Ruling means agencies need plan for wiping electronic documents

In a decision late last month, U.S. District Judge Paul L. Friedman threw out a
two-year-old National Archives and Records Administration (NARA) regulation that let
agencies wipe out electronic documents regardless of content.

The sharply worded ruling criticized archivist John W. Carlin, who proposed the rule,
General Records Schedule 20.

GRS 20 permitted agencies to destroy e-mail and word processing documents once they had
been copied to paper or some other format and deemed "no longer needed for updating
and revision."

The public advocacy group Common Cause filed suit, comparing the provision to an
electronic paper shredder. Carlin, the group argued, had failed in his responsibilities
toevaluate the value of documents on an agency-by-agency basis.

"Computers have now become a significant part of the way the federal government
conducts its business. The federal government must adapt its electronic record-keeping
capabilities to reflect that reality," Friedman ruled.

The Common Cause case is seen as a follow-on to an earlier case brought by journalist
Scott Armstrong, in which the courts ruled that e-mail messages can be considered federal
records. Though that ruling established e-mail documents as records, the ruling in the
Common Cause case focuses on the specific issue of the retention and destruction of
electronic documents.

"For many years, Congress has recognized the importance of maintaining certain
types of government records and has established safeguards to insure that records with
sufficient administrative, legal, research and other value are not destroyed,"
Friedman wrote in his 36-page decision. "It should come as no surprise that
electronic records, which take less storage space than paper records, should be subject to
the same safeguards."

The ruling, however, has some in the government information technology community
concerned about the possible implications for data storage.

"Clearly, we have to step back," Treasury Department chief information
officer James Flyzik said. "We need to look at where we are and look at reality,
since it simply isn't feasible to save all electronic records.

Obviously, he said, the decision will require agencies to re-examine their rules about
archiving electronic documents.

Specifically, Friedman ruled that documents created electronically must be made
available electronically.

"While an exact duplicate of a particular record might be discardable, electronic
versions of records cannot categorically be regarded as valueless extra copies of paper
versions," he wrote. "Simply put, electronic communications are rarely identical
to their paper counterparts. they are records unique and distinct from printed versions of
the same record."

Records stored electronically have search, manipulation and indexing capabilities not
common to paper records, an advantage recognized by NARA, Friedman said.

"It seems like the medium has become the message," with a higher standard set
for electronic records, said one IT staff member responsible for archiving his agency's
records. "You're archiving types of records based on their speculative value sometime
in the future," he said.

The IRM staff member, however, said those duties won't come without a price. "What
is government in business to do? To govern and provide guidance or provide historical
information so historians can write master's theses?" the staff member said.

Public Citizen attorney Michael Tankersley said the ruling means that agencies will
have to create a process for analyzing the importance of documents. "It means that
electronic-mail and word processing documents are going to have to be appraised just like
other documents," he said.

But that also means that just like other documents, many of the electronic items will
not need to be archived, he said.

"We've recognized all along for the bulk of agency records, they're not going to
have value that's going to require retention," Tankersley said.

It is important to recognize that Common Cause did not challenge the destruction of
electronic records per se, only the use of a General Record Schedule to schedule the
destruction of electronic records without distinguishing valuable electronic records from
useless ones, Friedman said.

Some IT professionals suggested that the ruling illustrates the success of systems in
handling government documents. Such record-keeping duties go hand-in-hand with the
proliferation of computers, said Dean Bundy, a Navy official and the co-chairman of an
informal group of 150 IRM managers interested in working with archivists.

The government's IT professionals have "to accept that the old ways of doing
business and the old paradigms don't work anymore," Bundy said. "This is an
entirely new world for the records management community."

Electronic archiving presents a challenge for both the records creators and the
government's archivists, Bundy said. Systems staffs will have to consider records
management, and records managers will have to consider technology, he said.

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