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U.S. Supreme Court Asked to Reverse Decision Allowing Agencies to Destroy Electronic Records

Nov. 4, 1999

U.S. Supreme Court Asked to Reverse Decision Allowing Agencies to Destroy Electronic Records

Petition Charges U.S. Archivist With Ignoring Unique Value of Electronic Records

WASHINGTON, D.C. — Federal agencies should not be permitted to routinely destroy electronic versions of records, such as word processing and electronic mail records, Public Citizen said today in a petition filed with the U.S. Supreme Court.

The petition asks the Court to reverse a recent Court of Appeals ruling upholding a determination by the Archivist of the United States, who decided to allow federal agencies to routinely destroy word processing and electronic mail records. The petition seeks to protect public access to historically important records now written on government computers. Joining Public Citizen in filing the petition were the American Historical Association, the Organization of American Historians, the National Security Archive, the American Libraries Association, the Center for National Security Studies, journalist Scott Armstrong and researcher Eddie Becker.

The petition charges that the Archivist’s decision ignores the unique properties of electronic records by treating the format of the records as irrelevant. Federal records laws make the Archivist responsible for determining whether government records have sufficient value to warrant their preservation and directing agencies to destroy records that do not. In 1995, the Archivist issued a rule, known as “General Records Schedule 20” or “GRS 20,” which instructs federal agencies to destroy all records created with electronic mail or word processing applications after they have created an electronic, paper or microform copy for recordkeeping purposes. Even if their records contain historically valuable information, GRS 20 directs agencies to destroy the electronic originals after creating a paper or microform copy.

The problem with that ruling was elucidated by U.S. District Judge Paul Friedman of the District of Columbia, who in October 1997 held that GRS 20 was irrational because electronic records often have “unique and valuable features not found in paper printouts of the records.” By ignoring the value of electronic formats for research and disseminating information, Judge Friedman ruled, the Archivist had abdicated his statutory responsibility “to insure the protection and preservation of valuable government records.”

In August 1999, however, the Court of Appeals for the District of Columbia Circuit reversed Judge Friedman’s ruling after accepting the Archivist’s argument that the special value of the electronic format can be ignored under the federal records laws if a paper or microform (i.e., microfilm or microfiche) copy has been created. This ruling cleared the way for the wholesale destruction of government records under GRS 20.

Public Citizen’s petition argues that GRS 20 is inconsistent with the public’s experience with electronic records, which have revolutionized the way information is stored and communicated, precisely because the electronic format can be transmitted, indexed and accessed in ways that paper and microform copies of records cannot. “The format of records is clearly relevant to their value, and the Archivist’s decision to treat it as irrelevant deprives the public and future generations of access to important government records that are increasingly being created with word processing and electronic mail technologies,” said Public Citizen Senior Staff Attorney Michael Tankersley, who is counsel for the petitioners.

The petition states that GRS 20 warrants Supreme Court review because of its sweeping impact. The rule directly affects the preservation of documents created by all federal agencies using word processing and electronic mail, and the Archivist’s decision to disregard the value of electronic records when deciding whether records should be destroyed potentially affects all records in digital formats, including formats routinely used to make information available on the Internet. The petitioners, however, do not advocate the preservation of all electronic records. Rather, they maintain that the law requires that the Archivist distinguish between electronic records that contain important policy decisions or other crucial information that make them worthy of preservation in their electronic format, and those records that lack such value.