Source
Automatically imported from: http://commons.somewhere.com:80/rre/1995/update.on.PROFS.--.US.Pr.html
Content
This web service brought to you by
Somewhere.Com, LLC.
update on PROFS -- US Presidential archives on computer tapes
```
Date: Mon, 11 Sep 1995 00:05:56 -0400 (EDT)
From: Eddie Becker
Subject: PROFS Case: Summary September 95
NCC Washington Update, Vol. 1, #46, September 6, 1995
by Page Putnam Miller, Director of the National Coordinating
Committee for the Promotion of History
1. UPDATE ON THE PROFS CASE
Update on the PROFS Case -- The PROFS case continues to move forward on a
number of fronts. On August 25 the National Archives released new
regulations for agencies to follow in preserving e-mail. On August 29
Judge Charles Richey dismissed from the lower court the PROFS case which
at this point included only a few noncontested issues. And in early
September the Appeals Court will hear arguments on one of the most
disputed portions of the PROFS case, whether National Security Council
records are agency or presidential records.
The Armstrong v. Executive Office of the President (Civil Action No. 89-
0142) case began in 1989 when the American Historical Association joined
Scott Armstrong and other plaintiffs in seeking a temporary injunction to
prohibit the destruction of the National Security Council's electronic
mail. It is frequently called the PROFS case because the electronic mail
system used by the National Security Council was IBM's Professional
Office System (PROFS). In the last six years this case has evolved along
a number of very separate tracks. These include: the need for the
National Archives to provide adequate guidance to agencies regarding the
handling e-mail, the physical restoration and preservation of the PROFS
backup tapes, the issue of whether National Security Council records are
federal or presidential records, and the federal response to Freedom of
Information Act requests for PROFS records.
The related case of the American Historical Association v. John Carlin,
the U.S. Archivist, seeks to block the implementation of an agreement
made in 1993 between former President George Bush and former U.S.
Archivist Don Wilson regarding the custody and control of the computer
backup tapes that are at issue in the PROFS case. Judge Charles Richey
ruled on February 27 in favor of the plaintiffs stating that the
agreement violates the Presidential Records Act. During his confirmation
hearing in May, John Carlin indicated in response to Senators' questions
about the Bush-Wilson agreement that he had problems with the agreement.
However, in the week prior to Carlin becoming U.S. Archivist, the
government decided to appeal Judge Richey's decision. No dates have been
set for the Court to consider this case.
The inadequacy of National Archives' guidance to agencies on the
preservation of e-mail has been at the heart of the PROFS case. In 1989
the National Security Council, as well as other agencies, routinely
destroyed e-mail, which according to the National Archives did not meet
the standard of a "record" which must by definition be appraised for
retention or destruction. Various court orders in the PROFS case led on
August 25 to the announcement by U.S. Archivist John Carlin of the
issuing of final regulations on managing records created or received on
electronic mail systems. The August 28 Federal Register, beginning on
page 44634, includes the National Archives' revised General Records
Schedule 20, which provides guidance to federal agencies about the kinds
of records that may be destroyed and those that must be preserved.
In general practice before a government agency may destroy its records,
it must give public notice and the Archivist must appraise the records to
determine whether they warrant continued preservation. The "General
Records Schedule," however, lists categories of records which agencies
may destroy without notice or appraisal if the agency determines that
such records "are no longer needed for administrative, legal, audit, or
other operational purposes." Last October a draft of these regulations
appeared in the Federal Register and a number of individuals and
professional associations responded to the request for comments. While
the new regulations reflect considerable progress over the position held
by the National Archives in 1989, there are still some points of concern.
For many in the research community the problem rests with the basic
philosophy imbedded in the General Records Schedule.
On September 1 during a panel discussion at the Society of American
Archivists' Annual Meeting on the legal dispute over federal electronic
records, Mike Tankersley of the Public Citizens Litigation Group, who has
represented the plaintiffs in the PROFS case, and Jason R. Baron of the
U.S. Justice Department, who has represented the government, commented --
in each case speaking for themselves and not their clients --on the new
General Records Schedule 20. Tankersley took the position that with
these regulations the National Archives is abdicating its role in
appraising records. He argued that there are values to records that go
beyond their administration and operational use and that agencies are
sometimes shortsighted in apprising the long term and historical value of
records. Under the federal records laws, Tankersley stated, the
Archivist is to serve as a check on agencies in assessing the value of
records. The new regulations, in his view, are a retreat from
responsibility as the National Archives leaves all authority about the
preservation of electronic systems in the hands of agencies. Tankersley
contends that both the issues of the what constitutes a federal record
and what are the parameters of the Archivist's authority are not
satisfactorily resolved in the recent regulations.
Speaking in support of the regulations, Jason Baron stated that there is
now a consensus that e-mail messages may be federal records. He stressed
that e-mail systems are not appropriate for long term preservation but
that messages that meet the criteria for a federal record are now
required to be migrated to paper or an electronic storage system and
scheduled for preservation. He explained that the Executive Office of the
President has a system in place now that tags records at the time of
their creation for preservation or disposal and that this system is
regularly monitored by records managers to ensure that appropriate
material is preserved.
Some in the research community have expressed concern that under these
regulations records created in an electronic medium with valuable search
capabilities, can be preserved on paper while the electronic record is
destroyed. Furthermore, with the changes in technology some archivists
are now recommending that information systems be appraised, not just
individual records. However the National Archives has not used the
opportunity of the revision of the "General Records Schedule 20" to adopt
a more forward looking approach to appraisal. Nevertheless, the
regulations' assertion that e-mail can be a federal record and thus
required to be preserved is a major breakthrough from earlier policy. As
Tankersley noted, the consensus that has emerged that e-mai l can be a
federal record, has come as a result of court rulings in the PROFS case.
Moving on a separate track is another of the more contested issues in the
PROFS case, the government's claim that the records of the National
Security Council are not agency records but presidential records. The
distinction between federal and presidential records has important
implications for both preservation of and access to records. The public
has fewer options for exercising judicial review over Presidential
records than they do for agency records because the Presidential Records
Act gives the President considerable discretionary authority for
determining what is a record and what will thus be preserved. Some would
also argue that agency records are more accessible than Presidential
records. Federal records, created by agencies of the federal government,
are from the time of their creation subject to the Freedom of Information
Act although access to them is subject to provisions in the executive
order that protects national security information. The Presidential
Records Act, which went into effect in 1981, states that five years after
a President leaves office, presidential records are subject to FOIA
requests. Again requests are subject to protection of national security
concerns by an executive order.
On February 14, 1995 Judge Charles Richey of the United States District
Court for the District of Columbia rejected the government's claim and
ruled that the "National Security Council is an agency subject to the
FOIA and that it must maintain and preserve its records in accordance
with the Federal Records Act, except when high level officials of the
National Security Council are acting solely in their capacity to advise
and assist the President." The Clinton Administration appealed this
decision and oral arguments in that appeal will be presented on September
8 before the U.S. Court of Appeals for the District of Columbia. The
three judges hearing this case are Judges David Tatel, Douglas Ginsburg,
and Harry Edwards.
Two aspects of the PROFS case in which Judge Richey was successful in
getting the plaintiffs and the defendants to reconcile their differences
were the physical preservation of the PROFS backup tapes and the FOIA
requests. After long negotiation, which involved the use of outside
experts, all but a very small percent of the backup tapes have been
copied for preservation. Additionally the government has released to
plaintiffs Scott Armstrong and the National Security Archive documents
pursuant to their FOIA requests. These records, which include material
from the PROFS backup tapes on Iran-Contra as well as other foreign and
domestic issues, are available to researchers at the National Security
Archive located in the Gelman Library of George Washington University.
With satisfactory progress having been made on these two issues and with
the other portions of the case now on appeal, Judge Charles Richey of the
Federal District Court for the District of Columbia on August 29
dismissed the PROFS case.
-END-
```
This web service brought to you by
Somewhere.Com, LLC.