Appeals Court Rules in Favor of the Archivist

On August 6 the United States Court of Appeals for the District of Columbia ruled in favor of the archivist of the United States and against the Public Citizen litigation group and various historical and library associations in case number 97-5356. In a unanimous decision, the three-judge panel reversed the October 22, 1997, U.S. District Court for the District of Columbia decision (of Judge Friedman) that the National Archives' regulations allowing federal agencies to destroy electronic programmatic records were null and void. The appeals court decision thus lets stand the National Archives' policy of allowing electronic records to be destroyed if those records having permanent value are copied onto paper or an electronic recordkeeping system.

In the lower court Judge Friedman took a broad view that looked at the big picture at how electronic records of historical value should be preserved, and set timetables for agencies to set up new systems. The appeals court took a very narrow view in which they focused on specific words in the current law and concluded that agencies had the flexibility to choose in what "form," paper or electronic, they wished to preserve records. However, the appeals court stated, "We agree with Public Citizen that electronic record keeping has advantages over paper record keeping, but our duty as a reviewing court is to ask only whether the archivist's policy choice is arbitrary and capricious; manifestly it is not." The opinion further noted that while all agencies use computers to generate electronic mail and word processing documents, all agencies have not established electronic recordkeeping systems in which to preserve those records. The court then concluded that: "It may well be time for them to do so, but that is a question for the Congress or the Executive, not the Judiciary, to decide."

Since the lower court's decision, almost two years ago, the National Archives has moved forward in issuing interim guidelines to agencies on how to archive their electronic records but has given agencies several years to develop a plan and several more years to implement an electronic recordkeeping system. The lead agency in this area has been the Department of Defense, which has developed standards for electronic recordkeeping systems and is requiring all of its divisions to install electronic record-keeping systems by the end of this year.

In responding to the decision of the Court of Appeals, the National Archives noted that it was pleased that the court upheld the propriety of the archivist's actions. The National Archives said that it needed time to review the decision but that it plans "to continue in an orderly way to develop practical, workable strategies and methods for managing and preserving records in the electronic age." For the plaintiffs, this case has been about prodding the National Archives into providing guidance to agencies on the preservation of their historically significant electronic records and setting deadlines requiring all agencies to have electronic recordkeeping systems. Progress is being made but the movement is very slow. The concern of historians is how much of the historical record will be lost while agencies are allowed to continue to postpone the adoption of electronic recordkeeping systems. The plaintiffs have not yet decided if they will appeal the ruling to the Supreme Court. The decision may be viewed on the Internet at http://www.cadc.uscourts.gov/common/opinions/199908/97-5356a.txt. The National Archives' documentation of the case is at http://www.nara.gov/records/grs20/index.html#court.

OMB Revises Research Data Access Regulations

On August 11 the Office of Management and Budget (OMB) published in the Federal Register a request for comments on clarifying changes to the proposed revisions to OMB Circular A-110 that deal with access to research data produced with federal grants. The notice and the proposed revision may be seen in the Federal Register 64:154, pages 43,786-91, and a circular titled, "Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations." These new regulations are in response to legislation passed last October that directs OMB "to require Federal awarding agencies to ensure that all data produced under an award be made available to the public through the procedures established under the Freedom of Information Act (FOIA)."

The intent of this legislation as expressed by its sponsor, Senator Richard Shelby (R-Ala.), is to give the public access to federally funded research data that has a significant impact in the policymaking process, such as the scientific and medical research that is used in establishing federal regulations on tobacco use and health issues. However, P. L. 105-277 was not very specific about what data could be requested; thus, there has been strong concern expressed by the scholarly community which fears the negative impact that this provision could have on research.

In February OMB issued its first draft of regulations that respond to the new law. OMB received over 9,000 comments, many raising serious concerns about how the regulations would be implemented and about how terms such as "data," "published," and "used by the federal government in developing policy or rules" would be interpreted. The new draft has attempted to be much more specific and to clarify much of what had been vague and objectionable. Grant recipients can hold in confidence research material until publication of their results in a peer-reviewed journal. Many in the scholarly community see this draft as a great improvement for it limits considerably the kind of data that can be requested.

Legislation to Clarify Tax Implications for Donors of Historical Materials

Senators Daniel Patrick Moynihan (DN. Y.), Daniel Inouye (D-Hawaii), and Paul Wellstone (D-Minn.) introduced earlier this year S. 217, a bill that would clarify the tax implications for donors of historical materials. In most cases charitable gifts of historical papers to universities, libraries, archives, or historical societies do not have a gift tax or estate tax consequence. However, some estate planning lawyers have concluded that there may be an adverse tax consequence in situations where the donor retains various rights in the papers donated, such as the right to limit or control access for a period of time for privacy reasons. Retaining some control is perceived by some lawyers as disqualifying for the charitable gift donation. Thus it seems that some individuals who had planned to donate papers, but who wished to retain some control over them, are not donating their papers for fear they will have to pay taxes on the donation.

As Senator Moynihan made clear in his introductory remarks, many people would never donate papers if some restrictions were not permitted and many lawyers do not see these restrictions as disqualifying for gift and estate charitable contributions. But since some lawyers do perceive a problem, this bill would clarify the issue that qualifying rights for the charitable tax law would include the right to control access to the materials for a period of time not to exceed 25 years after the death of the person who created the materials. Letters of support are needed for S. 217. They should be sent to the leadership of the Senate Finance Committee—Senator William Roth (R-Del. ), chair, and Senator Daniel Patrick Moynihan, the ranking minority member. The address is Senate Finance Committee, 219 Senate Dirksen Office Building, U.S. Senate, Washington, DC 20510.

Update on Database Copyright Protection Legislation

Before the August recess the House Commerce Committee approved a slightly modified version of H.R.1858, the Consumer and Investor Access to Information Act of 1999, a copyright bill that deals with databases. Scholars and librarians have strongly supported H.R. 1858 because it provides the needed balance between the interests of database producers and "fair use" access by users. The bill protects the publishers who add value to the databases and promotes access to factual information that is in the public domain. The revised version makes clear that "fair use" will apply to court opinions, statutes, codes, and other legal documents.

In May the House Judiciary Committee approved H.R. 354, the Collections of Information Antipiracy Act, which many in the scholarly community view as overly protective of database producers and as limiting legitimate access to factual information and databases that are in the public domain. The House Commerce Committee and the House Judiciary Committee hope to develop a compromise bill that will be acceptable to all parties concerned.