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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.

 
PLAINTIFFS' REPLY MEMORANDUM
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

June 16, 1997


TABLE OF CONTENTS
 




Introduction

The Records Disposal Act provides that a General Schedule may be adopted only if all the records covered by the schedule will not "have sufficient administrative, research, or other value to warrant their further preservation by the United States government." 44 U.S.C. 3303a(d). If a General Schedule sweeps so broadly that this standard is not met, the Schedule cannot be promulgated, and the Archivist must narrow the Schedule to records for which this finding can be made, or use individual agency schedules to authorize disposition of the records. Defendants' Opposition Memorandum ("Defs' Opp.") gives little attention to this statutory test and, instead, devotes most of its effort to attacking a "straw man" by criticizing a position plaintiffs have never advocated. Plaintiffs do not argue that "federal agencies must, by law, preserve their records in electronic" form. Opp. at 1. Nor do we contend that agencies should retain records in dispersed electronic files rather than in centralized, agency-controlled recordkeeping systems. Id. at 19. Rather, plaintiffs agree that most electronic records, like paper records, can be destroyed. Like paper records, however, the authorization to destroy records must be given through a General Schedule for administrative records, or individual agency schedules that recognize that the program records of some agencies are more valuable than those of others. What the Archivist cannot do, the plaintiffs argue, is authorize the destruction of the electronic program records from all agencies in one Schedule.

Moreover, under 44 U.S.C. 3303a(d) the Archivist must make an independent determination that all the records covered by the Schedule lack value. The statute does not, as the Opposition suggests, authorize the Archivist to promulgate General Records Schedules simply because the Archivist considers the Schedule a "reasonable" practice, or because many, or even all, agencies support the Schedule. Schedule 20 exceeds the Archivist's statutory authority because it authorizes the destruction of the electronic version of all program records, some of which are worthy of permanent preservation in electronic form, without appraisal of the archival value of these electronic records.

The Office of the United States Trade Representative's ("USTR") records illustrate this point. The USTR is fully capable of preserving its electronic mail records in an electronic recordkeeping system, and has done so since 1994. See Armstrong v. Executive Office of the President, 877 F. Supp. 690, 729, 731, 733 (D.D.C. 1995), reversed, 90 F. 3d 553 (D.C. Cir. 1996). In appraising the value of past USTR electronic mail, NARA concluded that approximately 80% of the messages warrant permanent retention, and, because of the special advantages of the electronic form, the electronic version should be preserved "rather than hard copy printouts from the system." Plfs' Appendix at P224-225. However, in General Records Schedule 20 the Archivist has authorized USTR (and every other federal agency) to discontinue its electronic recordkeeping system, and instruct staff to print and delete the agency's current electronic mail -- without notice, justification, or consideration of the advantages identified by NARA's appraisers. Thus, the difference between the parties is not whether electronic records can be destroyed, but rather how many records may be authorized for destruction in one General Schedule, and whether the decision must include consideration of archival or research values. Plaintiffs maintain that NARA's own appraisal shows that the Archivist cannot authorize the destruction of all electronic mail and word processing records in a single schedule because some electronic records of high-level agencies are worthy of preservation. Archival values must be considered through individualized appraisals that consider the differences between the value of the electronic records created by high-level agencies like USTR, and the records created by other federal agencies.

Apart from its mischaracterization of plaintiffs' position, defendants' Opposition rests on the twin contentions that (i) "it is reasonable for the Archivist to treat the remaining [electronic] copies" as "duplicates" of printed records, Defs' Opp. at 10; and (ii) the Archivist is not required to take historical or research interest into account in promulgating record schedules. Id. at 3, 25-25. Both contentions are without merit. The first is substantially the same as the Archivist's unsuccessful claim in Armstrong v. Executive Office of the President, 1 F. 3d 1274 (D.C. Cir. 1993), that electronic records can be treated as "extra copies," and NARA's own statements on the differences between electronic and hard copy records demonstrate that this contention is untenable. The second claim is foreclosed by the statutory language and American Friends Serv. Comm. v. Webster, 720 F.2d 29, 41 (D.C. Cir. 1983).


I. PLAINTIFFS HAVE STANDING

As discussed in our prior Memorandum, American Friends, 720 F.2d at 45-57, and Armstrong v. Bush, 924 F.2d 282, 287-288 (D.C. Cir. 1991), demonstrate that plaintiffs have standing here -- particularly since this action concerns preservation of some of the same records at issue in Armstrong v. Bush. Defendants' latest objections are easily answered:

1. Defendants assert that plaintiffs fail to show any concrete injury caused by GRS 20. Defs' Opp. at 36-38. To the contrary, the declarations show that three of the plaintiffs have requested, and/or plan to request, records from (i) agencies that have adopted the "print and delete" practice authorized by GRS 20, and (ii) the EOP, which maintains that GRS 20 authorizes destruction of historical records preserved on backup tapes, including those requested by plaintiffs.See footnote 1 These uncontested declarations show that the specific electronic records sought by plaintiffs are threatened by GRS 20.See footnote 2

Declarations on behalf of the organizations of librarians and historians demonstrate that their members regularly use government records in electronic form, and that the Archivist's blanket authorization for agencies to destroy these records without notice will deny these organizations and their members the right to be notified and to oppose the destruction of such records under 44 U.S.C. 3303a(d).See footnote 3 Denial of this right to receive notice of, and to submit objections to, agency action that will affect plaintiffs' rights is sufficient to establish plaintiffs' standing. See Reytblatt v. United States Nuclear Regulatory Comm., 105 F.3d 715, 721 (D.C. Cir. 1997) (petitioners have standing to challenge rule that makes it more difficult for public to file objections to nuclear license).

2. Defendants also assert that destruction of the only electronic version of the records is not sufficient for standing, and plaintiffs have standing only if all copies, in any form, are destroyed. Defs. Opp. at 38 n.50. This claim is contradicted by the Archivist's own statements acknowledging that the electronic and paper versions are not equivalent, because it may be more difficult, or impossible, to locate records if only the paper version is available. Moreover, Congress has made clear that format is important, and plaintiffs have a statutory right to request that electronic agency records be released in electronic form. See 5 U.S.C. 552(a)(3)(B), as amended by P.L. 104-231, 110 Stat. 2422 5 (1996); see also Delorme Publishing Co. v. NOAA, 907 F. Supp. 10, 12 (D. Me. 1995) (agency cannot refuse to release electronic records because information is available on paper).See footnote 4

Indeed, the dispute here is clearly one of substance, not form, and it is difficult to overstate the impact of GRS 20. "Virtually all material that are printed today exist at some point in an electronic format that could be used to" disseminate the records over the Internet, enhance research, and promote scholarship at relatively little cost.See footnote 5 For years, Congress has been urging the Archivist to use electronic technology to promote research and records dissemination, see, e.g., id. at 4-5, and has even required agencies to make their records available on the Internet. 5 U.S.C. 552(a)(2). The Archivist's assertion that his decision to give blanket authorization to destroy all word processing and electronic mail records does not injure researchers if paper copies are available demonstrates the Archivist's profound disregard of the importance of electronic records, and the interests he is obligated to consider under the statute.


II. DEFENDANTS' RESPONSES TO THE FOUR FLAWS THAT PLAINTIFFS HAVE IDENTIFIED IN GRS 20 ARE UNRESPONSIVE AND IGNORE THE EXPLICIT REQUIREMENTS OF 44 U.S.C. 3303a(d).

In our prior Memorandum we argued that GRS 20 is contrary to law because the Archivist failed to make the critical finding that the records authorized for destruction lack further value, as required by 44 U.S.C. 3303a(d). Moreover, the finding cannot be made for Schedule 20 because the Schedule ignores two of the most important factors in record value -- content and format -- and eliminates consideration of research value by simply delegating the decision on when electronic records may be destroyed to the agencies. As we show below, defendants' Opposition does not confront these defects and, instead, dwells on considerations that are irrelevant or insufficient under the statute.

 


A. GRS 20 Is Improper Because It Is Not Limited To Administrative Records.

Congress and NARA have repeatedly stated that General Records Schedules are for "administrative" records, and "[a]gencies must not attempt to use the GRS for program records," i.e., those records that document "the unique, substantive functions for which an agency is responsible." NARA, Disposition of Federal Records (1992), Admin. Rec. VI: 2325, 2413. This limitation is not based solely on the requirement that Schedules cover records "of a specified form or character common to several or all agencies," 44 U.S.C. 3303a(d), but also flows from the requirement that the Archivist determine that all records covered by a General Schedule lack value after the period specified in the Schedule. To fulfill this condition, the records must "have the same values, regardless of the agency that creates them." NARA, Disposition of Federal Records, 28-29 (1981 ed.); accord S. Rep. No. 711, 95th Cong., 2d Sess. 6 (1978). This condition cannot be satisfied if a "General" Schedule includes unique program records.

Defendants' primary response on this point is that the Archivist's interpretation should be accepted under Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843 (1984), because Congress has not actually considered whether Schedules are limited to "housekeeping" or administrative records. Defs' Opp. at 7. We disagree. When Congress made General Schedules mandatory in 1978 so that agencies would be required to destroy records covered by those Schedules, the Committee sponsoring the amendment specifically stated that General Schedules are for "routine agency records in such areas as personnel, payroll, procurement and supply," and "[i]f records are unique to an agency, rather than simply of a general nature, they would not be affected by this bill." H. Rep. No. 1263, 95th Cong., 2d Sess. 1-2, reprinted in 1978 U.S.C.C.& A.N. 2623-24; accord S. Rep. 711, 95th Cong., 2d Sess. 1-2, reprinted in 124 Cong. Rec. 8367-68 (1978). Where "traditional tools of statutory construction" show that "Congress had an intention on the precise question at issue, that intention is the law and must be given effect." Chevron, 467 U.S. at 843 n.9.

Moreover, even if Congress' intent were not clear, an interpretation that would otherwise be permissible under Chevron "is, nevertheless, prohibited, when the agency has failed to explain its departure from prior precedent." Bush-Quayle '92 Primary Comm. v. Federal Election Comm'n, 104 F. 3d 448, 453 (D.C. Cir. 1997). Despite objections that GRS 20 was inconsistent with NARA's repeated statements that General Schedules are limited to administrative records, see Admin. Rec. at I:199-200, the Archivist never explained why he did not limit the word processing and electronic mail provisions of GRS 20 to administrative records.

In responding to this point, defendants argue that the Archivist's use of notice and comment procedures and a "comprehensive" preamble are sufficient. Defs' Opp. at 13. The notice and comment procedures, however, were nothing more than what is required by 5 U.S.C. 553,See footnote 6 and the Archivist's preamble is not "comprehensive" because, among other things, it contains no explanation of why items 13 and 14 of this General Schedule, contrary to NARA's prior statements, are not limited to administrative records.See footnote 7

The Opposition also asserts that GRS 20 is actually limited to administrative records on the theory that deleting records "can fairly be interpreted as a 'housekeeping' measure." Defs' Opp. at 11-12. This argument simply ignores and, indeed, would obliterate, the distinction between administrative and program records. In distinguishing program and administrative records, the issue is not whether destruction is a housekeeping measure, but whether the records to be destroyed document "unique, substantive functions" or "housekeeping, or facilitative functions common to most agencies." Admin Rec. VI:2403, 2413. Under defendants' interpretation, General Record Schedules could be used for any records because record destruction is always a "housekeeping" activity.

Finally, the Opposition argues that the Archivist's departure from statements that General Schedules are not to be used for program records is justified because the Archivist treats the electronic and hard copy versions as duplicates with no unique value, Defs' Opp. at 10; therefore, destroying the electronic version does not result in the destruction of any "'unique program records.'" Id. at 13 (quoting 60 Fed. Reg. at 44,644). This is a post hoc explanation that has never been articulated by the Archivist. It is also inconsistent with the Archivist's repeated statements that when records are converted to another format, the two sets of records cannot be treated as duplicates, but must be scheduled separately, because of the differences in format. See, e.g., Admin. Rec. IV: 1413 5.3; id. at 1417 4; Plfs' Opening Memorandum at 25-26 & n.14 (quoting prior statements). Moreover, as we show in the next section, the assertion ignores the fact that the special characteristics of records in electronic format make them unique.


B. GRS 20 Ignores The Unique Value of Electronic Records.

In our opening Memorandum, we showed that the Administrative Record -- including the Archivist's and NARA's statements -- demonstrate that the format of records is critical to their value, particularly when records are in electronic format. Electronic records can be searched and disseminated in ways hard copy records cannot. These properties, as the Archivist concedes, enhance the utility of permanently valuable records to researchers and historians. See 60 Fed. Reg. 44639, 44643. GRS 20, however, treats all record formats as fungible by allowing agencies to retain electronic mail and word processing records in whatever format they desire.

In response to this point, defendants' Opposition mischaracterizes plaintiffs' position and never addresses the conflict between the Archivist's admissions and GRS 20. First, defendants assert that plaintiffs cannot contest that the electronic version of a record has no "intrinsic value" after records have been printed because plaintiffs have not challenged the Archivist's other regulations concerning electronic mail. Defs' Opp. at 15-16. There is no basis for this claim. Nothing in the Administrative Procedure Act or case law requires a litigant who charges that a regulation is unlawful to challenge all related regulations. Moreover, defendants' argument appears to rest on 36 C.F.R. 1234.32(d)(1), id. at 16, which simply restates GRS 20 by providing that, if an agency has taken "the necessary steps" required by GRS 20, electronic mail may be deleted from the computer screen. If GRS 20 is struck down, this regulation has no independent force as an authorization to destroy electronic records.

Second, defendants assert that plaintiffs advocate the preservation of all electronic mail, and that the Archivist had to approve GRS 20 because "[w]ith rare exception, Federal agencies do not have the means to preserve e-mail and word processing documents in electronic recordkeeping systems." Defs' Opp. 10, 17. Plaintiffs do not advocate any such position, and the Archivist did not make any such finding. To the contrary, the preamble to the Archivist's electronic mail regulations states only that cost and technological limitations make "electronic preservation of all e-mail records of the volume produced by the Federal Government impossible at the present time." 60 Fed. Reg. at 44,638 (emphasis added). This statement is equally, if not more, true of paper records, and rejection of GRS 20 certainly does not imply that all e-mail records must be preserved. The most relevant finding in the preamble to GRS 20 states that "most agencies have no viable alternative at the present time but to use their current paper files as their recordkeeping system." 60 Fed. Reg. at 44,644. But, as this statement implies, some other agencies are capable of preserving electronic mail and word processing records in electronic form,See footnote 8 and, as the next sentence of the preamble acknowledges, many more "will be able to consider converting to electronic recordkeeping systems" as the technology progresses. Id. at 44,644. Defendants' suggestions that such record retention is impossible are contrary to the Administrative Record, which shows that retaining and managing word processing and electronic mail records in electronic record keeping systems is not only possible, but that the technology is well established.See footnote 9

Third, the Opposition asserts that plaintiffs advocate retaining records in systems that "`do not provide the necessary records management functions,'" and "`in disparate electronic files maintained by individuals rather than in agency-controlled recordkeeping systems.'" Defs' Opp. at 19 (quoting 60 Fed. Reg. at 44,644). Because such uncontrolled "`unindexed collections'" do not provide the advantages associated with electronic records, the Opposition argues that destruction of the electronic records is justified. Id.

Plaintiffs, however, do not argue that agencies should not control their records, or should keep records scattered randomly on individuals' "live" desktop computers. More importantly, the law does not permit such a practice. The Federal Records Act and its implementing regulations require that agencies not only preserve, but organize and control their records. Agencies must establish records management programs that prescribe how records shall be maintained, including specifying how records should be filed. See 36 C.F.R. 1222.32(c); 1222.50(b), 1220.36; 44 U.S.C. 3102(1). These requirements apply to records "in all media." Id. 1222.32; id. 1220.14 (definitions of "Records" and "File" include machine readable records and files). Moreover, the regulations on electronic records require that agencies specify how such records should be stored, and that agencies monitor staff compliance with electronic records management procedures. Id. 1234.10(h),(m). Agencies must select appropriate media for storing electronic records, which may involve storage on tapes or centralized disk storage devices. Id. at 1234.30. These regulatory requirements "apply to all electronic systems used by agency employees to create electronic records." Armstrong v. EOP, 1 F. 3d at 1288. Thus, defendants cannot justify GRS 20 by presuming that agencies will violate these legal requirements for the electronic version of their word processing and electronic mail records, and will only organize paper copies. If an agency retains the electronic version of such records, the records must be controlled, indexed, and filed, see 36 C.F.R. 1222.50(b)(1), and, consequently, will have the unique advantages associated with electronic records.

What the agency comments cited by the defendants actually demonstrate is that agencies would rather not be required to control their electronic records because this prevents them from having an "off-the-record" communications system, Admin. Rec. V:1941, 1945, and, for some agencies, instituting procedures to manage electronic records in electronic format would require upgrading current computer systems. See Defs' Opp. at 10 n.11 (citing comments). But three considerations show that GRS 20 cannot be justified as a cost saving measure to accommodate agencies that currently must upgrade their systems before being able to preserve word processing and electronic mail records electronically.

First, Schedule 20 is not limited to agencies that must upgrade systems, but authorizes agencies (like USTR) that are able to preserve their records in electronic form to destroy the records without notice or consideration of the records' research value.See footnote 10 Second, for those agencies that do not currently have the capability, the issue presented is whether the value of the agency's program records justifies the burden of upgrading the current computer system. Those agencies that maintain that the burden is not justified can obtain authorization to destroy their records through an individual agency schedule. There is no question that the capabilities of agency computers differ, but this fact has no relevance to the unique value of electronic records. Instead, it underscores the fact that a government-wide Schedule for all agencies is improper because the critical factors, the value of records and burden, depend on the agency at issue. Third, the Archivist cannot justify GRS 20 as an economy or efficiency measure because the statute makes the General Services Administration -- not the Archivist -- responsible for economy and efficiency in records management, see 36 C.F.R. 1220.2, and the General Services Administration favors electronic records management as more efficient than converting electronic mail records to paper as authorized by GRS 20. Admin. Rec. V:2004, 2008.

Finally, apart from electronic records' advantages over paper in searching for and disseminating information, GRS 20 overlooks the differences in content between the electronic and hard copy versions of word processing records. See Plfs' Memorandum at 28, 31. The Archivist does not dispute that the electronic and printed versions of such documents can differ in content, or that Armstrong v. EOP, 1 F. 3d at 1284-85, demonstrates that such differences can be critical. Instead, defendants assert that the Archivist had no obligation to address the unique content of electronic word processing documents because the comments on GRS 20 make "only passing mention" of the issue. Defs' Opp. at 22 n.27. This characterization is inaccurate. As NARA itself stated in its summary of comments, Public Citizen commented that "[p]rinted version of word processing documents and spreadsheets do not include critical information". Admin. Rec. I:156. The comments themselves show that Public Citizen devoted a separate heading and two pages of its comments to arguing that GRS 20 ignores Armstrong v. EOP and "fails to ensure that all the information in electronic records is preserved." Id. at 205-206. Other commenters raised the same point. Id. at 170, 186, 187. Although agencies need not respond to every objection, they must respond in a reasoned manner to those "`comments which, if true, . . . would require a change in an agency's proposed rule.'" ACLU v. FCC, 823 F.2d 1554, 1581 (D.C. Cir. 1987) (emphasis omitted) (quoting Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 n.58 (D.C. Cir. 1977), cert denied, 485 U.S. 959 (1988)). These comments met this standard, particularly in light of Armstrong v. EOP, and the Archivist simply failed to respond.See footnote 11

To excuse the Archivist's omission, defendants argue that the unique information in the electronic version can be disregarded because it is "pure speculation" whether this information has historic and research value. Defs' Opp. at 23. However, the Archivist has never made such a determination, and his own regulations state that comments and annotations on documents may be historically valuable because they may add "to a proper understanding of the agency's formulation and execution of basic policies, decisions, actions or responsibilities." 36 C.F.R. 1222.34(c)(2).

Defendants also argue that valuable information will not be lost because "proper application" of GRS 20 requires that "any data which contribute to the 'record' status of the document under the FRA, 44 U.S.C. 3303, be included in the recordkeeping copy and printed." Defs' Opp. at 23-24. Neither GRS 20 nor the Archivist's other regulations, however, contains such a requirement. Moreover, the term "data which contributes to the `record' status of a record," is not defined, and has no meaning under the Records Disposition Act. The Archivist is authorized to schedule the disposition of records, not parts of records or data. Just as Armstrong v. EOP, 1 F. 3d at 1288, held that agencies cannot "automatically lop off a predesignated part of a whole series of documents that qualify as records" as unnecessary to "adequate documentation," the Archivist cannot issue a government-wide schedule that simply ignores part of the records at issue.

In short, the Opposition does not address the fact that GRS 20 treats electronic and hard copy records as fungible even though, by the Archivist's own admission, each format is different, and permanent records preserved in "an electronic format will have enhanced usefulness for future research," 60 Fed. Reg. 44,637 (italics in original). Instead, the Opposition asserts that, to avoid the burden of processing individual record schedules, the Archivist has "deemed" the electronic version to be "without sufficient value" to warrant retention if a hard copy exists. Defs' Opp. at 6. But the Archivist is not permitted to "deem" all electronic mail and word processing records created throughout the entire government to be without value -- particularly where the Archivist's own statements acknowledge that electronic records have different properties that, in some instances, justify preserving the electronic rather than the paper copy, or both. Cf. Armstrong v. EOP, 1 F. 3d at 1283 (Federal Records Act cannot be read "to allow the agency to by fiat declare" that all e-mail documents generated over two administrations are not "appropriate for preservation").

 


C. GRS 20 Is Not Supported By the Requisite Finding That All Records Covered By The Schedule Lack Value.

Agency rules must be set aside if they are not supported by the findings required by statute. See Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607, 614-15, 639-40, 661-62 (1980). In promulgating GRS 20, the Archivist never made a finding that the records covered by the schedule "will not, at the end of the periods specified, have sufficient administrative, legal, research, or other value to warrant their further preservation by the United States Government." 44 U.S.C. 3303a(d). Perhaps more importantly, the Administrative Record does not contain evidence that would support such a finding. Defendants are unable to point to any evidence that the electronic versions of all word processing and electronic mail records lack any value that would warrant "further preservation" after the agency no longer needs them, and the record shows that, in fact, some of these records warrant permanent preservation in electronic form. See Plfs' Motion at 29-30, 34-36 (citing examples); Plfs' Appendix at P224-225 (appraisal of USTR electronic mail).

The Archivist's inability to make the necessary finding flows, at least in part, from the Schedule's failure to distinguish between program and administrative records, and to distinguish between electronic and hard copy media -- distinctions that NARA has recognized are central to the research and historical value of records. Moreover, it demonstrates that the Archivist based his decisions on concerns quite different from the factors that Congress stated he must consider when adopting a General Records Schedule.

In response, the Opposition asserts that "the Archivist had no obligation to justify the exercise of such disposition authority under the rubric of 3303a(d)." Defs' Opp. at 25. Defendants also argue that the Court of Appeals' statements in American Friends, 720 F.2d at 65, 68, emphasizing the importance of this finding, are inapposite because a different statute was at issue, and the Archivist has compiled an administrative record and preamble for GRS 20. Defs' Opp. at 26. Neither of these arguments has any merit.

First, the Archivist's only authority for authorizing the destruction of records covered by GRS 20 is 44 U.S.C. 3303a(d), and that provision explicitly provides that the Schedule may be promulgated only if the records covered by the Schedule lack sufficient value to warrant their retention. "[I]t is axiomatic that an administrative agency's power to promulgate legislative regulations is limited to the authority delegated by Congress." Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). Second, although American Friends involved review of individual schedules submitted under 3303a(a), that provision requires the very same finding that the records covered by the schedule "will not, after the lapse of the period specified, have sufficient administrative, legal research or other value to warrant their continued preservation." Moreover, American Friends, like this case, involved review of an administrative record but, even if it did not, the Court of Appeals' admonition that the Archivist must provide "some reasoned justification explaining why" the disposal standard has been met is equally applicable. 720 F. 2d at 65.

The Opposition goes on to argue that "[a]ny fair reading of the preamble" shows that the Archivist took historical and research interests into account, based on "the fundamental notion that agencies must provide `adequate and proper documentation,'" under 44 U.S.C. 3101, and this standard "rationally translates into a requirement that records be placed in recordkeeping systems, rather than being maintained on desktop computers." Defs' Opp. at 26. These statements only confirm that GRS 20 does not comport with 44 U.S.C. 3303a(d). The "adequate and proper documentation" standard of Section 3101 does not govern disposition of existing records, but imposes a minimum obligation on agencies to create sufficient records to ensure that "core agency functions" are documented. Armstrong v. EOP, 1 F. 3d. at 1286. Other statutory provisions, including Section 3303a, apply to "all records -- . . . whether or not related to `adequate documentation' of `essential transactions'" under Section 3101. Id. (italics in original).

Moreover, the critical issue with respect to GRS 20 is not whether the records at issue are maintained in "recordkeeping systems" or "desktop computers." Plaintiffs certainly do not maintain that records must or should be kept in desktop computers. The critical issue is how the decision concerning whether the records will be maintained in electronic or paper format will be made. By adopting GRS 20, the Archivist has given each agency absolute discretion to make this determination based solely on the agency's operational needs, without giving consideration to the interest of "citizens, journalists, historians and other scholars [who] view the working of our government through different prisms." Admin. Rec. I:164. Instead of protecting these interests, the Archivist misconstrued his role by concluding that agencies are entitled to choose the format in which their electronic records are offered to the National Archives, and his only role is to ensure that the format is one that can be accepted by the Archives. 60 Fed. Reg. 44645. In making this error, the Archivist abdicated his responsibility to consider "historical research interests and the rights of affected individuals -- not just the [agency's] immediate, operational needs." American Friends, 720 F. 2d at 65. Defendants' Opposition underscores this error by repeatedly arguing that the GRS 20 should be upheld because the agencies' comments support the Schedule. Defs' Opp. at 12, 14.See footnote 12 It is not surprising that agencies favor rules that give them the discretion to do whatever they wish. The Records Disposal Act, however, does not provide for adopting General Records Schedules based on a popular vote of the affected agencies. After all, the purpose of the Act is to limit agency discretion, and to ensure that records are not destroyed by agencies if they have legal, research, or other value to those outside the agency. Because GRS 20 is not supported by any finding on this critical issue, it must be struck down.


D. GRS 20 Fails To Specify The Period For Retention of Records.

By statute, General Schedules must provide for disposal of records "after the lapse of specified periods of time." 44 U.S.C. 3303a(d) (italics added). As discussed in our Opening Memorandum, this requirement is important because it ensures that the Archivist is actually making the decision that the records lack sufficient value, and not simply passing the decision back to the agencies. Plfs' Motion at 38. Yet, in most provisions of GRS 20 the Archivist does not specify a time period, but instead states that the agencies should determine a specific retention period on their own. 60 Fed. Reg. 44647.

In response, defendants do not argue that the language in GRS 20 satisfies any ordinary definition of "specified periods of time." Instead, defendants assert that because the Archivist has concluded that he "`cannot establish a more specific retention period that would be appropriate in all applications,'" the statute must be construed to cover the Archivist's language. Defs' Opp. at 28 (quoting 60 Fed. Reg. at 44,647). However, the law requires that the Archivist conform his Schedule to the statute; not, as the Opposition suggests, that the statutory terms be construed to fit the Archivist's Schedule. If the Archivist cannot specify a retention period for all the applications covered by a Schedule, this demonstrates that the General Schedule cannot be issued and that the records covered by the Schedule are too diverse. The Archivist may overcome his inability to determine a retention period by adopting a narrower general schedule that does not cover "all applications" (such as one limited to administrative records) or issuing individual agency schedules. But the Archivist may not adopt a General Schedule that transfers the task of specifying the retention period to the agencies.

Defendants also renew their assertion that the Archivist's language was "ratified by Congressional action through 1970." Defs' Opp. at 28. The pre-1970 schedules, however, were not enacted by Congress, but presented to a congressional committee for review. See Defs' Appendix, Tab 3, P.L. 79-133, 59 Stat. 434 (1945). Actions by a congressional committee, or even an entire House of Congress, do not have the effect of law. See INS v. Chadha, 462 U.S. 919, 954-58 (1982). Indeed, even if the committee to which the schedules were presented adopted a statement endorsing the Archivist's interpretation (which it did not), the statement would, at best, be the committee's interpretation of prior statutory language, and such interpretations have no legal effect. Pierce v. Underwood, 487 U.S. 552, 566-67 (1988). Moreover, the pre-1970 general schedules were permissive, and do not provide useful precedent for the mandatory schedules now in use.

Finally, defendants argue that this defect in Schedule 20 should be ignored because the complaint fails to identify with "any precision" "the categories of electronic records in GRS 20" that are subject to this objection. Defs' Opp. at 27. Defendants' request for more precise complaint at this late stage is curious since the Archivist found the objection sufficiently specific to identify the provisions affected during the rule making proceeding, 60 Fed. Reg. at 44,645 2 (listing items at issue). Moreover, the provisions implicated by this objection are easily identified. Item 13, concerning word processing files, authorizes destruction of the electronic version of the documents when the agency determines that the records are "no longer needed for updating or revision." 60 Fed. Reg. at 44,649. Nine of the other 14 items in GRS 20 similarly authorize deletion "when no longer needed" or "when the agency determines that they are no longer needed for administrative, legal audit or other operational purposes." See Defs' Opp. at 27-28 n.34 (identifying 8 of 9 items at issue, but omitting item 15). The items authorized for destruction without a specific retention period include "[e]lectronic indexes, lists, registers, and other finding aids" (item 9), "[r]ecords that contain summarized or aggregated information" (item 4), and "[d]erived data and data files that are copied, extracted, merged, and/or calculated from other data generated within the agency" (item 12), see 60 Fed. Reg. 44,648. These are records that may, depending on the agency and application, have value in research even after they are "no longer needed" by the agency. Admin. Rec. I:167, 175, 180. GRS 20 is unlawful with respect to these items because it does not specify the retention period but delegates that decision back to the agencies.


III. PLAINTIFFS ARE ENTITLED TO JUDGMENT ON THEIR SECOND CLAIM FOR RELIEF.

In our opening Memorandum, we argued that, if this Court finds that GRS 20 is improper for the reasons set forth above, it follows that the EOP may not rely on that Schedule to destroy the USTR's word processing records from 1986-1993, and plaintiffs are entitled to a declaratory judgment on the Second Claim for Relief. Defendants do not challenge this claim on the merits, and defendants' efforts to avoid the claim as moot, and exclude the EOP from any judgment, are unfounded.

 


A. Mootness.

Defendants' mootness argument begins by misplacing the burden of proof and persuasion. Where, as here, a party asserts that a claim has been rendered moot by its conduct after the complaint was filed, the party claiming that the case is moot bears the heavy burden of demonstrating both that (1) there is no reasonable expectation that the violation will recur; and (2) the party's conduct has "completely and irrevocably eradicated" the effects of the alleged violation. Reeve Aleutian Airways, Inc. v. United States, 889 F.2d 1139, 1143 (D.C. Cir. 1979).

With regard to the risk that the violation may recur, it is undisputed that USTR retreated from its plans to destroy word processing documents under GRS 20 "reluctantly," and that USTR and the EOP still maintain that "GRS 20 was properly propounded" and authorizes destruction of the records. Defs' Exhibit A. Defendants have been unable to identify any case in which the courts have held that a government official can claim that an action is moot simply by discontinuing the challenged action, while expressly maintaining that the action was lawful, and would be lawful if repeated. Every case that has addressed this situation has held that the controversy is not moot, and officials are not permitted to manipulate jurisdiction in this manner. See,e.g., Reeve, 889 F.2d at 1142-43; City of New York v. Baker, 878 F.2d 507, 511-12 (D.C. Cir. 1989); Doe v. Harris, 696 F.2d 109, 112-13 (D.C. Cir. 1982).

Moreover, because General Records Schedules are mandatory, USTR's letter does not "completely and irrevocably" eradicate the effects of the decisions of the EOP and the Archivist that GRS 20 authorizes destruction of these records. Defendants assert that GRS 20's mandatory authority should be ignored because (i) stipulations and orders in Armstrong "trump" GRS 20, and (ii) the Archivist has "acted to withdraw" disposition authority. See Defs' Opp. at 32 n.39. Neither claim is true. The Stipulation and Order in Armstrong permits the EOP to give notice of its intent to dispose of records pursuant to GRS 20. See Defs' Exhibit D, at 8. Moreover, to exempt records from a mandatory General Record Schedule, an agency must submit "an SF 115 in accordance with .30 accompanied by a written justification" for the exemption. 36 C.F.R. 1228.42(b). Neither the EOP nor USTR have taken this step to exempt the records at issue here, and USTR has made clear that it still plans to destroy the records. See Defs' Response to Plfs' Statement of Material Facts 18 ("USTR has not submitted a request to exempt records on the DG tapes from GRS 20"); Defs' Exhibit A (USTR hopes submission of schedule will "lead more promptly to lawful disposition of these records"). Whether or not the USTR word processing records will be preserved is very much a "live" controversy.


B. EOP As A Party.

Defendants continue to insist that the EOP is not "a separate legal entity that has legal responsibilities and is subject to suit." Defs' Opp. at 33. The legal authorities concerning the EOP demonstrate that this is not correct. The EOP was established as "a central staff organization under the immediate direction of the President," EOP Organization and Functions, 14 Fed. Reg. 7856 (1949) (attached), with the component agencies as "divisions" of the EOP. 18 Fed. Reg. 5668 (1953), reprinted in 3 U.S.C. 101 note, "Organization and Functions of the Executive Office of the President." Reorganization Plan No. 1 of 1977, which still governs the EOP, is designed to organize the EOP "as a single, unified entity serving the President." President's Message, 91 Stat. 1633, 1637, reprinted in 1977 U.S.C.C.& A.N. 4715, 4719 (attached). Statutes identify the EOP as an "agency"See footnote 13 and treat it as a separate entity subject to specific legal obligations.See footnote 14 Presidential executive orders provide that the EOP "shall be treated as one agency" for post-employment representation restrictions, see Exec. Order 12,731, 202, reprinted in 1990 U.S.C.C.& A. N. B41, B43 (attached), and centralize recordkeeping and other administrative functions in the EOP. Exec. Order No. 12028, reprinted in 1977 U.S.C.C. & A.N. 4706 (1977) (attached). The EOP itself has promulgated regulations addressing its obligations as an agency under conflict of interest statutes, FOIA, and the Rehabilitation Act. 3 C.F.R. Parts 100-102. The EOP recently appeared as a party, without objection from the government, in an action challenging the EOP's drug testing plan. See Stigile v. Clinton, 932 F. Supp. 365 (1996), reversed 110 F. 3d 801 (D.C. Cir. 1997); see also attached Order (enjoining EOP and other defendants).

Most importantly, it is uncontested that the function at issue in this action, records disposition, is centralized within the EOP. Records disposition schedules for EOP components, such as USTR, the Office of Management and Budget, and the Office of Science and Technology Policy, are not submitted in the name of these components, but submitted, noticed for public comment, and approved with the EOP named as the "agency" and the "EOP Records Management Officer" as the "authorized agency representative." 36 C.F.R. 1228.26(b); Plfs' Appendix at P317. If, as these documents show, the EOP exercises legal authority to authorize destruction of agency records, it follows that the EOP is an "agency" that may be sued under the APA for improperly exercising that authority. 5 U.S.C. 551(1).

Defendants state that their real concern is that the EOP not be subject to injunctive relief. Defs' Opp. at 34. In this motion, however, plaintiffs have requested only declaratory relief, not injunctive relief, and we can only imagine one scenario in which injunctive relief against the EOP would be needed. If the Court agrees with plaintiffs that GRS 20 is unlawful, but the EOP Records Management Officer continues to authorize destruction of records based on GRS 20 on the theory that EOP components not named in the complaint are not bound by the Court's judgment, plaintiffs might seek injunctive relief to stop this conduct. Under these circumstances, we believe that such relief would clearly be appropriate since the EOP and the EOP Records Management Officer have had a full opportunity to litigate the issue in this action.




CONCLUSION

For the reasons stated above and in plaintiffs' opening Memorandum, the Court should grant summary judgment to plaintiffs and enter a declaratory judgment declaring GRS 20 contrary to law and arbitrary and capricious.

Respectfully submitted,
_______________________
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

June 16, 1997


Footnote: 1 See Blanton Dec. 10-12, 14-15, 17-18 (EOP, Depart. of State and Justice); McGinn Dec. 4-8 (USTR and Labor); Armstrong Dec. 4-8 (USTR, OSTP, State, Justice, Labor, Interior, Commerce, USIA, and others); see also Admin. Rec. at 2749-50, 2876, 2881 (showing that Interior, State and USIA use print and delete instruction); Becker Dec. 4-9 (Justice and Labor Department's word processing systems permit electronic summaries and annotations that are useful in plaintiffs' research).