many staff had departed.16
The district court's second conclusion, that this
Court's decision precluded review of the validity of
the guidelines on distinguishing Federal and
Presidential records when they were eventually issued,
is erroneous. Long-standing precedents of this
Circuit provide that records created or received by
the staff of an agency are agency records, and are not
Presidential records. Defendants' guidelines directly
violate the law established in these decisions, and
nothing in the statute or this Court's prior decision
precludes review of this violation of the FRA.
A. Distinguishing Federal and Presidential
Records.
The standard for distinguishing between agency and
Presidential records was first set forth by this Court
in Soucie v. David, 448 F.2d 1067 (1971). In Soucie,
the plaintiff sought a report prepared by the Office
of Science and Technology ("OST"), and OST withheld
the report arguing that it was staff to the President,
not an "agency" under the Administrative Procedure Act
("APA"). Id. at 1073. The Court rejected this
argument, concluding that only entities whose "sole
function" is "to advise and assist the President," are
not agencies, and because of "its independent function
of evaluating federal programs, the OST must be
regarded as an agency subject to the APA and Freedom
of Information Act." Id. at 1075; see also Kissinger
v. Reporters Committee for Freedom of the Press, 445
U.S. 136, 156 (1980).
Subsequent decisions of this court have underscored
the holding in Soucie that if a governmental entity
has substantial authority independent of its work in
advising and assisting the President, all its records
are agency records -- regardless of the nature of the
function for which particular records were created.
Ryan v. Department of Justice, 617 F.2d 781, 788 (D.C.
Cir. 1980). Accordingly, this Court has repeatedly
rejected claims that records are agency records only
when they are created in "performing its non-advisory
functions," and are Presidential records when the
agency is "performing its other function of advising
the president." Id.; Rushforth v. Council of Economic
Advisors, 762 F.2d 1038, 1041 (D.C. Cir. 1985) (law
does not permit an "on again-off again" definition of
whether entity is an agency).
In enacting the PRA, Congress adopted this test by
defining "Presidential records," explicitly to exclude
"any documentary materials that are . . . official
records of an agency" under the FOIA. 44 U.S.C.
' 2201(2)(B)(i). Thus, Congress foresaw the risk of
overlap between the PRA and other records statutes and
addressed it by providing that the PRA would only
apply to those "records which currently fall outside
the scope of the Freedom of Information Act" under the
sole function test announced in Soucie. H. R. No. 95-
1487, 95th Cong., 2d Sess. 3, 11, reprinted in 1978
U.S. Code Cong. & Ad. News 5734, 5742. Put another
way, the statute provides that the definition of
"agency record" trumps the PRA provisions so that, if
a document concerning the President's duties is
created or obtained by personnel in an agency subject
to the FOIA, it is not a Presidential record, its
release is governed by FOIA, and its retention is
controlled by the FRA. Id.
The EOP guidelines on identifying Federal records
adhere to the "sole function test" for some EOP
components, but ignore the this test for records of
the OSTP and the NSC. The OSTP is successor to OST,
the agency whose records were at issue in Soucie. Like
OST, OSTP provides advice and assistance to the
President, and performs independent functions of
reviewing and coordinating information on science and
technology. JA 239. Nonetheless, the OSTP
recordkeeping guidelines provide that records produced
or created by OSTP staff to assist the Director in his
capacity as advisor to the President are Presidential
rather than Federal records -- a directive that is
directly contrary to the holding in Soucie. JA 238-
239-6 167.
The NSC's recordkeeping guidelines also provide for
precisely the sort of "on-again, off-again" treatment
of its records that this Court has condemned,
including an elaborate central filing scheme for NSC
staff records in which separate file systems are
maintained for Presidential records and Federal
records. Electronic mail records, if they are
preserved at all in paper form, are incorporated into
this dual filing system, and only those placed in the
Federal records files are handled in accordance with
the FRA. JA 246. Under the NSC's guidelines, Federal
records are limited to those created or received in
connection with the work of the NSC, and documents
(both those originally on paper and electronic
information transferred to paper) created or received
"independently" of the agency's statutory
responsibilities, including documents created by "the
NSC staff when acting as advisors to the President are
considered presidential records." JA 243-46. Thus,
the NSC maintains that -- unlike the staff of the OMB,
CEQ and other units that follow the "sole function"
test -- the electronic and paper communications of its
staff relating to advisory functions are exempt from
the FRA.
B. This Court's Prior Decision Did Not Adjudicate
Or Preclude Review Of The Validity Of Defendants'
Guidelines.
In declining to consider plaintiffs' claim that the
guidelines of the NSC and the OSTP are contrary to law
because they instruct staff to treat materials subject
to the FRA as Presidential records, the district court
cited three considerations: (1) the statutory
language; (2) a footnote in this Court's prior
decision; and (3) this Court's ruling that the PRA
precludes review. JA 84-85. None of these
considerations validates defendants' practice of
misclassifying Federal records as Presidential ones,
or precludes judicial review.
1. The language of the PRA makes clear that it
does not disturb, but rather endorses, the law
declared in Soucie and subsequent decisions by
providing that any records that are agency records
under FOIA are not Presidential records. Indeed, the
statute is explicitly designed so that "that which is
subject to FOIA would remain so," and only those
records that "fall outside the scope of the FOIA" are
subject to the PRA. H.R. No. 95-1487, supra at 11
(emphasis in original). The error in defendants'
guidelines is that they treat the PRA as an exemption
to the FOIA and FRA. But the FRA provides for the
reverse relationship: the FRA definition of records is
not subject to any exemption for the PRA, but the PRA
exempts materials that are agency records under the
FOIA and the FRA. 44 U.S.C. 2201(2).
2. Defendants argue that footnote 2 of the
"Background" section of this Court's prior decision
stating that "the NSC creates both presidential and
federal records," constituted the law of the case,
validating the NSC's guidelines, and the district
court accepted the footnote as conclusive. JA 84.
With due respect, plaintiffs believe that this is an
erroneous reading of the footnote. This Court has
previously warned against construing statements in the
background discussion of an opinion as decisions on
legal issues, particularly where, as here, the holding
of the earlier decision was that the record was
inadequate to sustain summary judgment. Maggard v.
O'Connell, 703 F.2d 1284, 1290-91 (D.C. Cir. 1983).
In order for the law of the case to apply, "the issue
must actually have been decided" in the prior appeal.
Id. at 1289. While footnote 2 of the prior decision
accurately recites the NSC's position, the validity of
its guidelines on distinguishing Presidential and
Federal records was not litigated or decided in the
prior appeal. To the contrary, this Court found that
the existing record was "inadequate to determine the
reasonableness of the guidelines." Armstrong I, 924
F.2d at 296.17
3. Finally, the holding on the prior appeal was
that the PRA precludes review only of decisions
regarding the management and disposition of materials
that are "Presidential records" under the PRA. It did
not, however, hold that agencies are free to give
erroneous instructions concerning what constitutes a
Federal record under the FRA, and assert that because
the instruction concerns Presidential records it is
unreviewable. To the contrary, this Court
specifically held that review is available to hear
claims that agencies' "recordkeeping guidelines and
directives do not adequately describe the material
that must be retained as 'records' under the FRA."
924 F.2d 293. Plaintiffs' challenge here does not
seek to interfere with the disposition of records that
do, in fact, qualify as Presidential records, but
concerns the disposition of Federal records that are
erroneously described by the guidelines as not being
subject to the FRA, because they are incorrectly
labelled Presidential records.
Indeed, neither the footnote nor the opinion can be
read as overruling sub silentio Soucie and related
decisions and holding that the distinction between
Federal and Presidential records is now governed by
agency guidelines that are immune from review. Since
the decision in Armstrong I, this Court has continued
to apply the "sole function" test to review government
contentions that records are not agency records,
rather than simply accept the administration's
conclusion that they are governed by the PRA. See
Meyer v. Bush, 981 F.2d 1288 (1993).
Moreover, judicial review is necessary to prevent
agencies from using the "Presidential records" label
as a vehicle to evade the FRA and FOIA for paper and
electronic records. This Court's decisions applying
the sole function test have noted that, without the
bright line adopted in Soucie, agencies would be able
to exempt a large portion of their records from the
open government laws. See Ryan, 617 F.2d at 788-89.
This is precisely the effect of the guidelines at
issue here. For example, the NSC acknowledged that
approximately three-quarters of the memoranda produced
by its staff are classified as "presidential" and
treated as exempt from the FRA and release under the
FOIA. JA 247. Nothing in the PRA, or this Court's
prior decision approves or precludes review of such
conduct, and the district court's decision not to
review whether these guidelines violate the FRA must
be reversed.
IV. DEFENDANTS' FAILURE TO SUPERVISE OR REVIEW
RECORDKEEPING PRACTICES FOR THEIR ELECTRONIC
RECORDS VIOLATES THE FRA.
Accurate and adequate recordkeeping guidelines are
necessary, but are not sufficient by themselves to
satisfy an agencies' obligations under the FRA. The
Archivist's regulations make clear that the statutory
obligation to "maintain an active, continuing program"
for managing records with "safeguards" against their
loss requires agencies to supervise how the guidelines
are applied, and periodically to review and evaluate
the adequacy of the agencies' practices. See 36 C.F.R
'' 1220.54, 1222.50, 1222.20, 1228.12, 1234.10. The
NSC and EOP acknowledge that they do not comply with
these requirements for electronic records and, indeed,
recordkeeping personnel pay no attention to the
records on these electronic systems. See JA 186-90.
Specifically, the regulations require that agencies
periodically review their records management program
to determine its adequacy and effectiveness, and
require that the evaluation include auditing
representative samples of files and scrutiny of
electronic records systems for conformance to
recordkeeping procedures. 36 C.F.R. '' 1220.54,
1222.50(b)(5), 1234.10(l), 1222.20(b)(8). Because the
EOP and NSC never conducted such a review, JA 189, the
district court properly found that they must institute
such programs to comply with these mandatory
regulations. JA 74.
The regulations also require that agencies
implement "standards and procedures for classifying,
indexing, and filing records as set forth in GSA and
NARA handbooks." 36 C.F.R. ' 1222.50(b)(1). The NARA
Handbook on "Disposition of Federal Records," which is
specifically referenced in the regulations, see id.
' 1228.22, provides that "only records officers should
determine the record or nonrecord status of files" and
that staff at operating levels should not have such
authority because it "weakens the disposition program
by indiscriminate use of the nonrecord label and can
result in the loss of valuable records." JA 190-6 76,
784-85. In accordance with this guidance, records
officers of the EOP and NSC review paper materials for
misclassification, but no oversight is applied to
staff treatment of electronic mail. JA 191, 867-73,
959-60, 996-98. No sampling is done to determine if
staff properly apply the guidelines, and no safeguards
are in place to assure that records are not being
intentionally or inadvertently destroyed. The
district court found that this was improper and an
agency is "not permitted to allow its [operating]
staff to make its record keeping decisions under the
FRA without some supervision from recordkeeping
personnel." JA 73.
Defendants' appeal on this issue is based entirely
on mischaracterizing the decision and ignoring the
mandate of the regulations. The district court did
not require "special" oversight, but found the
agencies' procedures "arbitrary and capricious"
because there is no oversight at all by recordkeeping
personnel. JA 72-75. Nor did the district court
impose its own reading of the statute; rather, the
requirements the district court invoked are imposed by
the Archives' regulations that specify the measures
agencies must take to manage and safeguard records
under the Act.
Moreover, it is only common sense that adequate
programs for ensuring that records are preserved must
include inspections to determine what types of records
are created, ongoing evaluation, and safeguards
against mistaken or intentional misclassification of
records -- just as the Archives' regulations provide.
The regulations make clear that each agency must have
recordkeeping personnel that are specifically
responsible for development and implementation of the
agencies' recordkeeping program for all forms of
records, including electronic records. 36 C.F.R.
'' 1222.20(a), 1234.10(a). That mandate is plainly
not fulfilled where, as here, the responsible
recordkeeping personnel make no effort to examine the
implications of electronic communications systems to
the agencies' recordkeeping responsibilities, let
alone review whether electronic records are being
properly preserved.
V. THE DISTRICT COURT'S INJUNCTION IS PROPER.
Because the backup tapes preserved in this action
and the electronic communications systems themselves
contain "records" dating back to 1985 that have not
been managed or preserved under proper guidelines, the
district court enjoined the destruction of these
materials, and remanded to the Archivist "for
appropriate and immediate action to preserve" the
records in accordance with the FRA. JA 86-87.
Defendants claim that this was improper and that they
should not have been enjoined from destroying these
records. But defendants' arguments on this score are
based on a wanton disregard for the facts.
A. Injunctive Relief Against The Archivist.
Defendants' argument that the district court abused
its discretion by ordering the Archivist to perform
his obligation under 44 U.S.C. ' 2905 to take steps to
preserve the electronic records at issue here are
disingenuous, to put it mildly. First, defendants
contend that the order "pretermits the statutory
process" because the Archivist did not "become aware"
of improper destruction or removal of records until
the district court issued its decision. Br. at 46-47.
To the contrary, the undisputed facts in the Joint
Statement show that the Archivist had long been aware
of reports of improper destruction of these electronic
records, and wholly abdicated his duties with respect
to the NSC and EOP. In 1986 and 1987 the Iran-Contra
investigations produced some of the most notorious
reports of the destruction of government records in
history, as individuals testified openly before
Congress and in court of erasing, altering, removing,
shredding or otherwise destroying NSC records,
including electronic communications. Moreover, the
reports of the destruction of records that emerged
from the Iran-Contra investigations were not limited
to the destruction of records as part of a cover-up,
but also pointed to the deficiencies in the NSC's
guidelines since it was disclosed that it was the
practice of at least some officials to regularly erase
electronic communications. Nonetheless, the Archives
admitted that it took no action, made no effort to
contact the NSC, and did not gather any information
beyond the reports in the press. JA 253-55. In
addition, the Archives acknowledged that it has never
reviewed the EOP's or NSC's guidelines concerning
electronic records, JA 255, even though it has issued
repeated bulletins and regulations directing agencies
to submit copies of their electronic records
directives. See 36 C.F.R. ' 1222.20(b)(3), JA 722, 753
6 5.
Defendants' second argument, that the district
court should not have enjoined the agencies from
destroying electronic communications until after they
were given a "reasonable time" to issue conforming
guidance, Br. at 47, ignores the law and the fact that
defendants themselves told the Court that they would
not voluntarily agree to preserve the records.
Because these materials contain records, the FRA
itself prohibits destroying them until the records are
properly appraised under the statutory procedures, and
the proper remedy is to enjoin their destruction until
the agencies comply with these requirements. 44
U.S.C. ' 3314; 36 C.F.R. ' 1234.32; see American
Friends, 720 F.2d at 35, 68-69 (affirming similar
relief where disposition schedules were improper). In
December, 1992, after the district court entered a
temporary restraining order to prevent destruction of
electronic records by departing Bush Administration
staff, the defendants told the district court that
they would not voluntarily agree to preserve computer
records of the Bush Administration past January 7,
1993, and even declined to extend the date when the
district court requested additional time to prepare
its decision. See Order of December 30, 1992;
Transcript of Hearing of December 31, 1993, at 8-9.
Under these circumstances the district court's
injunction and direction that the Archivist act
immediately was fully warranted.
B. The EOP As Defendant. Defendants' argument
that the injunction should be vacated because the EOP
is not an "agency" is also based on a total disregard
for the record below. This is an entirely new
argument that was never presented to the district
court. The EOP was added as a defendant on April 25,
1991, and defendants asserted that it is not a proper
party in their Answer. But defendants never took any
steps to present this defense to the district court:
they never moved to dismiss the EOP, never raised the
claim in their summary judgment motion, and never
presented it in opposition to plaintiffs' cross
motion. Even after the injunction was entered,
defendants never moved to amend it to exclude the EOP.
Having remained silent for so long below, defendants
cannot raise the issue for the first time here. See
District of Columbia v. Air Florida, 750 F.2d at 1084.
Second, the defense is meritless because the EOP --
not the individual components -- is the "agency" that
is responsible for compliance with the FRA. Contrary
to defendants' assertions, there is a single
recordkeeping management program for all the EOP
components that create Federal records, with the
exception of the NSC, and it is carried out in the
name of the "EOP" by the Library and Information
Services Division ("LISD") of the OA. JA 198. Records
disposition schedules are submitted to the Archives
with the EOP named as "agency" and the component as a
"subagency" of the EOP, and LISD certifies the
disposition schedules for all these components as the
"authorized agency representative" of the EOP under 36
C.F.R. ' 1228.26(b). See Dep. of Mary Hester Anton,
pp.29-39 and Exs. 27, 28 (Doc. No. 107, July 6, 1992).
Likewise, the recordkeeping guidelines for all these
components are contained in a single manual,
promulgated in the name of the EOP, by the "EOP
Records Management Officer." JA 436-37, 819-20. Thus,
the EOP is not merely a colloquial name, but the
"agency" used to exercise the "authority of the
Government," 5 U.S.C. ' 701(b)(1), under the FRA, and
in other contexts. See, e.g., 3 C.F.R. '' 101-102 (EOP
regulations).18
CONCLUSION
This Court should reverse the district court's
decision not to review whether defendants' guidelines
violated the FRA by instructing staff to treat Federal
records as Presidential records, and affirm the
decision below in all other respects.
Respectfully submitted,
Michael E. Tankersley
David C. Vladeck
Alan B. Morrison
Public Citizen Litigation Group
Suite 700
2000 P Street, N.W.
Washington, D.C. 20036
(202) 833-3000
May 3, 1993 Counsel for Appellees/Cross-Appellants.
1 The Archivist's authorization may be given in one of two
ways: (1) for records that are common to several agencies,
authorization is provided through General Records Schedules,
36 C.F.R. ' 1228.40; and (2) for other records, agencies must
submit a specific request to the Archivist to approve
disposition of the material as temporary records.
36 C.F.R. ' 1228.30.
2 The term "systems" is used here to describe arrangements
that use several computers in a "network" and more than one
software. For example, the NSC uses communications software
known as "PROFS" and another software known as "A1" or
"All-in-One" on computers that are interconnected. The other
components of the EOP, on the other hand, began using "PROFS"
in 1986, then introduced a separate computer using
"All-in-One" software in 1989, and phased out the use of PROFS
by mid-1992. JA 168-69.
3 Indeed, disposition schedules are full of descriptions
of routine materials that are preserved for only a short
period of time but, nevertheless, are "records" that must be
managed and disposed of in accordance with the FRA. See,
e.g., JA 298, General Records Schedule 23 6 7 (authorizing
disposition of "Transitory Files" after three months or less);
JA 786, 797 (approximately 95% of all records are temporary
records).
4 The PROFS electronic mail software has a separate
function for "short and informal" communications that are
never retained, called "messages." JA 656. Because they are
never filed or stored, messages are analogous to telephone
slips discarded after they are received or oral communications
that are never recorded, and are not "preserved" under the
definition of "record."
5 Defendants' Memorandum of Points and Authorities in
Opposition to Plaintiffs' Request for A Sampling (Doc. No. 93,
Mar. 9, 1992), Ex. B, Dec. of Meredith Jolly, 6 16 (experience
indicates that moderate users of NSC system had 150-200 pages
of notes stored in their files at one time).
6 See Defendants' Memorandum of Points and Authorities in
Opposition to Plaintiffs' Request for a Sample of the
Materials on the Preserved Backup Tapes at 4, 12-14, 15-16
(Doc. No. 93, Mar. 9, 1992); Order of May 22, 1992 (Doc. No.
100) (sample would require exhaustive review for classified,
privileged, and personal information).
7 See Appeal No. 93-5002, Emergency Motion for Stay
Pending Appeal (Jan. 15, 1993), Ex. D, Decl. of Cornelious F.
O'Leary 6 4; Ex. I, Decl. of Brent Scowcroft.
8 Defendants also cite a December 29, 1988 Memorandum on
"Transition Processing of Computerized Data." Br. at 44. But
this Memorandum, issued in anticipation of plans for clearing
all data from the computer at the end of the Reagan
Administration, contains no instruction to print all materials
that qualify as Federal records before they were to be erased.
JA 203.
9 Based on this testimony, North's lawyers successfully
argued that he could not be convicted of violating 18 U.S.C.
' 2071 based on the destruction of PROFS notes. See JA
685-690; United States v. North, 716 F. Supp. 644, 647
(D.D.C. 1989) (jury instructed not to consider any evidence
concerning the destruction of PROFS notes in connection with
the ' 2071 count).
10 While NSC staff sometimes characterized the oral
guidance as instructing staff to print electronic mail, when
pressed they acknowledged that they could not recall precisely
what instructions were given, or that the instructions were,
in fact, the same as the statements found in the written
guidelines. See, e.g., JA 923:21-926:12; 928:14-931:19; 981,
312-33; see also 918-22 (oral recordkeeping guidance is just
one topic in 15-20 minute orientation session which also
covers handling of classified materials, FOIA, and Privacy Act
obligations, and distribution of 40-50 pages of documents).
11 The new guidelines have additional infirmities in that
(i) they only address "notes" or "electronic message[s]" and
provide no instructions concerning electronic scheduling
"calendars" or "documents," and (ii) the OA directive
instructs staff to print electronic messages if they contain
"official records information" that is not recorded elsewhere,
and the term "official records information" is not defined. JA
205.
12 JA 649 (users can print directories and logs);
Defendants' Memorandum of Points and Authorities in Opposition
to Plaintiffs' Request for A Sampling (Doc. No. 93, Mar. 9,
1992), Ex. B, Dec. of Meredith Jolly, 6 9 (estimating it would
take one hour to retrieve three sets of directories from
backup tapes).
13 The absurdity of defendants' position is illustrated by
recognizing that their argument is no different than claiming
that, because this Court has all of the official reporters in
paper form, LEXIS or Westlaw are merely extra copies that have
no special value to the Court's work.
14 In addition, the Pamphlet emphasizes that, even where
agencies apply the General Records Schedules to dispose of
electronic materials, there must be "a clear understanding by
all employees of the obligation to print and file all record
material," JA 806 -- which, as discussed elsewhere,
defendants' guidelines fail to provide.
15 The belated nature of the NSC's action is also
underscored by the fact that the system it introduced in May,
1992 is similar to one of the methods for managing electronic
records suggested by the Archives in its 1985 Bulletin. JA
725-26.
16 The documents in the Declaration of James Hastings that
defendants claim provided the necessary guidance to OSTP staff
were, in fact, not distributed to OSTP staff. See EOP Response
to Inter. No. 40(a) (Doc. No. 108, filed July 6, 1993, Tab 15)
(Exhibit 1 to Hastings Declaration was not routinely
distributed outside the White House Office and Exhibit 2 was
sent only to agency heads). As to the NSC, the document
defendants rely upon was not issued until the end of the
Reagan Administration, on November 4, 1988. JA 304, 330-35.
17 The footnote is also correct to the extent it is
intended to reflect that the Assistant to the President for
National Security Affairs may have records physically located
at the NSC that are not "agency records" because they are not
created or used by agency staff, and are not within the
control of the agency. Kissinger, 445 U.S.C. at 157; cf.
Wolfe v. HHS, 711 F.2d 1077 (D.C. Cir. 1983). But the NSC
guidelines at issue here are not limited to such records.
18 Defendants appear to suggest that because the EOP's
regulations require that FOIA requests be submitted directly
to each component, see 3 C.F.R. ' 101.1, the EOP is not an
"agency." Br. at 48. But these very regulations were
promulgated by the EOP as an "agency" under 5 U.S.C. ' 552,
and do not distinguish the EOP from other multi-component
agencies that have adopted the same procedures. See, e.g., 7
C.F.R. '' 1.3, 1.6 (Dept. of Agr.).

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