Archives and Museum Informatics Newsletter, Vol. 6, No. 4
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Archives and Museum Informatics ISSN 1042-1467 Winter 1992 Vo1.6#4 Electronic Records are Records other electronic files of the White House was joined in December 1992 by similar case against the Bush Ad After almost four years, the saga of the White House ministration. In the initial case, the court ruled on proce PROFS records from the Reagan Administration came to dural grounds that the Administrative Procedure Act (APA) provided for judicial review and that there were a close on January 6 with a landmark decision by Judge unresolved factual issues. The Federal Appeals court Charles Richey, that electronic mail and other computer generated records of the Federal government must be ac upheld the decision that the Administrative Procedures corded the same protection as any other records under Aet provided for limited review of the NSC and EOP recordkeeping guidelines pursuant to the Federal th~ Federal Records Act (FRA). The decision, which ap Records Act but excluded review of the President's com plies equally to a second case, relating to records of the Bush Administration which had been joined wit h the pliance under the Presidential Records Act (an unfor original PROFS case, completely rejects arguments being tunate decision which I would hope archivists would work to rectify through legislative amendments). made by the Justice Department and the Archivist of the United States for the past several years. The question remaining before the Court, therefore, Specifically, the judgment prevents the Executive Of was "whether on this record ... the Defendants have com fice of the President (EOP) and National Security Council plied with the statutory requirements and whether the g~idelines re~sonable (NSC) from destroying these or future computerized are or sufficiently clear as to pro records until enforceable new guidelines ean be written Vide adequate gllldance to personnel employed by the and assures the plaintiff, unless there is further appeJI, Defendants in their maintenance and preservation of that the original Freedom of Information Act requests for federal records. The other issue is whether the United access to these files will now be acted on. States Archivist has fulfilled his statutory duties under the Federal Records Act". This decision, which I am convinced was absolutely right, forces archivists to confront electronic records In This Issue management seriously. Concrete, im pleillentable, pro gram guidelines need to be developed immediately and Editorial: Electronic Records are Records 1-2 the functional requirements for archival management of electronic records must be articulated and agreed to by Conferences the profession. Coalition For Nctworked Information 3-5 "The Court finds that the EOP and NSC have Vatican Archives Project 5-6 violated the FRA and that their record keeping Network Advisory Committee 7-8 practices are arbitrary and capricious under the Electronic Democracy 8-11 APA. The Court also finds that the United States Museum Computer Network 11-12 Archivist has failed to fulfill his statutory duties Calendar 12 under the Federal Records Act. The Court will remand this case to the Archivist to take immedi In-Box 13-17 ate action with the assistance of the Attorney General pursuant to the Federal Records Act News 18-19 (FRA) with notice to Congress to take all neces sary steps to preserve the electronic records here Software/Hardware in question." Reviews: Authority Reference Tool 20 So read the conclusions of the thirty two page opinion ARCHIVIA CD-ROM 1992 20-21 delivered by U.S. District Judge Charles R. Richey in Collection 21-22 cases pertaining to the electronic records of the Reagan Bricf Notices 22-23 and. Bush Administrations. The case originally filed agamst Ronald Reagan el.al. by Scott Armstrong et.al. in Standards 24 January 1989 to prevent destruction of the PROFS and Copyright by Archives & Museum Informatics, 1992 1 The Court held that: While the Court's action was a strong as it could be, - the records keeping practices of U.S.Federal Agen and its language at times almost angry, the effect in this cies are subject to review under the FRA specific case will depend very much on how the Bush Ad - the issues are whether the agency properly inter ministration and Archivist Don Wilson choose to act be preted the FRA and if its guidelines are adequate cause 1) the Court was precluded by the Appeals Court from dealing with Presidential records and the Ad "The statutory command from 1943 through the last ministration could argue that much of this material falls amendment by Congress in 1984 shows a clear legislative into that category, and 2) because formal guidelines given purpose that records of historical value involving the to employees will have less impact than the prevailing cor public regardless of physical form, shall be preserved, par porate culture in determining what is really done in the ticularly where such material reflects the function, NSC and EOP. On the other hand, the conclusion of the policies, decisions procedures, operations or other ac case extends the ruling to all other Federal Agencies and tivities of the government". requires the archives to develop reasonable guidelines for all computer records. If they do this, the whole battle will The court emphasized the "plain language" and intent be worth it. of legislation and the fact that the FRA was intended to in clude materials 'regardless of physical form or charac What about the content of the PROF's tapes? The suit teristic'. It did not rule that "all material on these was about whether they were records and should be kept electronic communications systems are records", but that so that FOIA requests could be processed. If they are "some of the material srored on these systems do meet the kept under the FRA, the next step would be to process definition of record under the FRA and must be saved". the FOIA's. The government could still appeal Richey'S Moreover, and of critical imporlance, the Court ruled that decision or the Bush Administration with help from the ar paper printouts are not the same as the electronic records chivist could still act to exclude the bulk of the records as themselves, citing the absence in printed copies of struc Presidential. My guess is that we won't see anything for a tural and contextual data held by the system such as dis very long time, if ever. In the meantime, I hope archivists tribution lists and time of receipt stamps. "Such throughout the U.S. will lobby Congress for extension of information", the Court ruled,"can be of tremendous value judicial review to the Presidential Records Act and press in demonstrating what agency personal (sic) were in the National Archives to develop enforceable guidelines volved in making a particular policy decision and what of for electronic mail and other electronic office records. ficials knew, and when they knew it." David Bearman, ed. The Court noted that NARA guidelines state that even if the same information is on paper and disk agencies Archives and Museum Informatics (ISSN 1042-1467) should consult with NARA abour disposition. The Court is a quarterly newsletter published by Archives & also found agency "record keeping procedures are ar Museum Informatics, 5501 Walnut St., Suite 203, Pit bitrary and capricious because there is no oversight of the tsburgh PA 15232-2311; (412)683-9775, fax 412-683 agency staff by record keeping personnel" and again cited 7366. The newsletter is edited by David Bearman, NARA's Records Management Handbook which stated whose authorship may be presumed for all items not that 'only records officers should determine record or otherwise attributed. non-record status of files'. Submissions of press releases, publications and "Since the Court has determined that computer software for review, articles, and letters to the editor are materials are not simply convenience copies, these com welcomed. Copy is preferred double-spaced. Longer puter materials are subject to the FRA and the Archivist articles will be requested in machine-readable form if ac and the Defendants must institute immediate provisions cepted for publication. Deadlines for contributed ar for periodic review to ensure the adequacy, effectiveness ticles and press releases are the 15th of March, June, and efficiency of the record keeping program". September and December. The Court found the 1982 Federal Records Manual in Subscriptions are available on a calendar year basis adequate, but gave the 1989 Manual better marks, never at $80 for institutions, $40 for individuals (paid in ad theless citing the failure of the Defendants including the vance, by personal check, and delivered to their home Archives to provide adequate guidance. In terms of inter address), with a surcharge of $5 for postage to Canada nal agency guidance it stated that "at the very least, com and Europe and $10 elsewhere outside the USA. All pliance with the FRA requires that staff be fully advised payments must be in U.S. currency. of the definition of a federal record", and cannot give staff the authority to make the determination on their own. Archives and Museum Informatics also publishes oc Even the latest NSC guidelines were judged arbitrary and casional technical reports available for purchase as in capricious "because staff are told that electronic mail does dividual volumes or on a standing order basis. Standing not constitute record material and need not be saved once orders are entitled to a 10% pre-publication discount a paper copy has been printed out." and are mailed free of handling fees. Pre-paid orders in clude handling. Billed orders are subject to a $5 bill ing/handling fee plus postage surcharge. 2 Archives and Museum Informatics Winter 1992 Vo1.6#4 CONFERENCES arrangements, such as copyright, which had not yet been adjusted to the new age.