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FRC 05.2009 Important Information for FRC Customers Who Possess Records Potentially Responsive To Tobacco Litigation (TIL)

July 21, 2009

FRC MEMORANDUM TO FEDERAL AGENCY CONTACTS: Important Information for FRC Customers Who Possess Records Potentially Responsive To Tobacco Litigation (TIL)

10 Years of TIL

This September marks 10 years since the United States District Court for the District of Columbia ordered a freeze on agency documents relevant to tobacco industry litigation (TIL) cases. This notice, intended to be informational in nature only, is to apprise agencies that the original court case, United States v. Philip Morris USA, Inc., et al. No. 99-2496 (GK), is still in active litigation, and that the litigation freeze remains intact, subject as always to agencies self-certifying that they wish to opt out for certain classes of records.

On May 22, 2009 by the United States Court of Appeals for the District of Columbia Circuit issued its 92 page slip opinion, in which the appellate court largely affirmed a prior decision of the federal district court. See United States v. Philip Morris USA, Inc., 566 F.3d 1095 (2009). However, certain aspects of the case remain unresolved, because the U.S. Court of Appeals issued a remand order to the district court for further proceedings. The appellate court's action means that the case may be subject to one or more further rounds of proceedings, including both in federal district court and in the appellate courts, should a further appeal or appeals be filed. .

In February 2000, NARA and DOJ requested federal agencies to immediately assess whether they had tobacco-related documents relevant to this litigation in their possession, custody, or control, including those in Federal Records Centers and other off-site document-storage facilities. In identifying potentially relevant commission records, agencies were asked to construe this request broadly. The scope of your search was to include all those documents that, in any way, may relate to tobacco and the tobacco industry, including, but not limited to:

  • the cost to the United States Government of providing treatment for smoking-related conditions or diseases;
  • payment of Federal benefits for smoking-related conditions or diseases;
  • research on such conditions or diseases;
  • youth smoking;
  • nicotine and addiction;
  • cigarette design, including attempts to develop or market a potentially safer cigarette;
  • the recovery or potential recovery of costs borne or benefits paid by the Federal Government for smoking-related conditions or diseases;
  • litigation relating to tobacco or the tobacco industry to which the United States Government or any department, agency, or other component thereof was a party or participated in any other manner; and
  • any enforcement action or proposed regulation of tobacco, smoking and health, or the tobacco industry.

The guidance issued above is still valid and in effect. NARA encourages agencies to be fiscally responsible and look carefully at all of their holdings, whether stored within the Federal Records Centers system or other records storage facilities, to determine whether they are responsive to TIL. Many agencies have already contacted NARA and, based on a review of their holdings, requested that NARA lift the TIL freeze from certain transfers, series, and record groups.

For those records stored in NARA records centers, if your agency conducts a review and concludes, based on a reasonable search and a good-faith and informed judgment, that you have holdings that are non-responsive and not tobacco-related, you should contact Russell Loiselle of NARA at (301) 837-3527 or Russell.loiselle@nara.gov for instructions on how to request a full or partial lifting of the TIL freeze from your agency's holdings.

In response to agency feedback over the last year, NARA would also like to inform you that effective August 17th, 2009, we will not be continuing our practice of applying the TIL freeze to all incoming transfers.

NARA originally froze all holdings in our custody to allow agencies sufficient time to review them for responsiveness. NARA continued freezing all incoming transfers based on agency feedback and concerns about a lack of resources to review all transfers. More recently, however, many agencies have expressed concern about paying for storage of non-responsive records that have passed their original disposition date. Because almost 10 years have passed since the TIL freeze was initiated, agencies should now be familiar with the freeze guidance and able to review their records prior to transferring them to NARA. Agencies should indicate on the SF-135 if the records are potentially responsive to TIL and request that NARA place the TIL freeze on them. All holdings previously frozen under TIL will remain frozen until NARA receives notification from your agency that the freeze may be lifted in whole or in part.

Please send any comments or questions to Russell Loiselle of NARA at (301) 837-3527 or russell.loiselle@nara.gov.

David M. Weinberg
Director
NARA Federal Records Centers Program

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