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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PUBLIC CITIZEN, INC., et al.,
 
    Plaintiffs,
 
        v.

C.A. No. 96-2840 PLF

 JOHN CARLIN, in his official
capacity as Archivist of
the United States, et al.,

    Defendants.
 

MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT AND IN SUPPORT OF PLAINTIFFS' CROSS-MOTION FOR SUMMARY JUDGMENT
 
 
Michael Tankersley
D.C. Bar No. 411978
Alan B. Morrison
D.C. Bar No. 073114
PUBLIC CITIZEN LITIGATION GROUP
1600 20th Street, NW
Washington, DC 20009
(202) 588-1000
Attorneys for Plaintiffs

May 13, 1997



TABLE OF CONTENTS

 



Introduction

 

 

   In Armstrong v. Executive Office of the President, 1 F.3d 1274, 1277 (D.C. Cir. 1993), the Court of Appeals rejected the government's contention that agencies were entitled to destroy their electronic mail records if they had "instructed employees to print out a paper version of any electronic communication that falls within the statutory definition of a `record.'" The Court held that electronic mail and other electronic records, like paper records, must be managed in accordance with the Federal Records Act and, thus, must be appraised for their historical value before being destroyed. Id. at 1287-88.

  Fourteen months later, however, the National Archives and Records Administration announced its intent to circumvent this ruling by promulgating a "General Records Schedule" that gives federal agencies blanket authority to adopt the print and delete practice rejected in Armstrong v. EOP. The Schedule allows agencies to destroy any electronic mail or word processing record on their computer systems if the record has been printed on paper or microfilm. Despite overwhelming public opposition to this proposed rule, the Archivist approved the Schedule, and agencies are now relying on the Schedule as authority for destroying electronic records -- including records of the highest agencies in the government.

  Plaintiffs challenge this government-wide, unqualified authorization for the destruction of electronic mail and word processing records as both unlawful and arbitrary. Plaintiffs do not contend that all electronic mail and word processing records must be preserved in electronic form. Indeed, plaintiffs do not dispute that most electronic mail and word processing records need not be retained in electronic form. Instead, plaintiffs contend that the law requires that the Archivist distinguish between electronic records that have historical value and those that do not. By adopting GRS 20, however, the Archivist has abdicated his responsibility to make such distinctions and has sought to circumvent the procedures for public notice and public comment on disposal decisions. More specifically, GRS 20 has four critical flaws, any one of which is sufficient to strike down the Schedule.

  First, the Schedule sweeps too broadly because it authorizes the destruction of all electronic mail and word processing records without regard to content. Under the Records Disposal Act, the Archivist's authority to use General Records Schedules is limited to records that have a character that is "common to several or all agencies," 44 U.S.C. § 3303a. Congress and the Archivist have long recognized that, because general schedules apply to many different agencies, they should only be used for "housekeeping" or "administrative" records, such as personnel records, whose value does not depend on which agency created them -- and should not be used for "program" records concerning the agency's mission. But General Records Schedule 20 departs from this longstanding interpretation, without explanation or justification, and treats program records of the most powerful White House agencies as if they had the same value as records of the lowliest government field office.

  Second, the Schedule treats all record formats as fungible and, thus, ignores the special qualities of electronic records. The Archivist, acting on the premise that the format of a record has no bearing on the historical interests that the Archivist is obligated to protect, has given agencies absolute discretion to decide whether electronic mail and word processing records are retained in hard copy or electronic format. However, the Archivist concedes, and the National Archives has long emphasized, that hard copy and electronic versions of records are not equivalent because electronic records have unique properties, and these properties affect the records' value to the public, researchers, and historians. GRS 20 ignores these unique properties by providing that the Archivist is indifferent to whether records created electronically -- including those records that are worthy of permanent preservation -- are submitted to the National Archives in hard copy or in their original electronic formats.

  Third, the Schedule is not supported by the critical finding required under the Records Disposal Act. General Records Schedules may only be promulgated if the records covered by the schedule do not "have sufficient administrative, legal, research or other value to warrant their further preservation" by the government. 44 U.S.C. § 3303a(d). No such finding was made here, nor would it be possible to rationally make such a finding for all electronic mail and word processing records covered by the Schedule.

  Fourth, the Records Disposal Act allows the Archivist to adopt schedules that authorize disposal "after the lapse of specified periods of time." 44 U.S.C. § 3303a(d) (italics added). The statutory requirement that the Archivist specify the retention period is important to assure that the Archivist is making the statutory determination that records lack sufficient value to warrant further preservation, and not simply handing his responsibility back to the agencies. GRS 20, however, does not specify a time. Instead, the schedule leaves it to agencies to decide when records "are no longer needed." In doing so, the Archivist has abdicated his responsibility to determine how long records should be retained and has improperly delegated to agencies decisions that the statute requires be made by the Archivist.

  Defendants' defense of GRS 20 in their Motion to Dismiss or for Summary Judgment ("Defs' Motion") fails to adequately address the four problems identified above, and is based on a fundamental flaw. Defendants insist that, because some agencies lack the ability to retain records in electronic form, it follows that the Archivist should give all agencies the flexibility to destroy the electronic versions of the records if they wish. The records laws, however, do not impose such an all or nothing choice. Because agencies differ in their recordkeeping abilities, functions, and the historical importance of their records, the Records Disposition Act contemplates that individual agency schedules, not government-wide schedules, should be the principal means for the Archivist to schedule records. By promulgating a government-wide general schedule for these records, rather than using individual schedules, the Archivist has ignored his obligation to make distinctions that separate records that have historical value from those that do not.

  Plaintiffs' challenges to GRS 20 present purely legal issues, and there are no material facts in dispute. In addition, the Court of Appeals has already addressed and squarely rejected the government's arguments that plaintiffs lack standing to challenge the destruction of electronic records. Accordingly, plaintiffs move for summary judgment and request that the Court enter a declaratory judgment stating that General Records Schedule 20 is null and void.




BACKGROUND


A. The Records Disposal Act.

The central premise of the Records Disposal Act, 44 U.S.C. §§ 3301-3314, is that agencies may not unilaterally decide to destroy their own records because agencies may not consider the records' value to the public. In enacting the statute, Congress was "certainly aware that agencies, left to themselves, have a built-in incentive to dispose of records relating to `mistakes' or, less nefariously, just do not think about preserving `information necessary to protect the legal and financial rights . . . of persons directly affected by the agency's activities.'" American Friends Serv. Comm. v. Webster, 720 F.2d 29, 41 (D.C. Cir. 1983) ("American Friends") (quoting 44 U.S.C. § 3301).

  Accordingly, the Act provides that the Archivist is responsible for determining whether the records lack sufficient administrative, legal, research, or other value to warrant their further preservation. 44 U.S.C. § 3303a. No record may be "alienated or destroyed" by an agency without obtaining the Archivist's approval. 44 U.S.C. § 3314; Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 147 (1980).

  The Archivist's evaluation of the value of records, known as the "appraisal process," involves the consideration of two distinct "values" or "viewpoints." First, the "agency's viewpoint" focuses on whether the records have any administrative, legal, or fiscal use to the agency. See Admin. Rec. VI: 2316-20, NARA, Disposal of Federal Records, (1992) (discussing agency's and NARA's viewpoints); see also NARA, Disposal of Federal Records, 14-15 (1981 ed.) (same). Second, the Archivist and NARA are responsible for determining whether the records have sufficient historic or research value to those outside the agency to warrant their preservation. Admin. Rec. VI: 2319-20, NARA, Disposal of Federal Records (1992); see also NARA, Disposal of Federal Records, 18-20 (1981 ed.) (NARA has prime responsibility for determining secondary or "archival" value of records for research and scholarship). The Archivist's appraisal must take into account "historical research interests and the rights of affected individuals," and not just the agency's "immediate, operational needs." American Friends, 720 F.2d at 65. The Archivist's role is to ensure that the "archival" or "secondary" values that go "beyond agency needs and interests," are considered before records are destroyed. NARA, Disposal of Federal Records, 19 (1981 ed.)

  There are two ways that the Archivist can authorize the disposal of agency records:

  (1) Individual Agency Schedules. The Archivist's authorization to dispose of records usually is obtained through individual agency record schedules. Under this procedure, an agency submits a "request for disposition authority" or "disposition schedule" in which the agency identifies specific agency records and proposes that they be destroyed after the lapse of specified periods of time. 44 U.S.C. § 3303a(a); 36 C.F.R. § 1228.30. The Archivist must issue a notice requesting public comment on the agency's proposal, and the Archivist's staff appraises the value of the records. The Archivist may accept or reject the agency's proposal. If NARA's appraisal indicates that the records have sufficient historical value, the records will eventually be transferred to the Archives as "permanent" records. 44 U.S.C. § 2107. Otherwise, the Archivist will approve a schedule authorizing disposition of the records after they have been retained for an appropriate period of time. Id. §§ 3302-3303a.

  (2) General Records Schedules. The Archivist is also authorized to promulgate General Records Schedules governing the disposition of records that are common to several or all agencies and do not, after a specified period of time, have sufficient administrative, legal, research or other value to warrant their further preservation. 44 U.S.C. § 3303a(d). General Records Schedules apply government-wide, and are designed to cover the disposal of "routine `housekeeping' records, such as those relating to the hiring of personnel, procurement of supplies, and fiscal management, that are common to most agencies." H. Rep. No. 361, 79th Cong., 1st Sess. 1 (1945). In the terminology now used by NARA, the General Records Schedules "cover records documenting administrative, or housekeeping, functions rather than program functions." Admin. Rec. VI: 2324, NARA, Disposal of Federal Records, IV-9 (1992). "Administrative records," as defined by NARA, are records relating to "budget, personnel, supply, and similar housekeeping, or facilitative, functions common to most agencies." Id. at 2403. In contrast, "Program records" document "the unique, substantive functions for which an agency is responsible." Id. at 2413. Program records are not covered by the General Schedules.

  The use of General Records Schedules rather than individual agency schedules to authorize records destruction obviously reduces paperwork, but it also reduces the public's ability to participate in the appraisal of the records' value. When an individual agency schedule is submitted, the Archivist must issue a notice in the Federal Register announcing that the agency has proposed to destroy the records, and provide an opportunity for public comment. 44 U.S.C. § 3303a(a): The conferees believe that such public notification of a proposed records disposal will enable other agencies of government, as well as Archives user groups and the general public, which may be affected by the proposed disposal, to comment to the Archivist on potential impacts of such disposal. Such public notice should enhance the quality of decision-making on records disposal. H. Conf. Rep. No. 1124, 98th Cong., 2d Sess. 30, reprinted in, 1984 U.S.C. & A.N. 3894. No such notice and comment is required if records are covered by a General Records Schedule; each agency simply destroys the records covered by the schedule.

  Several of the safeguards against improper destruction are also removed when records are destroyed under a General Records Schedule. For example, when an individual agency schedule is used, the agency must prepare a schedule describing each series of records, including the physical type and contents of the records, and this schedule is available to the public as part of the notice and comment process. 36 C.F.R. § 1228.30(b)(2). In addition, an agency official must formally certify that the records do not, or will not, warrant retention. Id. § 1228.26(b). Moreover, where an individual agency schedule is used, NARA undertakes "a thorough study of the records that takes into account their administrative use by the agency of origin, the rights of the Government and private persons directly affected by the Government's activities, and historical or other value." 61 Fed. Reg. 34449 (1996) (Plfs' Appendix at P68). No such individualized appraisal, certification, or description of the records occurs where the records are covered by a General Records Schedule.

  Finally, since 1978, General Records Schedules have been "mandatory." 44 U.S.C. 3303a(d). If records are covered by a General Records Schedule, agencies must destroy the records unless they specifically request and obtain an exemption from the Archivist. 36 C.F.R. § 1228.42(b).


B. The Armstrong v. EOP Decision.

  There are three basic methods for managing electronic mail records: (1) print the electronic records and file them in paper filing systems; (2) store and manage the records in electronic format, using whatever filing capabilities are provided by the agency's electronic mail system; or (3) transfer the electronic records to a separate repository designed for filing and managing the records in electronic format. See Admin. Rec. at 2937-40. Each method has advantages and disadvantages. Printing and filing the records is easy to implement, but has disadvantages because "[t]he ability to search for, retrieve, or retransmit documents electronically is lost once they are printed," and "[c]omplete compliance is hard to accomplish if each end user is responsible for printing, routing or filing his or her own messages." Id. at 2938.

  In Armstrong v. EOP, the Archivist and agencies of the EOP argued that, if agencies have adopted the first method by instructing staff to print electronic communications that qualify as "records" on paper, the agencies need not schedule the electronic version, but may treat the electronic data as a nonrecord "extra copy" and routinely delete it without the Archivist's approval. See Armstrong, 1 F.3d at 1282See footnote 1

This Court and the Court of Appeals both rejected this claim, and held that the electronic communications are not "extra copies," but unique records that contain information not found in the paper print-outs. Id. at 1284-86. Accordingly, the Courts held that these electronic records "must be managed and preserved in accordance with [the Federal Records Act]." Id. at 1286.

  After the Court of Appeals decision in Armstrong, the Executive Office of the President adopted the third option by instituting new recordkeeping procedures to collect and store electronic mail and word processing documents that qualify as "records" electronically. Under the new procedures, it is no longer necessary for staff to print messages for them to be preserved. When messages are created on the computer, employees indicate whether the messages are record or nonrecord material, and the computer automatically collects and stores copies of the records in electronic form. Nonrecord messages are periodically purged from the computer. The records retained in electronic form can then be indexed or searched for keywords or text strings by computer, and may eventually be copied to tape or optical disk for long term preservation. The National Security Council, Office of Administration (OA), Office of the United States Trade Representative (USTR) and Office of Science and Technology Policy (OSTP) all instituted automated recordkeeping systems with these features. See Armstrong v. EOP, 877 F. Supp. 690, 721-22, 725-26 (describing OA system); id. at 729, 730-31, 733 (describing USTR system); id. at 734-35 (describing OSTP system)..See footnote 2
?


C.The Revision of General Records Schedule 20.

  In Armstrong, the Court of Appeals stated that the proper way to purge "incidental electronic records" from agency computers is for individual agencies to submit schedules to the Archivist providing for disposal of those records that lack sufficient value to warrant their preservation. Id. at 1287 (citing 44 U.S.C. § 3303a(a)). However, shortly after the Court of Appeals' decision, NARA initiated steps to authorize all federal agencies, at their discretion, to follow the practice that had been rejected in Armstrong v. EOP, namely, printing and then destroying electronic records. In October, 1994, the Acting Archivist proposed to amend General Records Schedule 20 to explicitly authorize all federal agencies to destroy agency records stored on word processing and electronic mail systems if the records have been printed in "hard copy" on paper or microform, and the agency no longer needs the electronic version. See Admin. Rec. I:89-92, 59 Fed. Reg. 52313 (Oct. 17, 1994).

  Thirty-seven comments were received in response to the proposal. All of the comments from the public, professional organizations, and state archivists criticized the proposal because the revised General Schedule would result in the destruction of valuable federal records. These commenters maintained that the Archivist should not issue blanket authority for the deletion of electronic records, but should "specifically appraise particular systems in each agency." Admin. Record at I: 61-62 (summarizing comments). The only entities to submit comments in favor of the proposal were federal agencies, which applauded the Archivist's proposal to give agencies freedom to chose the format in which their records are retained. Admin. Rec. I:15, 60 Fed. Reg. 44643.

  Despite the unanimous opposition to the proposal by the public, the current Archivist, John J. Carlin, revised General Records Schedule 20 to authorize agencies to delete the only electronic version of agency word processing records after the records have been copied to paper or microform for recordkeeping purposes, and the agency no longer needs the electronic record for updating or revision. 60 Fed. Reg. at 44649, Item 13. The revised schedule also authorizes agencies to delete the only electronic version of agency records stored on electronic mail systems after the records have been copied to paper or microform for recordkeeping purposes. Id., Item 14. The Schedule gives agencies the option to retain these records in electronic form by copying them to "an electronic recordkeeping system." Id. But the decision whether to retain electronic records in their original format or convert them to hard copy is left entirely to the discretion of the agency. Id.

  In adopting these provisions, the Archivist did not make any determination that all the electronic mail and word processing records covered by the Schedule do not "have sufficient administrative, legal, research, or other value to warrant" their further preservation by the government. Moreover, in the notice explaining the revised Schedule, the Archivist stated that the decision of whether to maintain electronic mail and word processing records in an electronic or hard copy format should be based solely on the agencies' "operational needs" and the interests of "future researchers" should play no role. Id. at 44645.

  The Archivist did not address objections that the scope of the revised General Records Schedule should be limited to "administrative records." One provision of the Schedule concerning electronic spreadsheets was changed to expressly limit it to administrative records. See id. at 44646 and 44649, Item 15. But the Archivist offered no explanation for his failure to impose a similar limitation on the provisions concerning word processing and electronic mail records. Instead, the word processing and electronic mail provisions of GRS 20 cover "[d]ocuments such as letters, memoranda, reports, handbooks, directives, and manuals recorded on electronic media," and "electronic mail messages that meet the definition of Federal records, and any attachments to the record messages," -- regardless of the contents or purpose of these records. Id. at 44649 Items 13 and 14.

  The Archivist did respond to objections that GRS 20 failed to provide any specific period of time that records must be retained because it simply stated that agencies may "delete when no longer needed." The Archivist did not adopt a specific time period, but modified the instructions to read "delete when the agency determines that [the records] are no longer needed for administrative, legal, audit, or other operational purposes." 60 Fed. Reg. at 44645.


D. Reliance On GRS 20 to Dispose of Agency Records.

  As NARA has observed, "nearly all Federal agencies now use e-mail to transact Government business." 60 Fed. Reg. 44634 (1995). The use of word processing to create government records has also become universal, as personal computers have proliferated throughout the federal government. See H. Rep. No. 795, 104th Cong., 2d Sess. 12 (1996). The records created and maintained by agency electronic mail and word processing systems include:

  1.    Program Correspondence, including formal and informal communications of Cabinet Secretaries, Assistant Secretaries and other executive officials.

  2.    Speeches concerning agency programs by Cabinet Secretaries, Assistant Secretaries and other executive officials.

  3.    Substantive communications concerning Executive Committees and Boards (e.g. minutes, lists of members, correspondence, and final reports).
Admin. Rec. at 1805-08 (describing record and nonrecord material created on Interior Dept. computer network). For some agencies, many of these records have historical value. For example, after examining a sample of the USTR electronic mail records from 1986-1993, NARA staff concluded that 80% were worthy of preservation as permanent records. See Plfs' Appendix at P224.

  Prior to the adoption of the revised Schedule 20, at least some agencies submitted individual schedules to the Archivist to obtain disposition authorization for their electronic mail records on an agency-by-agency basis.See footnote 3

More recently, however, agencies have begun to rely on the blanket authority in revised General Records Schedule 20 to destroy their electronic mail and word processing records.

  For example, as a result of the Armstrong litigation, the EOP was required to retain computer tapes containing electronic mail and word processing records from the Reagan, Bush and early Clinton Administrations, before the EOP's automated system for electronic mail was instituted. These records included electronic mail and word processing documents created on the USTR's "Data General Computer System" from 1986 through 1993. In 1996, the EOP announced that it intended to rely on the revised GRS 20 as authorization to dispose of these records, and the Archivist endorsed this plan on December 13, 1996. Plfs' Appendix, II:P85-89, P231. The EOP also announced that it intended to rely on GRS 20 as authority to dispose of records created on the OSTP's electronic mail and word processing systems, and the Archivist endorsed this plan as well. Id. II:242-44. Under these plans, the electronic mail records of these agencies would be retained as permanent records, but the electronic versions of both USTR's and OSTP's word processing records would have been destroyed without any individualized appraisal of their historical value. After this action was brought, both the USTR and OSTP announced that, while the agencies contended that GRS 20 authorized destruction of these records, in order to avoid litigation, they would cease reliance on the Schedule and submit individual agency schedules. See Plfs' Appendix at 248-49 and Defendants' Exhibit A See footnote 4

High-level Cabinet agencies have also adopted the "print and delete" procedure authorized by GRS 20. The Departments of State, Justice, Labor, and Interior all instruct employees to print copies of electronic word processing and electronic mail records on paper, and then allow staff to destroy the electronic versions at their discretion. See Admin. Rec. VII: 2882-84, 2894 (State Dept.); id. at 2749 (Interior Dept.); Blanton Decl. ¶¶ 15, 16; McGinn Decl. ¶ 7. Because these agencies maintain that their records systems are "paper-based," the electronic versions of their electronic mail and word processing records are never appraised, and the destruction of the electronic records is not subject to notice and comment under 44 U.S.C. § 3303a(a).

  This challenge to GRS 20 is brought by historians, researchers, librarians, and journalists who conduct research using government records made available under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA") or in the collections of NARA. See Plaintiffs' Declarations Re: Standing. Plaintiffs and members of the plaintiff organizations use computers to search records, conduct research, and disseminate information. Moreover, plaintiffs have obtained, and plan to continue to seek, records that the Archivist has authorized be destroyed in electronic format.

See footnote 5




ARGUMENT


I.  PLAINTIFFS HAVE STANDING

  Defendants' arguments concerning standing are easily answered because their contentions were thoroughly considered and rejected by the Court of Appeals in American Friends Serv. Comm. v. Webster, 720 F.2d at 45-57, and Armstrong v. Bush, 924 F.2d 282, 287-288 (D.C. Cir. 1991).

  Injury-In-Fact. Contrary to defendants' argument, plaintiffs' interest in the preservation of the records covered by GRS 20 is not solely "ideological" or "abstract." Plaintiffs are individuals who regularly use government records, and organizations whose members regularly use government records, as part of their professions as journalists, educators, advocates, librarians or historians.See footnote 6 Plaintiffs' declarations concerning standing attest that the individual plaintiffs and members of the plaintiff organizations have a particularized interest in obtaining and using these records in electronic form because they use computers to search, organize, index and disseminate records.See footnote 7 The recently enacted Amendments to the Freedom of Information Act confirm that plaintiffs' rights of access to agency records includes the right to request the records in electronic form, as long as that format is "readily reproducible" from the agency's records. 5 U.S.C. § 552(a)(4) (as amended by the Electronic FOIA Amendments of 1996, P.L. 104-231, § 5, 104 Stat. 2422 (1996)). Finally, plaintiffs' concern is not speculative; plaintiffs have identified specific Cabinet and EOP agencies (such as the USTR, State Department, Justice Department) whose electronic records plaintiffs have requested in the past, and plan to request in the future, but may not be able to obtain because of GRS 20.See footnote 8
 
  In American Friends, the Court of Appeals recognized that plaintiffs who claimed a need for agency documents arising "`out of their professions as historians, journalists, teachers, film writers, or attorneys,'" 720 F.2d at 46 (quoting American Friends Service Comm. v. Webster, 485 F. Supp. 222, 226 (D.D.C. 1980)), had standing to challenge the Archivist's approval of individual agency disposition schedules where they had made past FOIA requests, had other requests pending, and intended to request records from the agency in the future. The only difference between the injury in American Friends and this action is that the records destruction here is not limited to an individual agency's files, but is government-wide. This difference, of course, has no bearing on standing because, whether the schedule is specific or general, the injury is the same: "private parties and the public cannot review records that an agency has destroyed in violation of the disposal laws." Id. at 557.

   In Armstrong v. Bush, the Court of Appeals rejected the argument that historians and researchers did not have standing to challenge the government's plans to destroy computer records, regardless of the theory on which the government sought to justify destruction of the records. "[B]ecause plaintiffs are researchers and historians who make extensive use of government documents," the Court of Appeals held, plaintiffs have standing and are within the zone of interests of the records creation and management provisions of the Federal Records Act. 924 F.2d at 288. Indeed, the plaintiffs in this action include many of the same plaintiffs in Armstrong,See footnote 9 present the same interest found sufficient for standing in Armstrong, and seek to prevent the destruction of the EOP word processing and electronic mail records preserved because of the injunctions in Armstrong.See footnote 10 Plaintiffs clearly have standing to challenge the government's latest theory for destroying these same records.

   Redressability. Defendants also argue that plaintiffs do not satisfy the "redressability" requirement for standing on the theory that, even if GRS 20 is struck down as unlawful, plaintiffs will gain nothing because the Archivist will simply approve individual agency disposition schedules authorizing each individual agency to destroy electronic mail and word processing records after converting them to hard copy. Defs' Motion at 16-17. However, the fact that "the agency might well subsequently legitimately decide to reach the same result through different reasoning," does not defeat standing. Akins v. Federal Election Commission, 101 F.3d 731, 738 (D.C. Cir. 1996) (en banc). Plaintiffs have standing to challenge an agency rule as arbitrary and capricious even though it is not certain that, if the plaintiffs prevail, the agency will adopt a rule that redresses plaintiffs' injury on remand. See Competitive Enterprise Inst. v. National Highway Transp. Safety Admin., 901 F.2d 107, 117-18 (D.C. Cir. 1990). Similarly, parties have standing to challenge agency failures to prepare environmental impact statements even though there is no assurance that the statement will alter the outcome. See Foundation on Economic Trends v. Lyng, 943 F. 2d 79, 83 &n.2 (D.C. Cir. 1991). Standing exists where, if the agency complies with the required procedures, and considers the factors the agency is supposed to consider, "it might change its mind and aver the damage to [the plaintiffs'] interests." Id.

   In this case, if GRS 20 is void, the government will be required to evaluate the destruction of the records on an agency-by-agency basis, a process that will require that (i) agency officials specifically certify that the records lack value; (ii) NARA appraise the value of each agency's record systems; and (iii) the Archivist consider public comments on the value of the records. These steps are likely to lead to the conclusion that, as plaintiffs claim, some agency records are sufficiently valuable to require that they be retained in their original, electronic format  Moreover, destruction pursuant to GRS 20 thwarts plaintiffs' right to have notice of, and comment on, the value of the records before they are destroyed. Denial of these "procedural rights" alone is sufficient to establish standing to challenge the Archivist's decision to bypass individual record schedules by authorizing government-wide destruction of these records, without regard to their content. See Lujan v. Defenders of Wildlife, 504 U.S. 572, 574 n.7 (1992).


II. GRS 20 IS UNLAWFUL BECAUSE IT IS OVERBROAD AND FAILS TO COMPLY WITH THE EXPLICIT REQUIREMENTS OF 44 U.S.C. § 3303a(d).

 We agree with defendants that GRS 20 is an agency "rule"; that this Court is to set aside the Schedule if it is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law," 5 U.S.C. § 706(2); and that Motor Vehicle Manufactures Ass'n v. State Farm Auto. Ins. Co., 463 U.S. 29, 42-43 (1983), sets forth the relevant considerations. Defs' Motion at 19.See footnote 11

  GRS 20 cannot be upheld under this standard of review. The Records Disposal Act provides that the General Records Schedules must cover records that no longer has sufficient "administrative, legal, research, or other value to warrant their further preservation." 44 U.S.C. § 3303a(d). General Records Schedule 20 is so sweeping that it impossible for the Archivist to satisfy this standard and show that none of the covered records have value. The Schedule is too "General" to comply with the statute because it ignores the factors that the Archivist has recognized determine the value of records: content, format, and the function of the originating agency. Four separate considerations show that the Schedule is too sweeping to comply with the law.
 


A. § GRS 20 Is Not Limited To Administrative Records, But Authorizes Destruction Of All Word Processing And Electronic Mail Records Without Regard To Content.

  Congress and NARA have long recognized that General Schedules may be used for "housekeeping" or "administrative records" -- but cannot be applied to record systems that contain records documenting the unique, substantive functions of an agency. GRS 20, however, covers all word processing and electronic mail records -- regardless of their content, or their uniqueness to the particular agency that created them. Because of its breadth, GRS 20 is contrary to law and arbitrary and capricious.

  First, GRS 20 is contrary to law because the statute requires that General Records Schedules be limited to records "of a specified form or character common to several or all agencies." 44 U.S.C. ? 3303a(d). When Congress first enacted the provision authorizing General Records Schedules in 1945, both the House and Senate contemplated that this authority would be used for "routine `housekeeping records,' such as those relating to the hiring of personnel, procurement of supplies, and fiscal management, that are common to many agencies." H. Rep. 361, 79th Cong., 1st Sess., 1 (1945); S. Rep. 447, 79th Cong., 1st Sess. 1 (1945). Since the value of such records does not depend on the agency, General Schedules could be used to establish a uniform retention period for "similar classes of  useless records, for example, personnel or accounting records," without each agency submitting a separate list or schedule. S. Rep. No. 914, 91st Cong., 2d Sess. 3, 1970 U.S.C.C. & A. N. 3297, 3299 (GSA comments).

 Congress reaffirmed this limitation in 1978 when it amended 44 U.S.C. § 3303a(d) to make the use of General Schedules mandatory. The House Committee sponsoring the amendment reassured Congress that "[i]f records are unique to an agency they would not be affected by" the mandatory General Schedules. H. Rep. No. 1263, 95th Cong., 2d Sess. 1-2, reprinted in 1978 U.S.C.C.& A.N. 2623-24. The General Schedules cover "disposal of routine agency records in such areas as personnel, payroll, procurement and supply." Id. GRS 20, however, is not limited to such administrative records concerning functions "common to several or all agencies," id., but covers program records that are unique to particular agencies.

 Second, even if the statutory language is considered ambiguous, GRS 20 is an arbitrary, unexplained departure from the NARA's prior interpretation of the statute. In statements concerning the permissible scope of General Records Schedules, NARA (and NARA's predecessor, the GSA), have echoed Congress' statements concerning the limits of 44 U.S.C. § 3303a(d) by declaring that General Records Schedules are for "administrative records" but not for "program records." The current NARA Handbook on records disposition states, without qualification, that "[t]he GRS covers records documenting administrative, or housekeeping, functions rather than program functions." Admin. Rec. VI: 2324, NARA, Disposition of Federal Records, (1992). NARA instructs agencies that they "must not attempt to use the GRS for program records." Id. at 2325 (emphasis added). The same interpretation appears in earlier documents emphasizing that General Records Schedules should not be applied when "administrative records are mixed with program records." See, e.g., Plfs' Appendix at P60, 62, Introduction to the General Records Schedules, 1988/1989.

 The Archivist's departure from this longstanding interpretation without any explanation or justification, by itself, requires that the agency's action be struck down. See Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1971); Cross-Sound Ferry Services, Inc. v. ICC, 934 F.2d 327, 329 (D.C. Cir. 1991). Indeed, in adopting GRS 20, the Archivist failed to even address this issue. When the Schedule was proposed, commenters specifically objected that it covered both "administrative" and "program" records, and that word processing and electronic mail records did not have the common characteristics that would allow the Archivist to authorize their disposition through a general schedule. See Admin. Rec. at I:199-200, Comments of Public Citizen. When he adopted the final schedule, however, the Archivist did not address these objections or give any indication that he had considered the issue at all.

 Third, GRS 20 is irrational because it is inconsistent with the basic premise of General Records Schedules. The limitation of General Schedules to administrative records is necessary because: General records schedules are based on the premise that similar records have the same values regardless of the agency creating them. Therefore retention periods for similar records have the same values regardless of the agency creating them. S. Rep. No. 711, 95th Cong., 2d Sess. 6 (1978) (comments of Deputy Controller General).See footnote 12 However, the broad array of records covered by the GRS 20 simply do not have "common" characteristics that would allow the Archivist to determine that all such records, regardless of the agency that created them, lack any value that would warrant their further preservation by the government. For example, the memoranda, studies, or correspondence created by the Office of the Secretaries of Defense or State on word processing or electronic mail systems are far more likely to have enduring legal, research, and historical value, than the records of the Bureau of Engraving and Printing, which are far less significant. Covering such disparate records under a single General Schedule is irrational.

  In Defendants' Summary Judgment Motion, the Archivist asserts that GRS 20 is appropriate because the statute authorizes schedules for records "of a specified form or character" and "electronic records" are in a specified "form." Defendants Motion at 27-28. However, this argument only underscores that the Schedule sweeps too broadly. First, GRS 20 is not based on a "specified form," but is based on mechanism used to create the record. As the Chief of the New York State Records Advisory Services explained in her comments, GRS 20 is unlike other general schedules because the word processing and electronic mail provisions "are defined by software application (word processing) [and] mode of communication (e-mail)," rather than by the record's structure, content or media. Admin. Rec. at 162. Instead of specifying a form, GRS 20 covers all records created by word processing or electronic mail, regardless of whether the records are recorded on paper, microform, or electronic media.

  Moreover, the Archivist's theory -- that he has the power to authorize the destruction of all records created by a given technology, without regard to the records' purpose -- would render the statute irrational. When Congress authorized General Records Schedules for routine housekeeping records, it did not give the Archivist authority to order the destruction of all handwritten records or all typewritten records, regardless of their content. For the same reason, the statute does not give the Archivist authority to adopt a General Schedule covering all records created by word processing or electronic mail.

   The Archivist also argues that, despite NARA's statements to the contrary, in the distant past General Records Schedules have been used for program records, citing a 1954 cartographic records schedule and a 1963 schedule for records held by the Archivist. Defs' Motion at 24-25, 37. The cartographic schedule does not support the Archivist's claim since the schedule only covered limited categories, and it excluded records "of such a specialized character that they are not readily susceptible to evaluation on a Government-wide basis." See Defendants' Exhibits Tab 25. The 1963 Schedule was not a genuine general records schedule since it covered records transferred to the custody of the Archivist, not records held by agencies. See Defendants' Exhibit, Tab 3, Pub. L. 133 (general schedules provided for records that "either have accumulated or may accumulate in such agencies"). Moreover, the Archivist's reference to old, isolated schedules does not provide a meaningful response to the repeated statements by NARA and Congress that General Records Schedules are only appropriate for housekeeping or administrative records.See footnote 13
  The proper means to dispose of program records under the statute is through individual agency records schedules, not a General Records Schedule. Only individual agency schedules allow for distinctions to be made between important records of the Departments of State or Defense that may justify electronic preservation, and records of lower level agencies that do not. As agency commenters stressed when GRS 20 was revised in 1987: GRS 20 should not apply to electronic records which are not common among Federal agencies. Record schedules for these records should be included in separate agency specific records schedules, consistent with the practice used for other non-common records. GRS 20 would create a media specific records schedule. This is inconsistent with NARA's general policies, with which we agree, of establishing agency records schedules (not GRSs) for records that are not common to all Federal agencies, and non-media specific schedules. Admin. Rec. at II:636.

  Of course, requiring such individual agency schedules will require NARA to give more time and attention to appraisal of these records. This, however, is precisely what the Records Disposal Act mandates. As the Court of Appeals recognized in American Friends, NARA "may have to spend more resources developing and checking records plans for agencies whose files are especially likely to contain significant information pertaining to legal rights and topics of particular interest to historical researchers." American Friends, 720 F.2d at 44.
 


B.  GRS 20 Ignores The Unique Value Of Records In Electronic Format.

  In his Summary Judgment Motion, the Archivist also asserts that it is irrelevant that GRS 20 applies to unique program records because, even if the electronic originals are destroyed, a copy will be retained in some format. Defs' Motion at 37 (quoting 60 Fed. Reg. 44,644). This assertion that format is irrelevant is essentially the same argument that the Court of Appeals rejected in Armstrong v. EOP, when the government claimed that the electronic mail and word processing records could be regarded as valueless "extra copies" of paper records. See 1 F. 3d at 1283, 1285. In approving GRS 20, as in Armstrong, the Archivist has assumed that paper and electronic records are fungible, so that converting the electronic record to paper and destroying the electronic original destroys nothing of value.
  However, the record and NARA's own statements demonstrate that the format of records is critical to the value of the records, particularly when records are in electronic format.?{C}

NARA's guidelines underscore this by providing that, when the identical information is recorded in hard copy and electronically, the value of each format must be evaluated separately because of the differences in the ability to use and access the information: NARA applies some special considerations when appraising information in automated information systems. Electronic information may have greater research utility than similar information stored on paper or microfilm because it can be manipulated. Consequently some microdata appraised as disposable in hard copy (e.g., questionnaires) may be permanently valuable when maintained as electronic data. Admin. Rec. at VI:2241, NARA, Managing Electronic Records, 22 (1990). The format of records, not just their content, is one of the principal factors in evaluating whether they have sufficient value to be preserved as permanent records. See NARA, Disposition of Federal Records, 21 (1981 ed.)See footnote 14

  The record shows that electronic records differ from hard copy print-outs in three ways that are important to their value for research:

 1.  Search and Indexing Capabilities. "Existing technologies for searching electronic records can often review materials more quickly than is possible via paper review." H. Rep. No. 795, 104th Cong., 2d Sess. 11 (1996). The Administrative Record contains numerous yexamples of how these searching and indexing capabilities have been used with word processing and electronic mail records:

*  From 1987 through 1992, government officials repeatedly searched backup tapes containing word processing and electronic mail records created by the National Security Council during the Reagan Administration for investigations of the Iran-Contra Affair, the prosecution of Manuel Noreiga, and the confirmation hearings of CIA Director, Robert Gates. To locate relevant records, the government used computers to search for key-words in the electronic versions of the documents. Such automated searches would not have been possible if the records were not in electronic form.