NCC Advocacy Update

NCC Advocacy Update, February 1993

Page Putnam Miller, February 1993

Coalition of Historians, Librarians, and Public Interest Groups Wins Decision Barring Destruction of National Security Council Records

On January 6, 1993, Judge Charles R. Richey of the Federal District Court for the District of Columbia, ruled that the Reagan and Bush Administrations' attempts to destroy valuable electronic records were unlawful. The Court also found that the Archivist of the United States, Don W. Wilson, breached his statutory duty to prevent the destruction of such records and has ordered the Archivist immediately "to take all necessary steps to preserve, without erasure, all electronic federal records generated by the National Security Council."

In January 1989, the American Historical Association, along with the American Library Association, joined the Public Citizen Litigation Group as co-plaintiffs in a lawsuit to prevent the White House and the National Security Council officials from destroying computer records, including electronic mail communications. This case, which has been slowly moving for the past four years through the legal labyrinth of appeals and complaints, is frequently called the PROFS case because the electronic mail system used by the National Security Council was the Professional Office System (PROFS). Documents from the National Security Council's backup tapes of the 1986 and 1987 PROFS system provided significant evidence in the Iran-Contra hearings. However, the government argued that use of PROFS by Oliver North, John Poindexter, and Robert McFarlane to conduct agency business was the rare exception and that all other historically significant records on the PROFS system were printed and are in the permanent file of the National Security Council.

The government's position throughout the case has been that the PROFS was an electronic mail system which was not used for substantive memos but instead for brief messages, the equivalent of telephone slips. The National Archives has supported this position by officially stating that electronic mail computer tapes are not federal records. Yet while denying that these records were of historical value, the National Security Council in 1991 searched the PROFS tapes from the Reagan years, preserved under this lawsuit, to produce for the Justice Department documents to assist in the investigation of Manuel Noriega and to aid in preparation of the confirmation hearings of Robert Gates as director of the Central Intelligence Agency. Although the PROFS records are currently classified, a factor that has greatly complicated the plaintiffs' case, Judge Richey's decision ensures the preservation of these records, which will at some future time be reviewed for declassification.

In his opinion, Judge Richey states that the key issues of this case are whether the National Archives has provided guidelines that are reasonable or sufficiently clear as to provide adequate guidance to National Security Council personnel in their maintenance and preservation of federal records and whether the United States Archivist has fulfilled his statutory duties under the Federal Records Act. Thus, as Judge Richey put it, "the threshold issue before the Court is whether the material created or saved on the Defendants' computer systems falls under the Federal Records Act's definition of federal records." The Court concludes that some of the material stored on these computer systems meet the definition of records and must be saved, regardless of whether a paper or hard copy of the material has been printed out. Paper copies from the PROFS system do not contain all of the notations included in the electronic version, such as notations about the circulation of information. Judge Richey notes in his decision that "such information can be of tremendous historical value in demonstrating what agency personnel were involved in making a particular policy decision and what officials knew, and when they knew it." Additionally Judge Richey points out that "when left to themselves agencies have a built-in incentive to dispose of records relating to their mistakes or simply do not think about preserving information." But as the opinion makes clear the Federal Records Act specifically addresses this problem by requiring the Archivist to establish standards for the retention of records of continuing value and to assist agencies in applying the standards. However the Court found that the record-keeping guidelines given by the National Archives to the National Security Council staff at the time this suit was filed were "arbitrary and capricious." Emphasizing the fact that the 1984 amendments to the Federal Records Act enhanced the Archivist's authority to ensure the preservation of records of historical value, the decision stresses that under this law the Archivist is required to notify Congress and independently request that the Attorney General initiate an action to prevent the unlawful removal or destruction of records.

In addition to the preservation of National Security Council records that will provide scholars with important information for analyzing the decision making process of major policy issues, this case, Armstrong v. Executive Office of the President, has significant policy implications for the National Archives and for federal record-keeping practices. This is the first court decision that explicitly applies the Federal Records Act to electronic records. Thus it will force the National Archives to deal more effectively with the complexities of preserving electronic records. Second, the decision reaffirms the independent authority of the U.S. Archivist. Many in the historical and archival community have felt for some time that the Archivist has neglected important responsibilities for the preservation of records. He has seemed reluctant to use statutory authority that many interpreted to be a part of the 1984 National Archives independence legislation. Finally, this decision puts federal agencies on notice that arbitrary and capricious record-keeping practices will not be condoned.

The government will have until February 6 to decide whether to appeal this decision.

AHA Council and NCC Policy Board Pass Resolutions on Federal Policies Affecting Historical Research

As President Bill Clinton and the 103rd Congress begin their work, they will be receiving letters and resolutions passed in December by the American Historical Association Council and the Policy Board of the National Coordinating Committee for the Promotion of History. A major priority for both the AHA and the NCC is the adoption of a new federal policy on declassification. This post-Cold War era offers an appropriate occasion for developing new standards and approaches to declassification. One of a number of AHA and NCC strategies for reforming the declassification system is to urge President Clinton to revise the executive order on classification/declassification to ensure that most records over thirty years old are available to the public and to scholars and that only the most sensitive records, narrowly defined and administered by strict oversight, will remain classified. (See resolution below.)

The AHA and NCC governing bodies passed two other resolutions—one to seek a reversal of the Library of Congress' recent decisions to close the stacks to all scholars and to reduce the hours that the library and the manuscript room are open and the other to support passage of legislation to reauthorize the grants program of the National Historical Publications and Records Commission. The governing bodies of the AHA and NCC also adopted a statement on the National Archives that expressed disappointment that the National Archives since becoming an independent agency in 1985 had not fulfilled the promise held forth by the enabling legislation. The statement noted a series of reports prepared in the last seven years by the Committee on the Records of Government, the National Academy of Public Administration, the NCC, and Congressional committees that have outlined shortcomings at the National Archives. These are as basic as addressing the challenges posed by new technologies and providing timely access to materials of historic value. The two organizations thus affirmed that only a reinvigorated and more assertive National Archives will meet the challenge of fully implementing its mission of preserving American culture by adequately documenting the activities of the federal government. Copies of the resolutions and statement may be obtained from Page Putnam Miller, NCC, 400 A St., SE, Washington, DC 20003.