NCC Advocacy Update, January 1998
Senate Confirms Ferris to Head NEH
On November 9 the Senate voted unanimously to confirm noted folklorist Bill Ferris as the next chair of the National Endowment for the Humanities (NEH). Because there appeared to be no opposition to the Ferris nomination and because time was running out in this session of Congress, Senators Trent Lott (R-Miss.), the majority leader who is from Ferris' home state, and James Jeffords (R-Vt.), chair of the Senate Labor and Human Resources Committee, which has responsibility for considering the nomination, decided to bring the vote directly to the Senate floor and to bypass a confirmation hearing. This will be the first time that a head of the NEH has been confirmed without a hearing. Ferris, who received his Ph.D. in folklore from the University of Pennsylvania, is currently professor of anthropology and director of the Center for the Study of Southern Culture at the University of Mississippi. The humanities community has viewed Ferris as a strong supporter of the humanities and has applauded the nomination.
Court Rules on Electronic Records
On October 22 U.S. district judge Paul L. Freidman ruled that the archivist of the United States was wrong to allow federal agencies routinely to destroy the electronic versions of wordprocessing and electronic-mail records even if paper copies were made. The ruling came in the case of Public Citizen v. John Carlin (Civil Action No. 96-2840) in which the Organization of American Historians, the American Historical Association, and the American Library Association were coplaintiffs. The case involved a challenge to General Records Schedule 20, a regulation issued by the archivist in 1995 that gave all federal agencies blanket approval to destroy all types of electronic mail and wordprocessing records if paper copies exist, without any review of the value of the electronic records.
Judge Freidman's opinion states that “the Archivist has abdicated to the various departments and agencies of the federal government his statutory responsibility under the Records Disposal Act to insure that records with administrative, legal, research or other value are preserved by federal agencies." The opinion stressed that the general records schedule was designed to handle records that document housekeeping functions dealing with personnel, maintenance, and procurement but not unique programmatic records. Freidman discusses different types of electronic records such as a State Department e-mail on an impending crisis and a Government Services Administration's wordprocessing file on the procurement of desks. He then concludes, “Congress did not intend that records of such disparate value be lumped together under one disposition schedule. Such a method for disposing of records is not consistent with the responsibility placed on the Archivist to insure the protection and preservation of valuable government records.”
Judge Freidman went on to note that Congress was aware that "agencies, left to themselves, have a built-in incentive to dispose of records relating to their mistakes," and thus Congress directed the archivist to oversee the activities of federal agencies to ensure that the nation's documentary history is preserved for .the public. The law, Freidman states, "carefully limits agency discretion in destroying records by requiring the Archivist to approve any determination that a records should be scheduled for destruction ... "
The judge also considered the unique value of electronic records. "Electronic communications are rarely identical to their paper counterparts," Freidman wrote, but are instead "unique and distinct from printed versions of the same record." Yet Judge Freidman emphasized that the plaintiffs recognize that it will be necessary and practical to destroy some electronic records and that the issue here is that electronic records need to be evaluated to distinguish valuable electronic records from useless ones.
The court rejected the government's claim that the plaintiffs had no standing to bring the case because they had not been injured and because the case is "ideological and abstract." Instead the court sided with the plaintiffs and ordered that General Records Schedule 20 is null and void. Michael Tankersley, an attorney with Public Citizen Litigation Group and the lead counsel for the plaintiffs, said that this decision "will help insure that the historically valuable electronic records are preserved." The government has 60 days from the date of this ruling to decide whether to appeal.
Bill Allows the National Archives to Inspect IRS Records Management Practices
On November 5 the House passed HR2676, the Internal Revenue Service Restructuring and Reform Act of 1997, which among its many provisions includes a section giving authority to National Archives employees to inspect IRS records for the purpose of appraising its records management practices. IRS has in recent years prevented National Archives employees from seeing many of their records, claiming that under the Internal Revenue Code and case law, the IRS must maintain confidentiality and may not legally show such documents to the National Archives' archivists. However, the National Archives has contended that the inability to examine records has complicated its review of many IRS records.
Last year the House Treasury, Postal Service, and General Government Appropriations Subcommittee requested that the IRS and the National Archives settle this problem and submit a report to Congress. However, the report submitted last spring failed to resolve the issue. In the pending law suit of Tax Analysts, the American Historical Association, the Organization of American Historians, and the Society of American Archivists v. The Internal Revenue Service and the National Archives, CA No. 97-0260, the plaintiffs seek a change in IRS policy to allow the staff of the National Archives to see IRS records for records management purposes. The plaintiffs contend that the IRS has held an overly expansive interpretation of the law and that IRS has claimed that any records that mention tax returns are considered confidential even though they may be policy-related documents that include no information about a specific individual's tax returns.
On October 31 the House Committee on Ways and Means issued Report 105-364, Part I, which accompanies HR2676. It states that the committee believes that "it is appropriate to permit disclosure to NARA for purposes of scheduling records for destruction or retention, while at the same time preserving the confidentiality of taxpayer information in those documents." The legislation thus provides for an exception to the disclosure rules to require IRS to disclose IRS records to National Archives employees upon "written request from the Archivist." This legislation has been forwarded to the Senate for its consideration and will be one of many items on the agenda when Congress reconvenes in 1998.
Page Putnam Miller is director of the National Coordinating Committee for the Promotion of History.
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