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destruction of electronic files

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Date: Mon, 16 Jun 1997 00:04:43 -0400 (EDT) From: Eddie Becker Subject: PROFS Case: Plaintiffs Brief on NARA E-mail Regs 6/11/97

This is a brief against the National Archives Regulations that would allow blanket destruction of electronic files throughout the Federal Government. You are invited to hear the arguments in this case, to be held in Washington, DC on Friday 06/27/97 at 9:30 before Judge Friedman, 3rd and Pennsylvania Ave, across from the newer wing of the National Gallery of Art. Eddie Becker ebecker@cni.org

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA C.A. No. 96-2840 PLF PUBLIC CITIZEN, INC., et al., Plaintiffs, v. JOHN CARLIN, in his official capacity as Archivist of the United States, et al., Defendants. MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT AND IN SUPPORT OF PLAINTIFFS' CROSS-MOTION FOR SUMMARY JUDGMENT _________________________________________________________________ Michael Tankersley D.C. Bar No. 411978 Alan B. Morrison D.C. Bar No. 073114 PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, NW Washington, DC 20009 (202) 588-1000 Attorneys for Plaintiffs June 11, 1997 _________________________________________________________________ TABLE OF CONTENTS

INTRODUCTION BACKGROUND + + The Records Disposal Act.+ + The Armstrong v. EOP Decision.+ + The Revision of General Records Schedule 20.+ + Reliance On GRS 20 to Dispose of Agency Records. ARGUMENT PLAINTIFFS HAVE STANDING * GRS 20 IS UNLAWFUL BECAUSE IT IS OVERBROAD AND FAILS TO COMPLY WITH THE EXPLICIT REQUIREMENTS OF 44 U.S.C. Sec. 3303a(d). + + GRS 20 Is Not Limited To Administrative Records, But Authorizes Destruction Of All Word Processing And Electronic Mail Records Without Regard To Content.+ + GRS 20 Is Not Supported By The Requisite Determination That All The Records Covered By The Schedule Lack Sufficient Value To Warrant Their Preservation.+ + GRS 20 Is Contrary To Law Because It Does Not Specify The Period For Retention of Records.* DEFENDANTS' ARGUMENTS CONCERNING DISMISSAL OF PLAINTIFFS' SECOND

CLAIM FOR RELIEF ARE WITHOUT MERIT.

FOOTNOTES CONCLUSION

_________________________________________________________________ Introduction In Armstrong v. Executive Office of the President, 1 F.3d 1274, 1277 (D.C. Cir. 1993), the Court of Appeals rejected the government's contention that agencies were entitled to destroy their electronic mail records if they had "instructed employees to print out a paper version of any electronic communication that falls within the statutory definition of a `record.'" The Court held that electronic mail and other electronic records, like paper records, must be managed in accordance with the Federal Records Act and, thus, must be appraised for their historical value before being destroyed. Id. at 1287-88. Fourteen months later, however, the National Archives and Records Administration announced its intent to circumvent this ruling by promulgating a "General Records Schedule" that gives federal agencies blanket authority to adopt the print and delete practice rejected in Armstrong v. EOP. The Schedule allows agencies to destroy any electronic mail or word processing record on their computer systems if the record has been printed on paper or microfilm. Despite overwhelming public opposition to this proposed rule, the Archivist approved the Schedule, and agencies are now relying on the Schedule as authority for destroying electronic records -- including records of the highest agencies in the government. Plaintiffs challenge this government-wide, unqualified authorization for the destruction of electronic mail and word processing records as both unlawful and arbitrary. Plaintiffs do not contend that all electronic mail and word processing records must be preserved in electronic form. Indeed, plaintiffs do not dispute that most electronic mail and word processing records need not be retained in electronic form. Instead, plaintiffs contend that the law requires that the Archivist distinguish between electronic records that have historical value and those that do not. By adopting GRS 20, however, the Archivist has abdicated his responsibility to make such distinctions and has sought to circumvent the procedures for public notice and public comment on disposal decisions. More specifically, GRS 20 has four critical flaws, any one of which is sufficient to strike down the Schedule. First, the Schedule sweeps too broadly because it authorizes the destruction of all electronic mail and word processing records without regard to content. Under the Records Disposal Act, the Archivist's authority to use General Records Schedules is limited to records that have a character that is "common to several or all agencies," 44 U.S.C. Sec. 3303a. Congress and the Archivist have long recognized that, because general schedules apply to many different agencies, they should only be used for "housekeeping" or "administrative" records, such as personnel records, whose value does not depend on which agency created them -- and should not be used for "program" records concerning the agency's mission. But General Records Schedule 20 departs from this longstanding interpretation, without explanation or justification, and treats program records of the most powerful White House agencies as if they had the same value as records of the lowliest government field office. Second, the Schedule treats all record formats as fungible and, thus, ignores the special qualities of electronic records. The Archivist, acting on the premise that the format of a record has no bearing on the historical interests that the Archivist is obligated to protect, has given agencies absolute discretion to decide whether electronic mail and word processing records are retained in hard copy or electronic format. However, the Archivist concedes, and the National Archives has long emphasized, that hard copy and electronic versions of records are not equivalent because electronic records have unique properties, and these properties affect the records' value to the public, researchers, and historians. GRS 20 ignores these unique properties by providing that the Archivist is indifferent to whether records created electronically -- including those records that are worthy of permanent preservation -- are submitted to the National Archives in hard copy or in their original electronic formats. Third, the Schedule is not supported by the critical finding required under the Records Disposal Act. General Records Schedules may only be promulgated if the records covered by the schedule do not "have sufficient administrative, legal, research or other value to warrant their further preservation" by the government. 44 U.S.C. Sec. 3303a(d). No such finding was made here, nor would it be possible to rationally make such a finding for all electronic mail and word processing records covered by the Schedule. Fourth, the Records Disposal Act allows the Archivist to adopt schedules that authorize disposal "after the lapse of specified periods of time." 44 U.S.C. Sec. 3303a(d) (italics added). The statutory requirement that the Archivist specify the retention period is important to assure that the Archivist is making the statutory determination that records lack sufficient value to warrant further preservation, and not simply handing his responsibility back to the agencies. GRS 20, however, does not specify a time. Instead, the schedule leaves it to agencies to decide when records "are no longer needed." In doing so, the Archivist has abdicated his responsibility to determine how long records should be retained and has improperly delegated to agencies decisions that the statute requires be made by the Archivist. Defendants' defense of GRS 20 in their Motion to Dismiss or for Summary Judgment ("Defs' Motion") fails to adequately address the four problems identified above, and is based on a fundamental flaw. Defendants insist that, because some agencies lack the ability to retain records in electronic form, it follows that the Archivist should give all agencies the flexibility to destroy the electronic versions of the records if they wish. The records laws, however, do not impose such an all or nothing choice. Because agencies differ in their recordkeeping abilities, functions, and the historical importance of their records, the Records Disposition Act contemplates that individual agency schedules, not government-wide schedules, should be the principal means for the Archivist to schedule records. By promulgating a government-wide general schedule for these records, rather than using individual schedules, the Archivist has ignored his obligation to make distinctions that separate records that have historical value from those that do not. Plaintiffs' challenges to GRS 20 present purely legal issues, and there are no material facts in dispute. In addition, the Court of Appeals has already addressed and squarely rejected the government's arguments that plaintiffs lack standing to challenge the destruction of electronic records. Accordingly, plaintiffs move for summary judgment and request that the Court enter a declaratory judgment stating that General Records Schedule 20 is null and void. BACKGROUND A. The Records Disposal Act. The central premise of the Records Disposal Act, 44 U.S.C. Secs. 3301-3314, is that agencies may not unilaterally decide to destroy their own records because agencies may not consider the records' value to the public. In enacting the statute, Congress was "certainly aware that agencies, left to themselves, have a built-in incentive to dispose of records relating to `mistakes' or, less nefariously, just do not think about preserving `information necessary to protect the legal and financial rights . . . of persons directly affected by the agency's activities.'" American Friends Serv. Comm. v. Webster, 720 F.2d 29, 41 (D.C. Cir. 1983) ("American Friends") (quoting 44 U.S.C. Sec. 3301). Accordingly, the Act provides that the Archivist is responsible for determining whether the records lack sufficient administrative, legal, research, or other value to warrant their further preservation. 44 U.S.C. Sec. 3303a. No record may be "alienated or destroyed" by an agency without obtaining the Archivist's approval. 44 U.S.C. Sec. 3314; Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 147 (1980). The Archivist's evaluation of the value of records, known as the "appraisal process," involves the consideration of two distinct "values" or "viewpoints." First, the "agency's viewpoint" focuses on whether the records have any administrative, legal, or fiscal use to the agency. See Admin. Rec. VI: 2316-20, NARA, Disposal of Federal Records, (1992) (discussing agency's and NARA's viewpoints); see also NARA, Disposal of Federal Records, 14-15 (1981 ed.) (same). Second, the Archivist and NARA are responsible for determining whether the records have sufficient historic or research value to those outside the agency to warrant their preservation. Admin. Rec. VI: 2319-20, NARA, Disposal of Federal Records (1992); see also NARA, Disposal of Federal Records, 18-20 (1981 ed.) (NARA has prime responsibility for determining secondary or "archival" value of records for research and scholarship). The Archivist's appraisal must take into account "historical research interests and the rights of affected individuals," and not just the agency's "immediate, operational needs." American Friends, 720 F.2d at 65. The Archivist's role is to ensure that the "archival" or "secondary" values that go "beyond agency needs and interests," are considered before records are destroyed. NARA, Disposal of Federal Records, 19 (1981 ed.) There are two ways that the Archivist can authorize the disposal of agency records: (1) Individual Agency Schedules. The Archivist's authorization to dispose of records usually is obtained through individual agency record schedules. Under this procedure, an agency submits a "request for disposition authority" or "disposition schedule" in which the agency identifies specific agency records and proposes that they be destroyed after the lapse of specified periods of time. 44 U.S.C. Sec. 3303a(a); 36 C.F.R. Sec. 1228.30. The Archivist must issue a notice requesting public comment on the agency's proposal, and the Archivist's staff appraises the value of the records. The Archivist may accept or reject the agency's proposal. If NARA's appraisal indicates that the records have sufficient historical value, the records will eventually be transferred to the Archives as "permanent" records. 44 U.S.C. Sec. 2107. Otherwise, the Archivist will approve a schedule authorizing disposition of the records after they have been retained for an appropriate period of time. Id. Secs. 3302-3303a. (2) General Records Schedules. The Archivist is also authorized to promulgate General Records Schedules governing the disposition of records that are common to several or all agencies and do not, after a specified period of time, have sufficient administrative, legal, research or other value to warrant their further preservation. 44 U.S.C. Sec. 3303a(d). General Records Schedules apply government-wide, and are designed to cover the disposal of "routine `housekeeping' records, such as those relating to the hiring of personnel, procurement of supplies, and fiscal management, that are common to most agencies." H. Rep. No. 361, 79th Cong., 1st Sess. 1 (1945). In the terminology now used by NARA, the General Records Schedules "cover records documenting administrative, or housekeeping, functions rather than program functions." Admin. Rec. VI: 2324, NARA, Disposal of Federal Records, IV-9 (1992). "Administrative records," as defined by NARA, are records relating to "budget, personnel, supply, and similar housekeeping, or facilitative, functions common to most agencies." Id. at 2403. In contrast, "Program records" document "the unique, substantive functions for which an agency is responsible." Id. at 2413. Program records are not covered by the General Schedules. The use of General Records Schedules rather than individual agency schedules to authorize records destruction obviously reduces paperwork, but it also reduces the public's ability to participate in the appraisal of the records' value. When an individual agency schedule is submitted, the Archivist must issue a notice in the Federal Register announcing that the agency has proposed to destroy the records, and provide an opportunity for public comment. 44 U.S.C. Sec. 3303a(a): The conferees believe that such public notification of a proposed records disposal will enable other agencies of government, as well as Archives user groups and the general public, which may be affected by the proposed disposal, to comment to the Archivist on potential impacts of such disposal. Such public notice should enhance the quality of decision-making on records disposal. H. Conf. Rep. No. 1124, 98th Cong., 2d Sess. 30, reprinted in, 1984 U.S.C. & A.N. 3894. No such notice and comment is required if records are covered by a General Records Schedule; each agency simply destroys the records covered by the schedule. Several of the safeguards against improper destruction are also removed when records are destroyed under a General Records Schedule. For example, when an individual agency schedule is used, the agency must prepare a schedule describing each series of records, including the physical type and contents of the records, and this schedule is available to the public as part of the notice and comment process. 36 C.F.R. Sec. 1228.30(b)(2). In addition, an agency official must formally certify that the records do not, or will not, warrant retention. Id. Sec. 1228.26(b). Moreover, where an individual agency schedule is used, NARA undertakes "a thorough study of the records that takes into account their administrative use by the agency of origin, the rights of the Government and private persons directly affected by the Government's activities, and historical or other value." 61 Fed. Reg. 34449 (1996) (Plfs' Appendix at P68). No such individualized appraisal, certification, or description of the records occurs where the records are covered by a General Records Schedule. Finally, since 1978, General Records Schedules have been "mandatory." 44 U.S.C. 3303a(d). If records are covered by a General Records Schedule, agencies must destroy the records unless they specifically request and obtain an exemption from the Archivist. 36 C.F.R. Sec. 1228.42(b). B. The Armstrong v. EOP Decision. There are three basic methods for managing electronic mail records: (1) print the electronic records and file them in paper filing systems; (2) store and manage the records in electronic format, using whatever filing capabilities are provided by the agency's electronic mail system; or (3) transfer the electronic records to a separate repository designed for filing and managing the records in electronic format. See Admin. Rec. at 2937-40. Each method has advantages and disadvantages. Printing and filing the records is easy to implement, but has disadvantages because "[t]he ability to search for, retrieve, or retransmit documents electronically is lost once they are printed," and "[c]omplete compliance is hard to accomplish if each end user is responsible for printing, routing or filing his or her own messages." Id. at 2938. In Armstrong v. EOP, the Archivist and agencies of the EOP argued that, if agencies have adopted the first method by instructing staff to print electronic communications that qualify as "records" on paper, the agencies need not schedule the electronic version, but may treat the electronic data as a nonrecord "extra copy" and routinely delete it without the Archivist's approval. See Armstrong, 1 F.3d at 1282. (See Footnote 1) This Court and the Court of Appeals both rejected this claim, and held that the electronic communications are not "extra copies," but unique records that contain information not found in the paper print-outs. Id. at 1284-86. Accordingly, the Courts held that these electronic records "must be managed and preserved in accordance with [the Federal Records Act]." Id. at 1286. After the Court of Appeals decision in Armstrong, the Executive Office of the President adopted the third option by instituting new recordkeeping procedures to collect and store electronic mail and word processing documents that qualify as "records" electronically. Under the new procedures, it is no longer necessary for staff to print messages for them to be preserved. When messages are created on the computer, employees indicate whether the messages are record or nonrecord material, and the computer automatically collects and stores copies of the records in electronic form. Nonrecord messages are periodically purged from the computer. The records retained in electronic form can then be indexed or searched for keywords or text strings by computer, and may eventually be copied to tape or optical disk for long term preservation. The National Security Council, Office of Administration (OA), Office of the United States Trade Representative (USTR) and Office of Science and Technology Policy (OSTP) all instituted automated recordkeeping systems with these features. See Armstrong v. EOP, 877 F. Supp. 690, 721-22, 725-26 (describing OA system); id. at 729, 730-31, 733 (describing USTR system); id. at 734-35 (describing OSTP system). (See Footnote 2) C. The Revision of General Records Schedule 20. In Armstrong, the Court of Appeals stated that the proper way to purge "incidental electronic records" from agency computers is for individual agencies to submit schedules to the Archivist providing for disposal of those records that lack sufficient value to warrant their preservation. Id. at 1287 (citing 44 U.S.C. Sec. 3303a(a)). However, shortly after the Court of Appeals' decision, NARA initiated steps to authorize all federal agencies, at their discretion, to follow the practice that had been rejected in Armstrong v. EOP, namely, printing and then destroying electronic records. In October, 1994, the Acting Archivist proposed to amend General Records Schedule 20 to explicitly authorize all federal agencies to destroy agency records stored on word processing and electronic mail systems if the records have been printed in "hard copy" on paper or microform, and the agency no longer needs the electronic version. See Admin. Rec. I:89-92, 59 Fed. Reg. 52313 (Oct. 17, 1994). Thirty-seven comments were received in response to the proposal. All of the comments from the public, professional organizations, and state archivists criticized the proposal because the revised General Schedule would result in the destruction of valuable federal records. These commenters maintained that the Archivist should not issue blanket authority for the deletion of electronic records, but should "specifically appraise particular systems in each agency." Admin. Record at I: 61-62 (summarizing comments). The only entities to submit comments in favor of the proposal were federal agencies, which applauded the Archivist's proposal to give agencies freedom to chose the format in which their records are retained. Admin. Rec. I:15, 60 Fed. Reg. 44643. Despite the unanimous opposition to the proposal by the public, the current Archivist, John J. Carlin, revised General Records Schedule 20 to authorize agencies to delete the only electronic version of agency word processing records after the records have been copied to paper or microform for recordkeeping purposes, and the agency no longer needs the electronic record for updating or revision. 60 Fed. Reg. at 44649, Item 13. The revised schedule also authorizes agencies to delete the only electronic version of agency records stored on electronic mail systems after the records have been copied to paper or microform for recordkeeping purposes. Id., Item 14. The Schedule gives agencies the option to retain these records in electronic form by copying them to "an electronic recordkeeping system." Id. But the decision whether to retain electronic records in their original format or convert them to hard copy is left entirely to the discretion of the agency. Id. In adopting these provisions, the Archivist did not make any determination that all the electronic mail and word processing records covered by the Schedule do not "have sufficient administrative, legal, research, or other value to warrant" their further preservation by the government. Moreover, in the notice explaining the revised Schedule, the Archivist stated that the decision of whether to maintain electronic mail and word processing records in an electronic or hard copy format should be based solely on the agencies' "operational needs" and the interests of "future researchers" should play no role. Id. at 44645. The Archivist did not address objections that the scope of the revised General Records Schedule should be limited to "administrative records." One provision of the Schedule concerning electronic spreadsheets was changed to expressly limit it to administrative records. See id. at 44646 and 44649, Item 15. But the Archivist offered no explanation for his failure to impose a similar limitation on the provisions concerning word processing and electronic mail records. Instead, the word processing and electronic mail provisions of GRS 20 cover "[d]ocuments such as letters, memoranda, reports, handbooks, directives, and manuals recorded on electronic media," and "electronic mail messages that meet the definition of Federal records, and any attachments to the record messages," -- regardless of the contents or purpose of these records. Id. at 44649 Items 13 and 14. The Archivist did respond to objections that GRS 20 failed to provide any specific period of time that records must be retained because it simply stated that agencies may "delete when no longer needed." The Archivist did not adopt a specific time period, but modified the instructions to read "delete when the agency determines that [the records] are no longer needed for administrative, legal, audit, or other operational purposes." 60 Fed. Reg. at 44645. D. Reliance On GRS 20 to Dispose of Agency Records. As NARA has observed, "nearly all Federal agencies now use e-mail to transact Government business." 60 Fed. Reg. 44634 (1995). The use of word processing to create government records has also become universal, as personal computers have proliferated throughout the federal government. See H. Rep. No. 795, 104th Cong., 2d Sess. 12 (1996). The records created and maintained by agency electronic mail and word processing systems include: 1. Program Correspondence, including formal and informal communications of Cabinet Secretaries, Assistant Secretaries and other executive officials. 2. Speeches concerning agency programs by Cabinet Secretaries, Assistant Secretaries and other executive officials. 3. Substantive communications concerning Executive Committees and Boards (e.g. minutes, lists of members, correspondence, and final reports). Admin. Rec. at 1805-08 (describing record and nonrecord material created on Interior Dept. computer network). For some agencies, many of these records have historical value. For example, after examining a sample of the USTR electronic mail records from 1986-1993, NARA staff concluded that 80% were worthy of preservation as permanent records. See Plfs' Appendix at P224. Prior to the adoption of the revised Schedule 20, at least some agencies submitted individual schedules to the Archivist to obtain disposition authorization for their electronic mail records on an agency-by-agency basis. (See Footnote 3) More recently, however, agencies have begun to rely on the blanket authority in revised General Records Schedule 20 to destroy their electronic mail and word processing records. For example, as a result of the Armstrong litigation, the EOP was required to retain computer tapes containing electronic mail and word processing records from the Reagan, Bush and early Clinton Administrations, before the EOP's automated system for electronic mail was instituted. These records included electronic mail and word processing documents created on the USTR's "Data General Computer System" from 1986 through 1993. In 1996, the EOP announced that it intended to rely on the revised GRS 20 as authorization to dispose of these records, and the Archivist endorsed this plan on December 13, 1996. Plfs' Appendix, II:P85-89, P231. The EOP also announced that it intended to rely on GRS 20 as authority to dispose of records created on the OSTP's electronic mail and word processing systems, and the Archivist endorsed this plan as well. Id. II:242-44. Under these plans, the electronic mail records of these agencies would be retained as permanent records, but the electronic versions of both USTR's and OSTP's word processing records would have been destroyed without any individualized appraisal of their historical value. After this action was brought, both the USTR and OSTP announced that, while the agencies contended that GRS 20 authorized destruction of these records, in order to avoid litigation, they would cease reliance on the Schedule and submit individual agency schedules. See Plfs' Appendix at 248-49 and Defendants' Exhibit A. (See Footnote 4) High-level Cabinet agencies have also adopted the "print and delete" procedure authorized by GRS 20. The Departments of State, Justice, Labor, and Interior all instruct employees to print copies of electronic word processing and electronic mail records on paper, and then allow staff to destroy the electronic versions at their discretion. See Admin. Rec. VII: 2882-84, 2894 (State Dept.); id. at 2749 (Interior Dept.); Blanton Decl. Pars. 15, 16; McGinn Decl. Par. 7. Because these agencies maintain that their records systems are "paper-based," the electronic versions of their electronic mail and word processing records are never appraised, and the destruction of the electronic records is not subject to notice and comment under 44 U.S.C. Sec. 3303a(a). This challenge to GRS 20 is brought by historians, researchers, librarians, and journalists who conduct research using government records made available under the Freedom of Information Act, 5 U.S.C. Sec. 552 ("FOIA") or in the collections of NARA. See Plaintiffs' Declarations Re: Standing. Plaintiffs and members of the plaintiff organizations use computers to search records, conduct research, and disseminate information. Moreover, plaintiffs have obtained, and plan to continue to seek, records that the Archivist has authorized be destroyed in electronic format. (See Footnote 5) ARGUMENT I. PLAINTIFFS HAVE STANDING Defendants' arguments concerning standing are easily answered because their contentions were thoroughly considered and rejected by the Court of Appeals in American Friends Serv. Comm. v. Webster, 720 F.2d at 45-57, and Armstrong v. Bush, 924 F.2d 282, 287-288 (D.C. Cir. 1991). Injury-In-Fact. Contrary to defendants' argument, plaintiffs' interest in the preservation of the records covered by GRS 20 is not solely "ideological" or "abstract." Plaintiffs are individuals who regularly use government records, and organizations whose members regularly use government records, as part of their professions as journalists, educators, advocates, librarians or historians. (See Footnote 6) Plaintiffs' declarations concerning standing attest that the individual plaintiffs and members of the plaintiff organizations have a particularized interest in obtaining and using these records in electronic form because they use computers to search, organize, index and disseminate records. (See Footnote 7) The recently enacted Amendments to the Freedom of Information Act confirm that plaintiffs' rights of access to agency records includes the right to request the records in electronic form, as long as that format is "readily reproducible" from the agency's records. 5 U.S.C. Sec. 552(a)(4) (as amended by the Electronic FOIA Amendments of 1996, P.L. 104-231, Sec. 5, 104 Stat. 2422 (1996)). Finally, plaintiffs' concern is not speculative; plaintiffs have identified specific Cabinet and EOP agencies (such as the USTR, State Department, Justice Department) whose electronic records plaintiffs have requested in the past, and plan to request in the future, but may not be able to obtain because of GRS 20. (See Footnote 8) In American Friends, the Court of Appeals recognized that plaintiffs who claimed a need for agency documents arising "`out of their professions as historians, journalists, teachers, film writers, or attorneys,'" 720 F.2d at 46 (quoting American Friends Service Comm. v. Webster, 485 F. Supp. 222, 226 (D.D.C. 1980)), had standing to challenge the Archivist's approval of individual agency disposition schedules where they had made past FOIA requests, had other requests pending, and intended to request records from the agency in the future. The only difference between the injury in American Friends and this action is that the records destruction here is not limited to an individual agency's files, but is government-wide. This difference, of course, has no bearing on standing because, whether the schedule is specific or general, the injury is the same: "private parties and the public cannot review records that an agency has destroyed in violation of the disposal laws." Id. at 557. In Armstrong v. Bush, the Court of Appeals rejected the argument that historians and researchers did not have standing to challenge the government's plans to destroy computer records, regardless of the theory on which the government sought to justify destruction of the records. "[B]ecause plaintiffs are researchers and historians who make extensive use of government documents," the Court of Appeals held, plaintiffs have standing and are within the zone of interests of the records creation and management provisions of the Federal Records Act. 924 F.2d at 288. Indeed, the plaintiffs in this action include many of the same plaintiffs in Armstrong, (See Footnote 9) present the same interest found sufficient for standing in Armstrong, and seek to prevent the destruction of the EOP word processing and electronic mail records preserved because of the injunctions in Armstrong. (See Footnote 10) Plaintiffs clearly have standing to challenge the government's latest theory for destroying these same records. Redressability. Defendants also argue that plaintiffs do not satisfy the "redressability" requirement for standing on the theory that, even if GRS 20 is struck down as unlawful, plaintiffs will gain nothing because the Archivist will simply approve individual agency disposition schedules authorizing each individual agency to destroy electronic mail and word processing records after converting them to hard copy. Defs' Motion at 16-17. However, the fact that "the agency might well subsequently legitimately decide to reach the same result through different reasoning," does not defeat standing. Akins v. Federal Election Commission, 101 F.3d 731, 738 (D.C. Cir. 1996) (en banc). Plaintiffs have standing to challenge an agency rule as arbitrary and capricious even though it is not certain that, if the plaintiffs prevail, the agency will adopt a rule that redresses plaintiffs' injury on remand. See Competitive Enterprise Inst. v. National Highway Transp. Safety Admin., 901 F.2d 107, 117-18 (D.C. Cir. 1990). Similarly, parties have standing to challenge agency failures to prepare environmental impact statements even though there is no assurance that the statement will alter the outcome. See Foundation on Economic Trends v. Lyng, 943 F. 2d 79, 83 &n.2 (D.C. Cir. 1991). Standing exists where, if the agency complies with the required procedures, and considers the factors the agency is supposed to consider, "it might change its mind and aver the damage to [the plaintiffs'] interests." Id. In this case, if GRS 20 is void, the government will be required to evaluate the destruction of the records on an agency-by-agency basis, a process that will require that (i) agency officials specifically certify that the records lack value; (ii) NARA appraise the value of each agency's record systems; and (iii) the Archivist consider public comments on the value of the records. These steps are likely to lead to the conclusion that, as plaintiffs claim, some agency records are sufficiently valuable to require that they be retained in their original, electronic format. Moreover, destruction pursuant to GRS 20 thwarts plaintiffs' right to have notice of, and comment on, the value of the records before they are destroyed. Denial of these "procedural rights" alone is sufficient to establish standing to challenge the Archivist's decision to bypass individual record schedules by authorizing government-wide destruction of these records, without regard to their content. See Lujan v. Defenders of Wildlife, 504 U.S. 572, 574 n.7 (1992). II. GRS 20 IS UNLAWFUL BECAUSE IT IS OVERBROAD AND FAILS TO COMPLY WITH THE EXPLICIT REQUIREMENTS OF 44 U.S.C. Sec. 3303a(d). We agree with defendants that GRS 20 is an agency "rule"; that this Court is to set aside the Schedule if it is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law," 5 U.S.C. Sec. 706(2); and that Motor Vehicle Manufactures Ass'n v. State Farm Auto. Ins. Co., 463 U.S. 29, 42-43 (1983), sets forth the relevant considerations. Defs' Motion at 19. (See Footnote 11) GRS 20 cannot be upheld under this standard of review. The Records Disposal Act provides that the General Records Schedules must cover records that no longer has sufficient "administrative, legal, research, or other value to warrant their further preservation." 44 U.S.C. Sec. 3303a(d). General Records Schedule 20 is so sweeping that it impossible for the Archivist to satisfy this standard and show that none of the covered records have value. The Schedule is too "General" to comply with the statute because it ignores the factors that the Archivist has recognized determine the value of records: content, format, and the function of the originating agency. Four separate considerations show that the Schedule is too sweeping to comply with the law. A. GRS 20 Is Not Limited To Administrative Records, But Authorizes Destruction Of All Word Processing And Electronic Mail Records Without Regard To Content. Congress and NARA have long recognized that General Schedules may be used for "housekeeping" or "administrative records" -- but cannot be applied to record systems that contain records documenting the unique, substantive functions of an agency. GRS 20, however, covers all word processing and electronic mail records -- regardless of their content, or their uniqueness to the particular agency that created them. Because of its breadth, GRS 20 is contrary to law and arbitrary and capricious. First, GRS 20 is contrary to law because the statute requires that General Records Schedules be limited to records "of a specified form or character common to several or all agencies." 44 U.S.C. Sec. 3303a(d). When Congress first enacted the provision authorizing General Records Schedules in 1945, both the House and Senate contemplated that this authority would be used for "routine `housekeeping records,' such as those relating to the hiring of personnel, procurement of supplies, and fiscal management, that are common to many agencies." H. Rep. 361, 79th Cong., 1st Sess., 1 (1945); S. Rep. 447, 79th Cong., 1st Sess. 1 (1945). Since the value of such records does not depend on the agency, General Schedules could be used to establish a uniform retention period for "similar classes of useless records, for example, personnel or accounting records," without each agency submitting a separate list or schedule. S. Rep. No. 914, 91st Cong., 2d Sess. 3, 1970 U.S.C.C. & A. N. 3297, 3299 (GSA comments). Congress reaffirmed this limitation in 1978 when it amended 44 U.S.C. Sec. 3303a(d) to make the use of General Schedules mandatory. The House Committee sponsoring the amendment reassured Congress that "[i]f records are unique to an agency they would not be affected by" the mandatory General Schedules. H. Rep. No. 1263, 95th Cong., 2d Sess. 1-2, reprinted in 1978 U.S.C.C.& A.N. 2623-24. The General Schedules cover "disposal of routine agency records in such areas as personnel, payroll, procurement and supply." Id. GRS 20, however, is not limited to such administrative records concerning functions "common to several or all agencies," id., but covers program records that are unique to particular agencies. Second, even if the statutory language is considered ambiguous, GRS 20 is an arbitrary, unexplained departure from the NARA's prior interpretation of the statute. In statements concerning the permissible scope of General Records Schedules, NARA (and NARA's predecessor, the GSA), have echoed Congress' statements concerning the limits of 44 U.S.C. Sec. 3303a(d) by declaring that General Records Schedules are for "administrative records" but not for "program records." The current NARA Handbook on records disposition states, without qualification, that "[t]he GRS covers records documenting administrative, or housekeeping, functions rather than program functions." Admin. Rec. VI: 2324, NARA, Disposition of Federal Records, (1992). NARA instructs agencies that they "must not attempt to use the GRS for program records." Id. at 2325 (emphasis added). The same interpretation appears in earlier documents emphasizing that General Records Schedules should not be applied when "administrative records are mixed with program records." See, e.g., Plfs' Appendix at P60, 62, Introduction to the General Records Schedules, 1988/1989. The Archivist's departure from this longstanding interpretation without any explanation or justification, by itself, requires that the agency's action be struck down. See Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1971); Cross-Sound Ferry Services, Inc. v. ICC, 934 F.2d 327, 329 (D.C. Cir. 1991). Indeed, in adopting GRS 20, the Archivist failed to even address this issue. When the Schedule was proposed, commenters specifically objected that it covered both "administrative" and "program" records, and that word processing and electronic mail records did not have the common characteristics that would allow the Archivist to authorize their disposition through a general schedule. See Admin. Rec. at I:199-200, Comments of Public Citizen. When he adopted the final schedule, however, the Archivist did not address these objections or give any indication that he had considered the issue at all. Third, GRS 20 is irrational because it is inconsistent with the basic premise of General Records Schedules. The limitation of General Schedules to administrative records is necessary because: General records schedules are based on the premise that similar records have the same values regardless of the agency creating them. Therefore retention periods for similar records have the same values regardless of the agency creating them. S. Rep. No. 711, 95th Cong., 2d Sess. 6 (1978) (comments of Deputy Controller General). (See Footnote 12) However, the broad array of records covered by the GRS 20 simply do not have "common" characteristics that would allow the Archivist to determine that all such records, regardless of the agency that created them, lack any value that would warrant their further preservation by the government. For example, the memoranda, studies, or correspondence created by the Office of the Secretaries of Defense or State on word processing or electronic mail systems are far more likely to have enduring legal, research, and historical value, than the records of the Bureau of Engraving and Printing, which are far less significant. Covering such disparate records under a single General Schedule is irrational. In Defendants' Summary Judgment Motion, the Archivist asserts that GRS 20 is appropriate because the statute authorizes schedules for records "of a specified form or character" and "electronic records" are in a specified "form." Defendants Motion at 27-28. However, this argument only underscores that the Schedule sweeps too broadly. First, GRS 20 is not based on a "specified form," but is based on mechanism used to create the record. As the Chief of the New York State Records Advisory Services explained in her comments, GRS 20 is unlike other general schedules because the word processing and electronic mail provisions "are defined by software application (word processing) [and] mode of communication (e-mail)," rather than by the record's structure, content or media. Admin. Rec. at 162. Instead of specifying a form, GRS 20 covers all records created by word processing or electronic mail, regardless of whether the records are recorded on paper, microform, or electronic media. Moreover, the Archivist's theory -- that he has the power to authorize the destruction of all records created by a given technology, without regard to the records' purpose -- would render the statute irrational. When Congress authorized General Records Schedules for routine housekeeping records, it did not give the Archivist authority to order the destruction of all handwritten records or all typewritten records, regardless of their content. For the same reason, the statute does not give the Archivist authority to adopt a General Schedule covering all records created by word processing or electronic mail. The Archivist also argues that, despite NARA's statements to the contrary, in the distant past General Records Schedules have been used for program records, citing a 1954 cartographic records schedule and a 1963 schedule for records held by the Archivist. Defs' Motion at 24-25, 37. The cartographic schedule does not support the Archivist's claim since the schedule only covered limited categories, and it excluded records "of such a specialized character that they are not readily susceptible to evaluation on a Government-wide basis." See Defendants' Exhibits Tab 25. The 1963 Schedule was not a genuine general records schedule since it covered records transferred to the custody of the Archivist, not records held by agencies. See Defendants' Exhibit, Tab 3, Pub. L. 133 (general schedules provided for records that "either have accumulated or may accumulate in such agencies"). Moreover, the Archivist's reference to old, isolated schedules does not provide a meaningful response to the repeated statements by NARA and Congress that General Records Schedules are only appropriate for housekeeping or administrative records. (See Footnote 13) The proper means to dispose of program records under the statute is through individual agency records schedules, not a General Records Schedule. Only individual agency schedules allow for distinctions to be made between important records of the Departments of State or Defense that may justify electronic preservation, and records of lower level agencies that do not. As agency commenters stressed when GRS 20 was revised in 1987: GRS 20 should not apply to electronic records which are not common among Federal agencies. Record schedules for these records should be included in separate agency specific records schedules, consistent with the practice used for other non-common records. GRS 20 would create a media specific records schedule. This is inconsistent with NARA's general policies, with which we agree, of establishing agency records schedules (not GRSs) for records that are not common to all Federal agencies, and non-media specific schedules. Admin. Rec. at II:636. Of course, requiring such individual agency schedules will require NARA to give more time and attention to appraisal of these records. This, however, is precisely what the Records Disposal Act mandates. As the Court of Appeals recognized in American Friends, NARA "may have to spend more resources developing and checking records plans for agencies whose files are especially likely to contain significant information pertaining to legal rights and topics of particular interest to historical researchers." American Friends, 720 F.2d at 44. B. GRS 20 Ignores The Unique Value Of Records In Electronic Format. In his Summary Judgment Motion, the Archivist also asserts that it is irrelevant that GRS 20 applies to unique program records because, even if the electronic originals are destroyed, a copy will be retained in some format. Defs' Motion at 37 (quoting 60 Fed. Reg. 44,644). This assertion that format is irrelevant is essentially the same argument that the Court of Appeals rejected in Armstrong v. EOP, when the government claimed that the electronic mail and word processing records could be regarded as valueless "extra copies" of paper records. See 1 F. 3d at 1283, 1285. In approving GRS 20, as in Armstrong, the Archivist has assumed that paper and electronic records are fungible, so that converting the electronic record to paper and destroying the electronic original destroys nothing of value. However, the record and NARA's own statements demonstrate that the format of records is critical to the value of the records, particularly when records are in electronic format. NARA's guidelines underscore this by providing that, when the identical information is recorded in hard copy and electronically, the value of each format must be evaluated separately because of the differences in the ability to use and access the information: NARA applies some special considerations when appraising information in automated information systems. Electronic information may have greater research utility than similar information stored on paper or microfilm because it can be manipulated. Consequently some microdata appraised as disposable in hard copy (e.g., questionnaires) may be permanently valuable when maintained as electronic data. Admin. Rec. at VI:2241, NARA, Managing Electronic Records, 22 (1990). The format of records, not just their content, is one of the principal factors in evaluating whether they have sufficient value to be preserved as permanent records. See NARA, Disposition of Federal Records, 21 (1981 ed.) (See Footnote 14) The record shows that electronic records differ from hard copy print-outs in three ways that are important to their value for research: 1. Search and Indexing Capabilities. "Existing technologies for searching electronic records can often review materials more quickly than is possible via paper review." H. Rep. No. 795, 104th Cong., 2d Sess. 11 (1996). The Administrative Record contains numerous examples of how these searching and indexing capabilities have been used with word processing and electronic mail records: From 1987 through 1992, government officials repeatedly searched backup tapes containing word processing and electronic mail records created by the National Security Council during the Reagan Administration for investigations of the Iran-Contra Affair, the prosecution of Manuel Noreiga, and the confirmation hearings of CIA Director, Robert Gates. To locate relevant records, the government used computers to search for key-words in the electronic versions of the documents. Such automated searches would not have been possible if the records were not in electronic form. (See Footnote 15) The Navy Laboratories History Program's pilot project on preserving electronic mail records compared preservation of electronic mail records in electronic format, paper, and microfiche, and concluded the electronic format had substantial advantages over the other formats because of the enhanced ability to access and store the records. See Admin. Rec. 204, 255-63, C. Nowicke, Managing Tomorrow's Records Today: An Experiment in Archival Preservation of Electronic Mail, 13 Midwest Archivist 67 (1988). 2. Access. Electronic records can be distributed or made available to others more readily than "hard copy" records. For example, electronic records can be transmitted over telephone or communications lines, and can be made available to multiple users simultaneously. An excellent example of the advantages of electronic records in this regard is access to judicial decisions, which are simply word processing documents. When decisions were only on paper, the decisions could only be obtained by mail, by going to the court in-person, or by waiting for the opinion to be published. Today, the Supreme and Circuit Court decisions are instantly available nationwide because the courts make the word processing files containing these decisions available on-line. "The advent of computerization and high-speed data transmission makes swift and accurate access to judicial opinions feasible in a way that was unimaginable 25 years ago." (See Footnote 16) The same advantages are available with agency word processing records and electronic mail records -- if the electronic version of the record is retained. (See Footnote 17) 3. Differences in Content. Finally, electronic records often contain information that is not preserved in a print-out of the record. In Armstrong v. EOP, the Court of Appeals found that because the paper print-outs of the electronic mail documents did not contain all the information in the electronic original, "the electronic documents retain their status as federal records after the creation of the paper print-outs, and all the FRA obligations concerning the management and preservation of records still apply." 1 F. 3d at 1283. The Court of Appeals focused on the fact that information concerning who received the electronic mail message and when it was received was not included in the paper print-outs. Id. at 1281, 1284-85. GRS 20 addresses this specific data by requiring that dates of transmission or receipt, and the names of sender and recipients, be preserved elsewhere before the electronic version is destroyed. 60 Fed. Reg. 44646, 44648. However, as objectors to GRS 20 noted, this is not the only information that may be lost under the "print and delete" policy; word processing documents may also contain critical information that is not retained in paper print-outs. See Admin. Rec. at 205-206. For example, word processing programs used by government agencies allow users to annotate a document with a "summary" or "comments" that contain information on the author of the document, its purpose, the date that it was drafted or revised, and annotations by authors or reviewers. See Becker Decl. Pars. 4-6. These sections of the electronic record, however, usually are not printed. Id. Par. 7. In adopting GRS 20, the Archivist conceded that electronic records have these advantages, stating that NARA "has recognized for many years the advantages electronic records have for searching, manipulating, and storing information." 60 Fed. Reg. 44643. Indeed, in a notice issued the same day that GRS 20 was placed in the Federal Register, the Archivist described the advantages in some detail: Electronic records may be the best means to preserve the content, structure, and context of electronic records. In addition, an automated system may be more easily searched and manipulated than paper records. The electronic format may also allow simultaneous use by multiple staff members and may provide a more efficient method to store records. Furthermore, when they are no longer needed by the creating agency, access by future researchers to permanently valuable electronic records would be enhanced by electronic preservation. 60 Fed. Reg. 44639 (italics added). GRS 20, however, gives no consideration to these differences between media. This is directly contrary to the statute because a schedule that treats all formats the same can only be justified if the format of records is irrelevant to the records' long-term value to researchers, historians, and archivists. In other words, a General Schedule that is indifferent to format cannot be rational unless the Archivist would never have a reason to favor preservation of electronic records rather than paper records, nor a reason to preserve records in both electronic and hard copy records. The record demonstrates that this is not true. As the NARA statements quoted above indicate, supra p. 25, NARA sometimes concludes that it is better to retain records in electronic form than to convert them to paper. For example, in evaluating the USTR's electronic mail records from 1986 through 1993, NARA staff found that they should not be converted to paper because, in light of the thousands of messages created on the computer system, "[t]here are advantages to maintaining these records in electronic form" because "it would be easier to use the electronic versions of the messages and indexes rather than hard copy printouts from the system." Plfs' Appendix at P225. In some circumstances NARA has concluded that both the electronic and hard copy formats are worthy of permanent preservation because each format has unique values. Thus, in appraising State Department records containing the full text of State Department telegrams from the Foreign Affairs Information System ("FAIS") in 1983, NARA appraisers concluded that computer tapes containing the text of the telegrams were worthy of permanent preservation, even though the same text was also preserved permanently on microfilm: Although a full set of FAIS texts will be retained permanently on microfilm . .. . there is compelling reason to preserve permanently the texts of FAIS telegrams in machine-readable form. Microfilm texts are not arranged by subject, which means research on a given subject would necessitate searching through many rolls of microfilm even for a relatively few texts. . . [T]he capacity of the computer to sort classified texts from unclassified, enables document-level retrieval without time-consuming searching, screening, and sanitizing of microfilm files. If the machine-readable telegram texts are maintained either on-line or in an automated mass storage medium . . . text retrieval can be nearly instanteous. Admin. Rec. II:225; see also Admin. Rec. at I:54 (NARA retains both paper and electronic versions of the Congressional Record as permanent records "because of the access potential of an electronic version"). In Defendants' Summary Judgment Motion, the Archivist's attorneys argue that GRS 20 is reasonable because the advantages associated with electronic records depend on adequate recordkeeping systems, and some agencies are not prepared to retain their electronic records in electronic format. See Defs' Motion at 31-36. In a "transitional era," the Archivist asserts, he is entitled to give the agencies "flexibility" by issuing a General Schedule that is indifferent to format. Id. at 33. This argument is based on a false premise that the Archivist's only choices are to impose electronic recordkeeping on all agencies, or impose no requirement on any agency. However, nothing in the Records Disposition Act requires that the Archivist issue a General Records Schedule, or that he promulgate General Schedules based on the lowest level of agency recordkeeping ability. As the Archivist recognizes, the technological capability to maintain records electronically exists. Many agencies have this capability, and others could implement or "transition" to systems that retain their records in electronic format. (See Footnote 18) The question is whether an agency's records are considered sufficiently important to warrant such preservation. Differences in agency recordkeeping abilities, and the differences in the value of agency records, can and should be addressed through individual agency schedules rather than by issuing a General Schedule that ignores the value of records in electronic format. The Archivist's attorneys also dismiss the fact that electronic records may contain unique information that is not preserved in print-outs: [W]ord processing systems generally function so as to provide printed versions of documents which conform to their electronic versions; thus, they present no material issues of "unique" substantive material only being captured on-line which should be considered for "adequate and proper" documentation of agency activities. 44 U.S.C. Sec. 3101. Defs' Motion at 36. This response is a post hoc rationalization, since the Archivist never addressed the objection that the GRS failed to preserve all the data in word processing records. Moreover, nothing in the record supports the claim that word processing systems "generally" print all of the material in the electronic version, or that information that is not printed is not "material." To the contrary, because different agencies use different office automation systems, the information that is contained only in the electronic version may vary substantially from agency to agency, and a universal declaration that it lacks value is impossible. Finally, defendants' reference to the "adequate and proper" documentation language of 44 U.S.C. Sec. 3101, simply repeats the argument that the Court of Appeals rejected in Armstrong, 1 F.3d at 1285-86, when it held that this language cannot be used to limit the definition of records, and that the statute does not permit agencies to make a wholesale determination that parts of electronic records are not appropriate for preservation. In short, records maintained in different media are different from one another in readability, accessibility, and content. These differences are important to agencies, the Archives, and researchers. As the Assistant Archivist recognized in 1987, "the difference in form, order and use of electronic information" makes it improper to apply appraisal decisions for paper records to electronic records. Admin. Rec. II: 673. Yet, this is precisely what GRS 20 does by treating all record formats as fungible. C. GRS 20 Is Not Supported By The Requisite Determination That All The Records Covered By The Schedule Lack Sufficient Value To Warrant Their Preservation. The Records Disposal Act authorizes the Archivist to promulgate General Records Schedules only if the records covered by the schedule "will not, at the end of the periods specified, have sufficient administrative, legal, research, or other value to warrant their further preservation by the United States Government." 44 U.S.C. Sec. 3303a(d). The Archivist's responsibility to make an independent, professional determination of the records' value is crucial to the operation of the Records Disposal Act, as the Senate explained when it established NARA as an independent agency in 1984: Our ability to preserve and make available a full and rich documentary history depends on archivists determining what records are of lasting value and which are not. . . . If these decisions are made arbitrarily, or motivated by political rather than professional considerations, the historical record could be impoverished, even distorted. S. Rpt. No. 98-373, 98th Cong., 2d Sess. 10 (1984), reprinted in, 1984 U.S.C.C. & A. N. 3865. Thus, the Archivist is supposed to serve as a safeguard against agencies ignoring or underestimating the value of their records to historians or others outside the agencies. When the Archivist approved GRS 20, however, he did not make any determination that all the electronic and word processing records covered by GRS 20 meet this statutory requirement. Neither the notice accompanying GRS 20 in the Federal Register, nor the Archivist's separate remarks announcing the revision of GRS 20 contain such a determination. See Admin. Rec. 13-48; Plfs' Appendix at P1-4. Indeed, none of the Archivist's statements even discuss the historical, research, or other value of the records that may be destroyed under GRS 20. This crucial omission alone requires finding that GRS 20 is arbitrary and capricious. Agency action is arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider," or "entirely failed to consider an important aspect of the problem." Motor Vehicle Manufactures Ass'n v. State Farm, 463 U.S. at 43. Here, the Archivist has failed to consider the very factor that Congress stated that he must consider when adopting a General Records Schedule. Moreover, to demonstrate that its action is not "arbitrary and capricious" an agency "must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Id. The Archivist's explanation accompanying GRS 20, however, gives no indication that he considered the value of the electronic records at issue and then made a rational decision under the statutory standard. American Friends emphasizes that such an explanation is essential when the Archivist considers a disposition schedule. In reviewing the Archivist's approval of FBI disposition schedules, the Court of Appeals stated, "[w]hat we ask for, and what the `arbitrary and capricious' test of the APA requires, is some reasoned justification explaining why certain types or categories of investigative data should be destroyed under the preservation standard of Sec. 3101 and the disposal standard of Sec. 3303a." American Friends, 720 F.2d at 65. A disposition schedule cannot satisfy this standard where, as here, the Archivist's explanation "does not reveal a glimmer of recognition that these records may be of administrative, legal or research value." Id. at 68. Indeed, we submit that, even if the Archivist had made an explicit determination that all electronic mail and word processing records of federal agencies lack sufficient value to warrant their preservation, such a determination would be arbitrary and capricious. The enormous diversity of records covered by GRS 20 makes it impossible to rationally determine that all the records covered by the Schedule lack value. The records covered by GRS 20 include substantive records concerning policy making at the highest levels of the federal government. NARA's own appraisal guidelines state that such substantive records, "[w]hether in paper or electronic form," are "often designated for permanent retention," particularly if they are created by high level officials in Cabinet Departments, independent agencies, commissions, or bureaus. See Admin. Rec. VI:2401, NARA, Disposition of Federal Records C-3, Par. 13. Of course, many word processing and electronic mail records will not have sufficient value to warrant their preservation in electronic format. But it would be unreasonable to conclude that all such records lack sufficient value. An example illustrates that GRS 20 allows the destruction of electronic records that have sufficient value so that they should be considered for permanent retention. When the Canadian Archives appraised the computer records of its Trade Negotiations Office (TNO), which was responsible for negotiating trade agreements with the United States, it concluded that the word processing and electronic mail records stored on the TNO's micro computer network should be preserved in electronic form. The Canadian Archives expended considerable effort in preserving the electronic version, even though many of the records had been copied to paper and preserved elsewhere, because of the advantages in searching and obtaining access to electronic records. See Admin. Rec. at I:251, Acquiring Records of TNO, Nat. Arch. of Canada Bull., Vol. 7 (1991); Admin. Rec. at I:49. TNO's counterpart in the United States, the Office of the United States Trade Representative, has comparable word processing and electronic mail files created during the period covered by the TNO records, the negotiation of NAFTA, and other trade agreements. GRS 20, however, allows the agency to destroy the electronic version of such records, and USTR was planning to destroy the word processing records pursuant to GRS 20 when this suit began. See supra at p. 13. There is no basis in the record, however, from which the Archivist could rationally find that the records of USTR and other high-level agencies of the United States are not worthy of preservation in the same way that the records of TNO have been preserved. Indeed, when NARA staff appraised the USTR electronic mail records, it concluded that 80% of the records were of permanent value and should be preserved in electronic format. Plfs' Appendix, II: P224. Moreover, the question of whether USTR's electronic records should be destroyed or retained like those of its Canadian counterpart should, at the very least, be subject to public comment and an individualized appraisal of the value of the USTR's records. Because GRS 20 covers the program records of all agencies, it forecloses such public input and agency-by-agency evaluation, and makes it impossible to make a rational determination that all the records it covers lack sufficient historical value to warrant their preservation. 44 U.S.C. Sec. 3303a(d). Indeed, the Archivist's statement approving GRS 20 emphasizes that only agency interests, and not research and historical interests, were considered. The Archivist states that "[a]gencies that decide to maintain their records in electronic recordkeeping systems do so for compelling operational needs, not for future researchers." 60 Fed. Reg. 44645. Decisions to retain electronic records in electronic formats "must be based on an analysis of the needs of and benefits to the agency balanced against available resources." Id. The interests of historians played no role in this decision because, according to the Archivist, NARA's only function is to provide guidance so that permanent records are "in a format that allows transfer to the National Archives." Id. In Defendants' Motion for Summary Judgment, the Archivist's attorneys offer similar rationales for GRS 20: (1) agencies should be given the "flexibility" to determine how records of permanent value are preserved, id. at 40, 44; and (2) requiring agencies to prepare schedules for these records will impose an "intolerable hardship." Id. at 47. Neither of these factors address the issues that Congress directed the Archivist to consider when it enacted Sec. 3303a. To the contrary, in the Records Disposal Act Congress deliberately limited agency "flexibility" and imposed the burden of requiring that record schedules be prepared so that interests other than those of the agencies must be considered. See American Friends, 720 F.2d at 54, 57. The Act restricts agency flexibility by requiring the Archivist "to subject the [agency's] proposed disposal schedules to critical scrutiny to ascertain whether they are in accord with the statutory standards of Secs. 3101, 3303a." 720 F.2d at 68. In performing this duty, the Archivist must "account in some reasonable fashion for historical research interests and the rights of affected individuals -- not just the [agency's] immediate, operational needs." Id. at 65. Because GRS 20 abdicates the Archivist's responsibility to consider these interests, and makes the decision turn solely on an agency's preference, it must be rejected. D. GRS 20 Is Contrary To Law Because It Does Not Specify The Period For Retention of Records. The Records Disposal Act provides that the Archivist shall promulgate General Schedules authorizing the disposal of records "after the lapse of specified periods of time." 44 U.S.C. Sec. 3303a(d) (italics added). NARA's Manual states that agency schedules, which also must provide for disposition after a "specified period of time," normally should not state that the records shall be destroyed "`when no longer needed.'" Admin Rec. VI: 2321, Disposition of Federal Records IV-6. Instead, the disposition schedules should be based on a fixed period after creation, a specific event, or a fixed period after a predictable event. Id. The wording of the retention period "should be absolutely clear," because the time at which records may be destroyed "must not be left to chance or possible misinterpretation." NARA, Disposition of Federal Records, at 27 (1981 ed.). GRS 20, however, provides no such specificity. Instead, the Schedule authorizes destruction of records when an agency determines "that they are no longer needed," or "no longer needed for administrative, legal, audit, or other operational purposes." 60 Fed. Reg. 44647-49. Thus, rather than providing a specific period, GRS 20 parrots the statutory test (although it omits reference to the value that the records might have to those outside the agency). The introduction to GRS 20 makes clear that the Archivist has deliberately left the task of establishing specific retention periods to the agencies: The records covered by several items in this schedule are authorized for erasure or deletion when the agency determines that they are no longer needed for administrative, legal, audit, or other operational purposes. NARA cannot establish a more specific retention that would be appropriate in all applications. Each agency should, when appropriate, determine a more specific disposition instruction, such as "Delete after X update cycles" or "Delete when X years old," for inclusion in its records directives or manual. 60 Fed. Reg. 44647. The Archivist's failure to specify a retention period is critical for two reasons. First, it defeats the very purpose of the Records Disposal Act by removing the Archivist as a check on agency destruction of records. The statute prevents agencies from unilaterally determining that their records should be destroyed, but GRS 20 allows agencies to do so by handing the Archivist's decision back to the agencies. As one agency records manager observed, "it is difficult to conceive of how having authority for indefinite retention of records can be construed as having the records `scheduled.' . . . [I]f NARA takes its records management responsibilities seriously, it should go beyond authorizing indefinite destruction." Admin. Rec. at 629. Second, the failure to specify a period of retention will lead to confusion and arbitrary destruction of records because agencies are left without meaningful standards. An instruction to dispose of records when no longer needed, simply "does not provide meaningful guidance" for agencies to "use in establishing retention schedules for electronic records." Admin. Rec. at 636 (comments of HUD's records management staff). Moreover, specificity is not impossible. In a properly written schedule, "it should be possible to define criteria for destruction more specific than `when no longer necessary.'" Id. at 629 (comments of HHS records manager). The Archivist's attorneys do not even offer an argument that the language in GRS 20 meets any established definition of the statutory term "specific period of time." Instead, they simply assert that this language appears in Schedules dating back to 1946 and, therefore, should be accepted because it is "longstanding." Defs' Motion at 39. However, "we do not see how merely applying an unreasonable statutory interpretation for several years can transform it into a reasonable interpretation." F.J. Vollmer Co. v. Magaw, 102 F.3d 591, 598 (D.C. Cir. 1996). Notwithstanding errors in past schedules, GRS 20 must satisfy the statutory demand for a "specific period of time." (See Footnote 19) III. DEFENDANTS' ARGUMENTS CONCERNING DISMISSAL OF PLAINTIFFS'SECOND CLAIM FOR RELIEF ARE WITHOUT MERIT. Plaintiffs' Second Claim for Relief challenges the EOP's reliance on GRS 20 to destroy word processing records, specifically records of the USTR. If this Court finds that GRS 20 is improper for the reasons set forth above, it follows that the USTR may not rely on the Schedule to destroy these records, and plaintiffs are entitled to a declaratory judgment on the Second Claim for Relief. Defendants' arguments that this Claim is moot, or the EOP should be dismissed, are without merit. Defendants argue that the issue of whether the USTR records may be destroyed is moot because USTR, after this action began, withdrew its statement that it intends to rely on GRS 20 as authority to destroy word processing records from 1986-93, because it wants to avoid this litigation. See Defendants Appendix, Tab 29. To establish mootness on this ground, the government would have to demonstrate that "(1) there is no reasonable expectation that the alleged violation will recur and (2) `interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.'" Reeve Aleutian Airways, Inc. v. United States, 889 F.2d 1139, 1142-43 (D.C. Cir. 1989) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). Neither requirement is met here. First, USTR is free to renew its plans to destroy the records based on GRS 20. "It is well settled that voluntary cessation of a challenged practice does not in and of itself moot a case when the party could renew it." City of New York v. Baker, 878 F. 2d 507, 511-12 (D.C. Cir. 1989). This is particularly true here, where USTR has emphasized that it "is confident that GRS 20 was properly propounded and will be upheld," Defendants' Exhibit A, and withdrew its statement solely to avoid litigation. The courts have repeatedly found that challenges to agency actions are not rendered moot by an agency's voluntary cessation when the government continues to defend the legality of the practice and may repeat it. See City of New York v. Baker, 878 F.2d at 511; Doe v. Harris, 696 F.2d 109, 112-13 (D.C. Cir. 1982); City of New Haven v. United States, 809 F.2d 900, 904 (D.C. Cir. 1987). Second, General Records Schedules are mandatory. 44 U.S.C. Sec. 3303a(d). USTR and other agencies are required to destroy records in accordance with the Schedule, unless the agency requests and obtains an exception from the Schedule. 36 C.F.R. Sec. 1228.42(a), (b). USTR has not submitted any request for exception from GRS 20, nor has USTR indicated that it intends to preserve the electronic version of the records. Thus, GRS 20 covers these USTR records, and, even if the destruction of the records is not as imminent as when this action began, the application of GRS 20 to these records is legally required and presents a live issue. Finally, defendants argue that the EOP is only a "term of convenience," and not an "agency" because each EOP component operates separately, including operating its own records management program. Defs' Motion at 43-44. The record, however, shows that officials have repeatedly represented that the EOP is an agency with authority to impose requirements on all of the EOP components in certain matters. Most importantly for purposes of this action, the preparation of records disposition schedules is not handled separately, but is centralized in the EOP. The record schedules identify the EOP as an "agency," and list components such as USTR or OSTP as a "subagency" of the EOP. See Plfs' Appendix at P70, P238, P251, P279. Moreover, under 36 C.F.R. Sec. 1228.26(b), records schedules must be formally certified by the "authorized agency representative." The schedules for USTR and OSTP records are not signed by officials of those units, but are signed by an Office of Administration official that carries the title "EOP Records Management Officer." See Plfs' Appendix at P317. (See Footnote 20) Records disposition is not the only context in which officials have taken action identifying the EOP as "agency" with authority over all the EOP components. The EOP has also issued regulations, see, e.g., 3 C.F.R. Sec. 101-102; drug testing plans, Stigile v. Clinton, 110 F.3d 801, 1997 W.L. 176465 (D.C. Cir. April 15, 1997); and has promulgated recordkeeping requirements for the EOP. See Plfs' Appendix at P297-99, P316-17. Moreover, the EOP is specifically identified as an "agency" in the FOIA. 5 U.S.C. Sec. 552(f)(2). (See Footnote 21) At best, defendants' argument that the EOP is not an agency presents a disputed issue of fact because their present claim is inconsistent with the statements and conduct reflected in the Administrative Record. This issue, however, is not material to plaintiffs' request for relief because, if GRS 20 is invalid, it cannot be used by the EOP or its subcomponents as authority to destroy records. _________________________________________________________________ FOOTNOTES As an alternative argument, the Archivist also asserted that, even if the electronic mail and other electronic documents at issue in that litigation were "records" under 44 U.S.C. Sec. 3301, General Records Schedules 20 and 23 authorized the destruction of all of the types of data at issue. Plaintiffs responded that this construction of General Records Schedules 20 and 23 was unlawful and arbitrary and capricious because it would authorize the regular destruction of unique information on the electronic mail system at issue. This dispute concerning the General Records Schedules was not decided in Armstrong v. EOP, because by 1993 defendants acknowledged that none of the agencies whose records were at issue relied on the General Records Schedules as their basis for routinely deleting electronic records on their computer systems and backup tapes. See Armstrong v. Executive Office of the President, 810 F. Supp. 335, 342 (D.D.C. 1993), aff'd in part, rev'd in part, 1 F.3d 1274 (D.C. Cir. 1993). The NSC programmed its computer system to automatically preserve electronic mail messages designated as "records" in electronic form in 1992, even before the Court of Appeal's decision in August, 1993. See Armstrong v. EOP, 810 F. Supp. at 347 n.28. See also Admin. Record at 1121 (Dept. of Agriculture records schedule providing for disposition of electronic messages); Plfs' Appendix at P318-19, Bureau of Engraving and Printing Request for Records Disposition Authority (approved May 7, 1995). To date, no notice has been published indicating that these agencies have, in fact, submitted an individual agency request for disposition authority for these records. \Plaintiffs' Appendix, which is submitted with this memorandum, contains the following materials to supplement the administrative record: (1) NARA documents on records disposition and electronic records that have been omitted from NARA's Administrative Record, including previous versions of the NARA Handbook, Disposition of Federal Records. This Handbook was cited in the comments to the agency (Admin. Rec. at 200, 202), and the NARA documents, although adverse to the agency, are part of the administrative record since they are directly relevant and were available to the agency when it made its decision. See Public Citizen v. Heckler, 653 F. Supp. 1229, 1237 (D.D.C. 1986). (2) Selected documents from the administrative record on the Archivist's review of EOP's request for disposition authority for USTR and OSTP records, including the statements indicating that EOP intended to rely on GRS 20 to destroy USTR records. Defendants failed to include any materials on this matter in the Administrative Record filed on April 2, 1997. Complaint Pars. 5-12, 54-56. See, e.g., Blanton Dec. Pars. 5-7; Cantelon Dec. Pars. 4-8. See, e.g., Complaint Pars. 43-51; McGinn Dec. Pars. 6-8; Blanton Dec. Pars. 10, 11, 15-18; Becker Dec. Pars. 4-7. Scott Armstrong, Eddie Becker, the American Historical Association, the American Library Association, the National Security Archive, and the Center for Strategic Studies were all plaintiffs in the Armstrong action. See Complaint Pars. 43-46 (USTR and OSTP word processing documents approved for destruction pursuant to GRS 20 are records preserved as a result of injunctions in Armstrong).; Plaintiffs' Response to Defendants' Objection to Designation of This Action As A Related Case, at 6-7 (Jan. 27, 1997) (same). However, we disagree with defendants' contention that heightened deference is necessary here because of the Archivist's expertise "on technical matters." Defendants' Motion at 20 n.19. In adopting GRS 20, the Archivist made no technical findings and did not rest his decision on any technical issues. Moreover, the Archivist -- unlike the heads of the FDA or the EPA -- is not charged with making decisions based on technical considerations. Rather, the professional expertise that the Archivist is supposed to exercise is archival and historical expertise to make decisions concerning "which records are of lasting value and which are not." S. Rep. No. 373, 98th Cong., 2d Sess. 10, reprinted in 1984 U.S. Code Cong. & Admin. News 3865, 3874. In adopting GRS 20, however, the Archivist specifically declined to make these determinations, but abdicated his responsibility to agencies that lack this expertise. NARA itself adopted this same view, stating: General records schedules are based on the following premises:

* + The nature and function of most common records are prescribed by Federal Staff agencies, such as the Office of Personnel Management (OPM), the General Accounting Office (GAO), and the General Services Administration (GSA).* + The records have the same values, regardless of the agency that creates them.* + The retention periods are therefore valid for all agencies.

NARA, Disposition of Federal Records, 28-29 (1981 ed.). Defendants' assertion that such schedules have been "expressly ratified" by Congress is also without merit. Prior to 1970, schedules were submitted to the Joint Committee on Disposition of Executive Papers for review, but review by a congressional committee does not constitute congressional ratification. See Pierce v. Underwood, 487 U.S. 552, 566-67 (1988); Securities and Exchange Comm. v. Sloan, 436 U.S. 103, 120-21 (1978). Indeed, the recognition that the special qualities of computer records require that they be appraised separately from hard copy records pre-dates the creation of NARA. In 1977, the General Records Schedule promulgated by the General Services Administration recognized that: When information exists in both machine-readable and hard copy forms, including computer output microform (COM), various factors bear on the decisions of which medium should be retained for archival purposes. Among these are the relative cost of storage and preservation, the relative convenience of reference, and the facility with which most hard copy forms may be regenerated from machine-readable files (a process which is costly to reverse). Admin. Rec. II:559, 579, General Records Schedule 20, Feb. 16, 1977 and Oct. 1982; see also Admin. Rec. IV:1417, NARA Memorandum To Agency Records Officers, Jan. 11, 1985 ("When information is converted from paper to a machine-readable file, the nature, usefulness and accessibility of the information changes."); id. at 1429, Memorandum, Jan. 24, 1984 ("[i]nformation in machine-readable form, because of manipulability and retrievability, may warrant continued preservation even though the same information, because of volume and arrangement pattern, in textual form may be authorized for destruction."). Admin. Rec. I: 203, 229, 235-41, National Security Council Memorandum describing keyword searches of tapes, Dec. 3, 1992, and Summary of Previous Searches of the Preserved NSC Backup Tapes. Comments of the Department of Justice Before the Judicial Conference of the United States, Par. 3 (March 14, 1997). Under the 1996 Electronic FOIA Amendments, agencies are now required to make many of these records available on-line by November 1, 1997. See 5 U.S.C. Sec. 552(a)(2). Congress mandated such electronic dissemination because it recognized that agency records in electronic format can be distributed and made available for research more easily than paper records: By using technology, Government bureaucrats can avoid going through endless file cabinets hunting for information . . . and ordinary American citizens can access that information without leaving their desks or driving to the post office, or in some cases having to contact any government workers at all. 142 Cong. Rec. H10451 (Sept. 17, 1996) (remarks of Rep. Maloney). Indeed, the record shows that the capability to efficiently save and store electronic mail and word processing records in electronic form was available over a decade ago, and is now well established. See Admin. Record at IV: 1434-41, 1533-34 (describing experimental system used by Air Force between 1984 and 1988); id. VI: 2535-36 ("agencies are rapidly implementing electronic records management systems"); id. at 1393-94, 1535-1612 (document management systems developed in cooperation with National Archives of Canada); id. at 1613-27 (survey of electronic management capabilities of business software); Plfs' App. I:P42-59, NARA, "Records Management Software" (1991) (NARA information for agencies on records management software). Indeed, although the Archivist acknowledges that GRS 20 is a rule under the Administrative Procedure Act, in issuing prior schedules the Archivist did not comply with the requirements for informal rule making, including publishing proposed schedules for notice and comment. 5 U.S.C. Sec. 553. Thus, the failure to specify time periods is not the only error made in adopting these prior schedules, and this procedural defect further undermines any precedential effect that prior schedules might have. This practice is not new. Past schedules for paper records have also been submitted in the name of the EOP, and signed by the EOP records officer rather that officials of the individual components. See Plfs' Appendix at P292-94, 300, 313; Deposition of Mary Hester Anton. Indeed, the executive orders that defendants cite show that recordkeeping authority is not vested in each individual unit because the President has centralized responsibility for EOP recordkeeping and other administrative matters to the Office of Administration. See Exec. Order 12,028, Sec. 4(b). Defendants' argument that the EOP is not an agency because it functions independently in some contexts, such as requiring that FOIA requests be submitted to individual components, see 3 C.F.R. Sec. 101.1, is without merit. The EOP's separate FOIA programs do not distinguish the EOP from other multi-component agencies that have adopted the same procedures. See, e.g., 7 C.F.R. Secs. 1.3, 1.6 (Dept. of Agr.) _________________________________________________________________ CONCLUSION For the reasons stated above, the Court should grant summary judgment to plaintiffs and enter a declaratory judgment declaring GRS 20 contrary to law and arbitrary and capricious. Respectfully submitted, _______________________ Michael Tankersley D.C. Bar No. 411978 Alan B. Morrison D.C. Bar No. 073114 PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street, Washington, DC 20009 (202) 588-1000 Attorneys for Plaintiffs June 11, 1997 ```

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