Court overturns e-records ruling

A federal appeals court ruled Friday that a government policy allowing agencies to delete electronic records as long as they preserved paper copies is valid, reversing a nearly 2-year-old district court decision.

Writing for the U.S. Court of Appeals for the District of Columbia Circuit, Judge Douglas Ginsburg said the policy, known as General Records Schedule 20, "seems to embody a reasoned approach" to laws that demand agencies preserve their important records and dispose of the ones they no longer need.

Although the court agreed that maintaining e-mail and word processing records digitally "has advantages over paper recordkeeping," it concluded that an agency legally can be allowed "to choose, based upon its own operational needs, whether to use electronic or paper recordkeeping systems."

The decision in Public Citizen v. Carlin gives federal agencies some breathing room to develop new information systems for managing the billions of electronic documents they generate every year. A statement issued by the National Archives and Records Administration said the agency "welcomes the opportunity...to continue in an orderly way to develop practical, workable strategies and methods for managing and preserving" electronic records.

Alan Morrison, director of the Public Citizen Litigation Group, which brought the suit, said the ruling was disappointing but added that the government "has recognized that we are correct as a matter of policy and objectives" by starting to craft electronic recordkeeping policies before the appeals court ruling.

"The disagreement was over whether we could force [them] to do it...how fast, and under what terms and conditions," Morrison said. "I'm hopeful the good this case has brought will not be reversed." He said the group has not decided whether it will appeal the ruling to the Supreme Court.

Until the district court's October 1997 ruling, few agencies maintained any e-mail and word processing files in digital form, and only the Defense Department had developed a comprehensive policy for doing so. Today, almost every agency has at least started to study the issue.

The original ruling prompted NARA to issue a set of interim guidelines for agencies to start cataloging—or, in records management parlance, "scheduling"—their electronic records. The agency also endorsed DOD requirements for electronic recordkeeping systems that many civilian agencies now are using to evaluate commercial software.

But agencies said they needed time to assess their electronic recordkeeping needs, find products that could support them and get new systems development programs funded. Some federal officials also welcomed the appeals court ruling.

"We're gratified the courts are upholding that there needs to be some reasonableness," said David Nelson, deputy chief information officer at NASA. "We are moving to [commercial off-the-shelf] products and working with vendors, and looking for them to propose specific products that can work. We can't push them faster than they can deliver."

John Vasko, an information policy officer with the CIA who heads a working group on electronic records for the Federal Information and Records Managers Council, said the decision will help agencies move forward with their digital records management plans.

"Most [records managers] have been sitting back and waiting for the controversy to be settled," he said. "Unless [they] can go to management with a clear-cut proposal that doesn't have pending litigation behind it, a lot of them figure, 'What's the point?' "

NARA spokesman Gerald George said the agency has to completely review the appeals court decision to determine whether its new policies—which gave agencies two years to schedule all their electronic records or at least to devise a plan for doing so—will remain in force.

DOD, meanwhile, is not affected by the ruling because its internal regulations require military components to install electronic recordkeeping systems and start managing their documents digitally later this year.