September 30, 1998
Court Enables National Archives to Proceed with Electronic Records Plans
Washington, DC (30 Sept. 1998) -- To avoid an "information overload" that could have "a deleterious effect on the operation of the government," a Federal District Court yesterday allowed the National Archives and Records Administration (NARA) time to complete work on new guidance to Federal agencies on how to deal with mushrooming quantities of e-mail and other electronic records.
Previously the Court had declared "null and void" NARAís General Records Schedule 20, which had authorized deletion of certain kinds of electronic records after copying to a recordkeeping system. The Court subsequently issued an injunction prohibiting the Archivist from making any statement that GRS 20 remained in effect. At the same time, the Court permitted "a limited exception" by allowing the Archivist to tell agencies that they could continue to follow "present disposition practices for electronic records" until September 30. Yesterday, the Court made clear that its earlier injunction remains in force, while in effect extending the September 30 deadline with the following declaration:
The government has indicated that while it is attempting to issue guidance with respect to the scheduling of electronic records previously covered by GRS-20, the development of such guidance takes time and that in the absence of a modification, the government essentially would be faced with a "no delete" rule which could "result in substantial disruption to the day-to-day operations of the government". . . . The Court therefore concludes that the government has made a strong showing of irreparable injury if a modification [of the injunction] is not granted.
Accordingly, the Court yesterday authorized the Archivist to state that Federal agencies may continue to follow present disposition practices for electronic records until --
- the agency has submitted and received approval from NARA on a Request for Records Disposition Authority;
- notification by NARA that a government appeal (currently pending) has been resolved and NARA has provided further guidance as a result of the appellate courtís decision; or
- further Order of the District Court.
The time extension will enable NARA to move ahead in the following ways with plans to help Federal agencies sort out which records to retain in their original electronic formats and for how long.
- By October 9, NARA will produce for Federal agency review a draft NARA Bulletin on how to schedule the disposition of their program and unique administrative records in electronic as well as other forms, based on recommendations from an Electronic Records Work Group appointed by Archivist of the United States John Carlin;
- NARA is revising its general records schedules to limit them to administrative records. As part of that process, by October 9, NARA will publish in the Federal Register for public comment modifications to General Records Schedules 1-16, 18, and 23 to authorize disposition of administrative records in all media.
- By March 15, 1999, NARA intends to publish in the Federal Register for public comment a new general records schedule covering information technology records.
- Archivist Carlin will establish a follow-on work group to develop an overall strategy for addressing electronic recordkeeping in the Federal government and prepare a series of tools including basic functional requirements for electronic recordkeeping systems. This will be an integral part of a business process re-engineering that NARA is planning of how Federal records overall are identified, appraised, scheduled, and tracked while in agency custody. And it will be coordinated with projects now underway in which NARA is partnering with several individual Federal agencies and several national archives abroad in the search for solutions to problems of managing, preserving, and providing access to records in electronic forms.
The background is as follows:
Last October 22, 1997, the U.S. District Court for the District of Columbia issued the order declaring NARA's General Records Schedule (GRS) 20 "null and void." The court's order was in response to a suit filed by Public Citizen and other organizations against the Archivist of the United States, the Executive Office of the President (EOP), the Office of Administration, and the United States Trade Representative. The Government filed an appeal of the court's declaratory judgment, but subsequently on April 9, 1998, in response to a motion by the plaintiffs, the District Court ordered the Archivist not to issue "statements of any kind stating that General Records Schedule 20 currently authorizes the disposition of electronic records." At the same time, the judge also directed the Archivist to publish a notice in the Federal Register to state the following:
The Court has authorized the Archivist to state that a federal agency may continue to follow its present disposition practices for electronic records until: (1) September 30, 1998; (2) the agency has submitted and received approval from NARA on a Request for Records Disposition Authority; (3) notification by NARA that the appeal has been resolved and NARA has provided further guidance as a result of the appellate court's decision; or (4) further Order of the District Court.
The Archivist published the required notice on April 17. The government also appealed from the April 9 Order and that appeal was joined with the earlier appeal. The appeal has been fully briefed by both sides and the oral argument before the U.S. Court of Appeals will be held on October 20. A decision will likely follow in several months.
In the meantime, the government, through the Electronic Records Work Group appointed by the Archivist of the U.S., has been working since November 1997 on solutions to the problem of scheduling electronic records and had endeavored to have new guidance issued before the September 30 date set out by the Court. The Work Group submitted its recommendations to the Archivist on September 14, and the Archivist acted quickly in response to the Work Groupís report. Although action on some of the recommendations will go forward, it became apparent to both the Archivist and to the Office of Management and Budget that other of the recommended actions had budgetary implications that necessitated a further review by government agencies before implementation guidance could be issued.
Consequently, the government on September 24 requested the District Court to grant a partial stay of its April 9 Order (or alternatively to modify the Order) to allow the Archivist to represent to agencies that the governmentís present disposition practices may continue through the pendency of the appeal, or the approval of agency schedules, whichever is earlier. The plaintiffs opposed that request, but the Court ruled in favor of the governmentís request to modify the order.
For additional PRESS information, please contact the National Archives Public Affairs staff at (301) 837-1700 or by e-mail.