Public Citizen Comments on NARA ANPRM

January 8, 2002

Response to Advance Notice of Proposed Rulemaking on Management of Electronic Text Documents

3095-AB05, 66 Fed. Reg. 51,740 (Oct. 10, 2001)

On October 31, 2000, Public Citizen submitted a Petition for rule making under 5 U.S.C. § 553(e) of the Administrative Procedure Act urging the Archivist to amend his rules concerning the management, scheduling and preservation of text documents created in electronic form.1 Nearly a year later, on October 10, 2001, the Archivist published an Advanced Notice of Proposed Rulemaking in response to the Petition and he requested comments on a number of issues enumerated in the notice. 66 Fed. Reg. 51,740 (Oct. 10, 2001).

As the proponent of the Petition, Public Citizen submits the following comments. The Archivist's Advanced Notice and the questions identified in his request for comments miss the point of the Petition for Rulemaking in two critical respects.

First, and most importantly, the Petition identified an urgent need for action to address the mismanagement and loss of electronic records that has occurred, is occurring now, and will continue to occur as long as the Archivist opts to defer remedial action. The Archivist's decision to issue an “Advanced Notice” rather than take regulatory action ignores this ongoing loss of agency records and ensures that the gap in the historical record created by the Archivist's action will grow even larger.

As the October 2000 Petition shows, the need for the Archivist to address the preservation of electronic records is well documented by studies and reports issued over the past two decades. However, an advanced notice of proposed rule making does not even initiate the procedures required to revise the agency's rules and it is particularly irresponsible where, as here, the inquiries posed by the Notice are not necessary for the agency to publish a proposed rule for comment. See United Steelworkers of Amercia v. Pendergass, 819 F.2d 1263, 1267-69 (3d Cir. 1987). By issuing an advance notice, the Archivist has chosen to take “'the least responsive course short of inaction.'” Public Citizen Health Research Group v. Commissioner, Food & Drug Admin., 740 F.2d 21, 34 (D.C. Cir. 1984) (quoting Public Citizen Health Research Group v. Auchter, 702 F.2d 1150, 1153 (D.C. Cir.1983)) The Archivist's decision to delay a year after receiving the Petition, and then issue only an advance notice, indicates that the Archivist is continuing to disregard his statutory obligation to ensure that electronic records are properly managed and valuable records are preserved.

The urgent need for remedial action is underscored by the Report on Current Recordkeeping Practices within the Federal Government, which was prepared at NARA's request. That report contains numerous findings that confirm the problems with management of electronic records cited in the Petition. SRA International summarized the results of its research concerning agency recordkeeping as follows:

    Electronic files that qualify as records - particularly in the form of e-mail, and also word processing and spreadsheet documents - are not being kept at all as records in many cases and are frequently not being scheduled. Employees lack guidance and knowledge concerning how to identify electronic records and what to do with them once identified. Technology tools for managing electronic records do not exist in most agencies. The agency information technology environments have not been designed to facilitate the retention and retrieval of electronic records. Despite the growth of electronic media, agency records systems are predominately in paper format rather than electronic. Virtually every agency visited indicated that the official policy is that their records will be maintained in paper format. Yet the agencies recognize that most records are now created in an electronic environment-in word-processing documents, spreadsheets, databases, and the like. The predominant e-mail policy is to print out e-mails that are considered records and to save the paper copies. The chief paradox of today's Federal RM is the disconnect between paper and electronic recordkeeping.

Report on Current Recordkeeping Practices,§ 2.2 at 5, Major SRA Findings.

The Record Systems Analyses (“RSA”) conducted by NARA staff found equally alarming problems with the scheduling of electronic records:

    Most of the electronic records are unscheduled and are therefore outside the formal recordkeeping system. In fact, the RSA teams identified unscheduled electronic records in all eight of the processes that generate significant electronic records. In addition to the unscheduled records, the RSA teams also identified several significant records that had been improperly scheduled. Clearly, records scheduling is a problem area.

Report on Current Recordkeeping Practices, § 3.2 at 12, Major RSA Findings; see also id. § 4.1 at 13, Comparison Summary (The RSA data indicated that most electronic records were not scheduled and are maintained outside the official realm of retention and disposition requirements.”)

The Report's conclusions underscore the loss of electronic agency records that continues to occur under the Archivist's current, flawed, policies:

    Not having received proper training in [records management], employees often do not know what is a record and what is not. Nor do they understand the importance of placing the record copy into an agency recordkeeping system. Consequently, some paper and many electronic records, if kept at all, tend to be kept at the employee's desktop, either in personal paper files or on the hard drive of a personal computer, and never proceed to agency recordkeeping systems.

Report on Current Recordkeeping Practices, § 4.2 at 15, Conclusion.

In the face of these findings it is irresponsible for the Archivist to delay remedial action pending further study and data collection. The Archivist should immediately issue a notice of proposed rulemaking to implement the reforms set forth in the Public Citizen's Petition, and proceed to adoption of final rules without further delay.

Second, the Archivist's request for comment on the requirement that record keeping systems for electronic text records retain the “content, structure, and context”of the records disregards the fact that the Archivist has already declared that GRS 20 imposes this requirement. See Petition at 9. Indeed, the Archivist's representation that GRS 20 requires that agencies preserve the entire “content, structure and context” of the original record was critical to approval of GRS 20. Public Citizen v. Carlin, 184 F.3d 900, 910-11 (D.C. Cir. 1999), cert. denied, 120 S.Ct. 1267 (2000).

The Advanced Notice does not acknowledge that agencies are currently required to preserve the entire content, structure and context of records when they rely on GRS 20 for records disposition. Moreover, it specifically requests comment on whether NARA should adopt definitions of “content,” “structure” and “context” that give these terms less comprehensive scope. 66 Fed. Reg. at 51, 742. This request for comments on alternative definitions without even acknowledging the impact of GRS 20 is misplaced. New definitions that narrow the meaning of these terms would remove an essential premise in the District of Columbia Circuit's conclusion that GRS 20 is a permissible records schedule.2

As we noted in the Petition, agencies have not implemented the Archivist's requirement that record keeping systems for word processing documents, electronic mail messages, or other electronic records retain the entire content, structure and context of the original records -- including hidden information and document summaries. Petition at 9-12. If an agency fails to capture hidden information, document summaries, or other aspects of the content, structure and context of electronic records in its paper or electronic record keeping systems, the agency acts unlawfully if it relies on GRS 20 to destroy the original electronic word processing or electronic mail records since the agency's record keeping system does not meet the requirements of GRS 20. Accordingly, the Archivist should make this essential requirement explicit and enforce it, in order to prevent the unlawful destruction of records.
Respectfully submitted,

Michael E. Tankersley
Public Citizen Litigation Group
1600 20th Street, NW
Washington, DC 20009
(202) 588-1000

January 8, 2002

Footnote: 1      Available HERE.

Footnote: 2      For example, the Advanced Notice asks whether compliance with the meta-data requirements in proposed § 1234.22(a)(5) meets the requirements for content, structure, and context in proposed § 1234.22(a)(1), or whether agencies should be required to retain hidden information and document summaries when electronic records are transferred to record keeping systems. 66 Fed. Reg. at 51,742. The Archivist's representations concerning the requirements of GRS 20, however, make clear that compliance with the meta-data requirements alone would not be adequate, and that a record keeping system must retain hidden information and document summaries to comply with GRS 20. Public Citizen v. Carlin, 184 F.3d at 910 (on appeal Archivist represents that, properly interpreted, GRS 20 requires preservation of hidden comments or summaries in word processing documents).