PROFS case

Submitted April 7, 1994 
Plaintiffs, )
v. C.A. No. 89-0142 CRR )
Defendants. )
Since the last Joint Status Report to the Court on
February 14, 1994, a number of the projected dates set forth
in that report for completing certain steps have passed
without the tasks being completed, and new issues have
arisen. Accordingly, plaintiffs submit this status report to
the Court to report on events since the February 15, 1994
Status Conference. We will use the same four general
categories used in prior reports, albeit in reverse order.1
I. Distinguishing Presidential and Federal
Records. In the Motion to Dismiss Or, In The Alternative,
For Summary Judgment, filed by defendants on the night of
March 25, 1994, the National Security Council ("NSC") has
disavowed its prior position that some of the NSC's records
are not Federal records, and it now claims that the NSC is
not required to preserve its records in accordance with the
Federal Records Act. The NSC argues, for the first time,
that it is not an "agency" and, therefore, is not subject to
the holdings of this Court and the Court of APeals
concerning agency obligations under the Federal Records Act
and, indeed, that its recordkeeping practices are not subject
to any judicial review.
This Motion introduces a new claim that the NSC has
never made in the five prior years of this litigation. As a
result, additional discovery is necessary to complete the
record on this issue. Plaintiffs propounded written
discovery less than one week after service of the NSC's
Motion, as provided in the schedule set forth in the January
27, 1994 Stipulation and Order ("Stip. and Order").
Defendants' response to that discovery is due on April 29,
1994. Stip. and Order & 20.c.
Because of the additional discovery required on this
issue, and because of the other open issues described below,
plaintiffs do not believe it is possible to expedite the
schedule for briefing this issue established in the January
27, 1994 Stipulation and Order. Moreover, if there are
significant discovery disputes, completion of the briefing on
this issue may be further delayed.
In addition, in light of the NSC's new position, and
past experience with joint statements in this action,
plaintiffs believe that the date set by the Court's February
17, 1994 Order for filing a Joint Statement of Material Facts
is too early and potentially prejudicial to plaintiffs.
Accordingly, we intend to ask that the Court defer the filing
of the Joint Statement from the time of plaintiffs'
oPosition and cross motion, as contemplated by the current
Order, until the completion of the evidentiary record and
II. New Instructions on Management and
Safeguarding of Federal Records On Electronic Communications
Systems. In the last Joint Status Report, defendants
reported that they "intend to complete the drafting and
promulgation of recordkeeping instructions for all EOP agency
components by no later than March 11, 1994."2 This projected
date, however, has not been met.
The NSC is the only EOP component that has completed
the drafting and promulgation of recordkeeping instructions,
which were issued on March 21, 1994 (although, as noted
above, the NSC is now claiming that it is not subject to the
Federal Records Act). The remaining components -- the Office
of Administration, the Office of the United States Trade
Representative, and the Office of Science and Technology
Policy -- have not completed their revised instructions. As
a result, issues concerning these instructions have not been
resolved, and plaintiffs anticipate that further efforts to
narrow or resolve remaining issues in these drafts will be
necessary over the coming weeks as the drafts are finalized.
The last Joint Status Report also stated that the
National Archives and Records Administration ("NARA"), "now
intends to submit proposed standards to the Office of the
Federal Register by March 4, 1994."3 These proposed
standards were completed and submitted to the Federal
Register on March 23, 1994 for a 90-day comment period. 59
Fed. Reg. 13906-10 (March 24, 1994).
III. Preservation of Records on Backup Tapes and
Hard Drives. The January 27 Stipulation and Order
established a number of target dates for completing tasks
related to the copying, repair, and verification of materials
transferred to the custody of the Archivist in January, 1993,
and required defendants to suPlement their discovery
responses concerning these materials by March 25, 1994.
Stip. and Order, && 12-14. Defendants' discovery responses
indicate that, while some of the goals set forth in the
Stipulation and Order have been met, several others have not,
and a number of unresolved issues remain with respect to the
copying, repair, and verification of these materials:
A. Hard Drives. As the Court is aware, at the
end of the Bush Administration computer hard disk drives were
removed from computers at the NSC and sent to NARA.
Documents released by NARA on March 25, 1994, state that NARA
attempted to access information on these NSC hard drives on
September 29, 1993, and discovered that it could not activate
an unspecified number of the hard drives. There is no
indication that NARA has done any further work to resolve
this problem over the past six months.
Plaintiffs noticed a deposition for a representative
of the Archivist to testify on April 4, 1994 concerning the
condition and testing of the hard drives, but NARA refused to
aPear because the notice was issued less than five days
before the deposition. Plaintiffs have re-noticed the
deposition for April 11, 1994.
B. Physically Damaged Reagan Administration
Tapes. 71 of the backup tapes from the Reagan Administration
have physical damage that NARA has been unable to repair. 64
of these 71 tapes have chemical deterioration that makes them
"stick" to tape drives when an effort is made to read them.
Tapes in this condition may deteriorate further with time.
The remaining 7 tapes have visible physical damage (tears,
creases, holes, stretched tapes, etc.).
On December 28, 1993, NARA initiated procedures to
hire an outside, private consultant for remedial efforts on
the 71 damaged tapes, but has not yet entered into a
contract. NARA has not yet determined whether the physical
damage to any of the 71 tapes has resulted in the permanent
loss of data.
C. Copying of Reagan Administration Tapes. In
addition to the 71 damaged tapes described above, there are
144 backup tapes from the Reagan Administration that NARA has
not been able to successfully copy because of data errors.
The January 27, 1994 Stipulation and Order stated that
copying of these tapes would be completed by March 1, 1994,
provided that testing of NARA's revised Archival Preservation
System ("APS") was successfully completed by that date.4
However, testing of the revised APS was not completed until
March 11, 1994, and the system has not yet received the
aProvals required for it to be used to copy classified
information on the 144 uncopied Reagan Administration tapes
that have generated data errors. Thus, at present a total of
215 tapes from the Reagan Administration (71 damaged and 144
with data errors) have not yet been successfully copied.
D. Bush Administration Tapes. NARA has attempted
to make preservation copies of 483 of the backup tapes from
the Bush Administration. Of these 483 tapes, 16 could not be
copied because of read errors, and 79 generated errors that
either represent a read error or indicate that the tape is
empty. In addition, 134 of the 483 tapes must be recopied
using the revised APS described above.
E. Verification. The January 27 Stipulation
and Order also required that NARA verify the accuracy of the
inventories and labels for the transferred backup tapes and
hard drives by January 31, 1994. Id. & 14. Plaintiffs
believe that NARA has not complied with this requirement
and, to date, the parties have been unable to resolve their
dispute concerning this issue.
IV. FOIA Issues. Defendants released logs and
indices listing materials stored on selected backup tapes on
February 18, 1994, and plaintiffs designated materials to be
released under the FOIA on February 7, March 7, March 14 and
March 15, 1994. At defendants' request, on March 18, 1994,
plaintiffs also provided a copy of their designation of the
materials that they seek from the NSC PROFS tapes in
electronic format.
Since the last status conference, defendants have not
released any additional records from among the Weinberger
materials, or the records from among those designated by
plaintiffs on the dates listed above. As set forth in the
January 27 Stipulation and Order, processing of all of these
materials is to be completed by December 15, 1994, nine
months from the last designation. Stip. and Order & 4.
Michael E. Tankersley
(D.C. Bar No. 411978) Alan B. Morrison (D.C. Bar No. 073114)
Public Citizen Litigation Group Suite 700
2000 P Street, N.W. Washington, D.C. 20036
/April 8, 1994} Attorneys for Plaintiffs
I hereby certify that on April 5, 1994, I caused copies of
Plaintiffs' Status Report to be served upon counsel for the
defendants by telecopier addressed to: Jason R. Baron
Department of Justice Civil Division, Room 1040 901 E Street,
N.W. Washington, D.C. 20530
_________________________ Michael E. Tankersley
1 The four categories are: (i) the proper test for
distinguishing Presidential and Federal records; (ii) the
content of new instructions on the management and
safeguarding of Federal records; (iii) the preservation of
electronic Federal records generated at the defendant
agencies to date, including those stored on backup tapes
pursuant to the two Temporary Restraining Orders and this
Court's Orders of January 6 and 11, 1993; and (iv) Freedom of
Information Act ("FOIA") issues relating to Count I of
plaintiffs' Third Amended Complaint.
2 In the first Joint Status Report, defendants projected
that the recordkeeping instructions would be completed by
January 26, 1994. See December 3, 1993 Joint Status Report
at 4.
3 In the first Joint Status Report, NARA projected that it
would complete the standards and submit them to the Federal
Register by February 1, 1994. See December 3, 1993 Joint
Status Report at 5. 4 NARA originally planned to complete
testing of the revised APS within thirty working days of
delivery of the system in early December, 1993.

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