Judge says agencies must follow new policy

A federal judge April 9 ordered the National Archives and Records Administration to require agencies to preserve or dispose of electronic records according to a temporary policy issued last month.

U.S. District Court Judge Paul Friedman said the government had ignored his decision last October overturning a NARA policy, known as General Records Schedule 20, that let agencies delete e-mail and word processing files if they printed out paper copies. The government is appealing this decision, but in the meantime, Friedman said, agencies have to abide by it.

The order means agencies may no longer follow the old policy. Instead, Friedman said agencies must make specific plans to preserve or dispose of important electronic records according to a temporary policy, Bulletin 98-02, that NARA issued last month.

In addition, he gave NARA three months to propose more permanent rules and five months to make them final— targets the agency already had set for itself.

Plaintiffs in the case Public Citizen v. Carlin view the new order as a victory in their quest to preserve the government's digital documents. But the decision may not erase the confusion among agency officials about what changes they must make in their information technology operations in order to comply.

Michael Tankersley, senior staff attorney with Public Citizen, a consumer advocacy group, said he was happy with Friedman's ruling because "he's not leaving it open to establish continued reliance on the General Records Schedule. Agencies have to have a [specific] schedule [for their electronic records] or some new alternatives from the Archives.''

Meanwhile, Deputy Archivist Lewis Bellardo said, "We're definitely pleased the judge recognizes the work that we're doing'' to define a new policy and that "the judge seems to feel that the time frame...is a reasonable time frame.''

Other than prohibiting agencies from following GRS 20 from now on, the ruling says agencies can continue their recordkeeping practices until Sept. 30, when NARA must issue new regulations; until agencies get NARA's approval to dispose of records; until the appeals court rules; or until a further court order is issued. The latter condition leaves the door open for Friedman to revisit his ruling as long as the case is open.

As a practical matter, Bellardo said, the ruling means agencies do not have to do anything different with records for which disposition instructions already have been set.

"The implication appears to be that what [agencies] have been doing with their live versions, they can continue doing," Bellardo said.

Agency officials say their main problem with archiving their electronic records is that they have no systematic way of separating historically and legally valuable material from disposable items. The primary alternative— saving everything on a mail or file server— is impractical, they argue, because their storage costs would mushroom, network system performance would degrade, and it would be hard to find any documents later.

"None of us wants to be out of compliance with rulings or statutes, but as someone responsible for some of these activities, my concern is we really don't have implementable solutions,'' said Paul Wohlleben, chief information officer with the Public Buildings Service, after the ruling was described to him. "I don't have the tools implemented to comply with that today.''

The Defense Department is in the process of certifying software for electronic recordkeeping systems that would perform this cataloging function, and civilian agencies may adopt the same systems DOD chooses. Nevertheless, said Burt Newlin, a DOD computer specialist who manages the department's electronic records policies, "It may be a while before we satisfy all the [computing] environments.''

For example, Newlin said, "Today I got a call from someone in the Peace Corps that is using Macintosh, and we don't have a solution for the Macintosh yet.''

Adding to the uncertainty is the possibility that the Justice Department could try to stop Friedman's order from taking effect, and there is a concern about how the appeals court will ultimately rule in the case.

But Page Putnam Miller, director of the National Coordinating Committee for the Promotion of History, said she thinks it is unlikely the government will revert to a policy that allows agencies to print out their digital records, no matter what the final resolution in the case. "[Archivist John Carlin] said they realize that they need [to give] new guidance to the agencies. The issue is...when is it going to happen?"