PROFS case

   (Filed by the Plantiffs on July 6, 1992, in the court of Judge Charles Richey) 
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________________
)
SCOTT ARMSTRONG, et al., )
)
Plaintiffs, )
)
v. ) C.A. No. 89-0142 CRR
)
EXECUTIVE OFFICE OF THE PRESIDENT, et al., )
)
Defendants. )
___________________________________________)
PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR
SUMMARY JUDGMENT ON
THE ADEQUACY OF DEFENDANTS' RECORDKEEPING GUIDELINES
AND THE ARCHIVIST'S FAILURE TO PERFORM HIS STATUTORY DUTIES.
Michael E. Tankersley
Patti A. Goldman
Alan B. Morrison
Public Citizen Litigation Group
Suite 700
2000 P Street, N.W.
Washington, D.C. 20036
(202) 833-3000
Of Counsel: Kate Martin
Sheryl Walter American Civil Liberties Union
National Security Archive Foundation
1755 Massachusetts Ave., N.W. 122 Maryland Avenue, N.E.
Washington, D.C. 20036 Washington, D.C. 20002
(202) 797-0882 (202) 675-2327
Attorneys for Plaintiffs
TABLE OF CONTENTS
Introduction 1
BACKGROUND 4
The Federal Records Acts 4
Statement of Facts 7
SUMMARY OF THE ARGUMENT 12
ARGUMENT 15
(Page number different in electronically transmitted version)
I. THE INFORMATION PRESERVED ON DEFENDANTS' ELECTRONIC
MAIL SYSTEMS IS "RECORD" MATERIAL UNDER THE FRA. 15
A. Defendants' Assertion That Most Electronic Mail Is
Nonrecord Material Lacks Any Foundation. 15
B. Electronic Mail Communications Stored On The Backup
Tapes And Electronic Mail Systems Are Records
Because They Are Preserved Or Appropriate For
Preservation 17
1. The Backup Tapes Contain Communications
That Are Appropriate for Preservation. 18
2. Electronic Communications Preserved
By Agency Personnel Are Records Under The FRA 20
II. ELECTRONIC MAIL MATERIALS ARE NOT "EXTRA COPIES PRESERVED
ONLY FOR CONVENIENCE OF REFERENCE." 23
A. Defendants Originally Gave No Instructions On
Preservation Of Electronic Mail, And Now Give
Instructions That Are Erroneous As A Matter of Law. 24
1. Defendants' Recordkeeping Guidelines
During The Period That The Information
On The Preserved Backup Tapes Was Created. 25
a. The EOP's Guidelines. 25
b. The NSC's Guidelines. 26
2. Defendants' Recordkeeping
Guidelines Since January, 1989. 30
3. Defendants' Oral Guidance. 33
B. Electronic Mail Materials Are Not "Extra
Copies Preserved Only For Convenience of Reference." 35
1. When Information Is Recorded
In Both Electronic And Paper Formats,
Both Formats Are Records. 35
2. PROFS Contains Information
Recorded Only In Electronic Form. 37
3. Information Recorded Electronically On PROFS
Is Not Preserved Only For Convenience
of Reference. 39
III. DEFENDANTS' GUIDELINES ON DISTINGUISHING FEDERAL RECORD,
PRESIDENTIAL RECORD, AND NONRECORD INFORMATION
ARE ERRONEOUS AND INADEQUATE. 40
A. The NSC Has Erroneously Instructed Staff
To Treat Federal Records As Nonrecord Material. 41
B. The EOP Has Failed To Provide
Accurate, Specific Guidelines On
Distinguishing Record and Nonrecord Materials. 43
C. The EOP and NSC Have Erroneously Instructed Staff
To Treat Federal Records As Presidential Records. 45
1. EOP Records Are Agency Records Unless
The Sole Function of The Component
Agency Is To Advise And Assist The President. 45
2. The Guidelines of The OSTP Erroneously
Label Federal Records As Presidential Records. 49
3. The Guidelines of The NSC Erroneously
Label Federal Records As Presidential Records. 50
a. The NSC's Guidelines Improperly
Classify Communications Between
NSC Staff As Presidential Records 51
b. The NSC's Guidelines Improperly
Treat Records Of The APNSAs and
Deputy APNSAs As Exempt From the FRA 54
4. The Guidelines Fail To Identify The
Records Of The Regulatory Task Forces
As Federal Records. 56
IV. DEFENDANTS HAVE FAILED TO ESTABLISH A
MANAGEMENT PROGRAM AND SAFEGUARDS FOR ELECTRONIC MAIL. 59
V. THE ARCHIVIST HAS FAILED TO CARRY OUT HIS
DUTY TO TAKE ACTION TO RECOVER
IMPROPERLY DESTROYED AGENCY RECORDS 63
CONCLUSION 67

Introduction
On June 18, 1985, the National Archives released a
bulletin to the heads of federal agencies reporting 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." To prevent "a
tremendous increase in the unauthorized destruction of Federal
records," the Archives instructed agencies to institute plans for
keeping records in electronic form and to undertake a major
training effort to educate staff on the recordkeeping issues
presented by automated office systems. Plfs' Appendix, Tab 1.
At about the same time that they received this bulletin,
the National Security Council ("NSC") and other components of the
Executive Office of the President ("EOP") introduced electronic
mail systems known as the "Professional Office System" or "PROFS."
Despite the Archives' warning, neither the EOP nor the NSC
introduced any directives, plans or programs to preserve records
created on these electronic office systems, or to educate their
staff on their preservation. When the Archives reissued its
bulletin in 1987, the EOP and the NSC, once again, ignored it.
Id., Tab 2.
As the Archives predicted, the EOP's and NSC's inaction
led to "a tremendous increase in the unauthorized destruction of
Federal records." The investigations of the Iran-Contra Affairs
have revealed that, in many cases, the only evidence of important,
substantive communications concerning the policies, decisions and
actions of the NSC during this period exists on the backup tapes of
the NSC's electronic mail system. But most of the electronic
records from this period have been destroyed because staff were not
instructed to preserve them and the agencies routinely erased the
information on the backup tapes by reusing them. The electronic
records that survive are those on the backup tapes that escaped the
agencies' normal procedures because of the Iran-Contra
investigation and the restraining order entered at the beginning of
this action. Yet the EOP, the NSC and the Archivist still have not
taken any steps to ensure that the important electronic records on
these tapes are preserved.
Today, the use of electronic mail at the EOP and NSC has
become even more widespread, but the agencies still have no program
for preserving electronic mail records in accordance with the
Federal Records Acts ("FRA"). In response to this litigation, the
agencies issued new recordkeeping guidelines, but even the new
guidelines misstate the definition of what constitutes a Federal
record. The agencies continue to treat the records stored
electronically on their computer systems and backup tapes as
"nonrecord" material and routinely destroy it without any appraisal
of its archival value. As a result, records concerning some of the
most important acts, decisions and policies of the Federal
government are being systematically erased each day as defendants
reuse their backup tapes.
Indeed, defendants acknowledge that they have designed
their electronic mail systems to conduct government business "off-
the-record." In their latest submission, they argue that if they
succeed in their claim that they can deem all information stored
electronically to be "nonrecord" under the FRA, they have also
placed all of this information beyond the reach of the Freedom of
Information Act. They have established the system outside the
records laws, they say, so that staff can control which, if any, of
the electronic communications they write may be examined by
historians or the public. See Defs' Memorandum in Support of
Summary Judgment On Narrowed FOIA Requests at 28-29.
The FRA flatly forbids agencies from establishing such a
"nonrecord" record system. In this memorandum we show that
defendants' motion for summary judgment must be denied because the
undisputed facts show that their guidelines on electronic mail are
erroneous as a matter of law, and their practice of regularly
destroying their electronic records as "nonrecord" material
violates the FRA. Accordingly, plaintiffs move for summary
judgment, and request that the Court:
1. Declare that defendants' recordkeeping practices prior to
the initiation of this action were unlawful, and that the backup
tapes preserved in connection with this action contain Federal
records that must be retained in accordance with the FRA.
2. Declare that defendants' current guidelines on preserving
electronic mail are unlawful, and that defendants may not erase,
destroy, or otherwise dispose of the information recorded on their
electronic mail systems (including the current backup tapes in
their custody) until they implement recordkeeping programs that
comply with the FRA.
3. Order the Archivist to investigate the recordkeeping
practices of the EOP and NSC, and take action to assure that
electronic records on the agencies' backup tapes are recovered and
made part of the their records systems.
**1. Consistent with Defendants' Supplemental Brief on Summary
Judgment, plaintiffs here address Count II of the Second Amended
Complaint relating to the adequacy of the guidelines, and Count IV
concerning the Archivist's duties to initiate action to recover
unlawfully removed records. Because defendants now disclaim any
reliance on the General Records Schedules as authority for their
practices, Count III is no longer at issue. Plaintiffs will
address Count I, concerning plaintiffs' Freedom of Information Act
claim, in responding to the motion filed by defendants on July 2,
1992. See Defs' Supplemental Brief In Support of Motion for
Summary Judgment, at 1 n.1**
BACKGROUND
The Federal Records Acts
The Federal Records Acts define 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.
**2. The FRA is actually a series of statutes, which originated
with the Federal Records Act of 1950 and the 1943 Disposal of
Records Act. 44 U.S.C.  2101, et seq.,  2901, et seq.,
 2901,  3101, et seq.,  3301, et seq.**
The requirements of the FRA apply to any
materials that fall within the statutory definition of "record." 44
U.S.C.  3301. There are three aspects of the definition that are
important here:
First, the statutory definition covers all formats and
media, "regardless of physical form or characteristics." Id. Thus,
agencies are specifically required to establish a program to ensure
that information recorded electronically is managed in accordance
with the FRA. 36 C.F.R.  1234.10, 1234.30.
Second, 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). Defendants sometimes
refer to this as "rising to the level" of a Federal record. See,
e.g., Defs' Statement of Material Facts,  28.
Third, copies of materials that have record status are
exempt from the statutory definition if they fall within one of
three exceptions. One of these exemptions, which covers "extra
copies preserved only for convenience of reference," is at issue
here. 44 U.S.C.  3301.
The FRA mandates that the head of each Federal agency
shall "establish and maintain an active, continuing program for the
economical and efficient management of the records of the agency"
and "establish safeguards against the removal and loss of records,"
in compliance with the records statutes and their accompanying
regulations. Id.  3102, 3105. But the ultimate responsibility
for determining whether, when, and how record material may be
disposed of is vested in the Archivist, not the agencies. 44
U.S.C.  3303, 3303a, 3314. Agencies are prohibited from
disposing of records without the approval of the Archivist. 36
C.F.R.  1220.38, 1234.32; see American Friends Serv. Comm. v.
Webster, 720 F.2d 29, 62-63 (D.C. Cir. 1983) (describing
Archivist's responsibilities in authorizing disposal). 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.  1228.20(b).
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; 44
U.S.C.  3303a(a). Records with sufficient historical value are
eventually transferred to the Archives as "permanent" records. Id.
 1228.28(c); 44 U.S.C.  2107. For temporary records, the
Archivist is responsible for authorizing disposition of the records
after they have been retained for an appropriate period of time.
36 C.F.R.  1228.30; 44 U.S.C.  3302-3303a.
The Archivist is also responsible for preventing improper
records practices by agencies. The FRA directs that the Archivist
shall "promulgate standards, procedures, and guidelines with
respect to records management," and "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)(1),
(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). If the head of the Agency takes no action, the Archivist is required to request that the Attorney General initiate such action, and to notify the Congress. Id. Statement of Facts The relevant facts are set forth in detail in plaintiffs' statement of undisputed facts. ("SoF") The facts in this case are complicated because, over the last seven years, the EOP and NSC have established several electronic mail systems, have maintained separate and different recordkeeping guidelines, and have increased and changed their guidelines. These detailed facts, however, can be summarized in the following broader statements of ultimate facts, and mixed questions of law and fact, that establish plaintiffs' claim for relief: Certain components of the EOP, including the NSC, use electronic mail systems to transmit inter- and intra-office electronic mail, to share appointment calendars, to create and edit memoranda, and to transfer files and documents in electronic format. Since the mid-1980s, the NSC and other components of the EOP have maintained separate electronic mail systems using an IBM software known as the "Professional Office System," or "PROFS." SoF  1-31. PROFS and other electronic mail systems store information in the computer so that it can be accessed, edited, transmitted, and re-transmitted electronically over the system. Electronic mail notes are preserved in files that are comparable to paper files and are controlled by individual staff; calendars and documents are stored on-line in the computer for a year or longer. In addition, both the EOP and NSC store electronic mail on "backup tapes" that are used to recover lost information in its original, electronic format. SoF  32-37. The NSC and EOP electronic mail systems and backup tapes contain information on the organization, functions, policies, decisions, procedures, operations, and other activities of the federal agencies that use the system. The importance of these systems as a record of the activities of the government has been dramatized by the important role they played in providing information for investigations of the Iran-Contra Affairs, and the subsequent use of the PROFS backup tapes by the Justice Department and NSC. SoF  54-61, 64. The EOP and NSC have never made their electronic mail systems part of their recordkeeping program: (a) they have never conducted an examination or survey to assess the type or amount of information on the policies, decisions, and other agency activities recorded in PROFS files; (b) they have never sought to integrate recordkeeping considerations into the operation of these systems; (c) they have never evaluated the effectiveness of their recordkeeping practices with respect to electronic mail; (d) they have never established safeguards against staff erroneously destroying electronic materials; and (e) they have never obtained authorization from the Archivist to dispose of information recorded electronically on PROFS or any other electronic mail system. SoF  65-84. A number of PROFS backup tapes containing information recorded on the NSC and EOP PROFS systems between 1985 and the end of the Reagan Administration in January, 1989, have been preserved in connection this action. During the period covered by these backup tapes, neither the EOP nor the NSC's recordkeeping manuals contained any instruction that electronic materials with information of "record status" must be printed for preservation in a paper format. The only written guideline during this period that even comes close to such an instruction is in a memorandum distributed only to the NSC staff at the very end of the Reagan Administration, and the instructions in that memorandum give
inaccurate guidance on what constitutes a Federal record. SoF 
89-98, 107-116, 135-140.
Since this suit was filed in January, 1989, the NSC,
the Office of Administration ("OA") and the Council on
Environmental Quality ("CEQ") have issued new recordkeeping
guidelines. These EOP units now give instructions that staff
should convert certain information on electronic mail systems to
hard-copy if the communication meets the agency's definition of a
Federal record and the information does not appear elsewhere in a
paper record. Defendants rely on these instructions as
justification for routinely destroying their PROFS materials as
"extra copies retained only for convenience of reference." 44
U.S.C.  3301; SoF  99-106, 117-128, 141-143.
Paper copies of material printed out from
defendants' electronic mail systems are not equivalent to the
information recorded in its original, electronic format for several
reasons. The electronic format of the information may be more
easily searched and managed and, thus, may be more valuable from an
archival standpoint. SoF  144-155. Moreover, not all of the
information recorded electronically on PROFS appears on paper
print-outs. SoF  40-53. Finally, agency staff continue to
modify and use the information in its original, electronic format
for purposes other than reference. SoF  32-37.
The NSC has issued instructions to its staff stating
that drafts of documents seen by other members of the NSC staff or
other agency personnel, correspondence between members of the NSC
staff or other agency personnel, schedules of meetings and
appointments, and electronic mail notes concerning "routine" office
procedures are "nonrecord" materials. SoF  128-134.
The EOP's guidelines on distinguishing Federal
record and nonrecord materials quote the statutory definition and
Archives' regulations, but provide no specific guidance to staff on
what types of electronic mail communications must be preserved as
records. SoF  93.
Several component agencies of the EOP serve dual
functions of advising the President and performing independent
functions as "agencies" of the Federal government. For most of
these components, the EOP's recordkeeping guidelines provide that
all records made or received by the staff are treated as Federal
records. In the case of the Office of Science and Technology
Policy and NSC, however, the guidelines instruct staff that some of
the records that the staff make or receive in the course of
performing their official duties are not Federal records but,
instead, should be treated as Presidential records. SoF  157-
221.
During the Reagan and Bush Administration, agencies
known as the Task Force on Regulatory Relief and Council on
Competitiveness were established within the EOP. The records made
or received in performing the work of these entities are Federal
records, but the EOP's guidelines make no provision for preserving
these records in accordance with the FRA. SoF  222-227.
Despite specific reports concerning the destruction
of electronic mail communications of the NSC during the Iran-Contra
Affairs, and reports that it was the practice of some officials to
routinely erase PROFS communications, the Archivist has made no
effort to ensure that destroyed electronic records are recovered,
and has never exercised his authority to evaluate the adequacy of
the recordkeeping guidelines of the NSC or EOP. SoF  228-38.
SUMMARY OF THE ARGUMENT
Plaintiffs' challenge to the NSC's and EOP's
recordkeeping practices rests squarely on the language of the FRA
and the official statements of the Archives. Comparing defendants'
guidelines with these standards shows that they are inconsistent
with the plain text of the statute and the guidance of the agency
charged with its interpretation.
Recordkeeping practices and guidelines are inadequate if
"they permit the destruction of "records" that must be preserved
under the FRA." Armstrong v. Bush, 924 F.2d 282, 291, 297 (D.C.
Cir. 1991). Defendants' practice of not only permitting, but
actively providing for the destruction of electronic mail
communications by arbitrarily deeming it nonrecord material without
even examining its content, makes clear that they cannot satisfy
this test. The FRA mandates that all records, including those in
electronic form, must be preserved, unless the Archives has
authorized disposal. Defendants, however, routinely destroy
electronic mail materials without any authorization from the
Archivist. To defend this practice, they assert that all such
materials are "nonrecord" because: (1) most information preserved
on their electronic mail systems is not "appropriate for
preservation"; (2) if electronic mail communications do qualify as
records, the electronic version is "nonrecord" material under the
exemption for "extra copies preserved only for convenience of
reference" because staff have been instructed to print on paper any
communication that rises to the level of a "record"; and (3) the
staff can determine which communications rise to the level of a
record because they have been given accurate and adequate
instructions on distinguishing Federal record, Presidential record,
and nonrecord materials. To show that they are not unlawfully
destroying electronic "records" in violation of the FRA, defendants
must sustain all three of these assertions. As we show below,
defendants' position is contrary to law on all three points.
First, we show that the vast majority of the materials
stored on PROFS and other electronic mail systems are "records"
under the statutory definition. Defendants' claim that most
electronic mail is nonrecord is unsupported by any examination of
their system, and is contradicted by the important, substantive
PROFS communications disclosed through the outside investigations
of the NSC's activities in the Iran-Contra Affairs. Moreover,
their assertion that only those materials that they deem
"appropriate for preservation" are records under the statute
misstates the law and results in the unlawful disposal of records
without independent appraisal or authorization from the Archives.
Second, we show that defendants' argument that materials
stored in electronic format are merely extra copies of paper
records, preserved only for convenience of reference, must be
rejected for two independent reasons: (A) The factual premise for
the argument fails because defendants never issued guidelines
instructing staff to print paper copies of all electronic mail
materials that satisfy the definition a Federal record. Indeed,
the EOP and NSC manuals on recordkeeping in use since 1985 contain
no instructions on printing-out electronic mail, and the new
guidelines issued after this suit began still do not contain the
instruction defendants claim. (B) Even if the instruction
defendants rely upon had been given, the electronic recordings that
defendants routinely destroy do not fall within the statutory
exception. The electronic materials are not "extra copies" because
their form and content are unique. In addition, the facts show
that they are not used "only for convenience of reference." Id.
Third, we show that defendants have given staff erroneous
or inadequate instructions on identifying Federal records. The NSC
has erroneously instructed staff that certain materials that
qualify as records should be treated as nonrecord material. The
EOP has given inadequate instructions on identifying record
material in electronic mail communications. And, finally, both the
EOP and NSC have erroneously instructed staff that certain
materials made and received by agency personnel are not Federal
records but Presidential records.
Fourth, we show that, in addition to these violations of
the statute, defendants have ignored electronic mail in their
recordkeeping program. The NSC and the EOP have never taken the
steps prescribed by the Archivist to properly manage these records
and establish safeguards against their destruction.
Finally, we address Count IV, plaintiffs' claim
concerning the Archivist's conduct. The investigations of the
Iran-Contra Affairs have demonstrated that electronic mail
communications of significant historical value were not preserved
in the NSC's official records system and that these communications
can be recovered from the backup tapes of the PROFS system.
Despite this, the Archivist has failed to perform his statutory
duty to initiate action to ensure that records from these tapes are
recovered and placed in the agencies' record systems, and he has
abdicated his responsibility to take action to correct the
recordkeeping violations of the EOP and NSC.
ARGUMENT
I. THE INFORMATION PRESERVED ON DEFENDANTS' ELECTRONIC
MAIL SYSTEMS IS "RECORD" MATERIAL UNDER THE FRA.
Defendants deny that the preserved PROFS backup tapes
contain Federal records, and argue that most electronic mail
materials are not "records" under the FRA because only those
materials that they have deemed "appropriate for preservation" are
"records." Defs' Statement of Material Facts  28; Defs' Motion
for Summary Judgment at 27; Defs' Supplementary Brief on Summary
Judgment at 20; SoF  65, 128. This contention is erroneous as a
matter of fact and law. The facts show that defendants have never
reviewed their electronic mail systems to determine the amount of
record material they contain. The investigations that have looked
at materials stored on PROFS backup tapes show that PROFS is used
for important, substantive communications that are "appropriate for
preservation." Finally, the law also provides that materials that
are, in fact, "preserved" are records and must be handled in
accordance with the procedures mandated by the FRA.
A. Defendants' Assertion That Most Electronic Mail Is
Nonrecord Material Lacks Any Foundation.
Defendants instruct their staff that "the most common
types of electronic mail notes are non-record materials." SoF 
128. Indeed, this is a fundamental premise of their argument that
it is rational for them to treat electronic mail as nonrecord
material.
**3. Defs' Motion for Summary Judgment at 7, 38 (filed Aug. 28,
1991) ("Given the nature of the PROFS system, it is unlikely that
a significant portion of these materials would contain substantive
information about formal government business."); see also
Defendants' Reply to Plaintiffs' Opposition to Defendants' Motion
to Dismiss or Alternatively for Summary Judgment at 23 (filed March
10, 1989) ("PROFS is merely a medium used largely for transmittal
of non-substantive messages").*
The premise, however, has no foundation in fact.
Defendants have never undertaken any examination, inspection or
survey to determine how often staff use electronic mail to conduct
agency activities, or to determine how much of the material stored
on the system and backup tapes contains valuable information. SoF
 67, 68. Other agencies and entities that have conducted such
surveys have discovered that substantial amounts of important, and
sometimes unique, "record" information is stored by users of
electronic mail systems.
**4. See Plfs' Declarations and Exhibits, Tab 1, Nowicke Dec. 
8-10 (describing electronic mail archiving study by Navy
Laboratories); id. Tab 2, Electronic Mail Use at the [World] Bank:
A Survey and Recommendations,  17, 22, 45 (finding 96% of
electronic mail communications contain substantive business
information, and 50% of electronic mail is retained for future
use)**
As we discuss below, the facts indicate
that the use of the EOP's and NSC's electronic mail system to
convey and record decisions, events, and important information is
just as widespread.
Defendants' failure to perform any evaluation of their
electronic mail systems alone demonstrates that their recordkeeping
program is arbitrary and capricious. Agency actions are "arbitrary
and capricious" when the agency fails to consider relevant data and
aspects of the problem. Motor Vehicle Mftrs. Assoc. v. State Farm
Mutual Auto. Ins. Co., 463 U.S. 29, 42-43 (1984); Citizens to
Preserve Overton Park v. Volpe, 401 U.S. 402 (1971). In this case,
the recordkeeping guidelines at issue have been adopted without any
effort to ascertain the most basic and essential information
concerning the agencies' electronic mail systems, or the practices
of the agency personnel using them.
B. Electronic Mail Communications Stored On The Backup Tapes
And Electronic Mail Systems Are Records Because They Are
Preserved Or Appropriate For Preservation.
Under 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.
With respect to the second condition, it is evident that many, if
not most, of the electronic mail communications contain information
on the organization and activities of the agencies, or materials
that are retained by agency staff because of the value of the
information they contain. SoF  64. Indeed, these systems are
designed to be one of the principal means of intra- and inter-
agency communications for these agencies. SoF  8-10. These
systems have significant advantages over telephone or paper
communications, and the NSC system is specifically designed to
permit the communication of sensitive, classified information. SoF
 11-13, 31. Moreover, in opposing sampling of the backup tapes,
defendants have affirmatively argued that PROFS has been used
"heavily for substantive business communications" and contains
privileged materials concerning government decisionmaking. Id. 
14, 15. Thus, apart from personal communications, electronic mail
communications will satisfy the test for "record status" if they
are "preserved or appropriate for preservation." 44 U.S.C.  3301.
1. The Backup Tapes Contain Communications
That Are Appropriate for Preservation.
The facts revealed through the use of the PROFS backup
tapes in previous investigations preclude any serious argument that
these tapes do not contain material that is "appropriate for
preservation" as "records" of the activities of the government.
During the course of the Iran-Contra investigations, numerous
electronic records were recovered from the backup tapes that did
not exist anywhere in paper form. SoF  57. Presidential,
congressional, and independent investigators all found that these
electronic records provided a "first-hand, contemporaneous account
of events" concerning key policy decisions and activities of the
Reagan Administration. SoF  56, 61. These records have not only
been used as evidence in criminal trials by the Independent
Counsel, but have also been used by the Justice Department and the
NSC to conduct their own investigations of matters unrelated to the
Iran-Contra scandal. SoF  58, 59.
Defendants cannot dismiss the materials that have been
recovered in these investigations as exceptional, or claim that
other individuals, discussing other subjects, did not use
electronic mail in the same manner -- especially since they have
steadfastly refused to provide a sample of the materials on the
tapes. To the contrary, while the subject matter may have been
unique, the types of communications uncovered during the Iran-
Contra investigations are precisely the type of communications that
the NSC and EOP PROFS 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. SoF  17, 11-12. Long after the Iran-Contra Affairs,
the NSC was reporting that PROFS notes to senior officials were
increasing "both in volume and length," id.  24, and the EOP has
more than doubled the number staff using its electronic mail system
since 1989. Id.  6. There is, in short, no reason to believe that
the use of electronic mail during the Iran-Contra Affairs was an
aberration, or that other individuals have not used electronic mail
to convey equally important information on budgetary issues, trade
issues, foreign policy issues, or other actions of the government.
Nor can defendants argue that the fact that these records
appear only on the backup tapes, and not in paper, is attributable
to lack of compliance with the NSC's recordkeeping guidelines by a
few individuals.
**5. Indeed, the searches that have been conducted of the
preserved NSC tapes by the Independent Counsel and the Justice
Department have not been limited to electronic mail of a few
individuals, but have covered scores of NSC staff. SoF  56c, 57,
58. Defendants' argument that investigators searched the records
of all these individuals because all of them were suspected of
attempting to conceal improper conduct is not substantiated or
credible. See Defs' Reply Brief in Opposition to Plfs' Motion for
a Sampling at 3-4**
As we show below, during the Iran-Contra Affairs
the NSC had no guidelines, written or oral, instructing its staff
to print out electronic mail communications to place them in the
NSC's official record system. The PROFS notes uncovered during the
Iran-Contra investigations were not made part of the NSC's record
system because (i) the NSC guidelines in 1985 and 1986 did not
treat them as record material and, (ii) as the notes have been
printed out for investigators from 1987 to the present, the records
personnel at the NSC have continued to treat them as nonrecords.
SoF  62, 63, 109. There is every reason to believe that there
are additional records on the NSC tapes, some of which were never
even searched in these prior investigations. There is also every
reason to believe that the same types of records appear on the EOP
tapes, none of which have ever been searched for record material.
Defendants' contention that these tapes, despite their historical
importance, are not appropriate for preservation is plainly
erroneous in light of these facts.
2. Electronic Communications Preserved
By Agency Personnel Are Records Under The FRA.
Defendants consistently misstate the law by asserting
that only those materials that an agency deems worth preserving are
records. The statutory definition of record, however, is not
limited to the agency's judgment of what is "appropriate for
preservation," but also includes documentary materials that are
preserved. 44 U.S.C.  3301. While "appropriate for preservation"
covers materials "which in the judgment of the agency should be
filed," 36 C.F.R.  1222.12(b)(6), the term "preserved" in the
definition of "record" establishes an objective test that requires
that materials that are "actually filed or otherwise systematically
maintained" be treated as records. 36 C.F.R.  1222.12(b)(5);
accord Plfs' Appendix, Tab 7,  3.
This objective requirement is necessary to safeguard
against agencies innocently or intentionally underestimating the
value of their own records. Under the FRA, if materials are
labelled "nonrecord," they require only agency approval for
disposition, and there is no outside review of the agency's
judgment. 36 C.F.R.  1222.42. On the other hand, if materials
satisfy the definition of "record," they can be destroyed only
after appraisal by the Archivist to assess their archival value. 44
U.S.C.  3303, 3303a, 3314; see Plfs' Appendix, Tab 9, p. 9.
Defendants seek to evade this outside review by asserting that they
are free to label materials "nonrecord" and destroy them -- even
though the materials have actually been preserved by agency
personnel. The definition of record precludes such unilateral
control by agencies by providing that any materials that are, in
fact, filed and stored within the agency are "records." 36 C.F.R.
 1222.12(5).
**6. Under this objective test, many materials that do not have
ongoing value, will qualify as "records." These materials may be
destroyed after a period of weeks, months, or years as "temporary
records," but only with the approval of the Archivist. See Plfs'
Appendix, Tab 8, at 14 (95% of all records are temporary records).
Because of their important role in the government, the Archivist
has determined that a large portion of the records of the NSC and
other EOP components are of sufficient value to be permanent
records. See, e.g., Moore Dep., Exhibit 74 (NSC Request for
Disposition Authority).**
Most of the materials stored by PROFS clearly satisfy
this prong of the statutory definition of record because they are
filed and stored by agency personnel in the course of conducting
government business, much like paper records are stored:
y Notes. Electronic mail notes are filed in "note logs" by
individuals using electronic mail in a manner that is directly
analogous to filing letters or memoranda in a paper file. See
Plfs' Appendix, Tabs 14 and 17; SoF  19, 32. Moreover, both the
NSC and EOP instruct users to regularly remove any unneeded notes
from their files, so most of the notes that are actually stored are
communications that staff consider necessary to their work. SoF 
33.
**7. PROFS has a separate function for transitory communications
that are never stored, called "messages." SoF  16. Because they
are never filed or stored, messages are analogous to a paper
document that is discarded shortly after it is received and are not
"preserved" under the definition of "record.**
y Documents. PROFS documents are filed in a central storage
system of the computer, and may be retained indefinitely. Indeed,
the EOP instructs PROFS users that documents are retained for at
least two-years, and the retention period can be extended. SoF 
34.
y Calendars. PROFS calendars of EOP and NSC staff are also
filed in a central storage area of the computer, and are kept
indefinitely. The EOP even instructs PROFS users that their
calendars are "archived" each year, and old calendars can be
recovered from storage. SoF  35.
y Backup Tapes. The regular practice of making "backup
copies" of PROFS communications also demonstrates that these
materials are "preserved" under the definition of record. SoF 
36-37. Such backup files are specifically identified as records
under the Archivists' General Records Schedules. See General
Records Schedule 20 (attached to Mosley Dec., Exhibit A), p. 5, 
8.
Thus, under the statutory definition, the materials
stored on PROFS that concern agency activities, or have been
preserved by staff "because of the informational value of the data
in them," satisfy the statutory definition of "records." 44 U.S.C.
 3301. This is true regardless of whether the communications are
short, informal, or routine, since such communications qualify as
records under the statute. Many of such materials may be temporary
records, but the FRA does not permit the NSC and EOP to summarily
destroy them as nonrecord material; the agencies must comply with
the records management and disposition requirements designed to
identify and preserve those materials that are of permanent value.
Defendants' effort to evade this obligation by deeming all of their
electronic materials to be not "appropriate for preservation" is
contrary to law. Indeed, the prospect of the NSC having the
authority to determine, without any outside review, that files
documenting a notorious period in the agency's history shall be
discarded as nonrecord material illustrates the importance of the
FRA requirement that materials that are actually preserved may not
be destroyed without independent review by the Archives.
II. ELECTRONIC MAIL MATERIALS ARE NOT "EXTRA COPIES PRESERVED ONLY
FOR CONVENIENCE OF REFERENCE."
Defendants' principal argument in support of their motion
for summary judgment is that the EOP's and NSC's "employees have
been repeatedly instructed to print out and send to their formal
records systems any Federal records contained in their computer
files." Defs' Memorandum in Support of Summary Judgment at 3, 8,
12-13, 16, 23. Presuming that employees implement this
instruction, defendants assert that the information stored on their
electronic mail system and backup tapes either does not rise to the
level of a Federal record, or can be treated as "nonrecord"
materials because the electronic media are merely "extra copies of
documents preserved only for convenience of reference." Id. at 13,
29-30, 32; Defs' Statement of Material Facts  28. Based on this
instruction and the statutory exemption, defendants argue, they are
permitted to destroy electronic mail materials without any
authorization from the Archivist.
This argument fails for two independent reasons. First,
the facts show that the instruction on printing-out electronic mail
that defendants rely upon for their argument was not, and still is
not, given as part of the recordkeeping guidelines of the EOP and
NSC. Second, as a matter of law, even if copies of the electronic
mail communications that qualify as Federal records are printed on
paper, defendants' argument is inconsistent with the statute and
the Archivists' guidance because the original, electronic media are
not "extra copies" of the paper, nor are they "used only for
convenience of reference." 44 U.S.C.  3301.
A. Defendants Originally Gave No Instructions On
Preservation Of Electronic Mail, And Now Give
Instructions That Are Erroneous As A Matter of Law.
Review of the manuals and memoranda defendants have given
to their staff shows that the instruction on printing electronic
mail they claim to have given simply does not appear in their
guidelines. During the period that the preserved PROFS backup
tapes were created, no instructions on preserving electronic mail
appear in the agencies' recordkeeping manuals. Today, some EOP
components have introduced new instructions on printing electronic
mail, but even these instructions do not conform to defendants'
claim.
**8. Indeed, it appears that the entire concept that PROFS
materials can be disposed of without authorization from the
Archives as "extra copies preserved only for convenience of
reference" is a post-hoc rationalization created after this lawsuit
began. No statements by any of the NSC's or EOP's recordkeeping
staff articulated this rationalization at the time the guidelines
were adopted, and none of the guidelines describe PROFS backup
tapes or other materials as extra copies preserved solely for
convenience of reference**
1. Defendants' Recordkeeping Guidelines During
The Period That The Information
On The Preserved Backup Tapes Was Created.
a. The EOP's Guidelines.
The written records management guidance for the
components of the EOP that use PROFS is set forth in a single
manual, referred to here as the EOP "Federal Records Manual." The
Manual (in its 1982 and 1989 versions) was the exclusive written
guidance on Federal records for EOP component agencies other than
the NSC from 1982 through 1991, and is still the exclusive guidance
for most EOP components today. SoF  91. Neither manual contains
any instruction stating that electronic materials that satisfy the
definition of "record" should be printed for preservation in hard-
copy format. SoF  92. At her deposition, 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. See Anton
Dep. at 210:21-212:4.
**9. The EOP also failed to take advantage of opportunities to
issue instructions on preserving electronic mail record before they
were to be erased at the end of the Reagan Administration. See SoF
 96; Plfs' Appendix, Tab 1, at 3 (section on "Change of
Administration Considerations," and "Document Selection for
Archives" in PROFS training manual never completed); SoF  97
(memoranda announcing erasure of computer records at end of Reagan
Administration contains instructions on printing Presidential
records on computer files, but no instructions that PROFS materials
that satisfied the definition of a Federal record should be printed
out); SoF  98 (memoranda on preparing files for disposition at end
of Reagan Administration contain no instructions on computer
records)**
b. The NSC's Guidelines.
1985-March, 1987. Throughout the period of the Iran-
Contra Affairs (1984-November 25, 1985), the NSC did not give staff
using its electronic mail systems any instructions concerning the
preservation of electronic records. The only written guidelines
issued to the NSC staff during this period are those in the 1984
"National Security Council Administrative Manual," attached as
Exhibit D to the Second Declaration of George Van Eron. The Manual
not only does not contain the instruction the NSC relies on in its
Summary Judgment motion -- it contains no mention of electronic
records and no definition of Federal records. SoF  109.
Indeed, the lack of any obligation to preserve PROFS
communications was confirmed during the trial of Oliver North. One
of the counts against Oliver North 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, Brenda Reger.
**10. Trial Transcript, Unites States v. Oliver North, C.A. 88-80,
pp. 5468-71 (D.D.C., March 23, 1989) (attached at Tab 17 of Plfs'
Exhibits in Opposition to Defs' Motion for Summary Judgment (filed
Sept. 19, 1991))**

On cross-examination, Ms. Reger acknowledged that, under the
guidelines in the Manual, NSC personnel were permitted to throw
away PROFS notes and delete them from their computer because they
were not considered "official records" of the agency. Id. 5483:21-
84:12; SoF  110.
**11. Based on this testimony, North's lawyers successfully argued
that North could not be convicted of violating 18 U.S.C.  2071
based on the destruction of PROFS notes. See Plfs' Supplemental
Filing of New Evidence in Support of Plaintiff's Opposition to
Defendants' Motion for Summary Judgment, Suppl. Exhibit 9 (filed
May 11, 1989), Trial Transcript, at 6227-6231. As a result, the
jury was instructed not to consider any evidence concerning the
destruction of PROFS notes in connection with the  2071 count.
United States v. North, 716 F. Supp. 644, 647 (D.D.C. 1989)**
Nothing in the agency's guidelines during this
period instructed the staff to print these materials.
**12. On January 15, 1987, approximately six weeks after the Iran
Contra scandal became public, the NSC issued two memoranda
concerning new "Document Control Procedures." Neither memorandum,
however, contains any discussion of electronic communications,
PROFS, or even a definition of a Federal record. SoF  109b, c**
March, 1987-December, 1988. The first NSC guideline to
mention electronic records did not appear until March 5, 1987. SoF
 111-113. The two page memorandum contained only a single
sentence concerning preservation of electronic mail:
Should you be tasked for action via PROFS/A1, the
PROFS/A1 note should be printed and made part of the
package forwarded for action by the principals.
(Second Van Eron Dec., Exhibit G). The memorandum does not discuss
Federal records, or contain any instruction that staff should print
out all electronic mail that has record status for preservation in
the NSC's recordkeeping system. Indeed, the material covered by
this instruction is extremely narrow. The NSC uses the phrase
"tasked for action" to mean assigned work (e.g., to prepare a
memorandum, set up a meeting, etc.), and the "principals" refers to
"the National Security Advisor, the Deputy National Security
Advisor, and the Executive Secretary of the NSC." Resp. to Inter.
No. 22(c); SoF  112. Thus, this instruction only covered notes,
from supervisory officials for purposes of assigning work. The
staff was not given any instructions to print calendars, documents,
notes between staff, or notes used for purposes other than
assigning work.
The Close of The Reagan Administration. At the end of
the Reagan Administration, the NSC, like the EOP, planned to erase
all its electronic mail files on January 20, 1989, before the new
administration took office. The first, and only, document that
comes close to containing the instruction that the NSC claims it
"repeatedly" gave its staff (Defs' Motion for Summary Judgment at
16), is a single memorandum that was not distributed until December
20, 1988. It stated:
I ask that you review your computer files prior to your
departure or January 20, 1989, whichever comes first. Should
you identify therein any federal or presidential record, as
defined above, that you please forward it in hard copy to
George Van Eron for appropriate action.
(Second Van Eron Dec., Exhibit H).
This instruction, however, has three fatal deficiencies.
First, the memorandum contains no definition of Federal record. It
delegates all responsibility for determining what should be saved
to the staff, but the only guidance on how staff should identify
such records is the statement that:
The Federal Records Act requires the creation of records
reflecting "the organization, functions, policies,
decisions, procedures and essential transactions" of an
agency.
Id.; SoF  125. As guidance on what constitutes a Federal record,
this statement is both incomplete and erroneous. The definition of
"record" in the FRA is not limited to "essential transactions,"
but encompasses any materials that are preserved or appropriate for
preservation as evidence "of the activities of the Government" or
"because of the informational value of the data in them." 44
U.S.C.  3301.
**13. Moreover, the other guidelines available at this time
provided no assistance since the 1984 Administrative Manual
contained no instructions on distinguishing Federal record and
nonrecord materials, and the March 5, 1987 memorandum suggested
that only notes in which staff are "tasked for action" needed to be
printed out. See Van Eron Dec., Exhibits D and G**
This error was compounded by the fact that, in
May and November 1988, the NSC distributed memoranda containing
instructions on Presidential records that, as we discuss below,
erroneously instructed staff to treat certain Federal records as
Presidential records. SoF  187; see infra pp. -.
Second, even if accurate and adequate instructions on
identifying Federal records had been given, the December 20, 1988,
memorandum was too late to be effective. Electronic mail records
that were deleted before December 20, 1988, could not be preserved
by the staff under this instruction (although they still may exist
on the preserved backup tapes), and staff that left the
Administration before December 20, 1988 never received the
memorandum.
**14. By comparison, the NSC had instructed its staff to begin
reviewing their paper records to ensure their proper preservation
six months earlier. SoF  116**
Third, the NSC staff at this time, and throughout the
period PROFS has been in use, had limited access to printers. Only
two printers are available to print PROFS information, and all the
NSC staff in a single building share a single printer. SoF  108.
Given the NSC's claim that a single staff member may have hundreds
of notes stored in his computer files at any given time, SoF  21,
it was not realistic for the recordkeeping staff to rely on an
instruction requiring that all of 92 staff members using PROFS
review all of their communications and print them on the two
printers during the last thirty days of the Administration.
In summary, during the period that the PROFS material on
the backup tapes that have been preserved in connection with this
action were created, the EOP gave no instructions on printing out
electronic mail, and the instructions given by the NSC were
incomplete, inaccurate and belated.
2. Defendants' Recordkeeping
Guidelines Since January, 1989.
Most of the components of the EOP that use electronic
mail still have, as their exclusive recordkeeping guidance, the EOP
Federal Records Manual. As discussed above the Manual (even as
revised in 1989 after this suit began) contains no instructions on
printing electronic mail.
After this litigation began, however, three EOP
components -- the NSC, the Office of Administration ("OA"), and
Council on Environmental Quality ("CEQ") -- adopted separate
recordkeeping guidelines instructing staff to print electronic
mail. The NSC was the first to introduce the new instruction in a
January 25, 1989, memorandum telling staff that:
[W]henever you have information that should be recorded
under the definition of a federal or presidential record
it is your responsibility to reduce it to written form
and send it to the Secretariat for entry into a
Secretariat record system, unless it is already contained
in a written record logged into such system.
(Second Van Eron Dec., Exhibit I) (emphasis added). A directive
containing a substantially similar instruction was adopted by the
OA and CEQ in late 1991. SoF  99-102.
Contrary to defendants' representations in their Summary
Judgment Motion, these new guidelines do not instruct employees to
print out all notes, calendars or documents in their computer files
that have record status. These guidelines contain an important
qualification. They instruct employees that Federal records in
electronic form need not be printed out if the information has
already been preserved in a different record in the formal record
system, or if the information is otherwise "reduced" to written
form. See Defs' Suppl. Resp. to Inter. No. 7(d)(i) and (ii).
Thus, the instruction creates no obligation to save the electronic
record as long as the "information" is written elsewhere.
**15. This qualification appears repeatedly, stated in different
ways, in the subsequent guidance memoranda issued by the NSC and
even in the certification the NSC now requires employees to sign
when they depart. SoF  126, 129, 132, 133. At her deposition,
the head of the office that issued the OA Directive in 1991
confirmed that the Directive instructs staff to preserve
information in electronic records, but does not require that they
preserve the electronic records themselves. See Anton Dep. at
203:10-204:12. Moreover, the OA Directive contains an additional
infirmity in that it instructs staff to print electronic mail if it
contains "official records information" that is not recorded
elsewhere -- not electronic mail containing information of record
status under the definition of Federal record. The term "official
records information" is not defined. SoF  100**

These instructions are erroneous as a matter of law in
stating that, if the information in an electronic mail
communication appears elsewhere, there is no obligation to treat it
as a record. Under the statutory definition, two documents
containing information of record status are both records. The
exemption provided in the statute only applies if the records are
extra copies and, even then, 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. 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 paper memorandum, both the electronic mail
communication and the paper memorandum are records under the FRA.
44 U.S.C.  3301.
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 may state the information in a
different manner, may have been written on a different date, or may
be addressed to different individuals. Indeed, studies of
electronic mail suggest that electronic communications are often
the first, most candid, and most crucial communication of the
information. See Plfs' Declarations and Exhibits, Tab 1, Nowicke
Dec., Exhibit A, p. 73 (electronic mail has spontaneity and
directness not found in official letters); SoF  56a (PROFS notes
provide "first-hand, contemporaneous account of [Iran-Contra]
events."). But defendants' guidelines encourage agency personnel
"to reduce" such communications to a formal, distilled paper form
-- and discard the contemporaneous record as nonrecord material.
SoF  100. This ensures that many electronic mail communications
of value to investigators, researchers, and historians trying to
piece together events will never be preserved. Moreover, it
violates the FRA which requires that, once a record is created, the
agency must preserve the record, not just the information.
3. Defendants' Oral Guidance.
Defendants have submitted a lengthy brief concerning the
oral guidance given to their staff, arguing that such guidance
fortifies their claim concerning the adequacy of their written
guidelines. Defs' Supplemental Brief In Support of Motion for
Summary Judgment at 1-13, 15-20. In fact, the testimony on oral
guidance shows that the oral training defendants have given to
staff concerning electronic records has been belated, limited, and
contains the same errors as the written guidance:
1. The most obvious and, perhaps, the best opportunity for
giving staff effective oral guidance on preserving electronic mail
is when they are first trained to use the computer. But neither
the EOP nor the NSC provides any recordkeeping guidance as part of
this training. In addition, the EOP does not include any
recordkeeping guidance in the reference manual it distributes on
how to use the PROFS system. SoF  89, 96, 107.
2. The only time staff receive regular oral guidance is when
they first enter the agencies, and when they depart. In the
interim they are left to rely primarily on the written guidelines.
Neither the NSC nor the EOP provide any regular, ongoing, training
for existing staff. SoF  103, 135.
3. 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. Even after the
various investigations revealed that PROFS was being used for
important substantive communications, the NSC did not hold any
general meeting or institute any program for giving existing
employees training concerning the preservation of electronic mail.
SoF  136, 137.
4. The EOP's and NSC's oral guidance merely reiterates the
inadequate written guidelines used by these agencies. The
recordkeeping personnel testified that they do not correct or
expand upon the written guidelines, and they urge staff to adhere
"as closely as possible to the exact terms of these [written]
guidelines." Menan Dec.  5; SoF  104-106, 139-143. Thus,
rather than correcting the errors in the written guidelines, the
oral training reinforces them.
**16. Defendants sometimes quote their recordkeeping staff as
saying that they gave instructions that employees should print
electronic mail that rises to the level of a federal record. See,
e.g., Defs' Supplemental Brief in Support of Summary Judgment at 12
(quoting Menan Dep. at 146:8-10). Examination of the testimony,
however, shows that the witnesses testified that they gave the
same, qualified instruction found in the written guidelines. See
Menan Dep. at 146:11-13**

B. Electronic Mail Materials Are Not "Extra
Copies Preserved Only For Convenience of Reference."
Defendants acknowledge that they have no authorization
from the Archivist for their practice of routinely destroying their
electronic mail materials by reusing backup tapes and permitting
staff to erase material from the computer. SoF  83, 84.
Defendants' sole justification for ignoring the statutory
requirements concerning disposal is their argument that, because of
their guidelines on printing electronic mail, they are entitled to
treat the material in electronic format as a "nonrecord" "extra
copies preserved only for convenience of reference." Defs' Summary
Judgment Motion at 12-13. Even if defendants had given the
instructions they assert, the electronic materials do not fall
within this exception for three reasons.
1. When Information Is Recorded In Both Electronic
And Paper Formats, Both Formats Are Records.
Defendants' argument depends on the assumption that the
format of a record is irrelevant, and when information is
transferred to a different format the original can be discarded as
an "extra copy." This assumption is erroneous. Documents recorded
in the same format (i.e. two paper records) may be fungible, but
documents recorded in different formats have different qualities,
character, and uses that make them unique. For example, a
photographic negative and a photographic print may contain the same
information, but the negative cannot be discarded as merely an
"extra copy" of the print. In the same way, electronic materials
cannot be discarded as an "extra copy" of a paper print-out from
the electronic original. Each format has unique qualities that
requires that they both be treated and separately appraised as
records.
The Archives' guidelines interpreting the FRA confirm
that defendants' position is erroneous as a matter of law. The
guidelines consistently provide 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. The Archives' 1985 guidelines on electronic records
directly address this issue:
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.
Plfs' Appendix, Tab 1, Attachment A,  5.e.; SoF  149; accord SoF
 146-148, 150 (additional Archives' instructions saying that
where information is recorded in paper and the electronic format,
each format must be separately scheduled).
The Archives does not regard the different formats as
nonrecord "extra copies" precisely because the ability to use and
access information in electronic and paper formats is different.
As the Archives explains:
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.
Plfs' Appendix, Tab 4; SoF  147.
Accordingly, the Archives considers the format of paper
and electronic material as an important factor in determining
whether materials are worthy of retention. The Archives' appraisal
guidelines emphasize that electronic materials may have greater
research utility, may occupy less storage space, and may be easier
to access or reproduce than records containing the same information
on paper. Because separate appraisals are necessary, the
electronic and paper versions of the same information must be
scheduled separately, and the electronic version may be retained
for a longer period, or kept by the Archives as a permanent record.
SoF  153-156.
Indeed, treating electronic records as an extra copy is
particularly inappropriate for electronic mail systems such as
PROFS that are designed to allow staff to create, transmit, receive
and use information entirely in electronic format. When paper
records are converted to electronic media, the Archivist requires
that agencies schedule both the original paper record and the
electronic copy as records. SoF  146, 148. Where, as here, the
circumstances are reversed, and the original record is electronic,
it cannot be discarded as a "nonrecord" on the unverified
assumption that there may be a paper copy.
2. PROFS Contains Information
Recorded Only In Electronic Form.
Independent of the change in format, the original,
electronic materials from PROFS cannot be regarded as "extra
copies" of paper materials because not all the information stored
by PROFS is printed when notes, calendars, or documents are
printed, and some of the missing information has record status.
SoF  43. Details concerning the type of information that does not
appear on the printed version are set forth in plaintiffs'
statement of facts. SoF  44-53. We present a few examples here
to illustrate the problem:
y Identities of Senders and Recipients. The identities of
the agency personnel who wrote and received a record is obviously
of importance to researchers and historians as evidence of the
activities of the agency. When PROFS notes are printed out,
however, the paper version will not always identify the sender and
recipient(s) by name but will, instead, list codes in the form of
userids, or titles given to a list identifying several individuals.
See, e.g. Plfs' Appendix, Tab 18 (examples of PROFS notes using
userids to identify recipients). The names of the individuals
identified by these codes is stored on PROFS in directories and
distribution lists, but these lists have not been printed or
treated as records by defendants. SoF  44-46.
y Acknowledgements of Receipt. PROFS has a function
analogous to certified mail called an "acknowledgement." If an
acknowledgment is requested, PROFS will provide the sender of a
note with a confirmation that the note has been received, and the
precise date and time that the recipient of the note opened his or
her electronic mail. This information on the date and time of
receipt for communications that staff consider important enough to
require and acknowledgement is of obvious use to researchers and
historians trying to reconstruct events, but neither the EOP nor
the NSC give agency personnel any specific instructions on printing
out acknowledgment information. SoF  47.
y Accounting Records. Computer systems also contain some
information on agency activities generated automatically by the
computer. For example, both the NSC and EOP PROFS systems store
accounting information showing when and how long individuals have
been using PROFS. This information was used by the EOP staff to
monitor computer use and to charge other agencies for their use of
the system; it was also introduced as evidence during the Iran-
Contra trials. The complete information stored in these files
appears only in electronic format because neither the EOP nor the
NSC have any practice for preserving these records on paper. SoF 
50-52.
3. Information Recorded Electronically On PROFS
Is Not Preserved Only For Convenience of Reference.

In addition to not being "extra copies," the electronic
materials that defendants assert are nonrecord materials are not
preserved "only for convenience of reference." 44 U.S.C.  3301.
The Archives' guidelines emphasize that this exemption is a narrow
one which applies "only if the sole reason such copies are
preserved is for convenience of reference." Plfs' Appendix, Tab 7,
p. 3,  5.d(2) (emphasis in original); accord 36 C.F.R.
 1222.34(d)(2).
The information stored on the defendants' electronic mail
systems does not satisfy this standard. Even if an electronic mail
communication is printed, the electronic version of the
communication continues to be used by the agency staff for purposes
other than reference. Users can alter the information and resend
it. See Plfs' Appendix, Tab 15 (describing functions users can
perform when working with stored notes). Calendars, in particular,
are continuously being used and modified in their electronic form.
Id., Tab 16 (describing operations with calendars); SoF  40-42.
The backup tapes for the electronic mail systems are also not
preserved solely for convenience of reference. The purpose of the
backup tapes is not convenience, but protecting vital data from
loss or destruction. SoF  37. These electronic backup tapes are
made precisely because a paper copy of the information is not as
useful as the electronic version, and the agency has taken special
steps to protect and preserve the data in electronic format. SoF 
36-39.
For each of these three reasons, the information recorded
by PROFS in electronic format cannot be regarded as a "nonrecord"
"extra copy preserved only for convenience of reference." Its form
and content are unique, and the reasons it is preserved go well
beyond convenience of reference.
III. DEFENDANTS' GUIDELINES ON DISTINGUISHING FEDERAL RECORD,
PRESIDENTIAL RECORD, AND NONRECORD INFORMATION
ARE ERRONEOUS AND INADEQUATE.
An instruction to staff to print and preserve electronic
mail that qualifies as a Federal record can only be effective if
the staff are able to correctly distinguish among Federal,
Presidential and nonrecord materials. In this section we show that
(A) the NSC has given erroneous instructions distinguishing Federal
record and nonrecord material; (B) the EOP has failed to give any
specific guidance on identifying Federal records in electronic mail
communications; and (C) both the NSC and EOP ignore governing
precedents by directing staff to treat certain Federal records as
Presidential records.
A. The NSC Has Erroneously Instructed Staff
To Treat Federal Records As Nonrecord Material.
As noted above, the NSC relies on its staff, without
review or oversight by recordkeeping personnel, to identify those
electronic mail communications that constitute Federal records.
The guidance the NSC gives to staff on distinguishing Federal and
nonrecord material, however, erroneously labels as "nonrecord"
materials that, under the statute and the Archives' regulations,
must be preserved as Federal records:
1. The January 25, 1989 Memorandum. The NSC staff are
permitted to maintain "chron" or "convenience" files in their
individual offices. These files are not considered Federal records
by the agency, but are treated as nonrecord material. SoF  129-
130, 132-134. In a memorandum, first issued on January 25, 1989,
and still in use today, the NSC instructs the staff that certain
materials in these files may be subject to FOIA, but "do not rise
to the level of an NSC agency record" that must be treated as part
of the official records of the agency. Second Van Eron, Exhibit I.
As examples of materials that do not have record status, the
memorandum identifies documents that (a) "are maintained for an
extended period of time (over two weeks) or after completion of a
matter," (b) "related to the management of the [NSC] interagency
process or intelligence matters," and are:
(i) drafts of documents seen by other members of the NSC
staff or other agency personnel; [or]
(ii) correspondence between members of the NSC staff or with
other agency personnel; . . .
Id.
This instruction is directly contrary to the statutory
definition of records. Inter- and intra- agency correspondence and
documents that satisfy conditions (a) and (b) are "preserved" and
contain information on the NSC's activities that bring them within
the statutory definition. Moreover, the regulations of the
Archives specifically provide that drafts circulated among agency
employees may have record status. 36 C.F.R.  1222.34. This
erroneous instruction is particularly important here because PROFS
is designed primarily to facilitate intra-agency correspondence and
sharing drafts of documents. Thus, many of (if not most) of the
record materials on PROFS will be improperly treated as nonrecord
material by NSC staff following this guideline.
2. The May 13, 1992, Memorandum. Additional erroneous
instructions were issued by the NSC in May of this year when it
introduced new features into its electronic mail system requiring
staff to label materials as Federal, Presidential or nonrecord
material when they first create a note. Its instructions on
distinguishing record and nonrecord material contained two types of
errors.
First, the NSC made no change in its previous guidelines.
Thus, in addition to the errors in the January 25, 1989 memorandum
identified on the previous page, staff are also instructed to
follow the previous guidance that, if the information in an
electronic mail communication appears elsewhere, the electronic
mail need not be preserved and may be treated as "nonrecord"
material. See Second Menan Dec., Exhibit 1, Tab B (instructing
staff to follow January 25, 1989 memorandum), and Tab D. This
instruction is contrary to the FRA, for the reasons discussed
above. See supra pp. -.
Second, the NSC listed as specific examples of materials
that staff should label "nonrecord" notes concerning "work
schedules, scheduling meetings and appointments, and routine office
procedures." Id. and Tab C. Each of these examples is erroneous
as a matter of law. These materials may contain evidence of agency
activities, or may be preserved because of the value of the
information they contain. In either case, they qualify as records
under the statutory definition. See supra pp. -. Indeed,
record disposition schedules prepared by the Archives and the NSC
recognize that appointment schedules and documents on routine
administrative matters may be records.
**17. See Archives General Records Schedule 23,  5 (attached to
Mosley Dec. as Exhibit B) (calendars, schedules of meetings and
appointments are "records" that must be retained for various
periods of time depending on the information they contain and
whether they are maintained by high level officials); NSC Request
for Records Disposition Authority, Moore Dep., Exhibit 74, p. 7, 
16.a. (records in paper form dealing with internal NSC
administrative matters are transferred to the Archives after 20
years, and the Archives staff shall determine which materials may
be discarded as "routine"). *
Instructing staff to
discard the same materials when they are created and stored
electronically violates the FRA.
B. The EOP Has Failed To Provide
Accurate, Specific Guidelines On
Distinguishing Record and Nonrecord Materials.
The EOP asserts that its staff can properly determine,
without review by recordkeeping personnel, whether particular
electronic mail communications are record or nonrecord materials.
The written guidelines provided in the EOP's Federal Records
Manual, however, provide no specific instructions to guide the
staff in making these determinations. The Manual's discussion of
what constitutes a record or nonrecord material merely repeats the
statutory definition and the Archives' regulations restating the
definition. See Anton Dec., Exhibit B, at 5-8. There is no
mention of electronic mail or PROFS, no reference to the types of
communications that EOP staff create on electronic mail (notes,
calendars, documents), nor is there any discussion of the different
purposes for which EOP personnel use electronic mail. Id.; SoF 
93.
This kind of generalized instruction does not provide the
"clear articulation" necessary to manage electronic mail records
for two reasons. 36 C.F.R.  1222.30(a). First, an agency does not
satisfy its statutory obligation to establish a recordkeeping
program by merely providing staff with a copy of the general
definition of "record." Agencies are required to "[i]dentify and
prescribe specific categories of documentary materials to be
systematically created or received and maintained by agency
personnel." Id.  1222.32 (emphasis added). But the EOP's Manual
contains no specific instructions to make clear to staff that
electronic calendars used to schedule agency business, documents
shared with other personnel using the computer, and notes used to
carrying-out agency business are records and must be preserved.
Cf. American Friends Serv. Comm. v. Webster, 720 F.2d at 66
(records disposal instructions that lack specificity are arbitrary
and capricious).
Second, because electronic communications may be changed
more easily than paper records, special instructions are needed to
alert staff to the ongoing need to evaluate whether a new
electronic record has been created. The 1985 Guidelines on
Electronic Recordkeeping issued by the Archives underscore this
point by noting that "[t]he decision about whether an electronic
document is a record needs to be made much earlier than for paper
because of the ease of erasing or changing the record," and "[t]he
record status of electronically stored drafts of policy documents
should be re-evaluated as changes are made. Substantive updates to
such electronic records probably constitute new records while minor
changes probably do not." Plfs' Appendix, Tab 1, Attachment A, 
5b, c. Neither the EOP nor the NSC has ever provided such guidance
to their staff.
C. The EOP and NSC Have Erroneously Instructed Staff To
Treat Federal Records As Presidential Records.
A long line of precedents has established the guidelines
for determining whether records of the EOP components are
Presidential records or Federal records. The EOP's and the NSC's
recordkeeping guidelines, however, ignore the applicable precedents
and the statutory provisions, and instruct agency personnel to
treat Federal records as Presidential records as a way of evading
compliance with the FRA and the Freedom of Information Act.
1. EOP Records Are Agency Records Unless
The Sole Function of The Component
Agency Is To Advise And Assist The President.
The test for distinguishing agency and Presidential
records was first articulated 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") which evaluated a federal
government program. OST withheld the report arguing that OST was
not an "agency" under the Administrative Procedure Act, but staff
to the President, because its responsibilities included both (1)
evaluating scientific research of federal agencies, and (2)
advising and assisting the President. Id. at 1073. The Court
rejected this argument, saying:
If the OST's sole function were to advise and assist
the President, that might be taken as an indication that
the OST is part of the President's staff and not a
separate agency. In addition to that function, however,
the OST inherited from the National Science Foundation
the function of evaluating federal programs. . . . By
virtue 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 (emphasis added). Although the report at issue was
prepared at the request of the President, and not at the
independent initiative of the OST, the Court held that it was an
agency record subject to release under the FOIA unless it was
covered by a specific exemption. Id.
In 1974, Congress amended the FOIA and endorsed the
result in Soucie. A new definition of "agency" was added that
expressly included any "other establishment in the executive branch
of the Government (including the Executive Office of the
President." 5 U.S.C.  552(f).
**18. As a result of amendments to FOIA in 1986 this section,
originally designated  552(e), was redesignated as  552(f)**
The legislative history
explained:
[w]ith respect to the meaning of the term "Executive
Office of the President" the conferees intend the result
reached in Soucie v. David . . . . The term is not to be
interpreted as including the President's immediate
personal staff or units in the Executive Office whose
sole function is to advise and assist the President.
H.R. Rep. No. 1380, 93rd Cong., 2d Sess. 15 (1974), reprinted in
FOIA Source Book: Legislative History, Texts, and Other Documents,
Committee on Government Operations, U.S. House of Representatives
232 (1975).
When Congress passed the Presidential Records Act ("PRA")
in 1978, it incorporated this test again by providing that
materials that are records of an "agency" under FOIA are excluded
from the definition of Presidential records. 44 U.S.C.
 2201(2)(B)(i). Thus, Presidential records are defined as those
"records which currently fall outside the scope of the Freedom of
Information Act" under the sole function test announced in Soucie
and adopted in the 1974 amendments. H. R. No. 95-1487, 95th Cong.,
2d Sess. 3, 11 (1978), 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.
Since the 1978 PRA and 1974 amendments to the FOIA, the
Supreme Court has endorsed the "sole function" test as the
governing standard. See Kissinger v. Reporters Committee for
Freedom of the Press, 445 U.S.C. 136, 156 (1980) (quoting language
from H.R. Rep. No. 1380 above). Subsequent cases have reaffirmed
its use and have stressed that:
Depending on the general nature of its functions, a
particular unit is either an agency or it is not. Once
a unit is found to be an agency, this determination will
not vary according to its specific function in each
individual case.
Ryan v. Department of Justice, 617 F.2d 788, 788 (D.C. Cir. 1980);
accord Pacific Legal Found. v. Council on Environmental Quality,
636 F.2d 1259, 1262-63 (D.C. Cir. 1980); Rushforth v. Council of
Economic Advisors, 762 F.2d 1038, 1040-43 (D.C. Cir. 1985); Energy
Research Found. v. Defense Facilities Safety Bd., 917 F.2d 581,
584-85 (D.C. Cir. 1990).
The EOP guidelines on recordkeeping adhere to this test
for some, but not all EOP components. They correctly provide that
the records of EOP components whose sole function is to advise and
assist the President are Presidential records (i.e. the White House
Office, the Office of Policy Development, the Council of Economic
Advisers), and that the records of four components that have
independent functions are Federal records (i.e. the Office of
Management and Budget, the Office of the United States Trade
Representative, Council on Environmental Quality, and the Office of
Administration). SoF  157. But, as we show below, the guidelines
given to the Office of Science and Technology Policy ("OSTP") and
the NSC, erroneously tell staff to treat Federal records as
Presidential records using the very distinctions rejected by the
courts in Soucie and subsequent cases. In addition, the guidelines
fail to address the records of the Reagan and Bush Administrations'
regulatory task forces.
2. The Guidelines of The OSTP Erroneously
Label Federal Records As Presidential Records.
The OSTP is successor to OST, the agency whose records
were at issue in Soucie, supra, and its staff was among the primary
users of the EOP's PROFS system. SoF  4. Like OST, OSTP provides
advice and assistance to the President, and performs independent
functions of reviewing and coordinating information on science and
technology. SoF  160-165. The EOP also recognizes that OSTP is
an agency subject to FOIA, but the OSTP recordkeeping guidelines do
not adhere to the result in Soucie. Instead, they provide:
The records of the Office of Science and Technology
Policy are federal records; however, those records
produced or received by the Director of OSTP in his role
as Science Advisor to the President are Presidential
records and should be segregated as such.
SoF  157 (emphasis added). The EOP recordkeeping staff interpret
this guideline as providing that any records produced or received
by OSTP staff in assisting the Director in his capacity as advisor
to the President are not Federal records. SoF  167.
This guideline is directly contrary to the holding of
Soucie, where the court held that the fact that the OST records
were prepared for the Director of the agency in response to a
request for assistance from the President did not change their
character as an agency record. 448 F.2d at 1076. Subsequent cases
have repeatedly rejected the claim that records are agency records
only when the agency is "performing its non-advisory functions,"
and are presidential records when staff are "performing its other
function of advising the president." Ryan, 617 F.2d at 788. Thus,
the OSTP guidelines are contrary to law and violate the FRA
because, even if staff print electronic mail records for
preservation, records relating to assistance to the Director of
OSTP as advisor to the President would be erroneously categorized
as Presidential records and would not be maintained in accordance
with the FRA. SoF  169.
3. The Guidelines of The NSC Erroneously
Label Federal Records As Presidential Records.
The NSC's statutory mandate also includes both advising
the President on national security matters and performing
independent functions (e.g. providing direction to the Central
Intelligence Agency). SoF  171. The NSC also acknowledges that
it is an "agency" under the FOIA. SoF  172.
Nevertheless, the NSC has established 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.
Although NSC staff have access to materials in both the
Presidential and the Federal records files, only those placed in
the Federal records files are handled in accordance with the FRA.
SoF  210, 193-198, 218-221.
**19. The propriety of this dual filing system was raised in 1986
in Penny Bevis, et al. v. National Security Council, C.A. No. 85-
2933, which involved a FOIA request for documents concerning the
activities of Oliver North and other members of the NSC staff with
the Nicaraguan Contras. The NSC claimed that it was not obligated
to search for or release any such materials in its presidential
files, but Judge Jackson found that issue was governed by Soucie,
supra, and the subsequent decision in Ryan v. Department of
Justice, supra, and denied the government's motion to dismiss. On
interlocutory appeal, the Court of Appeals remanded the record for
findings of fact on whether the NSC had control over the documents
in question. The NSC entered into an extensive stipulation
concerning its filing system, but the case settled before any
findings were entered. See Plfs' Appendix, Tab 20, Order Denying
Defendants' Motion to Dismiss, C.A. No. 85-2933 (D.D.C. May 30,
1986); Order Remanding Record (D.C. Cir. July 14, 1986).**

The following guideline is used by the NSC to distinguish
Presidential and Federal record material:
The records of the National Security Council staff are
federal records if they were received or created in
connection with the work of the statutorily-created
National Security Council. Additionally the NSC's
internal administrative records are federal records. The
records of the National Security Council staff are
Presidential records if they were received or created for
the President, the Assistant to the President for
National Security, his Deputy, or a member of the White
House staff independently of any meeting or policy and
staff actions of the NSC.
(Second Menan Dec., Exhibit 1, Tab A); see also SoF  186-192.
When applied to electronic mail, the NSC's instruction results in
the improper handling of Federal records on two different levels:
(a) electronic mail communications between members of the NSC staff
are not handled in accordance with the FRA; (b) the Presidential
Records Act is used as a basis for exempting communications between
the NSC staff and the Assistant to the President for National
Security Affairs ("APNSA") and Deputy APNSA from the FRA and FOIA.
a. The NSC's Guidelines Improperly
Classify Communications Between
NSC Staff As Presidential Records.
The NSC's guidelines could not be more explicit in
violating the "sole function" test. The guidelines are not limited
to records created by the APNSA or his Deputy, but provide that
electronic communications between the members of "the NSC staff
when acting as advisors to the President are considered
presidential records." SoF  188. Thus, the NSC maintains that --
unlike the staff of the OMB, CEQ and other units with dual
functions -- the electronic mail of its staff relating to advisory
functions is exempt from the FRA.
This "on again-off again definition" of whether materials
are Federal or Presidential is precisely what was rejected in
Soucie and subsequent cases. Rushforth v. Council of Economic
Advisors, 762 F.2d at 1041 (citing Pacific Legal Foundation, supra,
and Ryan v. Department of Justice, supra). Under the "sole
function" test the NSC is an "agency" and all records made or
received by its staff, whether they are used to assist the
President, or perform the functions of the NSC, are Federal records
subject to FOIA, exempt from the PRA, and governed by the FRA.
These 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 the agency's business
from the open-government laws. See Ryan, 617 F.2d at 787-89. This
is precisely the result that the NSC has sought to achieve with its
dual filing systems for Federal and Presidential records. For
example, as much as three-quarters of the memoranda produced by the
staff are placed in the presidential files, where the NSC treats
them as exempt from the FRA and release under FOIA. SoF  203.
**20. This figure is significant for the treatment of electronic
mail communications because the NSC's guidance instructs staff to
attach PROFS materials that are printed-out to staff memoranda when
sending them to the Secretariat's central files. SoF  112, 121**

The NSC's most recent instructions on classifying electronic mail
records indicate how broadly the NSC has stretched the concept of
Presidential records in order to exempt the staff's computer
communications from the FRA:
Presidential records are those created for the President,
the National Security Advisor, the Deputy National
Security Advisor, or any member of the White House staff
independently of interagency meetings or NSC policy
papers or oversight of intelligence activities. Examples
include notes about:
OMB or Cabinet referrals
White House Staff Secretary referrals
Speeches
Congressional correspondence
Public correspondence
Presidential messages or proclamations
Presidential reports, certifications or determinations.
(Second Menan Dec.,  4, Exhibit 1 and Tab C).
Several aspects of this instruction are striking. First,
it encompasses any notes created in connection with tasks "for" the
presidential advisors, even if the advisors did not write or
receive the communication. Second, notes concerning communications
with the public, Congress, OMB and Cabinet level agencies are
transformed into non-agency records in the hands of the NSC staff,
according to this guideline. Third, presidential reports,
certifications and determinations are obviously used by NSC staff
both in providing advice to the President and in performing purely
agency functions for the NSC, but the NSC instructs staff to
classify any notes concerning these matters as Presidential
records. Thus, the instruction unlawfully exempts a whole host of
communications among NSC staff that are plainly records under FOIA
and the FRA.
Moreover, it is apparent that the NSC's guidelines are
impossible to apply in practice. NSC staff perform the same types
of duties when aiding the APNSA in the interagency process and
aiding the APNSA in providing advice to the President, so that
labeling some communications federal and others presidential is
largely an arbitrary determination. SoF  182, 183. This was
illustrated during the course of depositions in this action.
George Van Eron testified that for twelve years he was the
principal NSC official in charge of applying the NSC's guidelines
on this issue, but when asked to apply the guidelines to two PROFS
notes, he could not determine whether either of the two PROFS notes
would be "agency records" under the NSC's guidelines. SoF  214.
Moreover, despite repeatedly consulting with counsel, Mr. Van Eron
could not explain what additional information would be necessary to
determine the classification of the notes, or articulate any
specific factor used to classify notes as agency or presidential.
See Van Eron Dep. at 181-196. If he cannot apply the guidelines,
how can anyone else?
**21. Indeed, the NSC has consistently refused to say whether the
PROFS notes attached here as examples, see Plfs' Appendix, Tab 18,
or other PROFS notes, would be treated as Presidential, Federal, or
nonrecord material under its guidelines. See NSC Supp. Inter.
Resp. Nos. 23, 24**
b. The NSC's Guidelines Improperly
Treat Records Of The APNSAs and
Deputy APNSAs As Exempt From the FRA.
The PROFS system has never been used to communicate
advice or information directly to the President, nor has it ever
been used to communicate directly with a member of the President's
immediate personal staff outside the NSC. SoF  215. It does,
however, contain communications between the APNSA and Deputy APNSA
and the NSC staff and, thus, presents the question of whether
materials that are created or received by both agency staff and a
presidential advisor are Federal or Presidential records.
As noted above, the PRA resolves this by providing that
any records that are agency records under FOIA are exempt from the
definition of Presidential records. 44 U.S.C.  2201. Thus, the
APNSA, as a member of the President's immediate personal staff may
have records that are not agency records because they are not
within the control of the agency. Kissinger v. Reporters Comm. for
Freedom of the Press, 445 U.S.C. 136, 157 (1980). If these
records, however, are made available to staff of the NSC or any
other agency for performing their duties, these records become
"agency records" within the meaning of the FOIA, and exempt from
the definition of Presidential records.
The NSC, however, applies its guideline on distinguishing
Federal/Presidential records in a way that reverses this
relationship. Thus, the NSC treats records made or received by the
agency staff as exempt from FOIA and the FRA if they are created by
or for the APNSA or Deputy APNSA. This is illustrated by the NSC's
treatment of the calendars of the APNSA. Since PROFS was installed
in 1985, all of the APNSAs and their Deputies have maintained
electronic calendars containing their daily schedules on the NSC
PROFS system. These calendars have been regularly made available
to 10 to 25 NSC staff members to assist them in performing their
duties. SoF  204-207. The NSC acknowledges, as it must under
the applicable cases, that schedules kept on calendars used by
agency personnel to conduct agency business are ordinarily agency
records subject to FOIA. SoF  28; Bureau of National Affairs,
Inc. v. Department of Justice, 742 F.2d 1484, 1495 (D.C. Cir.
1984); Washington Post v. Department of State, 632 F. Supp. 607
(D.D.C. 1986). Yet the NSC treats all of the calendars of the
APNSA and Deputy APNSAs as Presidential records and, therefore,
they are not made available under FOIA or transferred to the
Archives under the FRA. SoF  208, 209.
The exemption created by the NSC for these materials is
contrary to the language of the PRA discussed above and the
decision of this Circuit in Ryan v. Department of Justice, 617 F.2d
781. Ryan involved a FOIA request for responses to questionnaires
concerning judicial nominations submitted by Senators to the
Attorney General. The Attorney General argued that these were not
agency records because he has two roles, advisor to the President
and administrator of the Department of Justice, and these records
were held by the Department in connection with his role as advisor
to the President. Id. at 786-87. The Court rejected this claim as
untenable. The fact that the agency personnel in control of the
records were assisting the Attorney General in giving advice to the
President could not transform the records "into the Attorney
General's personal records as advisor to the President." 617 F.2d
at 787. "Any unit or official that is part of an agency and has
non-advisory functions cannot be considered a non-agency in
selected contexts on a case-by-case basis." 617 F.2d at 789.
Thus, under Ryan the calendars and other materials of the APNSAs
and Deputy APNSAs communicated to NSC staff over NSC's electronic
mail system are agency records subject to FOIA and the FRA.
4. The Guidelines Fail To Identify The Records Of
The Regulatory Task Forces As Federal Records.
During the Reagan Administration a "Task Force on
Regulatory Relief" was established within the EOP, and its
functions have been assumed by the "Council on Competitiveness"
during the Bush Administration. SoF  222, 225. The question of
whether the Task Force on Regulatory Relief is an "agency" whose
records are subject to FOIA was recently addressed by Judge Joyce
Hens Green in Meyer v. Bush, C.A. No. 88-3112, Memorandum Opinion,
(D.D.C., Sept. 30, 1991), petition for interlocutory appeal
granted, No. 92-5029 (D.C. Cir., Jan. 30, 1992) (Plfs' Appendix,
Tab 19). Judge Green found that, under Soucie and the other
precedents discussed above, the Task Force was an "agency" because,
in addition to advising and assisting the President, it "had
substantial, independent, directorial authority." Id. at 13.
Because PROFS is designed to facilitate interagency
communications between the EOP and outside agencies whose actions
were subject to regulatory review, PROFS was particularly suited to
the work of these two task forces in providing interagency
oversight of regulatory actions. SoF  4. The EOP's guidelines,
however, do not provide any guidance concerning preservation of the
records of these regulatory task forces as Federal records. Thus,
under the decision in Meyer v. Bush, the EOP's past and current
guidelines improperly fail to provide for the handling of
electronic mail (or other records) of these agencies in accordance
with the FRA. If Judge Green's decision is affirmed on appeal,
this represents yet another failure of the guidelines to properly
distinguish Presidential from Federal record materials.
In their recent motion concerning plaintiffs' FOIA
request, defendants assert that the Court of Appeals decision in
this action holds that the PRA precludes judicial review of the
improper classification of agency records as Presidential records.
See Defs' Memorandum in Support of Summary Judgment On Narrowed
FOIA Requests at 49-52. The argument is meritless. The Court of
Appeals held that if a record is a Presidential record, decisions
concerning its creation, management and disposal are not subject to
judicial review. Armstrong v. Bush, 924 F.2d at 291. It did not
hold that agencies could evade the FRA or FOIA by deeming Federal
records to be Presidential records. To the contrary, the Court
specifically held that the plaintiffs may obtain judicial review to
ensure that "records already created [are] appropriately classified
and disposed of pursuant to disposal schedules approved by the
Archivist [under the FRA]." Id. at 288 (emphasis added). Whether
agencies misclassify Federal records as nonrecord or presidential
materials, the agency's error violates the FRA and is subject to
judicial review.
Moreover, other decisions and the PRA demonstrate that
Congress has not precluded judicial review of an agency's claim
that its materials are exempt from FOIA or the FRA because they are
Presidential records. The decision in Soucie and the subsequent
decision in Ryan make clear that an agency's erroneous claim that
its records are presidential materials is subject to de novo review
under FOIA. Indeed, in Soucie the Court rejected the agency's
claim despite the fact that the White House itself had issued
determination that the specific record at issue was a Presidential
record. 448 F.2d at 1070 n.6. Moreover, the PRA makes clear that
Congress did not intend to narrow the scope of FOIA by precluding
judicial review in cases like Soucie, but intended that "that which
is subject to FOIA would remain so and that which is not now
subject to FOIA would be subject to the Presidential Records Act."
H. R. No. 95-1487, supra at 11, reprinted in 1978 U.S. Code Cong.
& Ad. News 5742 (emphasis added). Thus, by making agency records
under FOIA the first exception to the definition of Presidential
record, 44 U.S.C.  2201(2)(B)(i), Congress ensured that agencies
could not avoid the FRA or FOIA by asserting that their records are
presidential materials.
IV. DEFENDANTS HAVE FAILED TO ESTABLISH A
MANAGEMENT PROGRAM AND SAFEGUARDS FOR ELECTRONIC MAIL.
Even if defendants were to correct the legal errors in
their guidelines identified above, this, alone, would not bring
them into compliance with the FRA. The FRA mandates that
defendants "maintain an active, continuing program" for managing
records, and institute "safeguards" against their loss in
compliance with the statute and the Archivists' regulations. 44
U.S.C.  3102, 3105. The Archivists' regulations direct agencies
to take a number of specific steps in order to comply with this
mandate. See 36 C.F.R  1222.20, 1228.12, 1234.10; see also Plfs'
Appendix, Tab 8, at 7 (outlining steps in disposition program).
Examination of the NSC's and EOP's recordkeeping program, however,
shows that they have followed these steps only for paper records,
and have ignored electronic records in each element of the process.
Taken together these omissions represent a pattern that shows that
defendants still do not have a program for the active management or
protection of electronic mail:
y No Inspections of Electronic Mail Records. As noted
above, see p. , defendants have never undertaken any examination,
inspection or survey of their electronic mail systems, despite the
Archives' regulations calling for such inventories for all records.
36 C.F.R.  1222.20(b)(2), (6), 1228.12(b), 1228.22, 1228.24;
 1234.10(g). When the NSC and the EOP have conducted
comprehensive reviews of their documentary materials to develop
disposition schedules, they have consistently reviewed only their
paper records and have omitted any review of their electronic mail
systems. SoF  81-82.
y No Ongoing Evaluation. Agencies must conduct periodic
reviews to ensure the adequacy, effectiveness and efficiency of
their recordkeeping program. Id.  1220.54, 1222.20(b)(8),
1222.50(b)(5), 1228.12(e). This includes auditing representative
samples of files, and reviewing electronic records systems for
conformance to recordkeeping procedures. 36 C.F.R. 1222.50(b)(5),
1234.20(l). The EOP and NSC have never conducted such a review,
or sought to assess whether their guidelines concerning electronic
mail are effective. SoF  73, 74.
y No Safeguards Against Staff Errors In Determining Record
Status. Even with proper guidelines, there is a risk that agency
staff will mistakenly or intentionally misclassify records.
Accordingly, the Archives' guidelines provide 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." SoF  76, 77. In accordance with this guidance,
records officers of the EOP and NSC review paper materials that
staff have labeled as nonrecord materials to identify any records
that have been erroneously classified. No such oversight, however,
is applied to staff treatment of electronic mail. SoF  78.
Recordkeeping personnel still do not supervise staff use of
electronic mail, no sampling is done to see that staff properly
apply the guidelines, and no safeguards are in place to assure that
records are not being intentionally or inadvertently destroyed.
y No Effort To Integrate Recordkeeping Requirements Into
Electronic Information Systems. Agencies are required to integrate
records preservation procedures with the overall information
procedures of the agency. 36 C.F.R.  1222.20(a)(2), 1234.10(b).
In the context of computerized information systems, this includes
"[e]stablishing procedures for addressing records management
requirements, including recordkeeping requirements and disposition,
before approving new electronic records systems or enhancements to
existing systems." Id.  1234.10(d). In the EOP and NSC, however,
recordkeeping considerations have never been addressed as part of
the process of installing or modifying the agencies' electronic
mail systems. Indeed, recordkeeping personnel have not been
consulted, nor have they sought to consult with those responsible
for installing, designing, and modifying the electronic mail
systems. SoF  72-75.
In its latest submission, the NSC reports that in May,
1992, it finally made an effort to integrate recordkeeping
requirements into its electronic mail system by modifying its
software so that NSC staff are required to label all notes as
Federal records, Presidential records or nonrecord material when
they are created, and materials identified as records are
automatically copied to the Records Management Office where they
are printed out and placed in the federal or presidential files
systems. No provision is made for retaining the electronic copies
that the computer collects together for the Records Management
Office. SoF  134. While this represents an improvement, this new
feature underscores the omissions in defendants' recordkeeping
program and the errors in their guidelines for three reasons:
First, the NSC's new feature highlights the fact that the
EOP has not even considered integration of recordkeeping
requirements with its software, and that the NSC's own efforts are
seven years late. The type of programming the NSC has now
introduced was just as feasible in 1985 and was urged by the
Archives in its 1985 Bulletin. See Plfs' Appendix, Tab 1,
Attachment A,  2e, 2f. Indeed, the NSC has been using this type
of programming to require staff to label classified information
since January, 1988, SoF  33, but only extended its use to
recordkeeping six weeks ago.
Second, the new feature relies entirely on the operating
staff to designate correctly the notes they create as Federal,
Presidential, or nonrecord based on the old written guidelines.
Thus, it perpetuates the errors in the guidelines identified above,
and continues the practice of delegating all determinations to the
staff. The agency still provides no safeguards, even by sampling,
against intentional or inadvertent mislabeling of records.
Finally, the new feature continues the NSC's improper
practice of treating material in electronic format as nonrecord
material. Even though the new feature automatically collects
electronic copies of notes identified as record material in one
place, and the electronic format of these materials is easier to
search and manage
**22. See Nowicke Dec.  4 (copies of electronic mail notes in
electronic form easier to manage than paper); SoF  200 (NSC uses
electronic database to facilitate tracking of paper records)**
-- the NSC still discards the electronic format
of the information after a paper copy is printed.
Thus, the NSC's new recordkeeping guidance does not
correct its past errors; it only automates them. Despite the
bulletins issued by the National Archives in 1985 and again in 1987
calling for agencies to establish a program for preserving
electronic records, see SoF  85-88, and the Archives' more recent
regulations, 36 C.F.R.  1234, the EOP and NSC have ignored their
obligations and still have not instituted an "active, continuing
program" with safeguards to prevent the loss of these records. 44
U.S.C.  3102, 3105.
V. THE ARCHIVIST HAS FAILED TO CARRY OUT HIS DUTY TO
TAKE ACTION TO RECOVER IMPROPERLY DESTROYED AGENCY RECORDS
In 1984 Congress amended the FRA to place a duty on the
Archivist to take action to stop the unlawful destruction of
records and to initiate action to recover lost records. 44 U.S.C.
 2905(a), 3106. As the Court of Appeals noted, these provisions
were added in "direct response" to the unlawful removal of agency
records by a former APNSA, Henry Kissinger, and were designed to
provide a remedy against similar misconduct in the future by
mandating that the Archivist take action when agency officials
themselves were responsible for, or failed to respond, to the
unlawful destruction of records. Armstrong v. Bush, 924 F.2d at
292, 294. Accordingly, the duty imposed on the Archivist by the
statute is mandatory: "the FRA requires" the Archivist to take
action when he becomes aware of "'any actual, impending, or
threatened unlawful removal, defacing, alteration, or destruction
of records.'" Id. at 295-96 (quoting 44 U.S.C.  2905(a)).
The undisputed facts show that the Archivist has violated
this mandate. The Iran-Contra investigations produced some of the
most widely publicized and notorious reports of the destruction of
government records in history. Individuals, including the APNSA,
John Poindexter, testified openly before Congress and in court of
erasing, altering, removing, shredding or otherwise destroying NSC
records, including PROFS communications, in an effort to cover-up
the scandal. See, e.g. Moore Dep., Exhibits 70, 72. In addition,
investigators demonstrated that it is possible to recover many of
the lost records by restoring lost files from the backup tapes, or
by using special methods (such as a "HEX Dump") to recover deleted
files from the tapes. SoF  60, 232. Despite his statutory
obligation to respond to such reports and assure recovery of lost
records, the Archivist has taken no action. He has made no effort
to contact the NSC, nor made effort to see that lost records are
recovered. Indeed, the Archives has not even made an effort to
gather any information beyond the reports in the press. SoF 
228-236.
The sole explanation offered for the Archivist's failure
to fulfill a mandatory statutory duty is the assertion that it was
appropriate for the Archivist to take no action because the press
reports indicated that the Attorney General was already aware of
the destruction of records. See Mosley Dec.  12. This, however,
only underscores the Archivist's failure to perform his duties.
The Attorney General does not have a specific duty to ensure that
agencies recover unlawfully removed records, and the Independent
Counsel's mandate does not include any responsibility for seeking
the recovery of records. SoF  235. The FRA charges the Archivist
with a specific, unique, and mandatory responsibility to initiate
appropriate action to recover lost records. Yet, the NSC has made
no effort to make PROFS materials recovered from the backup tapes
part of its records system, and the Archivist has not even inquired
to determine whether the agency is taking the necessary steps to
preserve the records in its possession. SoF  233. Thus, the
Archivist is in direct violation of the duty Congress imposed to
ensure that agencies like the NSC are required to take action to
recover records removed or destroyed by agency officials.
**23. Indeed, the Archivist's special responsibility in this
regard is demonstrated by the fact that North's lawyers
successfully argued that the Archivist's indifference to the
recovery of documents removed by North cast doubt on the
Independent Counsel's arguments that they were government records.
See United States v. North, 708 F. Supp. 402, 403-04 (D.D.C. 1989)**
Moreover, the reports of the destruction of records that
emerged from the Iran-Contra investigations were not limited to the
intentional destruction of PROFS materials as part of a cover-up.
The deficiencies in the NSC's general recordkeeping guidelines were
also brought to light as the Archives, through press reports,
became aware that it was the practice of at least some officials,
including the APNSA, to regularly erase PROFS notes. SoF  231.
As discussed above, neither the NSC nor the EOP prohibited such
practices.
The Archivist has a duty to initiate action when
practices that threaten the unlawful destruction of records come to
his attention. 44 U.S.C.  2905(a). Indeed, he is authorized to
review such agency records management practices, Id.  2907(c)(7),
and, when he becomes aware of guidelines and practices in violation
of the FRA, he has a duty to notify the agency, recommend
corrective action, and notify Congress and the President if the
agency fails to remedy the violations. Id.  2115(b).
Nevertheless, the Archivist has failed to take any action to
correct, or even investigate, the practices of the NSC and the EOP
with respect to electronic mail. The Archives has never reviewed
the EOP's or NSC's guidelines concerning electronic records -- even
though it has issued repeated bulletins and regulations directing
agencies to submit copies of their electronic records directives.
See 36 C.F.R.  1222.30(b)(3), 1234.10(c); Plfs' Appendix, Tabs 1
and 2,  5. Moreover, while the Archives has conducted periodic
examinations of paper records of the NSC and EOP, it has ignored
the agencies' electronic mail records. SoF  237.
The Archivist's sole response on this issue is the
assertion that, if the NSC and EOP guidelines are adequate, he has
no duty to prevent the unlawful destruction of records. Defs'
Summary Judgment Motion at 32.
**24. As a matter of law, this premise is incorrect since the
Archivist's statutory duty includes responding to the unlawful
destruction of records in violation of the guidelines. Armstrong
v. Bush, 924 F.2d at 295**
The Archivist, however, has never
reviewed the agency's guidelines or electronic mail systems to
determine if the agency's practices are proper, and, as we have
shown above, the agencies' practices violate the FRA. If the
Archivist had performed his duty to investigate the agencies'
practices and recommend corrective action in 1985, when it declared
that "[h]ead of Federal agencies should make adequate plans for
keeping records in electronic form" and issue appropriate
directives, the destruction of records that has occurred might have
been prevented. Plfs' Appendix, Tab 1,  5. Instead, the
Archivist has abdicated this responsibility. As with the Iran-
Contra materials, the Archivist must be ordered to initiate action
to ensure that steps are taken to recover the records on the EOP
and NSC backup tapes preserved in connection with this action and
make them part of the agencies' official records systems. He must
also be ordered to initiate action to prevent the future
destruction of electronic mail records in violation of the FRA.
CONCLUSION
Defendants' motion for summary judgment should be denied.
Judgment should be entered for plaintiffs on counts II and IV of
the Second Amended Complaint, and relief ordered in accordance with
the accompanying order.
Respectfully submitted,

Michael E. Tankersley
(D.C. Bar No. 411978)
Patti A. Goldman
(D.C. Bar No. 398565)
Alan B. Morrison
(D.C. Bar No. 073114)
Public Citizen Litigation Group
Suite 700
2000 P Street, N.W.
Washington, D.C. 20036
(202) 833-3000
Of Counsel: Kate Martin
(D.C. Bar No. 949115)
Sheryl Walter American Civil Liberties Union
National Security Archive Foundation
1755 Massachusetts Ave., N.W. 122 Maryland Avenue, N.E.
Washington, D.C. 20036 Washington, D.C. 20002
(202 797-0882 (202) 675-2327
July 6, 1992 Attorneys for Plaintiffs

Page Last Updated December 20, 2016 .