• Attorneys



• Cases and Documents



• Alan Morrison Supreme Court Assistance Project



• Consumer Justice Project



• Public Interest FOIA Clinic



• Freedom of Information Clearinghouse



• Internet Free Speech



• Fellowship and Employment Opportunities



• FAQs



• Litigation Group
  E-Update

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SUSAN LONG 
Transactional Records Access Clearinghouse 
Syracuse University 
488 Newhouse II 
Syracuse, NY 13244-2100, 
 
DAVID BURNHAM 
Transactional Records Access Clearinghouse 
Syracuse University 
488 Newhouse II 
Syracuse, NY 13244-2100, 
 
PUBLIC CITIZEN 
1600 20th Street, NW 
Washington, DC 20009, 
 
Plaintiffs, 
 
v. 
JANET RENO, in her official capacity 
as Attorney General of the United States, 
Tenth Street and Constitution Ave., NW 
Washington, DC 20530, 
 
EXECUTIVE OFFICE FOR 
UNITED STATES ATTORNEYS 
600 E Street, NW 
Washington, DC 20530, 
 
JOHN CARLIN, in his official capacity 
as Archivist of the United States, 
7th & Pennsylvania Ave., N.W. 
Washington, DC 20408, 
 
Defendants. 

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1. This action seeks an order enjoining the ongoing destruction of certain electronic records in the United States Attorneys' offices. Each United States Attorneys' office maintains a computerized case management system that tracks the activities and workload of its office from referral of a matter through case closure. The United States Attorneys' case management systems contain information with significant value to researchers. Destruction of the electronic records in the computerized case management systems imposes irreparable and continuing harm upon those seeking access to these records.

2. The Executive Office for United States Attorneys (EOUSA) does not have a disposition schedule authorizing destruction of the electronic records in the computerized case management systems but, nonetheless, permits routine destruction of historical records from the case management systems. EOUSA apparently relies on a rule published by the Archivist, General Records Schedule (GRS) 20, as authorization for destroying electronic records in the case management systems even though GRS 20 was declared null and void in the Court's October 22, 1997 judgment against the Archivist in Public Citizen v. Carlin, No. 96-2840.

3. This action arises under the Federal Records Act, 44 U.S.C. §§ 2101 et seq., 2901 et seq., 3101 et seq., the Disposal of Records Act, 44 U.S.C. §§ 3301 et seq., and the Administrative Procedures Act, 5 U.S.C. § 706.

4. This court has jurisdiction under 28 U.S.C. § 1331.

PARTIES

5. Plaintiffs Susan Long and David Burnham are professors at Syracuse University and co-directors of the Transactional Records Access Clearinghouse (TRAC). TRAC is a non-profit research organization affiliated with Syracuse University. Its mission is to compile and disseminate comprehensive information about the functioning of federal enforcement and regulatory agencies. To accomplish this mission, TRAC collects detailed data on law enforcement from the federal government, analyzes and verifies that data, and distributes that data on the World Wide Web and by creating various information products including computer data sets on tapes and diskettes, tabular analysis and reports. Users of TRAC's information include news organizations, businesses, Congressional Committees, the federal court systems, scholars, public interest groups, law libraries, and government agencies.

6. Plaintiff Public Citizen is a national nonprofit consumer and citizen advocacy membership organization. As part of its ongoing work monitoring the enforcement activities of the federal government, Public Citizen has used and will continue to use in the future statistical information compiled by TRAC. As such, Public Citizen has a present and ongoing interest in preservation of, and Freedom of Information Act (FOIA) access to, the electronic records in the computerized case management system in the United States Attorneys' offices.

7. Defendant Janet Reno is the Attorney General of the United States and is sued solely in her official capacity. As the head of the Department of Justice (DOJ), defendant Reno has a mandatory statutory duty to establish records management programs to guard against destruction or loss of records and to ensure that agency records are not alienated or destroyed without proper authorization through a valid disposition schedule. 44 U.S.C. §§ 3102, 3105(1), 3314.

8. Defendant EOUSA is a component agency of the DOJ that provides the ninety four United States Attorneys offices with general executive assistance and direction, policy development, administrative management direction and oversight, operational support, and coordination with other components of the DOJ and other federal offices. EOUSA develops case management systems, including computerized case management systems, and provides user assistance for the case management systems for the United States Attorneys' offices.

9. Defendant John J. Carlin is the Archivist of the United States, and is sued solely in his official capacity. The Archivist has statutory responsibility to investigate any violation of the federal record-keeping laws, to initiate action to prevent unlawful destruction of records, and to initiate recovery of any records unlawfully removed or destroyed. 44 U.S.C. §§ 2115(b), 2905, 3106.

BACKGROUND

10. The EOUSA compiles data on civil and criminal cases handled by each United States Attorney's office in a database it terms its "Central File" and processes the data for use in both internal DOJ reports and the United States Attorneys' Annual Statistical Report.

11. The data in EOUSA's Central File is derived from case information recorded locally by individual United States Attorney's offices and forwarded to the EOUSA.

12. Each year TRAC obtains data from the EOUSA's Central File under the FOIA. TRAC uses the data that it obtains from the EOUSA's Central File to perform its data analysis and to produce its information products.

13. TRAC has in the past, is presently, and will in the future, use the FOIA to obtain access to the electronic records in the United States Attorneys' computerized case management systems that are the basis for the data in the EOUSA's Central File.

14. TRAC requires access to data in the case management systems in the district offices for the United States Attorneys to verify the accuracy and completeness of the data in EOUSA's Central File. For example, TRAC has been criticized on occasion by Justice Department officials for publishing "inaccurate" data. On or about November 18, 1996, United States Attorney Michael Troop for the Western District of Kentucky criticized as "faulty" TRAC's data related to his office's handling of referrals from the Drug Enforcement Administration in a letter to The Lexington Herald. Likewise, on or about May 25, 1997, United States Attorney David L. Lilliehaug for the District of Minnesota criticized TRAC's data related to his office's handling of criminal referrals from the Bureau of Alcohol, Tobacco, and Firearms. In a guest column for the Saint Paul Pioneer Press, U.S. Attorney Lilliehaug described TRAC's data as "incomplete" and "inaccurate."

15. In an effort to resolve any discrepancies between the individual office's data and the data TRAC had received from the EOUSA, plaintiffs filed FOIA requests with the two United States Attorneys' offices for records concerning the offices' computerized case management systems including a request for the electronic records in each office's computerized case management system. On March 2, 1998, plaintiffs filed suit in the Northern District of New York in the case captioned Long/Burnham v. Department of Justice, No. 98-cv-370, to compel disclosure of the records they had sought in their FOIA requests.

16. The EOUSA has not submitted to the Archivist, or received approval of, a disposition schedule authorizing disposition of the electronic records in the computerized case management systems.

17. In response to inquiries about the authority for destroying case management system records and backup tapes, representatives of the DOJ have stated that the agency relies, in part, upon GRS 20 and that disposition of the records has occurred in the "normal course of business" but without citing any disposition authority.

18. Electronic records in the case management system for the United States Attorneys' office for the Western District of Kentucky "were destroyed during a massive shredding that took place in June of 1997," according to an affidavit prepared by Carol Uebelhoer, Systems Manager for the computerized case management system in the Western District of Kentucky.

19. Extracts of data from the Western District of Kentucky's case management system were "destroyed during the normal course of business about 6 months ago" according to an affidavit prepared by Carol Uebelhoer, Systems Manager for the computerized case management system in the Western District of Kentucky.

20. Backup tapes containing electronic records from the case management system in the Western District of Kentucky's current "Phoenix system" are "retained for approximately two weeks and then they are recycled and the data on them is overwritten" according to an affidavit prepared by Carol Uebelhoer, Systems Manager for the computerized case management system in the Western District of Kentucky.

21. The computer for the computerized case management system for the District of Minnesota has failed and "the historical information" has not been recovered according to an affidavit prepared by Carol Uebelhoer, Systems Manager for the computerized case management system in the Western District of Kentucky.

22. On June 18, 1998, plaintiffs sent a letter to Archivist Carlin and Attorney General Reno requesting that they investigate the destruction of electronic records, take steps to recover the destroyed records, and ensure that there is no further destruction of electronic records in the computerized case management systems unless and until disposition procedures are reviewed, approved and properly authorized. The June 18 letter further requests that Archivist Carlin and Attorney General Reno provide plaintiffs with written assurance within ten days that adequate steps have been taken to prevent further destruction and describe the steps that will be taken to investigate prior destruction and possible recovery of records.

23. NARA and Reno have not provided assurance to plaintiffs that no further destruction of original records or backup tapes in the computerized case management systems in either United States Attorney's office will occur.

24. On June 18, 1998, plaintiffs sent a separate letter to counsel for defendant DOJ in the Long/Burnham v. Department of Justice case asking that they provide plaintiffs with written assurance within ten days that steps would be taken to preserve the electronic records in the computerized case management system in the United States Attorneys' offices for the Western District of Kentucky and the District of Minnesota, and that no further destruction would take place in the case management systems unless and until the Archivist has authorized records disposition pursuant to a valid records disposition schedule.

25. Plaintiffs have not received any written response to their June 18 letter to counsel for defendant DOJ in the Long/Burnham v. DOJ case.

PLAINTIFFS' INJURY

26. Pursuant to the FOIA, 5 U.S.C. § 552, and the National Archives and Record Administration Act, 44 U.S.C. §§ 2101-11, plaintiffs have a right of access to agency records that have been, or will in the future be, in the computerized case management systems in the United States Attorneys' offices. While these records are in the custody of the local United States Attorney's office or the EOUSA, the records are subject to disclosure under the FOIA unless they are covered by one of the specific statutory exemptions. 5 U.S.C. § 552. Once the records are no longer needed by the agency, those records having permanent historical or other value should be transferred to the Archives for preservation. 44 U.S.C. § 2107. The Archivist must make such transferred records available to the public, unless they are exempt from examination by statute or other restriction. 44 U.S.C. §§ 2108, 2110. 27. Plaintiffs' right of access to agency records under the FOIA includes access to records in electronic format when the records are readily reproducible by the agency in that format. 5 U.S.C. § 552(a)(3)(B).

28. Plaintiffs have exercised and intend to continue to exercise their right to seek access to the electronic records in the United States Attorneys' computerized case management systems but will be unable to access the records in electronic format if the United States Attorneys' offices are permitted to destroy such records.

29. Pursuant to the Disposal of Records Act, plaintiffs have the right to notice and the opportunity to comment on proposals by the EOUSA to destroy particular series of agency records, including any of the electronic records in the computerized case management systems, and the right to try to convince the Archivist that such records should not be destroyed because they have sufficient administrative, legal, research or other value to warrant their continued preservation. 44 U.S.C. § 3303a(a).

30. Certain of the electronic records that have been destroyed and the electronic records that are likely to be destroyed are records maintained only in the local United States Attorneys' offices and are not provided to the EOUSA. Therefore, destruction of these electronic records by the United States Attorneys' offices imposes irreparable and continuing harm upon plaintiffs who have no other method of obtaining this unique information.

31. If the local United States Attorneys' offices destroy electronic records in the computerized case management systems and backup tapes pursuant to GRS 20 or otherwise without a valid disposition schedule, plaintiffs will be denied their right to notice and an opportunity to comment on the destruction of such records, and will be denied the benefit of the Archivist's independent appraisal of whether the records have sufficient administrative, legal, research or other value to warrant their continued preservation.

FIRST CLAIM FOR RELIEF

(Violation of Disposal of Records Act by Defendants Reno and EOUSA)

32. Federal agencies may dispose of electronic records only in accordance with a records disposition schedule approved by the Archivist in accordance with the Disposal of Records Act. 44 U.S.C. § 3314; 36 CFR §§ 1234.32-1234.34.

33. The requirements of the Disposal of Records Act apply to all agency records, regardless of physical form or characteristics, including electronic records. 44 U.S.C. § 3301. 34. The disposal of agency records may be authorized by (a) agency disposition schedules in which agencies submit to the Archivist for approval lists or schedules proposing the disposal of specific agency records after the lapse of specified periods of time pursuant to 44 U.S.C. § 3303a(a); or (b) General Records Schedules promulgated by the Archivist to authorize the disposal of records common to several or all agencies after specified periods of time if such records will not, at the end of the periods specified, have sufficient administrative, legal, research or other value to warrant their further preservation. 44 U.S.C. § 3303a.

35. On August 28, 1995, the Archivist promulgated GRS 20 purporting to authorize destruction of electronic mail and word processing records at all federal agencies. 36. By order of October 22, 1997, in Public Citizen v. Carlin, No. 96-2840, this Court declared GRS-20 null and void and enjoined the parties in the Carlin case from destroying electronic records pursuant to GRS 20.

37. There is no valid records disposition schedule for the electronic records in the computerized case management systems in the United States Attorneys' offices.

38. The affidavits filed by the DOJ in the Long/Burnham v. DOJ case reveal that the United States Attorneys' offices for the Western District of Kentucky has disposed of electronic records from that office's computerized case management system, including backup tapes, without reference to any record disposition schedule.

39. Defendant Reno and EOUSA may not rely on GRS 20 to authorize disposition of electronic records in the computerized case management systems because GRS 20 is null and void.

40. Destruction of electronic records in the computerized case management systems for the United States Attorneys' offices without reliance on a valid disposition schedule is contrary to law.

41. Plaintiffs' right of access to electronic records in the computerized case management systems and plaintiffs' right to notice and the opportunity to comment on the proposed destruction of electronic records will be irreparably harmed if defendant is permitted to continue to destroy electronic records in the computerized case management systems without a duly promulgated records disposition schedule.

SECOND CLAIM FOR RELIEF

(Violation of Federal Records Act By Defendants Reno and EOUSA)

42. The Federal Records Act (FRA) provides that the head of each federal agency must establish and maintain a records management program that, among other things, provides for effective controls over the creation, maintenance and use of records in the conduct of current business. 44 U.S.C. § 3102, 3105(1).

43. A records maintenance program must include establishment of safeguards against the removal or loss of records. 44 U.S.C. § 3105; 36 CFR §§ 1220.30-1222.50, 1234.1-1234.22.

44. Federal agencies must adhere to standards for creation, use, preservation, and disposition of electronic records including the use of proper storage and backup systems. 36 CFR § 1234.30.

45. The head of each federal agency has a mandatory statutory duty to notify the Archivist of any actual, impending or threatened removal or destruction or records and initiate action for recovery of any records that have been destroyed. 44 U.S.C. § 3106.

46. Defendants Reno and EOUSA have a mandatory duty to ensure proper management of electronic records in the case management systems for the United States Attorneys' offices to safeguard against destruction of electronic records, to investigate any allegations of unauthorized destruction, to take steps to recover any destroyed records, and to ensure that further destruction does not occur. 44 U.S.C. § 3102, 3105(1).

47. The DOJ does not have records management programs in place to safeguard against the destruction of electronic records in those offices' computerized case management systems in the United States Attorney's offices for the Western District of Kentucky and the District of Minnesota, as revealed by the Declarations of Carol J. Uebelhoer, Systems Manager for the computerized case management system in the Western District of Kentucky, and the Declaration of Verlyn Bryant, supervisory computer specialist and chief of Central Systems Service, EOUSA.

48. Further investigation and discovery will demonstrate that there is no effective program for management of the electronic records in the computerized case management systems of the United States Attorneys' offices to promote record maintenance, guard against unauthorized destruction, or facilitate the segregation of records of permanent value. 44 U.S.C. § 3102.

49. The failure to maintain electronic records in adequate records management programs in the United States Attorneys' offices is contrary to law.

50. Plaintiffs' right of access to electronic records in the computerized case management systems is irreparably harmed by defendant's failure to establish adequate records management programs to safeguard against loss or destruction.

THIRD CLAIM FOR RELIEF

(Violation of Federal Records Act by Defendant Carlin)

51. Defendant Archivist Carlin has a mandatory duty to investigate any violation of the federal record-keeping laws, to initiate action to prevent unlawful destruction of records, and to initiate recovery of any records unlawfully removed or destroyed. 44 U.S.C. §§ 2115(b), 2905, 3106.

52. Despite being made aware of the destruction and loss of case management records in the Western District of Kentucky and the District of Minnesota, defendant Carlin has not taken any steps to prevent further destruction or loss of records in the case management systems for the United States Attorneys' offices unless and until there is a valid disposition schedule.

53. Defendant Carlin has not initiated action to recover any records unlawfully destroyed.

54. Plaintiffs' right of access to electronic records in the computerized case management systems will be irreparably harmed if defendant Carlin does not take steps to prevent further destruction of records in the case management systems for the United States Attorneys' offices and/or take steps to recover any records unlawfully destroyed.

55. Plaintiffs' right to notice and the opportunity to comment on the proposed destruction of electronic records will be irreparably harmed if Carlin continues to permit destruction of records based on GRS 20.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs request that this Court:

(1) Declare that destruction of electronic records in the computerized case management systems in the United States Attorneys' offices is unlawful unless and until disposition procedures are properly authorized by the Archivist;

(2) Declare that defendants may not rely on GRS 20 as authority to destroy any records of the United States Attorneys' offices' case management systems;

(3) Enjoin the destruction of any and all electronic records in the computerized case management systems in the United States Attorneys' offices in the Western District of Kentucky and District of Minnesota unless and until disposition procedures are properly authorized by the Archivist;

(4) Direct the Archivist to undertake an investigation of the destruction of electronic records in the computerized case management systems in the United States Attorneys' offices in the Western District of Kentucky and District of Minnesota and take all necessary steps to recover any and all destroyed records;

(5) Direct the Archivist to ensure that there is no further destruction of electronic records in the computerized case management systems in the United States Attorneys' offices unless and until disposition procedures are properly authorized;

(6) Award Plaintiffs their costs and reasonable attorneys' fees in this action; and

(7) Grant such other and further relief as this Court may deem just and proper.

more resources

Because Public Citizen does not accept funds from corporations, professional associations or government agencies, we can remain independent and follow the truth wherever it may lead. But that means we depend on the generosity of concerned citizens like you for the resources to fight on behalf of the public interest. If you would like to help us in our fight, click here.