PROFS case

Appeals Court Decision
Scott ARMSTRONG, et al.,
Plaintiffs,
v.
EXECUTIVE OFFICE OF THE PRESIDENT, et al.,
Defendants.
No. CIV. A. 89-142(CRR).
United States District Court,
District of Columbia.
July 19, 1993.
ORDER
RICHEY
1 The above captioned case came before the Court for a
status conference on July 13, 1993, pursuant to Rule 16 of the
Federal Rules for Civil Procedure. At that time, the Court
discussed with the parties how to most quickly and efficiently
resolve the outstanding matters in this lawsuit pertaining to the
Freedom of Information Act ("FOIA"). 5 U.S.C. s 552, et seq.
On January 6 and 11, 1993, the Court granted Summary
Judgment to the Plaintiffs on Counts II and III of their Third
Amended Complaint, alleging claims under the Federal Records Act
("FRA"), 44 U.S.C. s 2101-2118, 2901- 2910, 3101-3107, and
3301-3324, and the Administrative Procedures Act ("APA"). 5
U.S.C. s 701 et seq. The Court held, inter alia, that the
information on the Defendants' electronic communications systems
at issue in this litigation are subject to the FRA and that the
federal record keeping guidelines promulgated by the Defendant
agencies violated the FRA and were arbitrary and capricious under
the APA because they permitted the destruction of these
electronic federal records. See Armstrong v. Executive Office of
the President, 810 F.Supp. 335 (D.D.C.1993). The parties have
each filed an appeal of the Court's decision and the appeal is
pending, sub judice, before the Court of Appeals for the District
of Columbia Circuit. Armstrong v. Executive Office of the
President, 810 F.Supp. 335 (D.D.C.1993), appeal docketed, Nos.
93-5002 and 93-5048 (D.C.Cir. Jan. 1, 1993, and Feb. 24, 1993).
The Plaintiffs' FOIA claim contained in Count I of their
Complaint remains to be resolved by this Court. In this Count,
the Plaintiffs have requested both electronic and written
materials under the FOIA. Now pending before the Court are two
Motions for Summary Judgment, filed by the Defendants, as to the
FOIA claims in this suit: the first motion concerns the
electronic materials requested by the Plaintiffs while the second
motion concerns the paper material.
The Motion regarding the electronic records involves many
of the same issues and arguments as are currently before our
Court of Appeals, sub judice, in Counts II and III in this case.
Therefore, the Court concludes that the Defendants' Motion for
Summary Judgment on the FOIA concerning electronic materials is
intertwined with the issues currently before our Court of
Appeals. As the appeal is on an expedited schedule, the Court
concludes that it is in the interest of justice and judicial
economy to stay any ruling on this Motion until the appeal is
decided. However, the parties are on notice that the Court shall
address the Plaintiffs' FOIA claim regarding electronic records
as soon as possible after the Court of Appeals issues its
decision.
The other Motion for Summary judgment presently before the
Court concerns the Plaintiffs' FOIA claim for paper materials.
The Defendant has filed a partial motion for summary judgment as
to these papers materials and has prepared a partial Vaughn v.
Rosen index. The Plaintiffs object to any piecemeal disposition
of their FOIA claim for paper materials and have not yet
responded to this Motion. See Plaintiffs' Reply in Support of
Motion to Compel Completion of Vaughn index. Instead, the
Plaintiffs have filed a Motion to Compel Completion of the Vaughn
index so that the Court can resolve all the FOIA requests for
papers materials at the same time and the Plaintiffs have
requested an extension of time to file their Opposition to the
Defendants' Motion until a complete Vaughn index has been
prepared.
2 At the status conference, both parties agreed that an
updated and complete Vaughn index was needed before the Court
could resolve the FOIA claims as to all of the paper materials.
[Foot Note 1] The Court concludes that it is in the interest of
justice and judicial economy to resolve all of the FOIA claims as
to the papers materials at the same time. Furthermore, the Court
notes that the Defendant agencies bear the burden of sustaining
their withholding of records, 5 U.S.C. s 552(a)(4)(B), and that a
complete Vaughn index is required to explain the agencies,
justification for withholding each document or category of
documents. See Vaughn v. Rosen, 484 F.2d 820, 827
(D.C.Cir.1973), cert. denied, 415 U.S. 977 (1974). Therefore, in
light of the parties agreement that a complete Vaughn index is
needed, the Court shall grant the Plaintiffs' Motion to Compel
Completion of the Vaughn index and shall order the Defendants to
complete the Vaughn index within 30 days of the date of this
order. Furthermore, the parties shall file dispositive motions
as to these paper materials as soon as the Vaughn index is
completed.
Accordingly, it is, by the Court, this 19th day of July,
1993,
ORDERED that the Defendants' Motion for Summary Judgment on
the Plaintiffs' Freedom of Information Act claims concerning
electronic records shall be, and hereby is, STAYED pending the
decision of the Court of Appeals for the District of Columbia
Circuit in Armstrong v. Executive Office of the President, 810
F.Supp. 335 (D.D.C.1993), appeal docketed, Nos. 93-5002 and
93-5048 (D.C.Cir. Jan. 1, 1993, and Feb. 24, 1993); and it is
FURTHER ORDERED that the Plaintiff's Motion to Compel the
Completion of the Vaughn index shall be, and hereby is, GRANTED;
and it is
FURTHER ORDERED that the Defendants' shall file a complete
Vaughn v. Rosen index on or before 4:00 p.m. on August 18, 1993;
and it is
FURTHER ORDERED that the parties shall file any and
dispositive motions pertaining to the Plaintiffs' Freedom of
Information Act claims for paper materials on or before 4:00 p.m.
on August 25, 1993; and it is
FURTHER ORDERED that the parties shall file their
opposition on or before 4:00 p.m. on September 7, 1993; and it
is
FURTHER ORDERED that the parties shall file their reply on
or before 4:00 p.m. on September 13, 1993; and it is
FURTHER ORDERED that the Defendants' Motion for Partial
Summary Judgment on the Plaintiffs' Freedom of Information Act
claims concerning paper materials shall be and hereby is DENIED
without prejudice; and it is
FURTHER ORDERED that the Plaintiffs' Motion for an
Extension of Time to Respond to the Defendants' motion for
Partial Summary Judgment shall be, and hereby is DENIED as moot.
Foot Note 1. In a status report to the Court filed on July
12, 1993, the Defendants informed the Court that they had finally
responded to all of the Plaintiffs FOIA requests for paper
materials. At the conference, the Defendants agreed that a final
Vaughn index was need to bring all of the Plaintiffs' FOIA claim
for paper materials before the Court for resolution.


(Cite as: 1993 WL 304567 (D.C.Cir.))
Scott Armstrong; Gary M. Stern; Eddie Becker; National
Security Archive; Center
for National Security Studies, Plaintiffs-Appellees
v.
Executive Office of the President, Office of
Administration; National Security
Council; Trudy Peterson, Acting Archivist of the United
States; White House
Communications Agency, Defendants-Appellants
Scott Armstrong; Gary M. Stern; Eddie Becker; National
Security Archive; Center
for National Security Studies; American Historical
Association; American
Library Association, Plaintiffs-Appellants
v.
Executive Office of the President, Office of
Administration; National Security
Council; Trudy Peterson, Acting Archivist of the United
States; White House
Communications Agency, Defendants-Appellees
Scott Armstrong; Gary M. Stern; Eddie Becker; National
Security Archive; Center for National Security Studies,
Plaintiffs-Appellees
v.
Executive Office of the President, Office of
Administration; National Security Council;
Trudy Peterson, Acting Archivist of the United States;
White House Communications Agency,
Defendants-Appellants
Scott Armstrong; Gary M. Stern; Eddie Becker; National
Security Archive; Center for National Security Studies,
Plaintiffs-Appellees
v.
Executive Office of the President, Office of
Administration; National Security
Council; Trudy Peterson, Acting Archivist of the United
States; White House Communications Agency,
Defendants-Appellants
No. 93-5002.
No. 93-5048.
No. 93-5156.
No. 93-5177.
United States Court of Appeals,
District of Columbia Circuit.
Argued June 15, 1993.
Decided August 13, 1993
Freddi Lipstein, Attorney, United States Department of
Justice, argued the cause for appellants-cross-appellees. With
her on the joint brief were Stuart E. Schiffer, Acting Assistant
Attorney General, J. Ramsey Johnson, United States Attorney,
Leonard Schaitman, Matthew M. Collette, and Patricia A. Millett,
Attorneys, United States Department of Justice.
Michael E. Tankersley argued the cause for appellees-cross-
appellants. With him on the joint brief were David C. Vladeck
and Alan B. Morrison. Patti Ann Goldman, Kate Abbott Martin and
Katherine Anne Meyer entered appearances.
Before MIKVA, Chief Judge; WALD and HENDERSON, Circuit
Judges.
Opinion for the Court filed Per Curiam. [Foot Note 1]
1 PER CURIAM: This consolidated appeal presents us with
important questions of federal agencies' statutory obligations to
manage electronic records as well as issues related to the
appropriate use of the civil contempt power to coerce conformity
with district court orders.
In the flagship portion of the appeal, defendants-
appellants-the Executive Office of the President ("EOP"), the
Office of Administration, the National Security Council ("NSC"),
the White House Communications Agency, and Trudy Peterson, Acting
Archivist of the United States challenge the district court's
conclusion that EOP and NSC guidelines for managing electronic
documents do not comport with Federal Records Act ("FRA" or the
"Act") requirements. More specifically, these government
agencies and officials contend that, contrary to the court's
ruling, they have, in the past, reasonably discharged their FRA
obligations by instructing employees to print out a paper version
of any electronic communication that falls within the statutory
definition of a "record" and by managing the "hard-copy"
documents so produced in accordance with the Act. We reject the
government's argument on this score. The government's basic
position is flawed because the hard copy print outs that the
agencies preserve may omit fundamental pieces of information
which are an integral part of the original electronic records,
such as the identity of the sender and/or recipient and the time
of receipt.
The defendants also appeal the district court's order
holding them in civil contempt of its prior order enjoining the
Archivist to "take all necessary steps" to preserve federal
records and requiring the defendant agencies not to remove,
alter, or delete any information until the Archivist takes action
to prevent the destruction of federal records. More
specifically, they contest the district court's contempt citation
grounded in the court's conclusions that (1) the defendant
agencies failed to issue adequate record keeping instructions to
employees in the four months after their former guidelines were
held invalid and (2) the transfer of nearly 6,000 backup tapes to
the Archivist "adversely affected" those tapes. Because the
district court orders on which the contempt citation rests did
not specify that the defendants had an affirmative duty to create
new guidelines by a date certain, the district court abused its
discretion in holding the defendants in contempt at least in part
because of their failure to issue such guidelines within four
months. We remand to allow the district court to determine
whether, in light of the defendants' speeded up attempts in
recent months to assure preservation of the tapes, its second
ground, the failure to preserve these tapes, by itself, justifies
a contempt citation.
Finally, we are presented with a cross-appeal. The
plaintiffs cross appellants Scott Armstrong, the National
Security Archive, and several other researchers and nonprofit
organizations take issue with the district court's conclusion
that federal courts have no authority to review NSC and Office of
Science & Technology Policy ("OSTP") guidelines differentiating
federal records subject to the FRA from presidential records
subject to the Presidential Records Act ("PRA"), 44 U.S.C. s 2201
et seq. Contrary to the district court, we conclude that the PRA
allows limited review to assure that guidelines defining
presidential records do not improperly sweep in nonpresidential
records. Accordingly, we remand to the district court to
determine whether the relevant NSC and OSTP directives categorize
nonpresidential records as subject to the PRA.
I. BACKGROUND
A. Statutory Framework
2 Federal agencies' records creation, management, and
disposal duties are set out in a collection of statutes known
collectively as the Federal Records Act. See 44 U.S.C. ss 2101
et seq., 2901 et seq., 3101 et seq., 3301 et seq. The FRA,
Congress informs, is intended to assure, among other things,
"[a]ccurate and complete documentation of the policies and
transactions of the Federal Government," "[c]ontrol of the
quantity and quality of records produced by the Federal
Government," and "[j]udicious preservation and disposal of
records." 44 U.S.C. s 2902(1), (2), (5); see also Armstrong v.
Bush, 924 F.2d 282, 292 (D.C.Cir.1991) ("Armstrong I ") (the FRA
is intended to guarantee that agencies' records management
programs "strike a balance 'between developing efficient and
effective records management, and the substantive need for
Federal records' ") (quoting S. REP. NO. 1326, 94th Cong., 2d
Sess. 2 (1976)). To achieve those ends, the FRA burdens the
heads of federal agencies with several obligations. Most
basically, each agency head must "make and preserve records
containing adequate and proper documentation of the organization,
functions, policies, decisions, procedures and essential
transactions of the agency and designed to furnish the
information necessary to protect the legal and financial rights
of the Government and of persons directly affected by the
agency's activities." 44 U.S.C. s 3101. Moreover, under the
Act, agency chiefs must also "establish and maintain an active,
continuing program for ... economical and efficient [records]
management," id. s 3102, and "establish safeguards against the
removal or loss of records [the agency head] determines to be
necessary and required by regulations of the Archivist." Id. s
3105; see also Armstrong I, 924 F.2d at 293 (noting that these
provisions, as well as others furnished "law to apply" under the
Administrative Procedure Act ("APA"), see 5 U.S.C. s 701(a)(2),
and thus permitted judicial review of agency recordkeeping
guidelines' conformity with the FRA).
Besides assigning specific duties to agency heads, the FRA
prescribes the exclusive mechanism for disposal of federal
records. See 44 U.S.C. s 3314 (no records may be "alienated or
destroyed" except in accordance with the FRA's provisions). For
these purposes, "records" are defined as all books, papers, maps,
photographs, machine readable [i.e., electronic] materials, or
other documentary materials, regardless of physical form or
characteristics, made or received by an agency of the United
States Government under Federal law or in connection with the
transaction of public business and preserved or appropriate for
preservation by that agency ... as evidence of the organization,
functions, policies, decisions, procedures, operations, or other
activities of the Government or because of the informational
value of data in them. Library and museum material made or
acquired and preserved solely for reference or exhibition
purposes, extra copies of documents preserved only for
convenience of reference, and stocks of publications and of
processed documents are not included. 3 Id. s 3301. If a
document qualifies as a record, the FRA prohibits an agency from
discarding it by fiat. See American Friends Service Committee v.
Webster, 720 F.2d 29, 62 (D.C.Cir.1983) ("Congress did not intend
to grant [the agency] ... a blank check for records disposal.").
Instead, the FRA requires the agency to procure the approval of
the Archivist before disposing of any record. Cf. id. at 63.
Normally, that approval may be obtained in one of two ways.
First, an agency may submit a schedule of records sought to be
discarded to the Archivist, who will sign off on the records'
destruction only if she concludes that they do not "have
sufficient administrative, legal, research, or other value to
warrant their continued preservation." 44 U.S.C. s 3303a(a).
Second, the agency may jettison certain common types of records
pursuant to disposal schedules promulgated in advance by the
Archivist (the disposal schedules are, of course, designed to
take into account the FRA's goal of preserving documents of
"administrative, legal, research, or other value"). Id. s
3303a(d).
Under the FRA, the Archivist's duties are not limited to
judging the suitability of records for disposal. In addition,
the Archivist must "provide guidance and assistance to Federal
agencies with respect to ensuring adequate and proper
documentation of the policies and transactions of the Federal
Government and ensuring proper records disposition," id. s
2904(a), "promulgate standards, procedures, and guidelines with
respect to records management," id. s 2904(c)(1), and "conduct
inspections or surveys of the records and the records management
programs and practices within and between Federal agencies." Id.
s 2904(c)(7). The Archivist also plays a key role in the FRA's
enforcement scheme. If she discovers that an FRA provision has
been or is being breached, the Archivist must (1) inform the
agency head of the violation and suggest corrections and (2) if
ameliorative measures are not undertaken within a reasonable
time, submit a written report to Congress and the President. Id.
s 2115(b). Also, should the Archivist become aware of any
"actual, impending, or threatened unlawful removal, defacing,
alteration, or destruction of records in the custody of [an]
agency," she must notify the agency head of the problem and
assist the agency head in initiating an action through the
Attorney General for the recovery of wrongfully removed records
or for other legal redress. Id. s 2905(a); see also id. s 3106
(requiring agency heads to notify the Archivist of any unlawful
destruction or removal of records and placing upon them an
independent duty to seek legal action through the Attorney
General to recover the records). If the agency head is
recalcitrant in pursuing legal remedies, the Archivist herself is
to (1) request the Attorney General to initiate action and (2)
inform Congress that she has made that request. Id. s 2905(a);
see also Armstrong I, 924 F.2d at 295 (holding that "if the
agency head or Archivist does nothing while an agency official
destroys or removes records in contravention of agency guidelines
and directives, private litigants may bring suit to require the
agency head and Archivist to fulfill their statutory duty to
notify Congress and ask the Attorney General to initiate legal
action").
B. The NSC and EOP Electronic Communications Systems
4 Since the mid-1980s, the NSC and the EOP have utilized
electronic communications systems to improve their operational
efficiency. [Foot Note 2] These systems allow employees to
create and share electronic appointment calendars as well as to
transfer and edit word processing documents, but it is their
electronic mail (or "e-mail") capacity that has racked up the
most mileage. The 1,300 federal employees with access to the EOP
and NSC electronic mail systems can, and apparently do, utilize
them to relay lengthy substantive -even classified- "notes" that,
in content, are often indistinguishable from letters or
memoranda. But, in contrast to its paper cousin, e-mail can be
delivered nearly instantaneously at any time of the day or week.
And, in contrast to telephone conversations, e-mail automatically
creates a complete record of the exact information users send and
receive.
Other attributes of the EOP and NSC electronic mail systems
are also relevant here. First, these systems give recipients the
option of storing notes in their personal electronic "log."
After receiving a message, a user may instruct the computer to
delete the note; otherwise, it will be stored in her log for
later use. Second, both the recipient and the author of a note
can print out a "hard copy" of the electronic message containing
essentially all the information displayed on the computer screen.
That paper rendering will not, however, necessarily include all
the information held in the computer memory as part of the
electronic document. Directories, distribution lists,
acknowledgements of receipts and similar materials do not appear
on the computer screen and thus are not reproduced when users
print out the information that appears on the screen. Without
this "non-screen" information, a later reader may not be able to
glean from the hard copy such basic facts as who sent or received
a particular message or when it was received. For example, if a
note is sent to individuals on a distribution list already in the
computer, the hard copy may well include only a generic reference
to the distribution list (e.g., "List A"), not the names of the
individuals on the list who received the document. Consequently,
if only the hard copy is preserved in such situations, essential
transmittal information relevant to a fuller understanding of the
context and import of an electronic communication will simply
vanish. A final relevant fact here is that the individual note
logs are not the only electronic repositories for information on
the e-mail system. The defendant agencies periodically create
backup tapes snapshots of all the material stored on these
electronic communications systems at a given time that can be
used later for retrieval purposes.
C. Procedural History
On January 19, 1989, the final day of the Reagan
Presidency, the National Security Archive filed several Freedom
of Information Act ("FOIA"), 5 U.S.C. s 552, requests for all the
material stored on the EOP and NSC electronic communications
systems from their installation in the mid-1980s up to that
time. Simultaneously, the plaintiffs filed this suit for a
declaration that the electronic documents contained on the NSC
and EOP electronic communications systems and backup tapes were
federal and presidential records and an injunction prohibiting
those documents' destruction. After agreeing to preserve the
electronic tapes, the defendants filed a motion in the district
court for dismissal or, in the alternative, for summary judgment.
After that motion was denied, see Armstrong v. Bush, 721 F.Supp.
343 (D.D.C.1989), this court, on interlocutory appeal, settled
several threshold issues in the litigation. Specifically, we
held that the plaintiffs had standing to assert these claims
because they were within the zone of interests of the records
management provisions of the PRA and the FRA, see Armstrong I,
924 F.2d at 287-88, but that the President was not an agency
under the APA and that the PRA impliedly precluded judicial
review of the President's record creation, management, and
disposal decisions under that statute. See id. at 288-91. We
said, however, that the plaintiffs could seek judicial review of
(1) agency guidelines' conformity to the FRA and (2) the agency
heads' and Archivist's discharge of their FRA-derived
responsibility to take action to prevent destruction or removal
of federal records. See id. at 291-96. We then remanded the
case to allow for supplementation of the record as to the precise
guidance written and oral that the defendant agencies had given
employees. See id. at 296-97.
5 On remand, the parties developed an extensive record,
including a Joint Statement of Facts (the "Joint Statement"),
and, on January 6, 1993, the district court issued its ruling on
all the FRA issues raised by the plaintiffs (the plaintiffs' FOIA
claims remain undecided). See Armstrong v. Executive Office of
the President, 810 F.Supp. 335 (D.D.C.1993). In that ruling, the
district court first addressed whether the communications stored
in these electronic communications systems constituted federal
records. Because the FRA's definition of "records" includes
material "regardless of physical form or characteristics," the
court concluded that substantive communications otherwise meeting
the definition of federal "records" that had been saved on the
electronic mail came within the FRA's purview. See id. at
340-41.
The court then found that the defendants' current practices
for electronic records management were deficient in two key
respects. First, assuming arguendo that the defendant agencies
unequivocally informed their staffs to print out all on-screen
information of any electronic note that qualified as a federal
record (an assumption that the plaintiffs have vigorously
contested throughout this litigation), that instruction was not
adequate to meet the FRA's requirements because the "electronic
material ... [is] qualitatively different than a copy printed out
in paper form." Id. at 341. The district court emphasized that
unless employees also printed out the transmittal information
stored in the computer but not appearing on screen, the hard
copies preserved in the paper files would not necessarily contain
all the important items retained in the electronic system. See
id. ("A paper copy of the electronic material does not contain
all of the information included in the electronic version.");
see also Appellants' Brief at 22 ("[The defendant agencies] do
not require that all information related to an electronic message
be preserved, but only that information that is captured when the
message screen is printed or incorporated into a written
memorandum."). Specifically, data "regarding who has received
the information and when the information was received" might well
be omitted from the paper versions. 810 F.Supp. at 341; see
also id. at 346-47 (discussing NSC guidance).
The court found a second flaw in the agencies' records
management practices: they failed to provide for any supervision
of agency employees' electronic recordkeeping practices. Noting
that (1) the National Archives Records Management Handbook
provided that only "records officers" should determine the status
of FRA records and (2) the defendant agencies supervise staffers'
management of paper, but not electronic, records, the court
concluded that the defendants' failure to supervise employees'
electronic recordkeeping was arbitrary and capricious. See id.
at 343; see also id. at 347 (discussing NSC guidance). [Foot
Note 3]
6 Finally, the district court refused to adjudicate
plaintiffs' claim that the NSC guidelines did not adequately
distinguish between federal and presidential records. The court
found that our holding in Armstrong I precluded judicial review
of any guideline affecting the status of a presidential record.
See id. at 347-48.
To implement its decision, the district court issued a
multi-part declaratory and injunctive order. The order, as
amended, first declared that the defendant agencies' current
guidelines were arbitrary and capricious and contrary to law.
See Amended Order, Armstrong v. Executive Office of the
President, No. 89-142 (D.D.C. Jan. 11, 1993). Second, it
enjoined the Archivist to "seek the assistance of the Attorney
General with notice to Congress, and take all necessary steps to
preserve, without erasure, all electronic Federal Records
generated at the defendant Agencies." Id. Finally, it enjoined
all the defendants "from removing, deleting, or altering
information on their electronic communications systems until such
time as the Archivist takes action ... to prevent the destruction
of federal records, including those records saved on backup
tapes." Id. In response to an emergency motion by the
defendants, this court stayed this last requirement to the extent
of allowing the agencies to "remove, delete, or alter"
information so long as it was preserved elsewhere in identical
form. See Armstrong v. Executive Office of the President, No.
93-5002 (D.C.Cir. Jan. 15, 1993).
On May 21, 1993, on petition of the plaintiffs, the
district court found the defendants in civil contempt. See
Armstrong v. Executive Office of the President, No. 89-142
(D.D.C. May 21, 1993). First, it found that interim guidance
issued by the defendants in the wake of the court's invalidation
of their old guidelines was inadequate. Accordingly, the court
reasoned, the defendants were in contempt for not substantially
complying with its orders requiring the agencies to preserve all
records. See id., slip opinion ("slip op.") at 5-13. Second,
the court held that the conditions surrounding the January 19,
1993, inauguration-eve transfer of backup tapes from the White
House to the National Archives, as well as the Archivist's
subsequent failure to recopy Reagan-era backup tapes nearing the
end of their natural lifespan, violated the court's orders
requiring preservation of the tapes. This treatment of the
backup tapes, including the failure to recopy deteriorating
tapes, thus furnished an additional basis for the contempt
citation. See id. at 17-21. The court then set out a list of
specific acts that the defendants were required to undertake by
June 21, 1993 to purge themselves of contempt; if the defendants
failed to accomplish them, fines of $50,000 a day, to be doubled
in subsequent weeks, would be imposed until the defendants
cleansed themselves of their contempt. See Order, Armstrong v.
Executive Office of the President, No. 89-142 (D.D.C. May 21,
1993).
7 Following oral argument on June 15, 1993, this court
stayed the district court's contempt sanctions pending the
outcome of this appeal. See Armstrong v. Executive Office of the
President, No. 93-5002, et al. (D.C.Cir. June 15, 1993).
II. THE VALIDITY OF CURRENT NSC AND EOP GUIDELINES
A. The Instruction to Print "Hard-Copy" Paper
Versions
We first address appellants' contention that the district
court erred in finding that their pre-January-order instruction
to print on-screen information from electronic federal records
was inconsistent with the FRA. [Foot Note 4] This question
implicates two parts of this case. First, if the agencies'
policy of printing on-screen information did not result in
"papering" all federal records material, then at least some
federal records will be permanently lost or destroyed unless the
electronic backup records, currently being retained pursuant to
the district court's orders, are preserved. This circumstance
alone creates the predicate for an order requiring the Archivist
and the relevant agency heads to take the statutorily prescribed
steps to prevent the destruction of those tapes. [Foot Note 5]
Second, if this "print screen" policy which was still in effect
at the time the district court ruled in January--is inadequate
under the FRA, then the district court appropriately issued a
declaratory judgment invalidating its future use.
In proceeding to decision on this point, we adopt the
district court's assumption, based on the appellants'
submissions, that both the EOP and the NSC have consistently
instructed employees, either orally or in writing, that when any
electronic document meets the definition of a federal record, the
employee should either print out the information that appears on
her computer screen or incorporate that material into a written
memorandum. See Appellants' Brief at 7-8; see also id. at 22
("[The agencies] do not require that all information related to
an electronic message be preserved, but only that information
that is captured when the message screen is printed or
incorporated into a written memorandum.").
Accepting appellants' factual predicate, however, does not
lead us to their legal conclusion that such an approach satisfies
the Act. Our analysis is a straightforward one. We begin with
the apparently undisputed proposition that the EOP and NSC
electronic communications systems can create, and have created,
documents that constitute federal records under the FRA. The FRA
contemplates that documents qualifying as records may be stripped
of that status only if they are "extra copies of documents
preserved only for convenience of reference." 44 U.S.C. s 3301.
Applied to this case, that means that the mere existence of the
paper print-outs does not affect the record status of the
electronic materials unless the paper versions include all
significant material contained in the electronic records.
Otherwise, the two documents cannot accurately be termed "copies"
-identical twins- but are, at most, "kissing cousins." Since the
record shows that the two versions of the documents may
frequently be only cousins -perhaps distant ones at that- the
electronic documents retain their status as federal records after
the creation of the paper print-outs, and all of the FRA
obligations concerning the management and preservation of records
still apply. See, e.g., id. s 3105 (requiring agency heads to
"establish safeguards against the removal or loss" of "records");
id. s 3314 (stating that "records" may only be "alienated or
destroyed" in accordance with FRA provisions, i.e., with the
approval of the Archivist).
8 To qualify as a record under the FRA, a document must
satisfy a two- pronged test. It must be (1) "made or received
by an agency of the United States Government under Federal law or
in connection with the transaction of public business" and (2)
"preserved or appropriate for preservation by that agency ... as
evidence of the organization, functions, policies, decisions,
procedures, operations, or other activities of the Government or
because of the informational value of data in [it]." Id. s 3301.
The appellants do not contest the fact that many, if not all, of
the communications relayed over the electronic system satisfy the
"public transaction" element of this test. At oral argument, the
government appeared to acknowledge that the "preserved or
appropriate for preservation" criterion was satisfied as well for
some documents on the system. [Foot Note 6]
To the extent any question remains, we reject the
appellants' argument, on brief, that agency heads have sweeping
discretion to decide which documents are "appropriate for
preservation" (since we reject this contention, we do not
consider whether the disputed documents have also been
"preserved"). The appellants have stipulated that the electronic
communications systems "contain information on the organization,
functions, policies, decisions, procedures, operations, and other
activities" of the agencies. Joint Statement P 64. Such
documents could only fail to qualify as records if, despite their
content, the agency has the inherent discretion to consider them
en masse as not "appropriate for preservation ... as evidence of
[the government's] organization, functions, policies, decisions,
procedures, operations or other activities," 44 U.S.C. s 3301
(emphasis added), an odd proposition to assert in this case since
the agency heads admit that they have never surveyed the contents
of the electronic systems. See Joint Statement P 67 ("Neither
the EOP nor the NSC ha[s] conducted any formal examination,
inspection, or survey to determine the types of communications
recorded on the system, or the amount of information on the
organization, functions, policies, decisions, procedures or other
activities of the EOP or NSC recorded in [electronic] files.");
cf. American Friends, 720 F.2d at 65. In any case, while the
agency undoubtedly does have some discretion to decide if a
particular document satisfies the statutory definition of a
record, see Armstrong I, 924 F.2d at 297 n.14, the statute surely
cannot be read to allow the agency by fiat to declare
"inappropriate for preservation" an entire set of substantive
e-mail documents generated by two administrations over a
seven-year period. [Foot Note 7] Cf. American Friends, 720 F.2d
at 41 ("Congress was certainly aware that agencies, left to
themselves, have a built-in incentive to dispose of records
relating to [their] 'mistakes'...."). Indeed, to conclude that
agencies have broad discretion to exempt seven years of
substantive documents from record status would flout our prior
holding in Armstrong I that the FRA furnishes sufficient "law to
apply" to permit judicial review of agency guidelines relating to
the management of federal records. See Armstrong I, 924 F.2d at
293 (noting that the FRA contains a "detailed definition of the
'records' that agencies must preserve") (emphasis added); see
also id. ("Although the FRA understandably leaves the details of
records management to the discretion of individual agency heads,
it does contain several specific requirements....").
9 Having established that the electronic communications
systems contain preservable records, we turn finally to the
question of whether the government has the discretion to convert
only part of the electronic records to paper and then manage only
the partial paper records in accordance with the FRA and the
Archivist's regulations. The question answers itself. Only one
FRA provision exists that would even arguably sanction a
document, once denominated a federal record, shedding that
appellation at a later point. That provision states that "extra
copies of documents preserved only for convenience of reference"
are not "records." 44 U.S.C. s 3301. But it is too tight a fit
for the government to shoehorn the electronic records at issue
here into that exception. Even assuming, without of course
deciding, that one set of parallel documents retained in a
different records system in a different medium than another set
may be classified as a "cop[y]" under the FRA and thus subject to
unobstructed destruction, the electronic records would still not
qualify as "full reproduction[s] or transcription[s];
imitation[s] of a prototype; ... duplicate[s]," WEBSTER'S NEW
UNIVERSAL UNABRIDGED DICTIONARY 404 (2d ed.1979), of the paper
print-outs. This is because important information present in
the e-mail system, such as who sent a document, who received it,
and when that person received it, will not always appear on the
computer screen and so will not be preserved on the paper
print-out. See Joint Statement P 46 ("When printed on paper,
a[n] [e-mail] note will not always identify the sender(s) and
recipient(s) of a note by name. Instead, the sender(s) or
recipient(s) may be identified only by (a) userid [i.e., user
identification]; (b) nickname; or (c) the title given to a
distribution list identifying several individuals. Identifying
the names of the sender(s) or recipient(s) for such notes
requires reference to the distribution lists or directories
maintained only in electronic form.") (emphasis added; record
citations omitted); see also id. at P 47 ("If requested, [the
electronic communications system] will provide the sender of a
note with a confirmation that it has been received, called an
'acknowledgement.' The acknowledgement records the date and time
the addressee of the note opened his or her electronic mail.
This information on the date and time the note is received does
not appear on the paper copy of the note when it is
printed-out.") (record citations omitted). Since employees had
never been- at least until the time of the district court's
January order- instructed to include these integral parts of the
electronic record [Foot Note 8] in any paper print-out, there is
no way we can conclude that the original electronic records are
mere "extra copies" of the paper print-outs. Cf. National
Archives and Records Administration, Managing Electronic Records
19 (1990) ("Most agencies have decided to meet their
recordkeeping requirements for documents that are created using
word processing or electronic mail or messaging by printing those
documents in hard copy. The success of this approach depends
upon a clear understanding by all employees of the obligation to
print and file all record material.") (emphasis added).
10 Our refusal to agree with the government that electronic
records are merely "extra copies" of the paper versions amounts
to far more than judicial nitpicking. Without the missing
information, the paper print outs akin to traditional memoranda
with the "to" and "from" cut off and even the "received" stamp
pruned away are dismembered documents indeed. [Foot Note 9]
Texts alone may be of quite limited utility to researchers and
investigators studying the formulation and dissemination of
significant policy initiatives at the highest reaches of our
government. See 810 F.Supp. at 341 (noting that the omitted
information may be "of tremendous historical value in
demonstrating what agency personnel were involved in making a
particular policy decision and what officials knew, and when they
knew it"). The "[t]omorrow, and tomorrow, and tomorrow" of
government will be allowed to "creep in [their] petty pace from
day to day" without benefit of the "last syllable of recorded
time." WILLIAM SHAKESPEARE, MACBETH, Act V, scene v, line 19.
In our view, as well as the district judge's, the practice of
retaining only the amputated paper print outs is flatly
inconsistent with Congress' evident concern with preserving a
complete record of government activity for historical and other
uses. [Foot Note 10] See 44 U.S.C. s 2902(1) (listing first among
Act's goals the "[a]ccurate and complete documentation of the
policies and transactions of the Federal Government"); see also
Armstrong I, 924 F.2d at 288 (noting the "expressed statutory
goal of preserving records for historical purposes"); American
Friends, 720 F.2d at 57 (describing the FRA's legislative history
as demonstrating that "Congress intended, expected, and
positively desired private researchers ... to have access to the
documentary history of the federal government"); cf. 36 C.F.R. s
1222.38 ("Agency recordkeeping requirements shall prescribe the
creation and maintenance of records of the transaction of agency
business that are sufficient to: ... (e) Document the
formulation and execution of basic policies and decisions and the
taking of necessary actions, including all significant decisions
and commitments reached orally (person to person, by
telecommunications, or in conference)."). Perhaps that is why,
in this court, the appellants seem to have abandoned their former
heavy reliance on this theory.
Before us they plead an alternative, related, but no more
compelling theory of statutory compliance: "that the extra
information that plaintiffs argue must be preserved is in fact
not always 'appropriate for preservation' as evidence of an
agency's essential transactions, and that printing the actual
message text on the computer screen normally is sufficient for
adequate documentation of the agency's business. Since the
printed copy is identical to what is on the computer screen, the
electronic version of the message that remains is a copy that is
nonrecord within the meaning of the statute." Reply Brief for
Appellants at 9. In other words, the appellants contend that
given the broad discretion vested in the agencies by the FRA,
they may reasonably determine that some parts of a record
document the so called "extra information" are not "appropriate
for preservation"; thus, after the creation of the paper
records, the electronic version is a "copy" because the paper
record contains all the material worth preserving from the
electronic files.
11 This appeal to discretion, however, relies in the main
on snippets of language from different parts of the FRA pasted
together in ways incompatible with the overall design of the Act.
As noted above, the "appropriate for preservation" phrase in the
definition of "records" at most allows the agency some discretion
in deciding whether a document meets that definition in the first
place. See 44 U.S.C. s 3301 (providing that federal "records"
must be, inter alia, "preserved or appropriate for preservation
by that agency ... as evidence of the organization, functions,
policies, decisions, procedures, operations, or other activities
of the Government or because of the informational value of data
in them"). It does not, as appellants imply, grant agencies the
discretion to automatically lop off a predesignated part of a
whole series of documents that qualify as records (nor would it
allow the wholesale destruction of the directories and similar
materials if they were perceived to be independent records, see
supra note 8). In substance, the appellants are claiming that it
satisfies the Act to preserve a second version of a record that
is an approximation of the first version if it includes all the
material that, in their view, is "appropriate for preservation."
Even if this argument made sense with respect to a particular
document, it cannot be accepted across the board for seven years
of records documenting high-level government decisionmaking.
Further, as our discussion above makes clear, it cannot be
squared with the FRA's "extra copies" provision. The Act
explicitly provides an "out" of the system for a federal record
only when a second version is identical to i.e., an "extra copy"
of the first. There is no provision accepting abbreviated or
summary versions of the original as the only record if the
summary contains all material deemed "appropriate for
preservation." [Foot Note 11]
Equally unconvincing is the appellants' suggestion that
Congress' directive to preserve "adequate documentation" of
agencies' "essential transactions" justifies their practice of
retaining only the "substantive information" displayed on the
computer screen. The phrases "adequate documentation" and
"essential transactions" are lifted from 44 U.S.C. s 3101, which
states: "The head of each Federal agency shall make and preserve
records containing adequate and proper documentation of the
organization, functions, policies, decisions, procedures and
essential transactions of the agency and designed to furnish the
information necessary to protect the legal and financial rights
of the Government and of persons directly affected by the
agency's activities." The purpose of this provision, by its own
terms, is to place a general obligation on agency leaders to
create and then retain a baseline inventory of "essential"
records. See American Friends, 720 F.2d at 54; see also id. at
56 (summarizing legislative history of this provision and
concluding that it provided an enforceable "across-the-board
requirement" that agencies retain certain types of records); S.
REP. NO. 2140, 81st Cong., 2d Sess. 15 (1950) (this provision
"provides a general declaration by the Congress [to maintain
adequate records]"). Other parts of the FRA, however, go on to
prescribe more particularized duties for agency heads that reach
beyond their general obligation to "adequately document" core
agency functions. In particular, the Act includes (1) a separate
definition of the term "records" that the appellants acknowledge
sweeps in many of the electronic communications at issue here
whether or not preservation of those documents is necessary to
maintain "adequate documentation" of "essential transactions" and
(2) other statutory provisions that mandate that all records
again, whether or not related to "adequate documentation" of
"essential transactions" be managed and retained in accordance
with explicit statutory directives. See 44 U.S.C. s 3314
("[R]ecords ... may not be alienated or destroyed except under
this chapter.") (emphasis added); see also id. s 3105 (agency
heads must "establish safeguards against the removal or loss of
records ") (emphasis added). In sum, appellants' arguments fail
to detour us from the analytical path we started down and now
come close to finishing: (1) substantive e-mail communications
satisfy the FRA definition of "records"; (2) the lone FRA
provision for terminating their status as such requires that they
be merely "extra copies" of other documents preserved elsewhere;
and (3) since there are often fundamental and meaningful
differences in content between the paper and electronic versions
of these documents, the electronic versions do not lose their
status as records and must be managed and preserved in accordance
with the FRA.
12 Contrary to appellants' assertions, the conclusion that
agencies must retain and manage these electronic documents in no
way collides with Congress' oft-expressed intent to balance
complete documentation with efficient, streamlined recordkeeping.
See, e.g., S. REP. NO. 2140, 81st Cong., 2d Sess. 4 (1950) ("It
is well to emphasize that records come into existence, or should
do so, not in order to ... satisfy the archival needs of this and
future generations, but first of all to serve the administrative
and executive purposes of the organization that creates them.").
Our decision does not require that agencies, in appellants'
words, save "every scrap of paper" they create. Not all
scribbles and off the cuff comments will qualify as federal
records. Nor do we saddle agencies with any new obligations to
make additional documents in order to satisfy the needs of
researchers or investigators. Cf. Armstrong I, 924 F.2d at 288
("[P]laintiffs do not seek the creation of any new records, but
rather ask only that the records already created be appropriately
classified and disposed of...."); S. REP NO. 1326, 94th Cong.,
2d Sess. 8 (1976) (emphasizing the need for economy in records
creation because that is where 80% of total recordkeeping costs
are incurred). Finally, our decision leaves undisturbed the
agencies' ability to purge incidental electronic records from
their files by acting, with the Archivist's approval, to dispose
of those documents that lack "sufficient administrative, legal,
research, or other value to warrant their continued
preservation." 44 U.S.C. s 3303(a); see also 55 Fed.Reg.
19,216, 19,216 (1990) (Archivist notes that the burden of
managing electronic records "can be reduced significantly by
promptly scheduling all electronic records, thus limiting the
application of [regulatory] requirements to the very small
percentage of records that are scheduled as permanent").
In sum, we find that the district court was fully justified
in concluding that appellants' recordkeeping guidance was not in
conformity with the Act.
B. Supervision of Electronic Recordkeeping Practices
Appellants also dispute the district court's finding that
their records management practices were arbitrary and capricious
in failing to provide for supervision or auditing of employees'
electronic recordkeeping practices by knowledgeable records
management personnel. Specifically, appellants contend that they
reasonably discharged their obligation to "safeguard" federal
records by assigning records managers the task of providing oral
and written guidance to agency personnel and making those
recordkeeping experts available for resolution of specific
problems.
The FRA explicitly requires each agency head to establish
such safeguards against the removal or loss of federal records as
she "determines to be necessary and required by regulations of
the Archivist." 44 U.S.C. s 3105; see also 36 C.F.R. s 1220.2
("Federal agency records management programs must be in
compliance with regulations promulgated by [the Archivist].").
In this case, the agency heads clearly failed to discharge this
obligation.
13 The Archivist's regulations provide: The head of each
Federal agency shall ensure that the management of electronic
records incorporates the following elements: ... (l) Reviewing
electronic records systems periodically for conformance to
established agency procedures, standards, and policies .... The
review should determine if the records have been properly
identified and described, and whether the schedule descriptions
and retention periods reflect the current informational content
and use.... Id. s 1234.10 (emphasis added). The Archivist has
defined an "electronic records system" as "any information system
that produces, manipulates, or stores Federal records by using a
computer." Id. s 1234.2 (emphasis added). As previously
discussed, the electronic communication systems used by the EOP
and the NSC do produce federal records, and it follows that
agencies have an obligation under the Archivist's guidelines to
undertake periodic reviews to assure that "established agency
procedures, standards, and policies," including instructions as
to what constitutes a record, are being adhered to. Moreover,
the relevant regulations make clear that they apply to all
electronic systems used by agency employees to create electronic
records, not just, as appellants suggest, to "official" agency
electronic records systems. See id. s 1234.1 ("Unless otherwise
noted, [this section's] requirements apply to all electronic
records systems, whether on microcomputers, minicomputers, or
mainframe computers, regardless of storage media, in network or
stand-alone configurations."); cf. id. s 1234.22 (listing
specific requirements for electronic records systems "that
maintain the official file copy of text documents on electronic
media"). Moreover, to the extent there is any residual doubt on
this question, we think that the agencies' own action in
undertaking some review of employees' paper records before those
employees exit government service and the common sense insight
that an adequate program for ensuring records preservation must
include some ongoing inspections and evaluations tip the balance
against the government and lead to the conclusion that oversight
is necessary as part of "an agencywide program for the management
of all records created, received, maintained, used or stored on
electronic media." Id. s 1234.10(a).
On that basis, we affirm the district court's holding that
the defendant agencies must undertake some periodic review of
their employees' electronic recordkeeping practices. [Foot Note
12]
III. THE DISTRICT COURT'S CIVIL CONTEMPT ORDER
Next, the appellants appeal from the district court's May
21, 1993 civil contempt order. The district court found the
appellants "in contempt of this Court's Orders of January 6 and
11, 1993, and the Order of the United States Court of Appeals for
the District of Columbia dated January 15, 1993" in two respects:
(1) "for failing to promulgate new, appropriate, and proper
recordkeeping regulations for electronic federal records to
replace those regulations struck down by this Court on January 6,
1993" and (2) "because the transfer of 5,839 tapes from the
Defendant agencies to the Archivist has adversely affected the
condition of the tapes and the information stored therein" which
was "contrary to this Court's Orders to preserve the tapes and
federal records contained on them." Order, Armstrong v. Bush,
No. 89-142 (D.D.C. May 21, 1992). The court further ordered
that, unless the appellants should "purge themselves of this
finding of contempt" by "tak[ing] appropriate action by 4:00 p.m.
on June 21, 1993," they would be subject to a fine of $50,000 for
each day of noncompliance during the first week, to be doubled to
$100,000 per day the second week and $200,000 per day the third
week, "with increases in such sanctions reserved thereafter for
any further noncompliance with Court Orders." Id. at 2-3. The
appellants assert that the contempt finding must be reversed
because, inter alia, the district court's first ground, the
failure to promulgate new regulations, was not a violation of the
cited orders and therefore cannot support civil contempt. "The
standard of review on an appeal from a finding of contempt is
whether the District Court abused its discretion." International
Ass'n of Machinists & Aerospace Workers v. Eastern Airlines,
Inc., 849 F.2d 1481, 1486 (D.C.Cir.1988). We agree with the
appellants that the contempt finding, as articulated, was an
abuse of discretion because it rests in part on an impermissible
ground.
14 As a preliminary matter, we reject the appellees'
jurisdictional argument that the May 21, 1993 order is not an
appealable one because it "imposes only a conditional sanction
for failure to comply with a preexisting order." See Appellees'
Contempt Brief at 13. As both the Eleventh Circuit and the
Second Circuit have concluded, " 'Being placed under the threat
of future sanction is a present sanction' " and an order so
threatening " 'imposes a present remedy and hence is appealable.'
" United States v. O'Rourke, 943 F.2d 180, 186 (2d Cir.1991)
(quoting Sizzler Family Steak House v. Western Sizzler Steak
House, Inc., 793 F.2d 1529, 1533 n.2 (11th Cir.1986)) (emphasis
in original). We agree and therefore proceed to the merits of
the contempt appeal.
"There can be no question that courts have inherent power
to enforce compliance with their lawful orders through civil
contempt." Shillitani v. United States, 384 U.S. 364, 370
(1966). Nevertheless, "civil contempt will lie only if the
putative contemnor has violated an order that is clear and
unambiguous," Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1st
Cir.1991), and the violation must be proved by "clear and
convincing" evidence. Washington-Baltimore Newspaper Guild,
Local 35 v. Washington Post Co., 626 F.2d 1029, 1031
(D.C.Cir.1980). The district court's first ground for its
contempt finding, however, did not involve violation of any court
order. The district court's January 11, 1993 order did not
expressly direct the appellants to promulgate new regulations,
but merely issued "a Declaratory Judgment that the guidelines
issued by and at the direction of the Defendant Agencies are
inadequate and not reasonable and are arbitrary and capricious
and contrary to law in that they permit the destruction of
records contrary to the Federal Records Act." Amended Order,
Armstrong v. Bush, No. 89-142 (D.D.C. Jan. 11, 1993). As the
Supreme Court has observed: "[E]ven though a declaratory
judgment has 'the force and effect of a final judgment,' 28
U.S.C. s 2201, it is a much milder form of relief than an
injunction. Though it may be persuasive, it is not ultimately
coercive; noncompliance with it may be inappropriate, but is not
contempt." Steffel v. Thompson, 415 U.S. 452, 471 (1974)
(quoting Perez v. Ledesma, 401 U.S. 82, 125-26 (1971) (Brennan,
J., concurring)). Thus, because the appellants were never
directly ordered to promulgate new regulations, we must reverse
the district court's contempt finding which was based in part on
their failure to do so. Cf. Spallone v. United States, 493 U.S.
265, 276-77 (1990) (reversing contempt finding against
individual city councilmembers for city's violation of consent
decree where "the individual city councilmembers ... were not
parties to the action" and "although the injunctive portion of
that decree was directed not only to the city but to 'its
officers, agents, employees, successors and all persons in active
concert with any of them,' ... the remaining parts of the decree
ordering affirmative steps were directed only to the city");
International Longshoremen's Ass'n, Local 1291 v. Philadelphia
Marine Trade Ass'n, 389 U.S. 64, 76 (1967) (reversing opinion
upholding contempt finding for violating order that "did not
state in 'specific ... terms' the acts that it required or
prohibited") (quoting FED. R. CIV. P. 65(d)). Accordingly, we
vacate the contempt order and remand to the district court to
consider whether its second ground, the failure to preserve the
tapes, by itself, justifies a finding of contempt, taking into
account all efforts that have or will then have been made to
assure the tapes' integrity. [Foot Note 13]
IV. REVIEWABILITY OF EOP AND NSC GUIDELINES
DEFINING PRESIDENTIAL RECORDS
15 Finally, the plaintiffs-appellees cross-appeal the
district court's conclusion that it did not have jurisdiction to
review the EOP recordkeeping guidelines regarding presidential
records. As cross-appellants, they assert that the guidelines
improperly instruct NSC and OSTP staff to treat as presidential
records materials that are, in fact, agency records subject to
the FRA. We have jurisdiction to hear the cross appeal under 12
U.S.C. s 1292(b) because it challenges aspects of the same
interlocutory order that is the subject of the main appeal. See
Armstrong I, 924 F.2d at 296 n.13.
The district court erred in declining to review the EOP
guidelines defining presidential records. The PRA delineates
those records over which the President may exercise "virtually
complete control" during his term of office, id. at 290, and the
courts may not restrict that control by reviewing the President's
recordkeeping practices and decisions. Id. at 291. But the
courts are accorded the power to review guidelines outlining what
is, and what is not, a "presidential record" under the terms of
the PRA. The PRA does not bestow on the President the power to
assert sweeping authority over whatever materials he chooses to
designate as presidential records without any possibility of
judicial review. Rather, it provides that all materials that
were subject to the FOIA, 5 U.S.C. s 552, prior to the passage of
the PRA remain subject to the FOIA and do not qualify as
"presidential records." Thus, the court may review the EOP
guidelines for the limited purpose of ensuring that they do not
encompass within their operational definition of presidential
records materials properly subject to the FOIA. We therefore
reverse and remand to the district court for proceedings
consistent with this opinion.
A. Background
The FRA and the PRA apply to distinct categories of
documentary materials. As restated more fully, supra pages 6-7,
the FRA defines the "records" subject to the Act as all
documentary materials ... made or received by an agency of the
United States Government under federal law or in connection with
the transaction of public business and preserved or appropriate
for preservation ... as evidence of the ... activities of the
Government or because of the informational value of data in them.
44 U.S.C. s 3301. ("Records" subject to the FRA are referred to
hereinafter as "federal records.") The PRA defines "presidential
records" as documentary materials ... created or received by the
President, his immediate staff, or a unit or individual of the
Executive Office of the President whose function is to advise and
assist the President, in the course of conducting activities
which relate to or have an effect upon the carrying out of the
constitutional, statutory, or other official or ceremonial duties
of the President. 44 U.S.C. s 2201(2). The definition goes on to
exclude specifically "any documentary materials that are ...
official records of an agency," as the term "agency" is defined
in the FOIA, 5 U.S.C. s 552(f). Id. s 2201(2)(B)(i).
16 Whereas federal records are subject to a strict document
management regime supervised by the Archivist, see supra pages
7-8, the PRA "accords the President virtually complete control
over his records during his term of office." Armstrong I, 924
F.2d at 290. Neither the Archivist nor an agency head can
initiate any action through the Attorney General to effect
recovery or ensure preservation of presidential records. Compare
44 U.S.C. s 3106 (requiring agency heads to notify the Archivist
of unlawful removal or destruction of federal records and to seek
legal action through the Attorney General to recover or preserve
the records); id. s 2905(a) (directing the Archivist to assist
the agency head in initiating an action through the Attorney
General for the recovery of wrongfully removed federal records or
for other legal redress, and requiring the Archivist to make her
own request to the Attorney General if the agency head is
recalcitrant). Furthermore, the President may designate a
period, not to exceed twelve years after the completion of his
presidency, during which his presidential records shall not be
accessible under the FOIA or otherwise. Id. s 2204.
The Archivist can request congressional advice regarding
the President's intention to dispose of presidential records if
the Archivist believes that the records may be of special
interest to Congress or that consultation is in the public
interest, 44 U.S.C. s 2203(e), and she can also cause the
President to submit a disposal schedule at least 60 calendar days
of continuous session of Congress in advance of the proposed
disposal date. Id. s 2203(d). But "neither the Archivist nor
the Congress has the authority to veto the President's disposal
decision." Armstrong I, 924 F.2d at 290 (citation omitted).
The EOP guidelines in question classify broad categories of
NSC records as federal records, but also provide that NSC records
"are [p]residential records if they were received or created for
the President, the [National Security Adviser] ... or his Deputy,
or a member of the White House staff independently of any meeting
or policy and staff actions of the NSC or its various groups."
Joint Statement P 157(c). The analogous guidelines for the OSTP
provide that OSTP records are federal records, but "records
produced or received by the Director of OSTP in his role as
Science Advisor to the President are [p]residential records and
should be segregated as such." Id. P 157(d).
Relying in large part on our decision in Armstrong I, the
district court held that "the NSC is entitled to segregate
presidential and federal records.... [T]his Court has no power to
review actions taken by the President to ensure that presidential
records are maintained." Armstrong, 810 F.Supp. at 347, 348
(citations omitted). The district court also stated that our
decision in Armstrong I provided the methodology for separating
the FRA and the PRA as it applies here: ... EOP components whose
sole responsibility is to advise the President are subject to the
PRA and create presidential records. Similarly, the components
of the EOP that have statutory responsibility are subject to the
FRA. 17 Id. at 349 (citing Armstrong I, 924 F.2d at 286 n.2).
The district court further understood Armstrong I to have found
that the NSC advises the President and has statutory obligations,
and to have applied the foregoing "methodology" to determine that
the NSC "produces both presidential and federal records." Id. at
347-48 (citing Armstrong I, 924 F.2d at 286 n.2).
In light of its interpretation of Armstrong I, the district
court concluded that its order to take all necessary steps to
preserve electronic federal records applied only to those
agencies that have statutory responsibility and not those that
solely advise the President.... The Defendants shall not be
required to preserve material[s] which are presidential records
produced by components whose sole responsibility is to advise the
President. However, in components that produce both types of
records, this Court does have the jurisdiction to authorize the
preservation of these materials until the Archivist can ensure
that federal records are not destroyed. Id. at 349. Thus,
although the district court concluded that it could not review
the presidential records guidelines, it nonetheless ordered the
NSC and other EOP components who do not have the sole
responsibility of advising the President to preserve all records,
both federal and presidential, "until the Archivist can ensure
that federal records are not destroyed." Id.
B. Reviewability of the Guidelines
As we have already stated, supra page 31, the PRA defines
"presidential records" as documentary materials ... created or
received by the President, his immediate staff, or a unit or
individual of the Executive Office of the President whose
function is to advise and assist the President, in the course of
conducting activities which relate to or have an effect upon the
carrying out of the constitutional, statutory, or other official
or ceremonial duties of the President. 44 U.S.C. s 2201(2). In
addition, Congress explicitly provided that presidential records
do not include "any documentary materials that are ... official
records of an agency," as the term "agency" is defined in the
FOIA, 5 U.S.C s 552(f). 44 U.S.C. s 2201(2)(A)(i). The
legislative history explains this limitation on the definition of
"presidential records" as follows: The term "presidential
records" is intended ... to encompass all White House and [EOP]
records ... which ... fall outside the scope of the FOIA because
they are not agency records. In other words, that which is now
subject to FOIA would remain so and that which is [not] now
subject to FOIA would be subject to the [PRA,] including those
provisions of the [PRA] which in specified circumstances
specially apply FOIA to these non agency records after a
President leaves office. H.R. REP. NO. 1487, 95th Cong., 2d Sess.
11 (1978); see also id. at 3.
Thus, Congress perceived the potential definitional overlap
between agency records under the FOIA and presidential records
under the PRA, and explicitly provided that the PRA would apply
only to records that "fall outside the scope of FOIA because they
are not agency records." Put another way, the PRA provides that
the definition of "agency" records in the FOIA trumps the
definition of "presidential records" in the PRA. Congress was
"keenly aware of the separation of powers concerns that were
implicated by legislation regulating the conduct of the
President's daily operations," and thus sought "to minimize
outside interference with the day to day operations of the
President and his closest advisors and to ensure executive branch
control over presidential records during the President's term of
office." Armstrong I, 924 F.2d at 290. At the same time,
however, Congress sought to provide a clear limitation on just
which materials the President could legitimately assert control
over and to preserve the pre-existing body of FOIA law governing
the disclosure of government agency records.
18 The PRA exclusion of records subject to the FOIA from
the class of materials that may be treated as presidential
records averts a clash in the role of judicial review under the
two statutory schemes. Judicial review plays an indispensable
role in ensuring proper government disclosure under the FOIA. 5
U.S.C. s 552(a)(4)(B); Truitt v. Department of State, 897 F.2d
540, 547 (D.C.Cir.1990); Senate of Puerto Rico v. U.S.
Department of Justice, 823 F.2d 574, 587 (D.C.Cir.1987); McGehee
v. Casey, 718 F.2d 1137, 1148 (D.C.Cir.1983); Ray v. Turner, 587
F.2d 1187, 1190-95 (D.C.Cir.1978). At the same time, judicial
review of the President's management of admittedly presidential
records is impliedly precluded by the PRA. Armstrong I, 924 F.2d
at 289; see infra pages 36 - 38. Congress preserved the
critical role of judicial review under the FOIA, and avoided a
conflict between the PRA and the FOIA, by explicitly exempting
records subject to the FOIA from the scope of the PRA and
allowing judicial review of guidelines defining presidential
records under the rubric of substantive FOIA law.
This narrow, clearly defined limitation on the scope of the
PRA is absolutely essential to preventing the PRA from becoming a
potential presidential carte blanche to shield materials from the
reach of the FOIA. Of course, we presume that executive
officials will act in good faith. But if guidelines that purport
to implement the PRA were not reviewable for compliance with the
statute's definition of presidential records, non - presidential
materials that would otherwise be immediately subject to the FOIA
would be shielded from its provisions, whether wittingly or
unwittingly, if they were managed as presidential records. See
44 U.S.C. s 2204(a), (b) (President may designate a period, not
to exceed twelve years after the completion of his presidency,
during which his presidential records shall not be accessible
under the FOIA or otherwise); id. s 2204(c)(1) (presidential
records shall be administered under the FOIA after the expiration
of any limitations on access imposed under subsections 2204(a)
and (b)). Moreover, in light of the fact that disposal decisions
under the PRA are unreviewable, Armstrong I, 924 F.2d at 290, a
non-presidential document subject to the FOIA could be forever
removed from that statute's provisions if it were improperly
classified as a presidential record and destroyed.
For example, imagine a guideline defining "presidential
records" as "all records produced or received by, or in the
possession or under the control of, any government agency or
employee of the United States." This definition would sweep all,
or virtually all, federal records and many documentary materials
that are neither federal nor presidential records within the
ambit of the PRA, and outside the scope of the FOIA. Reading the
PRA to forbid judicial review of such a guideline for conformity
with the PRA definition of presidential records would be
tantamount to allowing the PRA to functionally render the FOIA a
nullity. As we have already stated, supra pages 33-35, Congress
avoided this problem by excluding records subject to the FOIA
from the scope of the PRA, thereby preserving FOIA law intact and
maintaining the integral role of judicial review.
19 Our holding today is also consonant with the
relationship between the FRA and the PRA. The FRA defines a
class of materials that are federal records subject to its
provisions, and the PRA describes another, mutually exclusive set
of materials that are subject to a different and less rigorous
regime. In other words, no individual record can be subject to
both statutes because their provisions are inconsistent. If
guidelines that purport to define presidential records were not
reviewable, the cross-appellees could effectively shield all
federal records not only from the FOIA, but also from the
provisions of the FRA thus evading this court's holding in
Armstrong I, 924 F.2d at 293, that the courts have jurisdiction
to decide whether the NSC's recordkeeping guidelines adequately
describe the material subject to the FRA.
We held in Armstrong I that "the PRA precludes review of
the President's recordkeeping practices and decisions."
Armstrong I, 924 F.2d at 289. The cross appellees urge the court
to give this language the broadest possible reading, holding in
effect that we may not review any guidelines that purport to
implement the PRA or deal with asserted presidential records.
Thus, argue the cross appellees, the district court correctly
held that the guidelines for determining which materials are
presidential records are not subject to judicial review. We
disagree. The Armstrong I opinion does not stand for the
unequivocal proposition that all decisions made pursuant to the
PRA are immune from judicial review.
The Armstrong I opinion addressed the question whether the
courts could review the decision to erase materials designated by
the government as presidential records within the meaning of the
PRA. See id. at 284, 291. We held that judicial review was not
available to monitor disposal and emphasized that Congress
drafted the PRA in a manner that would "ensure executive branch
control over presidential records during the President's term of
office." Id. at 290 (emphasis added). Thus, we held that those
decisions that involve materials that are truly presidential
records are immune from judicial review. We did not hold in
Armstrong I that the President could designate any material he
wishes as presidential records, and thereby exercise "virtually
complete control" over it, id. at 290, notwithstanding the fact
that the material does not meet the definition of "presidential
records" in the PRA.
The cross-appellees point to individual phrases and
sentences in our Armstrong I opinion which they contend dictate
the broad result they urge upon this court. However, as we have
just said, this language must be read in the context of the issue
before the court in Armstrong I. In any case, the language
seized upon by the cross appellees is entirely consistent with
the result we reach today. We stated in Armstrong I that the PRA
"require[s] the President to maintain records documenting the
policies, activities, and decisions of his administration, but
leav[es] the implementation of such a requirement in the
President's hands." Id. However, the discussion that immediately
follows this statement makes clear that the Armstrong I court was
not addressing the initial classification of existing materials.
The Armstrong I court discusses only the "creation, management,
and disposal decisions" described in the provisions of 44 U.S.C.
s 2203. See id. at 290, 291. None of these decisions
encompasses the initial classification of materials as
presidential records.
20 A "creation" decision refers to the determination to
make a record documenting presidential activities. See 44 U.S.C.
s 2203(a). Thus, the courts may not review any decisions
regarding whether to create a documentary presidential record.
"Management decisions" describes the day-to-day process by
which presidential records are maintained. See id. s 2204(a),
(b). The courts may likewise not review these particulars of the
presidential records management system. Armstrong I, 924 F.2d at
290. Finally, "disposal decisions" describes the process
outlined in 44 U.S.C. s 2203(c)- (e) for disposing of
presidential records. Judicial review of the President's action
under these provisions is also unavailable. But guidelines
describing which existing materials will be treated as
presidential records in the first place are subject to judicial
review.
Thus, although the PRA impliedly precludes judicial review
of the President's decisions concerning the creation, management,
and disposal of presidential records during his term of office,
Armstrong I, 924 F.2d at 291, the courts may review guidelines
outlining what is, and what is not, a "presidential record" to
ensure that materials that are not subject to the PRA are not
treated as presidential records. We remand to the district court
to conduct this inquiry.
C. The PRA Definition of Presidential Records
Having held that the recordkeeping guidelines defining
presidential records are subject to judicial review, and having
remanded to the district court for that purpose, it remains for
us to discuss the definition of "presidential records" to be
applied on remand. As our previous discussion of the PRA, supra
pages 31, 33-34, has undoubtedly indicated, we must turn again to
the PRA provision exempting from its scope any materials that are
official records of an agency, as "agency" is defined in the
FOIA, 5 U.S.C s 552(f). 44 U.S.C. s 2201(2)(A)(i). Congress
expressly intended when it passed the PRA to preserve unchanged
the coherent body of law that had been developed under the FOIA,
and it is that body of law that provides the basis for our
limited review of the definition of presidential records provided
in the guidelines. The guidelines violate the PRA to the extent
that they classify as presidential records materials that would
otherwise be subject to the FOIA.
The FOIA definition of "agency" invoked in the PRA raises a
clear but somewhat intricate set of references and
cross-references. The FOIA provision mentioned in the PRA, 5
U.S.C. s 552(f), incorporates the definition of agency provided
at 5 U.S.C. s 551(1): "agency means each authority of the
Government of the United States, whether or not it is subject to
review by another agency, but does not include ... the Congress
... [or] the courts of the United States." 5 U.S.C. s 551(1).
Section 552(f) itself adds an additional proviso: [A]gency ...
includes any executive department, military department,
Government corporation, Government controlled corporation, or
other establishment in the executive branch of the Government
(including the Executive Office of the President), or any
independent regulatory agency. 21 5 U.S.C. s 552(f). The Supreme
Court has added still another layer of complexity, holding that
for FOIA purposes, the EOP does not include the Office of the
President. " '[T]he President's immediate personal staff or
units in the Executive Office whose sole function is to advise
and assist the President' are not included within the term
'agency' under the FOIA." Kissinger v. Reporters Committee for
Freedom of the Press, 445 U.S. 136, 156 (1980) (quoting H.R.
CONF. REP. NO. 1380, 93d Cong., 2d Sess. 15 (1974)).
The Supreme Court test adopted in Kissinger for determining
which entities within the EOP are agencies subject to the FOIA
was originally developed by this court in Soucie v. David, 448
F.2d 1067 (1971). In Soucie, this court held that only entities
whose "sole function [is] to advise and assist the President" are
not separate agencies subject to the FOIA. Id. at 1075. Thus,
the court concluded that the Office of Science and Technology
("OST") the precursor of the OSTP, one of the agencies whose
guidelines are at issue in this appeal was an agency subject to
the FOIA because its duties went beyond advising the President
and included evaluating federal scientific programs. Id.
The legislative history of the PRA could not be clearer in
indicating congressional intent to adopt the test articulated in
Soucie to determine what entities are "agencies" subject to the
FOIA: The [PRA] does not modify the applicability of the [FOIA]
to White House and [EOP] records.... That is, it does not
redefine the term agency to include entities not now covered by
the FOIA. The Conference Report for the 1974 Freedom of
Information Act amendments stated that "[w]ith respect to the
meaning of the term '[EOP]' the conferees intend the result
reached in Soucie v. David, 448 F.2d 1067 [ (D.C. Cir.1971) ].
The term is not interpreted as including the President's
immediate staff or units in the [EOP] whose sole function is to
advise and assist the President." H.R. REP. NO. 1487, 95th Cong.,
2d Sess. 11 (1978) (quoting H.R. CONF. REP. NO. 1380, 93d Cong.,
2d Sess. 13 (1974)), reprinted in 1978 U.S.C.C.A.N. 5732, 5742.
The FOIA Conference Report quoted in the PRA legislative history
is the same report upon which the Supreme Court relied in
Kissinger, 445 U.S. at 156.
This court has consistently applied the "sole function"
test developed in Soucie and adopted in Kissinger in its
subsequent decisions. In Ryan v. Department of Justice, 617 F.2d
781 (D.C.Cir.1980), we rejected the argument that certain records
of the Attorney General regarding judicial nominations were not
subject to the FOIA because the Attorney General was acting in
his independent capacity as an advisor to the President when he
prepared the records in question. Id. at 788. The Court
explained that Soucie did not intimate that the [OST] might be an
agency only when performing its non-advisory functions, and still
be a presidential staff component, or non-agency, when performing
its other function of advising the President. In fact, the
reports under consideration in Soucie were requested by the
President precisely for advisory purposes, but we did not deem
the [OST] to be a non-agency in that specific context. 22 Id.
(citing Soucie, 448 F.2d at 1075-76). See also Pacific Legal
Foundation v. Council on Environmental Equality, 636 F.2d 1259
(D.C.Cir.1980) (holding that the Council on Environmental
Equality ("CEQ") is a FOIA agency because, in addition to
advising the President, the CEQ coordinated federal environmental
regulatory programs, issued guidelines for preparing
environmental impact statements, and promulgated regulations for
implementing the procedural provisions of the National
Environmental Policy Act); Rushforth v. Council of Economic
Advisors, 762 F.2d 1038 (D.C.Cir.1985) (holding that the Council
of Economic Advisors is not an agency under the FOIA because its
sole function is to advise and assist the President); Meyer v.
Bush, 981 F.2d 1288 (D.C.Cir.1993) (holding that the President's
Task Force on Regulatory Relief "f[alls] within the Soucie test
as an entity whose sole function is to advise and assist the
President").
We hasten to add that our opinion in Armstrong I did not
hold as a matter of law that the NSC "produces both presidential
and federal records" because the NSC "advises the President and
has statutory obligations." See Armstrong, 810 F.Supp. at
347-48, 349 (citing Armstrong I, 924 F.2d at 286 n.2.). The
passage on which the district court relied appears as a footnote
in the "background" section of our Armstrong I opinion, without
any of the legal exposition that would be expected to accompany a
holding announcing the resolution of a previously unsettled legal
question. See Maggard v. O'Connell, 703 F.2d 1284, 1290-91
(D.C.Cir.1983) (statements in the background discussion of an
opinion should not be construed as deciding unresolved legal
issues, especially where the court was only reviewing and
reversing a grant of summary judgment). The footnote appears to
be nothing more than a description of the position of the
defendants-appellants as embodied in the EOP regulations. See
Joint Statement P 157 ("The records of the [NSC] staff are
federal records if they were received or created in connection
with the work of the statutorily-created [NSC].... The records
of the NSC 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 or its various groups."). Consequently, Armstrong I did
not provide the legal basis for distinguishing federal and
presidential records nor decide the legal status of various NSC
materials.
Although we hold in accordance with the PRA that materials
subject to the FOIA are not presidential records, we are unable
to ascertain on the record before us whether the guidelines
defining presidential records inappropriately classify certain
materials. We cannot determine with certainty whether materials
that the guidelines classify as presidential records are in fact
official records of an agency subject to the FOIA. The NSC
appears to have routinely conceded its status as an "agency"
subject to the FOIA in litigation regarding specific FOIA
requests to the NSC. See, e.g., Lisee v. CIA, 741 F.Supp. 988
(D.D.C.1990) (NSC made requisite showing of exceptional
circumstances and exercise of due diligence in processing FOIA
request to justify stay of further proceedings); Willens v. NSC,
726 F.Supp. 325 (D.D.C.1989) (requested NSC documents were within
the FOIA exemption for documents authorized to be kept secret in
the interest of national defense or foreign policy); Halperin v.
NSC, 452 F.Supp. 47 (D.D.C.1978) (same). The Supreme Court also
appears to have assumed, without deciding the issue, that the NSC
is a FOIA agency. See Kissinger, 445 U.S. at 156 (stating that
the FOIA requesters argued that certain documents which related
to the [NSC] "may have been [NSC] records and therefore subject
to the [FOIA]. See H.R. REP. NO. [876, 93d Cong., 2d Sess. 8
(1974) ], indicating that the [NSC] is an executive agency to
which the FOIA applies."). But the issue has never been
definitively resolved, and the record before us does not contain
sufficient facts for us to make the determination.
23 Moreover, the cross-appellees suggest that the
materials in question may not be subject to the FOIA even if the
NSC is an "agency" under the FOIA because they are not "official
records" of the NSC. See Brief for Cross- Appellees at 44-48.
The factual record is also insufficient to resolve this issue on
appeal. Thus, we remand to the district court for further
proceedings to determine whether the guidelines under review
inappropriately classify as presidential records materials that
would otherwise be subject to the FOIA.
CONCLUSION
To recap: We affirm the district court's decision that the
EOP and NSC electronic records management guidelines violate the
FRA, reverse the district court's civil contempt finding, and
remand to allow the district court to determine whether the
challenged NSC and OSTP guidelines inaccurately classify some
documents as presidential records.
So ordered.
Foot Notes
Foot Note 1. Sections I and II of this opinion were
authored by Circuit Judge Wald; Section IV was authored by Chief
Judge Mikva.
Foot Note 2. Originally, the EOP employed the "PROFS"
computer system. In 1989, the EOP installed another "OASIS"
system as an additional means of transmitting information among
employees. The original PROFS system ceased operations in 1992.
The NSC has its own PROFS system as well as a similar system
known as "All-In-One."
Foot Note 3. The district court went on to find that older
guidelines of the NSC and the EOP were deficient because, inter
alia, some instructions did not tell staff how to save electronic
records and did not differentiate between federal and
presidential records. See 810 F.Supp. at 344-46.
Foot Note 4. The appellants contend that the EOP is not a
proper party to this action because it is the subparts of the EOP
that are "agencies" under the APA. The appellants, however,
never raised this argument in their briefs to the district court;
accordingly, it has been waived. See, e.g., Association of
Accredited Cosmetology Schools v. Alexander, 979 F.2d 859, 862
(D.C.Cir.1992).
Foot Note 5. Indeed, because we agree with the district
court that federal records will be lost if only the paper
documents are preserved, we need not address the flaws that it
identified in earlier EOP and NSC recordkeeping documents. The
legal insufficiency of a mere instruction to print out on- screen
material is enough to create a risk that federal records will be
permanently destroyed if the backup tapes are not preserved.
Thus, we need not decide if additional errors in these
instructions would also require the Archivist and agency heads to
take curative steps to fulfill their statutory duties.
Foot Note 6. The following exchange took place at argument:
The Court: We agree ... that this system has, in the past,
created some things that qualify as federal records ... ?
Appellants' Counsel: We agree.
Foot Note 7. We note that the substantive importance of
these documents is demonstrated by the frequency with which they
have been used in recent years. They were used by the Tower
Commission, congressional investigators and the Independent
Counsel looking into the Iran-Contra affair; by the Department
of Justice in connection with its prosecution of Manuel Noriega;
and by the NSC's legal advisor in relation to the confirmation of
Robert Gates as Director of the CIA. See Joint Statement PP 56-
59.
Foot Note 8. Our discussion assumes that directories,
distribution lists, etc. become part of an electronic record when
they are incorporated in that record to specify senders and
receivers of documents. We believe such an assumption is
warranted as the most natural way of understanding the relation
between the substance of a message and its origin and
destination. See also Appellants' Brief at 22 (referring to the
disputed material as "information related to an electronic
message"). Nonetheless, our conclusion is in no way dependent
upon this assumption. If these electronic directories,
distribution lists, etc., are perceived to be separate electronic
records, making the paper renderings of the substantive notes
copies, the paper records system maintained by the agencies would
still fail to meet the Act's requirements since it would omit
entirely a different class of documents that, as the Archivist
acknowledges, are "appropriate for preservation" in situations
like this one. See National Archives and Records Administration,
Disposition of Federal Records 2 (1989) ("Sometimes papers
normally considered nonrecord, such as transmittals or routing
slips, acquire record status because they clarify the matter
being documented.") (emphasis added); cf. 36 C.F.R. s 1222.38
("Agency recordkeeping requirements shall prescribe the creation
and maintenance of records of the transaction of agency business
that are sufficient to: ... (e) Document the formulation and
execution of basic policies and decisions and the taking of
necessary actions, including all significant decisions and
commitments reached orally (person to person, by
telecommunications, or in conference).").
Foot Note 9. The appellants attempt to minimize this fact
by noting that traditional letters, memoranda, and phone calls do
not always leave behind a historical trail including such
information. This observation is beside the point. The key
facts here are that this information is available on the
electronic systems and that the defendant agencies have not taken
any steps to retain it on their paper documents.
Foot Note 10. At the same time, for the reasons discussed
infra at pages 23-24, we do not believe that our conclusion on
this point is inconsistent with the Act's desire to balance this
interest against the need for efficient records management. See
Armstrong I, 924 F.2d at 292.
Foot Note 11. Further, the agencies' assertion of
unilateral discretion to discard part of a federal record is at
odds with the FRA's specific requirement that federal records may
be "alienated or destroyed" only with the approval of the
Archivist. See 44 U.S.C. ss 3303a, 3314.
Foot Note 12. We also reject the appellants' contention
that the district court's injunctive order sweeps too broadly.
First, they argue that the court's order requiring the Archivist
immediately to seek the assistance of the Attorney General and
notify Congress of that action ignores Armstrong I 's statements
that the Archivist and agency heads could discharge their
statutory obligations through informal, intra-agency mechanisms.
See 924 F.2d at 296 n.12. In this case, the Archivist had failed
to take any actions formal or informal necessary to prevent the
statutory violations. See Joint Statement P 237 (acknowledging
that although Archivist's regulations require her to
"periodically evaluate agency records management programs," the
Archivist has never performed such an evaluation for the NSC and
the EOP, has never reviewed their recordkeeping guidelines, and
has never surveyed or inspected their e-mail systems). Given that
circumstance, the district court did not abuse its discretion in
ordering the Archivist to take the specific actions provided for
in the statute. Similarly unpersuasive is the appellants'
argument that the district court should not have enjoined the
defendant agencies from destroying any electronic records until
new guidelines were in place. Because these systems continue to
produce federal records, the district court used its discretion
appropriately in insisting upon a full-scale method for
preventing the records' destruction until the agencies came up
with new, adequate records management guidelines to replace the
ones voided by the district court's declaratory order.
Foot Note 13. In light of this disposition, we need not
address the appellants' challenge to the second contempt ground
or its claim of sovereign immunity from contempt fines. See
Spallone, 493 U.S. at 274 (finding it unnecessary to reach
alternative first amendment and legislative immunity arguments
after reversing contempt finding against city councilmembers on
merits).
END

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