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Contents

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

PUBLIC CITIZEN, et al.,        )
                )
                                    Plaintiffs,    )
                )
                    v.            )  Civil Action No.
                )  96-2840 (PLF)
JOHN CARLIN, et al.,       )
                )
                                    Defendants.    )
)

REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION
TO DISMISS OR, IN THE ALTERNATIVE, FOR
SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFFS'

CROSS-MOTION FOR SUMMARY JUDGMENT




PRELIMINARY STATEMENT

    If ever there was a case that sought to exalt form over substance, this is it. The nub of plaintiffs' complaint is that federal agencies must, by law, preserve their records in electronic and not just paper form. The fact that agencies are not technologically equipped for the wholesale retention of documents in electronic form is of no concern to plaintiffs. They are interested only in their ease of access -- potentially and in the future -- to government records. But the federal recordkeeping laws insist only that records necessary to document an agency's mission and activities be retained for appropriate periods of time; not that they be kept in any specific format. Plaintiffs' desire to rewrite the Federal Records Act ("FRA") to suit their interests should be seen for what it is, an attempt to substitute their policy preferences for what Congress and NARA believe is appropriate and efficient.

    In their opening brief, defendants demonstrated that the Archivist has the statutory authority under 44 U.S.C. § 3303a(d) to promulgate a general records schedule for the management of records created on electronic mail and word processing systems, and that the administrative record establishes overwhelmingly the rationality of GRS 20 as applied to today's Federal office environment, including the Executive and Judicial Branches of government.

    In contrast, plaintiffs' cross-motion for summary judgment is based, in equal measure, on distorted reading of the Archivist's statutory authority to manage electronic records, an overly expansive reading of the Armstrong precedent, and a misconstruction of prior NARA statements on the value of records in an electronic format. Even more fundamentally, plaintiffs'arguments _ both on standing and on the merits _ rest on the erroneous premise that the Federal Records Act was enacted principally to assist them. On the basis of objections already considered and rejected by the Archivist or, in some cases, nowhere reflected in the public comments, plaintiffs would have this Court invalidate a schedule of government-wide applicability. Aside from not being legally compelled, plaintiff's approach would wreak havoc on the Federal government's ability to manage its office records in the short- term, without directly or materially advancing plaintiffs' stated goals in the long-term.




ARGUMENT

 


I. PLAINTIFFS' OBJECTIONS FAIL TO UNDERMINE THE RATIONALITY OF THE PORTIONS OF GRS 20 AT ISSUE

 


A. Preliminary Observations

    Plaintiffs' four principal objections to GRS 20 flow from the fundamentally flawed premise that the FRA provision at issue was intended primarily to ensure that agencies not unilaterally destroy records they deem not of value to the public. See Pls.' Brief at 4.  Instead, as the legislative history to the FRA makes clear, "records come into existence, or should do so, not . . . 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." Sen. Rep. 81-2140, at 4 (1950).See footnote 1?

1

    Plaintiffs' objections are also based on a misconstruction of Armstrong v. EOP, 1 F.3d 1274 (D.C. Cir. 1993) ("Armstrong II"), and its effect on this separate rulemaking. Armstrong initially involved a challenge to the recordkeeping practices of the National Security Council ("NSC") and other components of the EOP, regarding how each component managed records created on an e-mail system known as "PROFS." Armstrong v. Bush, 721 F. Supp. 343 (D.D.C. 1993). The district court held that defendants had not complied with the FRA, because printed copies of e-mail for the PROFS system did not always "reproduce[] on the paper copy . . . who has received the information and when the information was received," and that "all the pertinent information contained therein" must be preserved. Armstrong v. EOP, 810 F. Supp. 335,341, 342 (D.D.C. 1993) (emphasis in original).

    The Court of Appeals affirmed on narrower grounds, holding that paper versions of records created on the NSC's and EOP's e-mail communications systems failed to provide "fundamental" or "important" material contained on the electronic versions of the documents. Armstrong II, 1 F.3d at 1277, 1284. The Armstrong II panel invalidated the defendants' recordkeeping guidance, stating:

                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 [at issue in
                Armstrong] would still not qualify as "full reproductions or transcriptions;
                imitations of a prototype; [or] . . . duplicates, of the paper printouts.

Id. at 1284 (emphasis added) (internal citation and brackets omitted).

    Thus, contrary to plaintiffs' suggestions, Armstrong did not hold that electronic mail (or by extension, word processing) must always be managed in its electronic form..See footnote 2?{C}

2{C}

That is why NARA was free to issue e-mail regulations that allowed agencies to retain paper versions of records created on e-mail systems, provided that certain transmittal and receipt information was included. See 36 C.F.R. § 1234.24.

    Nor did Armstrong hold that all differences between paper and electronic copies of documents created on e-mail and word processing systems are material, and therefore require agencies to take additional steps to preserve the electronic versions when paper copies have been placed in official recordkeeping systems. See Armstrong II, 1 F.3d at 1283. Contrary to plaintiffs' characterization, nothing in Armstrong precludes the Archivist from choosing a rational means for the disposition of equivalent copies of records, including by means of a general records schedule under the authority of 44 U.S.C. § 3303a(d).


B. The Archivist's Authority Under 44 U.S.C.   § 3303a(d) Is Broad Enough To Include Promulgation of GRS 20 In Its Present Form

   

   Plaintiffs' first objection is that GRS 20 authorizes the destruction of records created on e-mail and word processing systems which relate to the substantive functions of the agency, in alleged contravention of the Archivist's statutory mandate. This objection is premised on a gross misinterpretation of GRS 20, and the scope of the statutory authorization at issue. Although plaintiffs state that the general schedule "authorizes destruction of all word processing and electronic mail records without regard to content," Pls.' Brief at 19 (emphasis added), GRS 20 does nothing of the sort. "[O]n the contrary, GRS 20 requires the preservation of valuable records by instructing agencies to transfer them to an appropriate recordkeeping system." NARA Comments in Final Issuance of GRS 20, 60 Fed. Reg. 44,643, 44,644 (Aug. 28, 1995);;See footnote 3?{C}

3{C}

see generally "Forum for the Discussion of Proposed Changes to General Record Schedule 20," AR 61-67 ("Discussion Forum").

   The real issue before the Court is whether the Archivist, having required the preservation of records in agency recordkeeping systems (including in traditional paper filing systems), has sufficient authority under 44 U.S.C. § 3303a(d) to deem the remaining versions in desktop computers (i.e., on the agency's "live" electronic information system), temporary and without sufficient value "to warrant their further preservation by the U.S. government." The answer, based on the statute, its legislative history, and common sense, is clearly yes.

    "It is settled that courts should give great weight to any reasonable construction of a regulatory statute adopted by the agency charged with enforcement of that statute." Nationsbank of N.C. v. Variable Annuity Ins. Co., 115 S. Ct. 810, 813 (1995) (internal quotation omitted). "[W]here 'the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute,'" according deference to the agency's interpretation. NLRB v. United Food & Commercial Workers Union Local 23, 484 U.S. 112, 123 (1987) (quoting Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 843 (1984)). The agency's interpretation need not be the only possible construction, nor does it need to be the construction the court would have selected in the first instance. Chevron, 467 U.S. at 844. In construing a statute a court looks first to the language itself, to its legislative history, and, as an aid in interpreting Congress' intent, to the interpretation of its administering agency. Chemical Mfrs. Ass'n v. NRDC, Inc., 470U.S. 116, 125-134 (1985); Chevron, 467 U.S. at 859-866.

    While plaintiffs argue that the Archivist's authority to issue general records schedules is limited to "housekeeping records," they make no real effort to base this interpretation on a reading of the statute itself, and for good reason. Neither the original wording of the relevant provision in the 1945 Amendments to the Records Disposal Act of 1943 (see Tab 3), nor the present § 3303a(d), contains any terms that limit the Archivist's authority to promulgating general record schedules pertaining to "housekeeping" records.See footnote 4?{C}

4{C}

Rather, as pointed out in the opening brief, the plain terms of § 3303a(d) allow for the promulgation of schedules for "records of a specified form or character common to several or all agencies," a broad enough term to include a category for "electronic records" generally, and electronic mail and word processing systems specifically. While admittedly generic in nature, these are not conceptually different than a separate schedule for all "Records common to most offices within agencies" authorized by GRS 23.

     Nor does this interpretation of the Archivist's statutory authority lead to the conclusion that, as plaintiffs suggest, the statute empowers the Archivist to declare all "typewriter" or "handwritten" records (or, more precisely, all "copies" of such records) susceptible to a general records schedule. Computers in general, and "electronic information systems" in particular, enable agencies to retain large amounts of duplicative data, outside of agency recordkeeping systems. Agencies have a housekeeping need to dispose of that duplicative data in order for those systems (and those agencies) to function.See footnote 5?

5

Under such circumstances, it has made sense for the Archivist to authorize the deletion of documents generated by word processing or e-mail applications, once they have been copied in turn to a recordkeeping system, as a "common category" of records not warranting further preservation within the meaning of § 3303a(d).

    Plaintiffs rely mainly on a wooden interpretation of the term "routine, housekeeping" records, used by Congress in 1945, to limit the Archivist's current authority under § 3303a(d) to the promulgation only of schedules for the most routine,"administrative" records produced by agencies (such as procurement of supplies, personnel, accounting, etc.). Although Congress undoubtedly intended that the Archivist cover such administrative records by means of a general schedule, the complete legislative history, including Congress' actions in the first 25 years after enactment of the 1945 Act, fails to support plaintiffs' parsimonious approach to statutory interpretation.

    For example, as discussed in our opening brief, in 1954 the Archivist issued a general records schedule covering temporary, non-routine, non-administrative records, under the name GRS 17, "Cartographic, Photogrammetric, and Related Records," See Tab 25. Plaintiffs are correct in asserting that the schedule did not purport to cover every map of "a specialized characterSee footnote 6?{C}

6{C}

It is nevertheless the case that both the 1954 version of GRS 17, as well as its 1995 counterpart, cover non-routine, non-housekeeping records through means of a general records schedule.See footnote 7{C}

7{C}

And, contrary to plaintiffs' assertions, all GRS's prior to 1970, including the 1963 schedule cited in our opening brief,See footnote 8?{C}

8{C}

were ratified by Congress, under the legislative mechanism provided in the Records Disposal Act of 1943, as amended in 1945.See footnote 9{C}

9{C}

   Although plaintiffs are wrong to constrain the Archivist's general records schedule authority to "housekeeping matters," GRS 20 is consistent even with such a limited statutory interpretation. Once records have been transferred to a recordkeeping system, it is reasonable for the Archivist to treat the remaining copies on e- mail and word processing systems as duplicates.See footnote 10

With rare exception, Federal agencies do not have the means to preserve documents created on e-mail and word processing systems in electronic recordkeeping systems, or the capacity to hold indefinitely e-mail and word processing files on their computers.See footnote 11

Thus, NARA's conclusion that the relevant portions of GRS 20 "respond[] to a real need," 60 Fed. Reg. at 44,645, is grounded in reality.See footnote 12{C}

12{C}

On the other hand,{C}

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"[b]yproviding authorization for deletion of the word processing copy of documents that are preserved elsewhere in a recordkeeping system, NARA has freed Federal records officers from specifically scheduling the duplicative copies in those systems for disposal. Consequently, the records officers can concentrate on scheduling the unique electronic records in their agencies." Id. at 44,646.{C}

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In short, NARA's authorization for agencies to eliminate data from "live" electronic information systems, once records have been placed in recordkeeping systems, can fairly be interpreted as a "housekeeping" measure which has the support of virtually, if not all, of the Federal government.See footnote 13

   Alternatively, plaintiffs argue that GRS 20 is invalid as an "unexplained departure from" NARA's prior interpretation of 3303a(d). Pls.' Brief at 21. NARA's interpretation is neither a "departure" from past practice, for the above reasons, nor "unexplained." While plaintiffs make much of the fact that language appears in a variety of NARA documents advising agencies not to apply general record schedules to substantive, "program" records, it does not follow that GRS 20 represents an unexplained departure from these statements, to the extent they can even be considered relevant.See footnote 14?{C}

14{C}

   To the contrary, in developing GRS 20, the Archivist took the unprecedented approach of utilizing full "notice and comment" procedures as provided under the APA. To the best of defendants' knowledge, in the history of the general records schedule program, no other GRS has been published in proposed form, with a substantive preamble, as NARA did on October 7, 1994, and with no other GRS has NARA responded on the record to public commentsreceived, in a preamble accompanying final publication of the schedule in the Federal Register, as NARA did on August 28, 1995. In addition to Point 1 of the final preamble ("Value of Electronic Records"), NARA, contrary to plaintiffs' assertions (Pls. Brief at 21), responded specifically to criticism that it was allowing valuable "program" records to be disposed of by a general records schedule:

   The critical point is that the revised GRS does not authorize the destruction of the
                record- keeping copy of the electronic mail and word processing records. The
                unique program records that are produced with office automation will be
                maintained in organized, managed office recordkeeping systems. . . Program
                records that have been transferred to the recordkeeping system will not be
                affected by GRS 20. Their disposition is controlled by other general or specific
                records schedules.

60 Fed. Reg. at 44,644 (emphasis added).

   Although plaintiffs may disagree with the Archivist's interpretation of the statute, his comprehensive preamble in response to criticism represents just the sort of record explanation that Courts have found sufficient to meet APA standards, where it is alleged that there has been a varied interpretation of agency policy.See footnote 15

   Finally, plaintiffs' suggestion that NARA promulgated GRS 20 toavoid the "time and attention" required to appraise records under individual agency schedules (Pls.' Brief at 24) ignores Congress' goal in authorizing promulgation of GRS's in the first place. Just as importantly, it ignores the practical effects of requiring each federal agency to preserve all extra versions of records that are not needed to document agency activity _ preservation which would prevent the government from continuing to function effectively. Where the federal agencies have weighed in with unanimity on the present impracticality of conversion to electronic recordkeeping for their office records, the Archivist has interpreted the statute in the most rational manner.


C. As The Administrative Record Demonstrates, GRS 20 Represents A Fundamentally Sound Approach To The Disposition Of Records Created On The E-Mail and Word Processing Systems In Present Use In Federal Agencies

   Plaintiffs' second objection is that the Archivist, in issuing GRS 20, has ignored the unique value of records maintained in electronic format. This argument, contradicted by the administrative record, is largely, if not completely, negated by the Archivist's comprehensive discussion contained in the final issuance of GRS 20 itself, where he acknowledged and responded to this basic criticism at some length. See 60 Fed. Reg. at 44,643-45 (NARA response to comments on "Value ofElectronic Records"). Moreover, plaintiffs' argument is highly dependent on their myopic view of the appropriate considerations, as well as statements read out of context from past NARA issuances, all of which have little or no bearing on the priorities of the Federal government which the Archivist properly took into account.
 Before turning to plaintiffs' specific points, it is important to note that, although plaintiffs have sought improperly to supplement the administrative record compiled by the government, they do not otherwise challenge the legitimacy of the record, which includes approximately 1000 pages of comments NARA received from government agencies and other entities, pursuant to the contemporaneous rulemaking NARA conducted with respect to regulatory standards for e-mail recordkeeping requirements. See AR 1174-2168; see also AR 1139-1173 (NARA summaries).See footnote 16

   Moreover, neither the Complaint, nor plaintiffs' cross-motion, purports to challenge any aspect of NARA's underlying regulatory scheme other than the legality of portions of GRS 20. Thus,there is no dispute concerning the important distinctions NARA has made between what constitutes an "electronic information system,"See footnote 17 versus an "electronic recordkeeping system";See footnote 18

or concerning any aspect of NARA's regulations on e-mail recordkeeping. See 36 C.F.R.  1234.24(b)(1)(i)-(vi), (b)(2), (c), (d).See footnote 19{C}

19{C}

These regulations include the conclusion that "[w]hen an agency has taken the necessary steps to retain the [e- mail] record in a recordkeeping system, the identical version that remains on the user's screen or in the user's mailbox has no continuing value." 36 C.F.R.  1234.32(d)(1) (emphasis added).

   For purposes of this lawsuit, plaintiffs' acceptance of these regulations fatally undermines their premise that e-mail (and by extension, word processing files) on federal computers continue to have intrinsic value after records created on e-mail and word processing systems have been integrated into agency recordkeeping systems, that agencies should be devoting resources to thepreservation of such duplicate e-mail or word processing files, and that the Archivist may not authorize the disposal of such documents through a general record schedule. Plaintiffs' insistence on the intrinsic value of the electronic copies of such records is also belied by the overwhelming majority of comments NARA received from federal agencies that e-mail and word processing systems do not constitute electronic recordkeeping systems, that the proprietary software used by federal agencies does not allow for long-term storage of e-mail and word processing files on "live" systems, and that NARA should not impose any requirements on agencies to preserve e-mail and word processing files after any unique records produced on such systems have been transferred to recordkeeping systems, including traditional paper files where used.See footnote 20{C}

20{C}

   Moreover, even assuming (contrary to the administrative record), that plaintiffs are correct that "many agencies" are capable of "storing" or "maintaining," for limited periods e-mail messages and word processing files on their electronicinformation systems, it does not follow that such systems "preserve" Federal records in a manner consistent with NARA regulations or the FRA itself, i.e., in a recordkeeping system that preserves the "content, structure, and context" of the records. 60 Fed. Reg. at 44,644.See footnote 21 Plaintiffs may disagree with the Archivist's refusal to treat data in backup tapes and desktop or networked hard drives as the equivalent of records preserved in electronic recordkeeping systems, but the administrative record provides a rational basis for the Archivist to reach that decision or to construe the statute in such a manner.See footnote 22

Plaintiffs instead cite several qualities of electronic record in an attempt to demonstrate that NARA has ignored or discounted their concerns. For example, plaintiffs point out that researchers prefer electronic records, because of their enhanced"search and indexing capabilities," and advantages for "access" or distribution including via the Internet. On this the parties agree, for "NARA has recognized for many years the advantages electronic records have for searching, manipulating, and storing information." 60 Fed. Reg. at 44,643. The Archivist also recognizes, however, that qualities such as "search capability" and "access" (neither conception of which is included in the definition of a "record," 44 U.S.C. ? 3303), are not to be evaluated in a vacuum, but rather in the real world of the government's use of electronic records. Thus, consistent with the government's practice as also reflected in the e-mail regulations, the Archivist explained that:

     Search capability and context would be severely limited if records are stored in
                disparate electronic files maintained by individuals rather than in agency-
                controlled recordkeeping systems.

60 Fed. Reg. at 44,644. The Archivist also went on to say:

                If agencies were to maintain their electronic mail and word processing records
                on electronic information systems that do not provide the necessary records
                management functions, just for the sake of maintaining them in electronic
                format as many respondents advocate, the records would be of limited use to
                both the originating agency and future researchers. Such a practice would not
                support agency operations, and researchers would have to search disassociated,
                unindexed collections of materials for potentially valuable records, which would
                result in finding a large proportion of irrelevant documents, an inefficient use of
                research time.

Id. at 44,645. As the administrative record demonstrates, the Archivist carefully considered the search capability and access of electronic records, and especially how Federal agencies intendto use records created on e-mail and word processing systems in the future, and concluded that GRS 20, as promulgated, represents the most sensible and effective approach.See footnote 23

Plaintiffs also rely on Armstrong to argue that GRS 20 fails to recognize "differences in content" when records created on e-mail and word processing systems are printed out. Plaintiffs have misread both the holding of that case and the text and nature of GRS 20 itself.

First, nothing in the Armstrong decision compels agencies to maintain e-mail documents in electronic form. Rather, Armstrong states only that "important" information contained in the electronic version of e-mail communications, consisting of the name of the sender, all recipients (including on distribution lists), date of transmission, and if requested, time of acknowledgment of receipt, should be preserved under the FRA. See 1 F.3d at 1284. Both the Archivist's e-mail regulations, which plaintiffs do not challenge, as well as Category 14 of GRS 20, faithfully conform to Armstrong by requiring the preservation of this "important" information, in whatever recordkeeping system an agency chooses to adopt (paper, electronic, or microform).See footnote 24{C}

24{C}

Thus, GRS 20 does not fail to capture "differences in content" with respect to e-mail records. Second, as the Armstrong case did not address records created on word processing systems generally, a fortiori the Court neither held that such records must be retained in electronic form, nor had occasion to address what "important" or "fundamental" information must be preserved in such records as a general matter.

   The Archivist, however, has addressed this subject by requiring agencies to manage records created on word processing records in a manner that ensures that basic, "fundamental" information is preserved in arecordkeeping system.See footnote 25{C}

25{C}

Category 13 of GRS 20 further limits agencies, by authorizing them to delete word processing files only after records contained in such files "have been copied" to a recordkeeping system.See footnote 26{C}

26{C}

Given the absence of any record evidence that this guidance is insufficient and that, as a result, agencies are failing to preserve important data contained in word processing files, the Court must defer to the Archivist's discretion on what is the appropriate level of guidance to agencies as provided in GRS 20.

 The only evidence plaintiffs offer to support their view that GRS 20 is deficient because it fails to consider that "word processing documents may also contain critical information that is not retained in paper print-outs" (Pls.' Brief at 28), is acitation to their public comment (AR 205-06), which at best makes only passing mention of any concern with word processing files,See footnote 27{C}

27{C}

and the Becker Declaration's discussion of "summary" or "content" fields which some proprietary word processing packages are alleged to include. Becker Decl.  5. With respect to the latter, as a procedural matter the Archivist is "free to ignore . . . late filings," which of course include new substantive materials filed for the first time in Court, see Reytblatt v. U.S. Nuclear Regulatory Comm'n, 105 F.3d 715, 723 (D.C. Cir. 1997) (quoting Personal Watercraft Indus. Ass'n v. Dep't of Commerce, 48 F.3d 540, 543 (D.C. Cir. 1995)). Thus, the declaration is of no relevance to this rulemaking.See footnote 28{C}

28{C}

   In any event, Mr. Becker's testimony on the issue of "summary" or "content" fields in word processing documents should be given no weight for at least two reasons. First, nowhere does Mr. Becker claim actual knowledge whether and to what extent any individual or office in the Federal government actually has ever utilized this feature in their daily business. Absent suchknowledge, Mr. Becker's declaration amounts to an exercise in pure speculation about whatever "historic and research value" the data entered in these fields might have. See Becker Decl.  6. Second, by Mr. Becker's own admission, document summaries and comments "can be printed" out, id.  7. Thus, an agency's proper application of GRS 20, Item 13 would require that any data which contributes to the "record" status of the document under the FRA, 44 U.S.C.  3303, be included in the recordkeeping copy to be printed.See footnote 29{C}

29{C}

To the extent plaintiffs are demanding that GRS 20 spell out every particular of what agencies may confront in faithfully "copying" word processing files, the short answer is that they have "misunderstood its purpose." Discussion Forum, AR 63.See footnote 30{C}

30{C}


 


D. The Archivist Made The Required Findings Under 44 U.S.C.  3303a(d) In Issuing GRS 20

   Plaintiffs' third objection, that the Archivist failed to consider whether copies of e-mail and word processing files lack "sufficient administrative, legal, research, or other value to warrant their further preservation by the United States Government," is plainly without merit. Here again, plaintiffs muddy the issues by claiming that the Archivist failed to "make any determination that all the electronic and word processing records covered by GRS 20 meet this statutory requirement." Pls.' Brief at 33.

   First, as pointed out in response to plaintiffs' first objection, GRS 20 emphatically does not purport to provide disposition authority over "all" electronic mail and word processing files, and thus the Archivist had no obligation to justify the exercise of such disposition authority under the rubric of  3303a(d). Indeed, GRS 20 requires that records created on e-mail and word processing be preserved in agency recordkeeping systems, for appraisal and disposition under agency schedules submitted to the Archivist under  3303a(a) (or under general records schedules applicable to those systems).See footnote 31

   Second, with respect to the real issue presented, the Archivist most certainly did evaluate the "administrative, legal, research or other value" of the residual materials on desktop computers, once the records created on e-mail and word processing systems have been transferred to appropriate agency recordkeeping systems. Any fair reading of the preamble to GRS 20 shows that the Archivist explicitly took into account the interests of the academic, historical, and research communities in promulgating the rule. See 60 Fed. Reg. at 44,644, 44,645.See footnote 32These statements are based on the fundamental notion that agencies must provide "adequate and proper documentation" under the FRA, 44 U.S.C.3101, which in turn rationally translates into the requirement that records be placed in recordkeeping systems, rather than being maintained on desktop computers which do not function currently as recordkeeping systems.See footnote 33

   Moreover, these statements more than satisfy the APA requirement for "an agency, after notice and comment on a proposed rule, to 'incorporate in the rules adopted a concise general statement of their basis and purpose,'" Reytblatt, 105 F.3d at 722 (quoting 5 U.S.C.  553). Plaintiffs' rhetoric notwithstanding, the Archivist addressed the "significant problems" and concerns of the public commenters to GRS 20 in a "reasoned manner." Id.

   Plaintiffs' citation to American Friends is also inapposite, for two reasons. First, a different statutory provision was at issue in that case ( 3303a(a) governing the Archivist's appraisal of agency record schedules). Second, the presence of the preamble such as the one accompanying GRS 20, and the comprehensive administrative record of the sort compiled here, both serve to distinguish this case from the record before the Court in American Friends.
 


E. Section 3303a(d) Does Not Compel The Archivist To Specify The Period For Disposition of Certain Electronic Records Beyond What May Be Considered Reasonable

   Finally, plaintiffs object to the disposition instructions contained within GRS 20 on the basis that the Archivist has not authorized disposal of certain categories of electronic records "after the lapse of specified periods of time," as provided in 44 U.S.C.  3303a(d). Plaintiffs' objection is not well taken, not only on its own merit, but also because plaintiffs themselves have failed to specify its scope or relation to any of the provisions of GRS 20, including those otherwise at issue in this lawsuit.

   As an initial matter, plaintiffs have failed to tie their objection to the only records otherwise at issue in this lawsuit: categories 13 and 14 of GRS 20, corresponding to word processing files and e-mail records, respectively, neither of which contain the disposition language to which plaintiffs are objecting. Conversely, plaintiffs' failure to plead their Complaint with anyprecision as to the categories of electronic records in GRS 20 to which they are objecting merits denial of their cross-motion on this claim at the summary judgment stage. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).See footnote 34{C}

34{C}

   Moreover, plaintiffs erroneously claim (Pls.' Brief at 37) that GRS 20 authorizes the destruction of electronic records when an agency determines "that they are no longer needed." The final version of GRS, items 13 and 14, contains no such language in any disposition category of electronic records.

   Plaintiffs' objection is otherwise without merit. NARA has stated that it "cannot establish a more specific retention that would be appropriate in all applications." 60 Fed. Reg. at 44,647. Law, logic, and common sense all suggest that the Archivist has the authority to construe the language "after the lapse of specified periods of time" to include the general command that disposition may occur immediately after the agency has taken steps to place the official record copy in a recordkeeping system, and the remaining copy is being retained not for any official purpose within the meaning of the FRA. As indicated in our opening brief, since 1946, the Archivist has included the equivalent disposition instruction in general record schedules, including those ratified by Congressional action through 1970.See footnote 35?{C}

35{C}

   NARA has, however, cautioned agencies that they should provide more specific guidance as appropriate.See footnote 36?{C}

36{C}

This is entirely consistent with the FRA mandate that heads of agencies and the Archivist should work cooperatively in establishing records management programs of use to agencies. 44 U.S.C. ? 3102.

 

   In short, the Archivist, far from "fail[ing] to consider an[y] important aspect of the problem," Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Inc. Co., 463 U.S. 29, 43 (1983) has merely embraced a different legal solution, based on a different weighing of priorities, than would plaintiffs. Plaintiffs' objections have failed to show that any challenged aspect of GRS 20, in the context of the overall regulatory scheme, is irrational, arbitrary, or capricious.
 


II. PLAINTIFFS HAVE FAILED TO DEMONSTRATE WHY COUNT II INVOLVING USTR'S RECORDS IS NOT MOOT

   Plaintiffs do not dispute that, to survive a motion to dismiss for mootness, they must show a "more-than-speculative" chance that a court order would protect them in the future, nor do they dispute that a complaint may become moot after it is filed, or that a court cannot give a declaratory opinion in a case where the underlying claim is moot. See Defs.' Opening Brief at 41. Rather, plaintiffs bypass the standards for mootness, arguing instead that this case falls within the "voluntary cessation" exception to the mootness doctrine.See footnote 37{C}

37{C}

Plaintiffs' unadorned speculation regarding USTR's future plans is insufficient to come within either prong of this exception.

   First, plaintiffs have no reasonable expectation that USTR will destroy records on the DG tapes in reliance on GRS 20, or that the Archivist will authorize such action, based on the exchangeof correspondence between these two components of the Executive Branch. The General Counsel of USTR made clear in her letter to the Archivist, dated January 14, 1997, that "USTR wishes to lawfully dispose of [the DG backup] tapes, some of which date back to the early 1980's. For a small agency such as USTR, maintaining several thousand computer tapes indefinitely is an undue burden. . . ." Exh. A to Defs.' Opening Brief. She therefore stated that, "in the interest of moving forward," USTR would "cease its reliance on GRS 20," would instead "propose[] to follow an alternative route" by submitting an agency schedule (an "SF-115") to the Archivist, and that "USTR will not rely on GRS 20 in seeking such authority" (emphasis added). Id. Plaintiffs will have more than adequate opportunity to confirm the veracity of these representations prior to any further actions taken by defendants to dispose of word processing files on the DG tapes.See footnote 38{C}

38{C}

   With respect to the second prong of the test, the D.C. Circuit has explained at length that, in all of the cases in which it had "found that the effects of an alleged injury were not eradicated, some tangible, concrete effect, traceable to the injury, and curable by the relief demanded, clearly remained." Penthouse Int'l Ltd. v. Meese, 939 F.2d 1011, 1019 (D.C. Cir. 1991), cert. denied, 112 S. Ct. 1513 (1992). For example, in a case cited by plaintiffs, Reeve Aleutian Airways v. United States, 889 F.2d 1139, 1143 (D.C. Cir. 1989), the alleged unlawful government action, although suspended, was still causing continued economic injury. No such claim can be made here, where disposition authority for destruction of records has been withdrawn, the records on the tapes are being preserved, and the government has guaranteed that plaintiffs will have the further opportunity for public comment on USTR's recommendations for disposition of the records.