October 31, 2000
Public Citizen Petition to the Archivist to Amend GRS 20 and Electronic Records Regulations
Table of Contents
* REASONS FOR AMENDING THE RULES
1. AGENCIES ARE NOT PRESERVING THE CONTENT, STRUCTURE AND CONTEXT OF ELECTRONIC RECORDS.
2. THE ARCHIVIST SHOULD IDENTIFY AND PRESERVE ELECTRONIC RECORDS THAT WARRANT PRESERVATION IN THEIR ELECTRONIC FORM.
3. ELECTRONIC RECORDS HAVE RESEARCH VALUE THAT IS NOT PRESERVED IN HARD COPY RECORDKEEPING SYSTEMS.
* PROPOSED RULES
PETITION FOR RULE MAKING
Public Citizen hereby submits this petition under 5 U.S.C.§ 553(e) of the Administrative Procedure Act to request that the Archivist amend his rules concerning the management, scheduling and preservation of text documents created in electronic form, including the provisions of General Record Schedule 20 (“GRS 20”) concerning word processing and electronic mail.
The Archivist and the National Archives and Records Administration (“NARA”) are uniquely responsible for ensuring that historically valuable records are preserved and are accessible. However, the Archivist's directives concerning electronic records, particularly General Records Schedule 20 (“GRS 20”), give no weight to the historical and research value of the records that are currently being created by federal agencies using office automation systems. The Archivist has acknowledged that GRS 20 is a flawed policy, but has indefinitely postponed action to correct the failure of these regulations to incorporate the archival values that the Archivist is charged by statute to defend. The inevitable result of his inaction will be to create a gap in the government's records, as electronic records are either destroyed or inaccessible because the Archivist's current policies are indifferent to the value of electronic records.
In particular, three considerations demonstrate that GRS 20 is contributing to the loss of historically valuable records and should be amended:
First, agencies are not preserving all the information in their electronic records. During appellate review of GRS 20, the Archivist's counsel stated that GRS 20 requires that, if agencies preserve their electronic records in a paper recordkeeping system, the paper copies must preserve all of the content, structure and context of the original electronic records. Agencies, however, have not implemented this critical, but unstated, requirement of GRS 20. In addition, agencies have no procedures for managing and preserving the growing number of records in hypertext markup language that are stored on agencies' Internet and intranet sites. As a result, important information in agency record systems is being irrevocably lost, and most agencies are destroying electronic records without legal authorization.
Indeed, as office automation systems become more sophisticated and create electronic records with descriptive fields, hyperlinks, dynamic formulas, and annotations that do not appear in the print-outs of the records, it becomes increasingly likely that important parts of the content, structure and context of electronic records can not be preserved by printing the records. Moreover, studies have shown that instructing users to print records is not a reliable means to ensure preservation because users fail to print many records. Relying on a “print and delete” practice to preserve electronic records inevitably leads to both losing information in electronic documents that are only partially preserved when printed, and losing some documents in their entirety because they are never printed.
Second, the Archivist's current directives on electronic records give no weight to the historical or research value of these records being in electronic form. As a result, electronic records management is being instituted without regard to whether the records that are now being preserved in their electronic form are the records that are the most valuable in that form. For example, while the Tennessee Valley Administration has begun to manage its correspondence in an electronic recordkeeping system, electronic correspondence that is more likely to have long- term value -- such as the correspondence of the Federal Reserve Board or the senior officials of the State Department -- is still subject to incomplete preservation as these agencies instruct personnel to print and delete their electronic records. Because GRS 20 authorizes agencies to destroy the electronic version of all records -- regardless of whether they document routine administrative matters or critical policy decisions -- it inevitably leads to agencies destroying records that should be preserved in electronic form because of their archival value. Even if the Archivist believes that GRS 20 is a permissible exercise of his discretion, he should not continue this flawed policy indefinitely because it allows the electronic version of records authored with office automation applications to be destroyed without scheduling or appraisal.
Third, GRS 20 is founded on the premise that researchers cannot take advantage of the special qualities of electronic records unless the records are organized in a fully-compliant electronic recordkeeping system. That premise is false. Regardless of whether electronic records are in such a recordkeeping system, they still can be searched, manipulated and transferred in ways that paper records cannot. Researchers routinely take advantage of these qualities to mine electronic records for valuable information. The Archivist's current regulations should be changed because they erroneously presume that electronic records that are not in an electronic recordkeeping system can never have sufficient value to warrant their preservation in that form.
Accordingly, we petition the Archivist to amend his regulations concerning electronic text documents in three respects:
1. Make explicit that all recordkeeping systems that preserve electronic text documents must preserve the content, structure and context of the electronic original. The District of Columbia Court of Appeals upheld GRS 20 on the representation that NARA interprets GRS 20 to require that copies in a recordkeeping system preserve the content, structure and context of the records. Implementation of this interpretation is critical to ensure that GRS 20 does not result in the loss of valuable information when records are copied to a recordkeeping system and the originals are destroyed. However, NARA's bulletins concerning electronic records have not advised agencies of this essential prerequisite, and agencies that rely on print- outs to preserve their electronic records are not requiring that the printed copies preserve the content, structure and context of the electronic originals. The proposed amendment would make explicit a requirement that NARA has asserted is already part of GRS 20, and would make clear that agencies cannot use paper recordkeeping as a means of avoiding their obligation to preserve the entire record.
2. Phase-out the application of GRS 20 to program records. The Archivist should abandon the flawed policy reflected in GRS 20 and, instead, require that the electronic records that are most likely to be worthy of preservation be separately scheduled and appraised so that, where appropriate, such records can be preserved in their electronic form. In light of NARA's concern that agencies have time to adjust to change in the general schedules, we propose that the application of GRS 20 to program records be phased-out in two steps. First, GRS 20 should be amended to provide that agencies may not destroy records in systems that create records that have been appraised as permanently valuable records in their printed form. Second, the rule should be amended to provide that, one year from the date of the amendment, GRS 20 shall no longer be available as disposition authority for any program records.
3. Require consideration of records disposition as part of the design and implementation of new electronic systems. Studies on the management of office automation systems have repeatedly emphasized the importance of considering the preservation of records created by such systems from the very beginning, rather than trying to impose records management as an afterthought. The Archivist's current regulations require that systems that store data files incorporate record disposition instructions as part of the system design, 36 C.F.R. § 1234.20, but contain no comparable requirement for systems that store text documents. There is no justification for distinguishing between databases and text documents in this regard. Accordingly, the regulations should be amended to ensure that the long-term value of electronic text documents is considered before the system is implemented, and that the disposition of the records is considered as part of the system design.
As early as 1985, agency recordkeeping personnel observed that valuable electronic records were increasingly being created and received on computer systems and, unless proper safeguards and management practices were undertaken, there would be "a tremendous increase in the unauthorized destruction of Federal records."1 Comparable warnings were put forth in congressional reports and academic studies.2 For the past fifteen years, NARA and agency recordkeeping officials have been continually announcing studies and working groups to forestall the threatened loss of historically important records.3 Today, NARA acknowledges that "[t]he reality at the beginning of the 21st century is that most records are created electronically and may be maintained in a variety of formats.”4
Despite these warnings and studies, the Archivist's regulations concerning electronic text documents still reflect a stop-gap policy of permitting users to print records from their word processing and electronic mail systems and delete the electronic original. The Archivist's endorsement of such “print and delete” management practices is embodied in items 13 and 14 of GRS 20, which was adopted in 1995. Item 13 provides that word processing records stored on electronic media shall be deleted after they have been copied to an electronic recordkeeping system, paper or microform for recordkeeping purposes and are “no longer needed for updating or revision.” Item 14 provides that agencies shall delete the original, electronic version of electronic mail records if the records have been copied for recordkeeping purposes, and provides that the copy may be in “an electronic recordkeeping system, paper or microform.” Under these provisions, agencies are authorized (indeed, directed) to destroy the only electronic version of the record once they have produced a “hard copy” on paper or microform for recordkeeping purposes.
Items 13 and 14 of GRS 20 were declared null and void by the District Court for the District of Columbia in 1997. Public Citizen v. Carlin, 2 F. Supp. 2d 1. Within a month after the district court's decision, the Archivist convened an inter-agency working group to review GRS 20 and recommend revisions and practical solutions for the scheduling and disposition of electronic records. See 63 Fed. Reg. 39186 (1998). In September 1998, the Electronic Records Working Group delivered a final report that, among other things, recommended that GRS 20 be completely revised and that agencies be required to “schedule their program and unique administrative records in all formats.” See Electronic Records Working Group Report to the Archivist of the United States, Sept. 14, 1998, at http://www.archives.gov/records_management/policy_and_guidance/report_to_archivist_0998.html. The Archivist also issued statements declaring that general records schedules such as GRS 20 should be “limited to common administrative records,” 63 Fed. Reg. 54,503, 54,504/3 (October 9, 1998), and should not be used for program records.5 In March 1999, NARA issued a Bulletin implementing part of the Working Group's recommendation by directing agencies to schedule program and unique administrative records that they had been destroying under GRS 20, items 13 and 14. See NARA Bulletin 99-04 (March 25, 1999).
However, nine months later the Archivist reversed course by suspending this March 1999 Bulletin and advising agencies that they could continue to rely on GRS 20 items 13 and 14 to destroy the electronic copies of scheduled records. NARA Bulletin 2000-02 (December 27, 1999). The Archivist decided not to implement the Working Group's recommendations after the United States Circuit Court for the District of Columbia reversed the district court, holding that GRS 20 is within the Archivist's statutory authority, even if it does not reflect the best policy. Public Citizen v. Carlin, 184 F.3d 900 (1999), cert denied, 120 S.Ct. 1267 (2000). Thus, under the Archivist's current regulations, agencies are directed to destroy the original, electronic versions of word processing and electronic mail records after the records are printed if paper or microform copies of the records have been listed in an agency record schedule, even if the schedule identifies the records as “permanent records” that contain historically valuable information.
NARA's Bulletin suspending the implementation of the Electronic Working Group's recommendations identified a limitation on GRS 20 by stating that items 13 and 14 “authorize only the disposal of electronic copies of scheduled records, and only after a recordkeeping copy has been produced and filed in an electronic, paper or microform recordkeeping system.” NARA Bulletin 2000-02, ¶ 4. However, the Bulletin does not mention that NARA has also declared that GRS 20 requires that the recordkeeping copy preserve the content, structure and context of the original electronic record. This requirement, explicitly announced by the Archivist's lawyers during the course of the appellate proceedings, was critical to the Court of Appeal's decision to uphold the regulation. 184 F. 3d at 910-11.
Footnote: 1 NARA Bulletin No. 85-2, Electronic Recordkeeping ( June 18, 1985).
Footnote: 2 H. Rep. 101-978, Taking a Byte Out of History: The Archival Preservation of Federal Computer Records, 101st Cong., 2d Sess. at 5 (1990) (“evolutionary and revolutionary” changes in NARA's policies are needed to respond to the challenge of electronic records); National Academy of Public Admin., The Effects of Electronic Recordkeeping on the Historical Record of the United States Government: A Report for the National Archives and Records Administration, at 10, 43 (January 1989) (warning of the certainty of loss of electronic records).
Footnote: 3 See, e.g., NARA Bulletin No. 87-5, Electronic Recordkeeping (Feb. 11, 1987) (NARA and GSA plans to provide information on electronic recordkeeping); Remarks of the Archivist of the United States to Representatives of Federal Agencies on Managing E-Mail Records, August 25, 1995 (announcing major project to develop records management functional requirements for electronic recordkeeping systems).
Footnote: 4 The Strategic Plan of the National Archives and Records Administration 1997-2007, (October 2, 2000), available at http://www.archives.gov/about/plans-reports/strategic-plan/2000/.
Footnote: 5 John W. Carlin, Moving Ahead on Electronic Records Challenges, THE RECORD, Vol. 4, No. 3, at 4 (Jan. 1998) available at http://www.archives.gov/publications/record/1998/01/from-the-archivist.html (“In my view GRS-20 needs changing. General records schedules definitely have their place, but they should be applied to the disposition of routine administrative 'housekeeping' records, not to programmatic records.”).
REASONS FOR AMENDING THE RULES
I. AGENCIES ARE NOT PRESERVING THE CONTENT, STRUCTURE AND CONTEXT OF ELECTRONIC RECORDS.
The conversion of electronic records can lead to the loss of valuable information. Records created on office automation systems frequently contain descriptive information, annotations, hyperlinks or other information that does not ordinarily appear on paper print-outs. See below at 13. For example, modern electronic mail systems contain descriptive information that goes beyond the “transmission” and “receipt” information identified in the Archivist's 1995 regulations on electronic mail.6 Word processing systems do not simply format text for printing, but perform the functions of spreadsheets and databases, and store fielded “meta data” and links.7
During appellate review of GRS 20, the Archivist's counsel deflected the argument that GRS 20 would permit the loss of such information by stating that an agency can only rely on GRS 20 to destroy records if its recordkeeping system preserves the original electronic record intact, including its content, structure and context:
GRS 20 requires agencies to preserve specified electronic records by transferring them to the agency's official recordkeeping system, whether that system is electronic, paper, or microform. That recordkeeping system must preserve the records' "content, structure, and context for their required retention period." 60 Fed. Reg. at 44,644. Only after the records are properly preserved in such a recordkeeping system may unused and unneeded copies be deleted from the agency's "live" computer applications.
Brief for the Respondents in Opposition to Petition for Writ of Certiorari at 11 (Feb. 2000) available at http://www.usdoj.gov/osg/briefs/1999/0responses/99-0782.resp.html.8
However, agencies have not implemented this requirement. Agencies that rely on paper recordkeeping do not advise agency personnel that, before destroying their electronic records, they must produce a copy that preserves all of the content of the electronic original, as well as its structure and context.
For example, shortly after the Court of Appeals decision upholding GRS 20, the Department of Interior issued a memorandum advising staff that they must manage their electronic mail records by “[p]rinting out the message (plus any attachments), along with essential transmission data (author, transmittal date, all message recipients, subject),” and deleting the electronic message from the system “on a timely basis.”9 No mention is made of the requirement that the print-out of the electronic mail message preserve the entire content, structure and context, or that print-outs of word processing records must also meet this requirement.
Similarly, the Department of the Treasury's Records and Information Management Manual of March 2000 notes that the Department “prints electronic records on paper since the Department has not invested in electronic recordkeeping systems,” and that NARA has reissued GRS 20 items 13 and 14 to authorize this practice.10 But the Manual contains no requirement that records printed on paper preserve all of the contents of the original records.
In another example, the Department of State and the Federal Reserve Board have distributed guides that instruct computer users to print electronic mail messages before deleting them and “annotate the printed copy” with “essential transmission and receipt data.”11 But these instructions do not require preservation of the complete contents of electronic mail, nor do they tell users that printed copies of word processing records must preserve the content, structure and context of the original record.
The Department of Labor has not revised its instructions on preservation of electronic records since 1996. Those instructions advise staff that when electronic mail messages satisfy the definition of “record,” staff should print “essential transmission data” and “information about the receipt of the message should be retained if users consider it necessary for adequately documenting Department activity.”12 Like the agencies discussed above, the Labor Department's instructions do not direct staff to preserve the entire content, context and structure of word processing documents, and these instructions on electronic mail fall far short of what the Archivist has represented is required by GRS 20.
Indeed, we have not been able to find any agency directives that explicitly inform record users or managers that, to comply with GRS 20, a paper recordkeeping system must preserve the content, structure and context of the original electronic record. Even NARA's guidance to its own staff lacks such instructions. NARA's latest guidance, issued on March 1, 2000, states that word processing files may be deleted if the document is printed out “in final form and filed in a scheduled records series.”13 Nothing in the guidance advises staff that the copy must preserve the entire content, structure and context of the word processing document. Similarly, NARA's instructions on electronic mail also do not advise staff that the content, structure and context of the original message must be preserved intact when it is printed.14
In addition, agencies have not made any provision for preserving the information in hyperlinked documents. Spurred by White House directives encouraging government use of Internet technology, federal agencies now distribute millions of records electronically on public Internet sites or government intra-nets.15 Such documents can contain a wealth of links, comments and descriptive data (e.g., “metadata”) that will not ordinarily be printed. However, studies have shown that agencies have not taken steps to manage these records in accordance with the recordkeeping laws.16 Agency directives generally lack any provision on management of these documents, and none appear to require that the content, structure and context of the records be preserved if they are managed in a paper recordkeeping system. For example, NARA itself has no written guidance for managing documents written in hyper-text markup language, or the electronic records stored on NARA's intranet or Internet systems. While the federal government has vigorously promoted agency use of the World Wide Web and development of Internet sites, the Archivist has not issued any guidance to ensure that the records on these sites are managed in a way that preserves their content, structure and context.
Where agency recordkeeping systems fail to capture the content, structure and context of their electronic documents, destruction of the documents in reliance on GRS 20 is unlawful. More importantly, reliance on the print and delete method of managing electronic records can lead to the irrevocable loss of valuable information in two ways.
First, the printed record often omits vital content or contextual information. Modern office automation software generates a host of information that generally does not appear on printed records and should not be lost from the archival record:
- descriptive information or “metadata” about a record (e.g., date of creation, author, subject matter, the folder in which the record is filed.);17
- annotations and comments;18
- links to related records;19
- formulas that compute values in a spreadsheet or table.20
Without such information “the contents of the record may be rendered ambiguous or misleading.”21 Moreover, such information can be vital to interpreting the meaning of records or locating records of interest. Consequently, archivists have recognized that such information should be preserved as part of any recordkeeping system for long-term records.
Second, a print and delete strategy assumes that users can identify records and will print them, but experience shows that this assumption does not conform to reality. Where a print and delete policy is instituted, records are lost because many electronic records are never transferred to the paper recordkeeping system. One of the earliest studies on the use of electronic mail within the government found that many valuable records were not being printed, but were saved only in their electronic form.22 In each instance where the effect of a “print and delete” policy has been examined, researchers have found that a substantial portion of an organization's records are lost when such a policy is instituted because the records were never printed.23 As the United Kingdom's Public Record Office explains:
Experience in many fields shows that as staff, and the organization as a whole, become familiar with working (primarily or completely) within the electronic environment, there is a tendency to think less about making copies for the paper world. More information is generated electronically - for instance, by the more significant use of e-mail - that should be considered for the record, and less of this material is printed to paper and filed. Although the formal organizational policy remains, the de facto policy tends towards treating the electronic record as the primary copy.
United Kingdom Public Record Office, Management, Appraisal and Preservation of Electronic Records, Volume 2: Procedures § 1.13 (1999), available at http://www.nationalarchives.gov.uk/electronicrecords/advice/guidelines.htm.
The Public Record Office of Victoria, Australia, has concisely summarized the reasons for keeping government records in electronic form:
There are a number of reasons why electronic government activity should be recorded electronically rather than on paper:
- the process of converting electronic records to paper is unevenly carried out
- a paper record of an electronic transaction may not capture all aspects of that transaction
- the evidentiary status of a paper form of an electronic record is unclear
- the cost of capturing the contextual information associated with electronic records can be much lower than for paper
- the cost of storing electronic records is much lower than storing paper records.
Victorian Electronic Records Strategy Final Report, 3 (1999) at http://www.prov.vic.gov.au/vers/pdf/final.pdf.
In summary, by giving agencies blanket authority to delete records without preserving them electronically, the Archivist's current regulations contribute to the creation of a “black hole”24 or “gap” in the historical record. Although GRS 20 permits agencies to follow a print and delete policy, experience shows that some records are never printed under such a policy. Even where records are printed, valuable information is lost because agencies do not require that the printed record preserve the content, structure and context of the electronic original.
II. THE ARCHIVIST SHOULD IDENTIFY AND PRESERVE ELECTRONIC RECORDS THAT WARRANT PRESERVATION IN THEIR ELECTRONIC FORM.
In addition to contributing to the loss of information, GRS 20 precludes NARA from carrying-out the most important part of the Archivist's statutory responsibility, identifying and preserving those records that are historically important. While many office automation records do not have sufficient historical value to warrant preserving them in electronic format, some do, and the Archivist is uniquely charged with the responsibility of ensuring that those records that are historically valuable are appropriately maintained. GRS 20, however, precludes NARA from singling-out the most historically valuable electronic records for archival preservation in electronic form.
The software and hardware resources needed for agencies to manage their office automation records in electronic recordkeeping systems are now widely available. The Department of Defense has certified that over a dozen commercial off-the-shelf systems satisfy the requirements of Department of Defense Standard 5015, which includes requirements for electronic records management.25 NARA has determined that the Justice Department's Consolidated Office Network (JCON II) is capable of archiving records electronically.26 The Nuclear Regulatory Commission has designed an electronic information system for its programmatic and administrative records that will maintain electronic documents as the agency's “official record.”27 The Tennessee Valley Administration and the Federal Energy Regulatory Commission have instituted electronic recordkeeping systems to manage correspondence and other records in electronic format.28
The issue now confronting the Archivist is which electronic records are sufficiently valuable to warrant preserving the records in their electronic form. However, electronic recordkeeping is being implemented with little attention to archival value. While the Tennessee Valley Administration is offering its correspondence for permanent preservation in electronic form, the electronic records of Cabinet-level officials are being converted to paper -- even though these records are equally, if not more, worthy of preservation in their original electronic form. At the close of the Clinton Administration, the National Archives expects to receive thousands of E-mail and memoranda in electronic form from systems that the White House and National Security Council established, at least in part, because of litigation calling attention to the historical value of these records.29 However, the records of senior Clinton Administration officials who are not on the White House computer system will not be available to the National Archives in electronic form. Decades from now, computer-savvy researchers studying the historical record will be able to download, search and analyze electronic records of Chairman and Directors of the TVA, while the records of senior Cabinet officers will be available only by searching page-by-page through the paper files in which the agency's records were supposed to be filed after being printed from electronic originals.
GRS 20 encourages this result because it presumes that the Archivist (and, consequently, the long-term historical value of the records) should have no role in deciding the format in which electronic records are offered to the National Archives. Instead, GRS 20 allows all agencies to choose to maintain all of their electronic and word processing records -- whether the records are of trivial value or are historically important -- in whatever format they wish.
If GRS 20 did not extend to program records, agencies would be required to submit record schedules for their electronic systems so that NARA could evaluate whether such records were worthy of preservation in their electronic form. This is the practice that the Electronic Records Working Group contemplated when it recommended that the Archivist require agencies to schedule their programmatic electronic records.30 Under the GRS 20, however, such schedules are not required because the general schedule provides blanket authority to destroy electronic records if a copy is retained in another format -- no matter how valuable the electronic records may be from an archival perspective. As a result, the Archivist cannot use the records disposition process to ensure that permanently valuable records covered by GRS 20 are preserved in their electronic form.
The destruction of electronic records without appraisal is particularly indefensible where the electronic system creates records that NARA identified as “permanent” records when it evaluated schedules for the paper versions. These paper files, many of which were scheduled decades ago, are now created by electronic systems that contain the same information. In these circumstances, the Archivist has already determined that the information in the records makes them worthy of long-term preservation. However, under GRS 20, the Archivist does not require that the electronic version of these records even be evaluated to determine if the records should be preserved in electronic form. GRS 20 authorizes agencies to rely solely on a paper recordkeeping system for all scheduled records, even if the schedules identify the records as having information of permanent historical value.
Even if this practice is within the Archivist's statutory authority, it is a flawed policy that inevitably leads to higher records storage and management costs, and the loss of permanently valuable records. At a minimum, GRS 20 should be phased-out so that NARA appraises agencies' programmatic electronic records, and distinguishes which records are of lasting value and which are not. To properly distinguish among agency records, the Archivist's regulations should provide for the submission of individual agency schedules to assure that, where the unique value of the electronic format is important and can be preserved, the electronic versions of records are not destroyed.
III. ELECTRONIC RECORDS HAVE RESEARCH VALUE THAT IS NOT PRESERVED IN HARD COPY RECORDKEEPING SYSTEMS.
The unique advantages of records in electronic form are well-established, and recognized by NARA. Electronic records can be distributed more easily and more widely, as illustrated by the use of the Internet to distribute vast quantities of government information.31 Electronic records can be searched and indexed more easily, as illustrated by federal agency regulations requiring private parties to submit electronic documents so that they can be searched and analyzed more easily.32 Electronic records can also be stored in ways that paper records cannot, as illustrated by agencies' development of electronic records systems to reduce the cost of their overburdened docket systems.33 The 1996 Amendments to the Freedom of Information Act underscore the importance of media type by allowing private requesters to designate the form or format in which records are made available to the public, and by requiring that the government make certain records available in both electronic and paper formats. See 5 U.S.C.§§ 552(a)(2), (a)(3)(B) .
In adopting GRS 20, the Archivist dismissed the value of electronic records to researchers on the basis that the advantages of the electronic form depend on records being maintained in electronic recordkeeping systems. 60 Fed. Reg. at 44,644. This premise is erroneous. Electronic records carry advantages for research, even if the records have not been maintained in a system that satisfies all of the attributes of an ideal electronic recordkeeping system.
Indeed, information is regularly recovered from electronic files that are not organized in a recordkeeping system. Investigators in criminal and civil cases recover information from word processing, electronic mail and other records stored on personal drives, tapes and other magnetic media using software that takes advantage of the electronic form to search and organize the information.34 Analysis of electronic records in these situations does not depend on the records being organized in a recordkeeping system. Off-the-self software allows researchers to analyze and search electronic text documents for information.35 Research tools have also been developed for organizing and analyzing electronic mail communications.36 While the maintenance of electronic records in a “recordkeeping system” facilitates research, a substantial research can be conducted with electronic records that are not in such a system, and the advantages of the electronic form for research do not depend entirely on the existence of a recordkeeping system.
Archival experience also demonstrates that electronic records may have research value even if they are not stored in a system that has all the attributes of a recordkeeping system. For example, when NARA staff conducted an appraisal of the USTR's electronic mail stored on backups from the agency's “live” system, NARA concluded that 80% of the records were of permanent value and should be preserved in electronic format because the electronic form could be searched and indexed more easily.37 Similarly, when the Canadian Archives appraised the records from the computer system of USTR's counterpart, the Trade Negotiations Office (TNO), it concluded that the word processing and electronic mail records stored on the TNO's microcomputer network should be preserved in electronic form, even though many of the records had been copied to paper.38 The United Kingdom's Public Record Office has outlined considerations for appraising electronic records maintained in “unmananged” environments.39 These examples show that whether electronic records are maintained in a recordkeeping system is a factor in determining their archival value, but it is not essential for researchers to be able to make use of the unique characteristics of electronic records.
The unique qualities of electronic records demonstrate that GRS 20 should be abandoned. Moreover, these qualities demonstrate that agencies should be required to address the disposition of these records whenever new information systems are developed. The research value of electronic records can be defeated by system designs that store records in ways that are unreliable or in formats that cannot be read as technology changes.40 Agencies implementing new information systems are required to take a host of considerations into account, but often fail to consider the disposition of records as part of the design process.41
The central recommendation of one of the first inter-agency studies of electronic recordkeeping, the Special Task Group, was that “[r]ecordkeeping rules and procedures be built into major electronic information systems from the outset” because experience shows that recordkeeping is often neglected in agency plans. As the Task Group's Final Report explained over fourteen years ago:
Agencies devote much attention to getting information into their electronic systems and moving the information around within the systems. Unless they also devote attention to getting information out of the systems through well designed records disposition rules and procedures, they will initially overinvest in system capacities, inevitably overtax even the most ambitious system capabilities, and end up defeating basic system objectives for efficient and effective processing of information.
Final Report of the Special Task Group on Electronic Recordkeeping of the Interagency Committee on Information Resources Management, at 17 (June 16, 1986). Subsequent studies have echoed the conclusion that "[e]lectronic records management and preservation issues are handled most effectively if these issues are considered while planning for and designing new systems and applications."42
Despite these warnings, the failure of agencies to consider recordkeeping issues when implementing new systems continues to be a major problem. For example, NARA's most recent report on Records Management in the Central Intelligence Agency found that the agency “has strongly embraced electronic recordkeeping” but had failed to inventory or schedule most of the new systems.43 As a result, none of the major electronic systems identified by NARA had been scheduled and the CIA had not “scheduled the electronic versions of key records that are now created and/or maintained electronically, such as the President's Daily Brief and the related feedback notes prepared by briefers, major intelligence publications, and files pertaining to cover operations and intelligence assets.” Id. at 47. “Without approved schedules,” the Report emphasizes, “there is a serious risk that information of great value will not be preserved.” Id. at 1.
Remarkably, the Archivist's current regulations mandate that electronic information systems that store “data files” must incorporate disposition instructions into the system design, but do not include a comparable requirement for systems that store text files. 36 C.F.R. §§ 1234.20, 1234.30. However, early appraisal and attention to disposition issues in system design is just as important for text documents as data files. The disposition of both text documents and data files should be addressed at the time electronic systems are implemented.
Footnote: 6 Network Working Group, Internet Message Format (draft) § 3.6, (September 11, 2000), at http://www.ietf.org/internet-drafts/draft-ietf-drums-msg-fmt-09.txt
Footnote: 7 See Ronald F. Weissman, Archives and the New Information Architecture of the Late 1990s, American Archivist 57:2 at 20, 27-33 (Winter 1994); William Saffady, Managing Electronic Records, 7-8, 95 (2d ed. 1998) (“Computer based electronic records often contain more complete information than the paper records created from them); see, e.g., Borland, Running Microsoft Word 97, 605-614 (describing document properties), 878-85 (hyperlinks) (1997).
Footnote: 8 See also Reply Brief for Appellants at 15-16 (August 1998) (“GRS 20 authorizes deletion only for records that have been transferred to a recordkeeping system that 'preserves their content, structure and context * * *.'” 60 Fed. Reg. at 44,644. This directive ensures that a full and complete record of government activity is preserved.”); Brief for Appellants at 38 (July 1998) (“all electronic records transferred to an agency recordkeeping system must include sufficient information to preserve the record's content, structure and context.”)
Footnote: 9 Department to the Interior Chief Information Officer, Memorandum on Electronic Mail (E-Mail) - Records Management Guidance (Sept. 10, 1999); see also Department of the Interior, Memorandum on “Policy and Guidance for Managing the Creation, Retention and Disposition of Electronic Mail Documents at 3-4 (July 25, 1996).
Footnote: 10 Records and Information Management Manual, TD P 80-05 at 32, 36.
Footnote: 11 Federal Reserve Board, Records Policy and Procedure Manual (January 1997) and Electronic Mail Quick Reference Guide; Department of State Electronic Mail Policy and Electronic Mail Quick Reference Guide.
Footnote: 12 Memorandum for DOL Administrative and Records Officers, Re: Handing E-mail Documents that are Federal Records, § 5 (April 5, 1996).
Footnote: 13 National Archives and Records Administration, Interim Guidance 804-1 (March 1, 2000).
Footnote: 14 Id.; see also NARA 95-290. Interim Guidance re: Handling e-mail documents that are Federal Records (May 2, 1995).
Footnote: 15 See Presidential Memorandum on Electronic Government (Dec. 17, 1999) at http://govinfo.library.unt.edu/npr/library/direct/memos/elecgovrnmnt.html;
Firstgov Facts, Federal Computer Week (Sept. 18, 2000), (compilers of Firstgov database have discovered that federal government has posted about 40 million pages on the Internet).
Footnote: 16 Charles R. McClure, J. Timothy Sprehe, Ph.D., GUIDELINES FOR ELECTRONIC RECORDS MANAGEMENT ON STATE AND FEDERAL AGENCY WEBSITES, 20 (Jan. 24, 1998).
Footnote: 17 For example, one of the most popular off-the-self word processing programs, WordPerfect®, defines over fifty fields for users to enter descriptive information concerning documents. See Corel® WordPerfect® Product Commands, DocSummaryConfig, at http://www.governor.state.ut.us/lan/corel/wpmacros/Chapter_2toc.htm; see also United Kingdom Public Record Office, Management, Appraisal and Preservation of Electronic Records, Volume 2: Procedures § 2.52 (1999), available at http://www.pro.gov.uk/recordsmanagement/eros/guidelines/procedures4.htm (discussing metadata in office software packages).
Footnote: 18 Word 97 Legal Features Guide at 27 (identified by Department of Treasury as part of its records on managing word processing files created or received by the staff of the Office of the Secretary).
Footnote: 19 Id. at 28-29.
Footnote: 20 WPWin 6.0 Tables Training Handout available at http://www.corel.com/servlet/Satellite/us/en/Product/1209150449809 (describing use of word processing application for calculations)
Footnote: 21 United Kingdom Public Record Office, Management, Appraisal and Preservation of Electronic Records, Volume 1: Principles § 2.16 (1999), available at http://www.nationalarchives.gov.uk/electronicrecords/advice/guidelines.htm; see also NARA Memorandum of Assistant Archivist Trudy Huskamp Peterson, "Revision of GRS-20, March 19, 1987 ("for some types of data, significant differences exist between the text version and the computerized microdata from which reports and publications are prepared.")
Footnote: 22 Carol Elizabeth Nowicke, "Managing Tomorrow's Records Today: An Experiment in Archival Preservation of Electronic Mail," The Midwestern Archivist XIII (No. 2, 1988), at. 74; see also NARA Memorandum of Assistant Archivist Trudy Huskamp Peterson, "Revision of GRS-20,” March 19, 1987, at 2 ("”Probably no user of electronic mail produces a copy of every message sent; some users of electronic mail do not even have the capability of producing a hard copy.")
Footnote: 23 See, e.g. Terry Cook, "Do You Know Where Your Data Are?," Technology Review (January 1995) (reporting Ontario public utility discovered that volume of paper records dropped by 50% after network was installed because employees were not printing records for preservation; National Archives of Canada found that 30 of 100 randomly chosen documents could not be found in records of cabinet minister because they had not been printed); see also New York State Archives and Records Administration, Managing Records in E-Mail Systems, 21 (1995) available at http://www.archives.nysed.gov/ (one disadvantage of managing electronic mail by printing is that complete compliance is hard to accomplish).
Footnote: 24 United Kingdom Public Record Office, Management, Appraisal and Preservation of Electronic Records, Volume 2: Practices §§ 2.29, 2.30 (discussing “the records 'black hole'” associated with relying on paper to preserve electronic records) (1999).
Footnote: 25 See RMA Certification Testing Home Page (last revision September 20, 2000) at http://jitc.fhu.disa.mil/recmgt/.
Footnote: 26 Memorandum, Justice Consolidated Office Network (JCON II) Recordkeeping Option, Sept. 23, 1999.
Footnote: 27 NARA Appraisals of records covered by Nuclear Regulatory Commission Jobs Nos. N1-431-99-9, et seq. (Feb. 24, 2000).
Footnote: 28 NARA Appraisal of Tennessee Valley Authority Job No. N1-142-99-2 (Feb. 25, 2000); NARA Appraisal of records covered by Federal Energy Regulatory Commission Job No. N1- 138-99-2 (Oct. 28, 1999); see also Dollar, Charles M., Electronic Archiving: Requirements, Principles, Strategy, And Best Practices, presentation at FDA Part 11 conference (June 2000) (“implementation of electronic archiving requirements is technologically feasible and can be implemented with today's technologies.”); Public Record Office of Victoria, Australia, Victorian Electronic Records Strategy Final Report, at 3 (1999) (“archiving of electronic records is possible and achievable now.”)
Footnote: 29 Armstrong v. Executive Office of the President, 877 F. Supp. 690, 708-750 (D.D.C. 1995).
Footnote: 30 See Electronic Records Working Group Report to the Archivist of the United States (Sept. 14, 1998), at http://www.archives.gov/records-mgmt/policy/electronic-records-work-group.html.
Footnote: 31 See GAO/GGD-00-135R, Federal Rulemaking: Agencies' Use of Information Technology to Facilitate Public Participation at 9 (Dep't of Transportation has made over 800,000 pages of regulatory and adjudicatory information available via the Internet); Government Printing Office, Biennial Report To Congress on the Status of GPO Access (Dec.30, 1999) (more than 228 million documents were retrieved through GPO access during fiscal year 1999), available at http://www.access.gpo.gov/su_docs/aces/biennial/biennial99x.pdf; (link no longer valid) H.R. Rep. No. 215, 103d Cong., 1st Sess. 5 (1993) (“[V]irtually all materials that are printed today exist at some point in an electronic format that could also be used to support dissemination using other technologies.”).
Footnote: 32 United Transportation Union-Illinois v. Surface Transportation Board, 132 F.3d 71, 74 (D.C. Cir. 1998) (upholding regulations at 49 C.F.R. § 1104.3(a) that require parties to submit both paper and electronic versions of textual documents and spreadsheets because the electronic version allows the agency “to use a computer to search those documents for key information”); see also 32 C.F.R. § 516.23 (Army reports on litigation must be submitted in electronic form where possible); 47 C.F.R. § 1.734(d) (all proposed orders in former common carrier complaint proceedings must be submitted in hard copy and on computer disk formatted to be compatible with Federal Communications Commission Software); 18 C.F.R. § 154.4(a) (all reports under the Natural Gas Act must be submitted electronically); 24 C.F.R. 5.801(b) (requiring that financial reports of recipients of federal housing funds be submitted electronically); 49 C.F.R. § 302.3(c) (encouraging filings in electronic format); 39 C.F.R. § 3001.10(c) (same); see also Hershler and Slany, “The Paperless Office,” A Case Study of the State Department's Foreign Affairs Information System, American Archivist 45:2, 142, 153 (1982) (early State Department study concludes that on-line text retrieval is seven times faster than microfilm).
Footnote: 33 See, e.g., Secretary Slater Unveils New Web Site to Make Regulatory Information More Accessible (Nov. 21, 1997)
FERC Notice of Pilot Project For Electronic Filing of Documents (September 15, 1999), at http://www.ferc.gov/legal/maj-ord-reg/land-docs/itasections.pdf
Thomas W. Conkling, The Department of Energy Information Bridge: Technical Reports for the Desktop, Journal of Government Information 26:4, p. 405 (1999)
Food and Drug Administration (FDA) is revolutionizing the way it handles new drug applications at http://www.adobe.com/epaper/spotlights/fda/pdfs/fda.pdf.
Footnote: 34 See Johnson, A Practitioner's Overview of Digital Discovery, 33 Gonzaga L. Rev. 347, 373-75 (1997/98).
Footnote: 35 See, e.g., Nina Platt, Search Engines for Intranets (archived August 15, 1998), at http://www.llrx.com/features/nina.htm;
ZyIndex software by ZyLab International, at http://www.zylab.com/
Footnote: 36 See, e.g., “Mailbag Assistant” by Fookes Software, at http://www.fookes.com/mailbag/;
“ForKeeps” Message Archiver (last update April 20, 2000).
Footnote: 37 NARA Appraisal Report on Office of the United States Trade Representative Jobs No. N1-364-96-1.
Footnote: 38 See Acquiring Electronic Records of TNO, Nat. Arch. of Canada Bull., Vol. 7 (1991).
Footnote: 39 United Kingdom Public Record Office, Management, Appraisal and Preservation of Electronic Records, Volume 2: Procedures §§ 4.65-69 (1999), available at http://www.pro.gov.uk/recordsmanagement/eros/guidelines/procedures4.htm.
Footnote: 40 Id. § 4.46-4.47 (1999); Law, Margaret Henderson, Framework And Policy Recommendations For The Exchange And Preservation Of Electronic Records (report prepared by the National Computer Systems Laboratory, National Institute of Standards and Technology for the National Archives and Records Administration) §§ 1.2, p.3, § 6, p.38-40 (1989) (to avoid the loss or permanent misplacement of records, NARA must define, adopt and actively support a policy for the representation, transfer, access, and preservation of electronic records).
Footnote: 41 See Van Wignen, Hathorn and Sprehe, Principles for Information Technology Investment in U.S. Federal Electronic Records Management, Journal of Government Information, 26:1, 33, 39 (1999).
Footnote: 42 Final Report from the 1996 E-Recs Conference at University of Michigan (1996), at http://www.clir.org/pubs/reports/pub83/contents.html;
Charles M. Dollar, Archivists and Records Managers in the Information Age, 36 Archivaria 37, 44-45 (Autumn 1993); Margaret Hedstrom, Descriptive Practices for Electronic Records: Deciding What is Essential and Imagining What is Possible, 36 Archivaria 53, 59 (Autumn 1993).
Footnote: 43 Records Management in the Central Intelligence Agency: A NARA Evaluation 46 (March 2000).
Accordingly, Public Citizen petitions the Archivist to amend his rules as follows:
1. The regulations should make explicit that recordkeeping systems that preserve electronic text documents must preserve the entire content, structure and context of the electronic original, a requirement that the Archivist's attorneys have stated is already part of GRS 20, although the text of GRS 20 contains no such language.
We suggest that this be accomplished by amending 36 C.F.R. § 1234.30 to establish requirements for all recordkeeping systems that maintain text documents and include, as the first of these requirements, the requirement that the recordkeeping system preserve the content, structure and context of the original text document:
§ 1234.22 Creation and use of text documents.
ElectronicRecordkeeping systems that maintain the official file copy of text documents on electronic mediaproduced on electronic information systems shall meet the following minimum requirements:
(1) Preserve the content, structure and context of the original text documents;
(1)(2) Provide a method for all authorized users of the system to retrieve desired documents, such as an indexing or text search system;
(2)(3) Provide an appropriate level of security to ensure integrity of the documents; and
(3) Provide a standard interchange format when necessary to permit the exchange of documents on electronic media between agency computers using different software/operating systems and the conversion or migration of documents on electronic media from one system to another; and
(4) Provide for the disposition of the documents including, when necessary, the requirements for transferring permanent records to NARA (see subpart J
§ 1228.188 of this chapter) .; and
b5) Before a document is created electronically on electronic recordkeeping systems that will maintain the official file copy on electronic media,Identify each document shall be identified sufficiently to enable authorized personnel to retrieve, protect, and carry out the disposition of documents in the system. Appropriate identifying information for each document maintained on the electronic media may include: office of origin, file code, key words for retrieval, addressee (if any), signator, author, date, authorized disposition (coded or otherwise), and security classification (if applicable). Agencies shall ensure that records maintained in such systems can be correlated with related records on paper, microform, or other media.
2. The Archivist Should Phase-Out the Application of GRS 20 to Program Records.
NARA Bulletin 2000-2 states that GRS 20 items 13 and 14 only apply to scheduled records. The Archivist should now take the step of withdrawing GRS 20 as authority for destroying electronic copies of permanent records, and set a date for eliminating GRS 20's application to all program records. This step would result in agencies scheduling their program records so that the historical value of the electronic form could be weighed in the scheduling process. We suggest that this be accomplished by adding the following language to GRS 20 or to 36 C.F.R. § 1234.32(a):
GRS 20, items 13 and 14 authorize only the disposal of the electronic version of records that are stored in recordkeeping systems and are covered by other schedules. Effective [date of rule], GRS 20, items 13 and 14 do not authorize the electronic copies of records that have been identified as permanent records in an agency record schedule. Effective [date of rule plus one year], GRS 20 items 13 and 14 apply only to electronic copies of scheduled administrative records.
3. The Archivist should mandate early appraisal of text documents and mandate that agencies incorporate disposition instructions in the design of new electronic information systems.
The Archivist's current regulations require that electronic information systems “shall be scheduled as soon as possible but no later than one year after implementation of the system,” 36 C.F.R. § 1234.32, but the regulations only require that disposition instructions be incorporated into system design for “data files.” Id. § 1234.20. We urge that the following language be added to 36 C.F.R. § 1234.30 to mandate consideration of recordkeeping when systems for text documents are implemented:
(b) Before approving new electronic information systems or enhancements to existing systems that produce, use, or store text documents, the agency shall conduct an initial appraisal of the records associated with the system and incorporate disposition instructions for such records into the electronic information system's design.
Michael E. Tankersley
Public Citizen Litigation Group
1600 20th Street, NW
Washington, DC 20009
October 31, 2000