Agencies Allowed to Establish Own Policies for the Deletion of Electronic Records

Article excerpt

When the Archivist of the United States told federal agencies to delete electronic records if they had made paper or electronic copies for files, watchdog groups were horrified. They sued, trying to force the archivist to limit destruction of the electronic records.

Records are more searchable and more useful when they are in electronic form, they said, and the archivist has a duty to manage the billions of records agencies produce so that they are useful. A federal District Court judge agreed in 1997 and, following his ruling, many federal agencies worked to gain the archivist's approval of new electronic record-keeping systems. But in early August an appeals panel reversed and said agencies can choose, based on their own needs, how to maintain their records.

John Carlin, the Archivist of the United States, in August 1995directed federal agencies to dispose of word processing and electronic mail files located in personal computers once they had copied them to a paper or electronic record-keeping system. When the records were no longer needed for updating or revision, they could be erased under the directive General Records Schedule 20 (GRS 20).

In late December 1996, Michael Tankersley, an attorney with Public Citizen, sued the archivist in federal District Court in Washington, D.C. on behalf of Public Citizen and a number of historians, journalists, and researchers. Public Citizen is a nonprofit organization that researches government regulatory and information practices.

Tankersley said the archivist ignored the "unique value" of electronic records when he allowed agencies to delete them.

He told the court the archivist also had ignored cases ruled on by the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.) requiring the management of electronic records under the Federal Records Act.

In those cases, litigated by Public Citizen, former Washington Post reporter Scott Armstrong sued the Bush and Clinton administrations to stop destruction of electronic records of prior presidential administrations as succeeding presidents came into office. (See AW&L, Summer 1998 and Fall 1993)

In Armstrong's cases, the appeals court said the government must create, manage, and dispose of its electronic records, like its paper records, in line with the Federal Records Act, although the appeals court did allow agencies, with approval of the archivist, to purge routine "housekeeping" records.

The federal government responded that Congress had not intended to limit agency records management by allowing them to destroy only routine records. The GRS 20 was meant to apply to other and more substantive records as well.

It said there was little value to leaving records on live word processing and e-mail systems where they would be of little use to researchers or other agency personnel.

And the government's computers simply do not have the capacity to store all the information that it deals with every day. The existence of information in disparate government files, even if it is filed electronically, does not aid agency-controlled record keeping systems, the government said.

To avoid system overload and successfully manage its records, an agency has to be able to delete electronic records, it said. Agencies cannot be expected to maintain records that have no administrative, legal, or research value, it said.

In October 1997, federal District Court Judge Paul Friedman ruled against the government, saying the archivist had exceeded his authority in permitting agencies to delete records because of their form rather than because of their content.

The General Records Schedules were intended by Congress to address only routine, housekeeping matters common to all agencies and records that, over time, have very little value, the court said. Records relating to hiring of personnel, procurement of supplies, and fiscal management have diminished value. …