Judge chides NARA for bucking archive ruling

Enough is enough is the view a federal judge has taken on a government records policy
that lets agencies delete electronic records as long as they have printed copies on file.


The National Archives and Records Administration "flagrantly violated" an
October order that prohibited federal agencies from deleting electronic records without
regard for their content, U.S. District Court Judge Paul L. Friedman concluded this month
in a 10-page ruling.


Although Friedman harshly criticized NARA for failing to ensure that agencies do not
destroy potential records, the judge approved an interim policy advising agencies to
maintain both paper and electronic versions of documents until a final policy is set. NARA
issued the interim rule last month and is weighing final policy options proposed by an
archiving workgroup.


In his ruling, Friedman rejected any governmentwide process that would let agencies
destroy an electronic document without regard for its content. He ordered NARA to settle
on a new policy by October and implement it by year's end.


The timetable coincides with the schedule NARA has set for its Electronic Records
Workgroup, which the agency created to devise a policy for archiving electronic records.


Friedman expressed his displeasure with NARA. He said that NARA Archivist John Carlin
has shown a "disregard of the court's order of Oct. 22, 1997, in both his public
pronouncements and his actions over the last four months." This prompted the new
action by the court, he said.


Friedman prohibited NARA from issuing further notices, bulletins, directives or other
official statements that authorize or endorse in any way the use of the General Records
Schedule 20 policy.


The judge directed NARA to pronounce GRS-20 null and void pending the final outcome of
a lawsuit challenging the rule. Friedman provided specific language for the agency to use
in a Federal Register notice on GRS-20.


A lawsuit from Public Citizen, a nonprofit organization in Washington, sparked the
dispute over the government's policy on archiving electronic records. Friedman in October
ruled in Public Citizen's favor and threw out GRS-20. NARA is appealing the ruling, and
Public Citizen had asked that the court force the agency to suspend the policy pending the
appeal.


Michael Tankersley, a lawyer for Public Citizen, said the decision recognizes the
realities of archiving electronic documents. A one-size-fits-all approach will not work,
he said, and the decision makes it clear that the new policy must take into account the
content of a record, not merely its medium.


NARA officials said they were pleased that Friedman had not demanded that NARA issue a
new policy immediately and had not set a policy for the government.


"We believe it clearly recognizes the progress that has been made by the
Electronic Records Workgroup," deputy archivist Lewis Bellardo said.


"The judge recognized that it would not be in the public interest to basically
require agencies to keep everything in their systems," he said, adding that agencies
can follow the temporary guidelines for now.


Carlin said it is in everyone's best interest to "preserve records appropriately,
for the public and the government, with retention and disposition schedules that federal
agencies, the creators of those records, can and will use."


But NARA's workgroup, so far, has found no easy answers. It held a public hearing
earlier this month on its proposed policy options.


According to Michael Miller, director of NARA's records management programs, the
meeting showed that many questions must be answered on archiving electronic records.


"It's a tremendous amount of work," Miller said, and there are questions
about how the government would implement a policy.


Meanwhile, the workgroup is redoubling its effort to reach out to federal users and
information technology managers.


"There is a need to quickly get out to the IT people and find out what the
proposals mean," Miller said.


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