NARA, back in court, argues for its records policy

Justice Department attorneys last week told the U.S. Court of Appeals for the District
of Columbia that it is unnecessary to maintain records in electronic form if they are
available in some format.


The issue of format is at the heart of the government’s appeal of a ruling by
District Court Judge Paul L. Friedman ordering the agency to establish a policy for
archiving electronic records.


In his ruling last fall, Friedman told the National Archives and Records Administration
to kill General Records Schedule 20, which let agencies delete electronic records if they
had saved them in some format, even paper.


The arguments made before a three-judge Court of Appeals panel remained much the same
as they have for the past two years, but the venue changed the scope of the arguments.
Justice has asked the panel to reverse the Friedman ruling.


Attorneys for Justice, which represents NARA, and Public Citizen, the Washington group
whose suit to do away with GRS-20 was successful, each received 15 minutes to state their
cases. The judges, however, interrupted the attorneys, peppering them with questions.


Judge Laurence H. Silberman interrupted Public Citizen attorney Michael A. Tankersley
just after Tankersley began his argument.


“What’s at stake in this case?” Silberman asked.


Tankersley said GRS-20 has created a print-and-delete policy that ignores the
importance of saving documents in their original format.


U.S. Attorney Matthew Collette argued that GRS-20 lets agencies delete documents on PCs
only. “GRS-20 involves records online with desktop applications,” Collette said.
“That is distinct from electronic record-keeping systems. We think this
misunderstanding between the two is at the crux of this case.”


After the hearing, Tankersley said he was shocked by the Justice lawyers argument.
“That is certainly inconsistent with the language [of GRS-20] and with the way they
have applied it,” he said. The judges repeatedly asked Collette about the special
characteristics of electronic documents.


“Isn’t there a certain amount that is lost” when records are printed
out, Silberman asked.


“Nothing of significance,” Collette said.


“But there is no question that something will be lost,” the judge said.


Responding to another question, Collette said there may be “something in the
bowels” of the computer that could be lost.


“It’s exactly the bowels of the computer that this case is about,” Judge
Stephen F. Williams said.


“It is unquestionably true that something will be lost,” Silberman said.
“Your point is that what is lost isn’t important.”


The judges also questioned Tankersley’s contention that electronic records must be
kept even if all of the relevant information is maintained. Tankersley argued that unless
electronic records are saved in their original format, the documents do not retain
structure and context.


NARA has been working on a replacement for GRS-20 while the government appeals the
Friedman ruling.


The panel is expected to issue a decision within three to six months.    

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