NCC Advocacy Update

NCC Advocacy Update, October 1995

Page Putnam Miller, October 1995

Update on the PROFS Case

The PROFS case continues to move forward on a number of fronts. On August 25 the National Archives released new regulations that reflect many of the rulings in the case. On August 29 Judge Charles A. Richey of the Federal District Court for the District of Columbia dismissed the case after persuading the plaintiffs and defendants to reconcile their differences over the physical preservation of PROFS backup tapes and Freedom of Information Act (FOIA) requests for PROFS records. After long negotiations, all but a small portion of the backup tapes have been copied for preservation. In addition, the government has released to plaintiff Scott Armstrong and to the National Security Archive documents that include material from the PROFS backup tapes on the Iran Contra Affair and other foreign and domestic policy issues; these records are available to researchers at the National Security Archive, which is located in the Gelman Library of George Washington University. Other portions of the PROFS case are under appeal. On September 8 the appeals court will hear arguments on one of the most disputed portions of the case—whether National Security Council records are agency or presidential records.

Background

Armstrong v. Executive Office of the President (Civil Action No. 89-0142) began in 1989 when the American Historical Association joined Scott Armstrong and other plaintiffs in seeking a temporary injunction to prohibit the destruction of the National Security Council's electronic mail. It is frequently called the PROFS case because the electronic mail system used by the National Security Council was IBM's Professional Office System (PROFS). In the last six years this case has evolved along a number of very separate tracks. These include the need for the National Archives to provide adequate guidance to agencies regarding the handling of e-mail, the physical restoration and preservation of the PROFS backup tapes, the issue of whether National Security Council records are federal or presidential records, and the government's response to FOIA requests for PROFS records.

Custody and Control of PROFS Backup Tapes

The related case of the American Historical Association v. John Carlin, the U.S. Archivist, seeks to block the implementation of an agreement made in 1993 between former President George Bush and former U.S. Archivist Don Wilson regarding the custody and control of the computer backup tapes that are at issue in the PROFS case. Judge Charles Richey ruled on February 27 in favor of the plaintiffs stating that the agreement violates the Presidential Records Act. During his confirmation hearing in May, John Carlin indicated, in response to senators' questions about the Bush-Wilson agreement, that he had problems with the agreement. However, in the week prior to Carlin becoming U.S. Archivist, the government decided to appeal Judge Richey's decision. No dates have been set for the court to consider this case.

Inadequacy of National Archives Guidance

The inadequacy of National Archives guidance to agencies on the preservation of e mail has been at the heart of the PROFS case. In 1989 the National Security Council, as well as other agencies, routinely destroyed e-mail, which according to the National Archives did not meet the standard of a "record," which must by definition be appraised for retention or destruction. Various court orders in the PROFS case led to the National Archives issuing in the August 28 edition of the Federal Register, beginning on page 44634, revised guidance to federal agencies about the kinds of records that may be destroyed and the kinds that must be preserved. In general practice, before a government agency may destroy its records, it must give public notice and the Archivist must appraise the records to determine whether they warrant continued preservation. The General Records Schedule, however, lists categories of records that agencies may destroy without notice or appraisal. While the new regulations reflect considerable progress over the position held by the National Archives prior to the PROFS case, there are still some points of concern. For many in the research community the problem rests with the basic philosophy imbedded in the General Records Schedule.

On September 1, during a panel discussion at the Society of American Archivists' annual meeting, Mike Tankersley of the Public Citizens Litigation Group, who has represented the plaintiffs in the PROFS case, and Jason R. Baron of the U.S. Justice Department, who has represented the government, commented—in each case speaking for themselves and not their clients—on the new General Records Schedule 20. Tankersley took the position that with these regulations the National Archives is abdicating its role in appraising records. He argued that there is value to records beyond their administration and operational use and that agencies are sometimes shortsighted in appraising the long-term historical value of records. Under the federal records laws, Tankersley explained, the Archivist is to serve as a check on agencies in assessing the value of records. The new regulations are, in his view, a retreat from responsibility as the National Archives leaves all authority about the preservation of electronic systems in the hands of agencies. Tankersley contends that both the issues of what constitutes a federal record and what are the parameters of the Archivist's authority are not satisfactorily resolved in the recent regulations.

Speaking in support of the regulations, Jason Baron stated that there is now a consensus that e-mail messages may be federal records. He explained that messages that meet the criteria for a federal record are now required to be transferred to paper or an electronic storage system and scheduled for preservation. He explained that the Executive Office of the President has a system in place now that tags records at the time of their creation for preservation or disposal and that this system is regularly monitored by records managers to ensure that appropriate material is preserved.

Some in the research community have expressed concern that under these regulations records created in an electronic medium with valuable search capabilities can be preserved only on paper while the electronic record is destroyed. Furthermore, with the changes in technology, some archivists are now recommending that information systems be appraised, not just individual records. However, the National Archives has not used the opportunity of the revision of the General Records Schedule 20 to adopt a more forward-looking approach to appraisal. Nevertheless, the regulations' assertion that e-mail can be a federal record and thus required to be preserved is a major breakthrough from earlier policy. As Tankersley noted, the consensus that has emerged that e-mail can be a federal record has come as a result of court rulings in the PROFS case.

Agency Records Versus Presidential Records

Moving on a separate track is another of the more contested issues in the PROFS case, the government's claim that the records of the National Security Council are not agency records but presidential records. The distinction between federal and presidential records has important implications for preservation of and access to records. On February 14, 1995, Judge Charles R. Richey of the United States District Court for the District of Columbia rejected the government's claim and ruled that the "National Security Council is an agency subject to the FOIA and that it must maintain and preserve its records in accordance with the Federal Records Act, except when high level officials of the National Security Council are acting solely in their capacity to advise and assist the President." The Clinton administration appealed this decision and oral arguments in that appeal will be presented on September 8 before the U.S. Court of Appeals for the District of Columbia. The three judges hearing this case are Judges David Tatel, Douglas Ginsburg, and Harry Edwards.