Archive rule allowing deletion of computerized records voided

WASHINGTON, D.C.–A National Archives and Records Administration regulation that authorized government agencies to delete computerized records was declared “null and void” by a federal judge in Washington, D.C. in late October.

The court held that the archivist of the United States exceeded his authority by permitting disposal of records based on the technology used to create the record, rather than the value of the record as preserved in electronic form.

Under the Federal Records Act, after individual agencies propose that specific records be destroyed, the archivist determines whether the records have any value that would warrant their preservation. Alternatively, the archivist may promulgate regulations, known as General Records Schedules, which permit agencies to destroy, without separate approval from the archivist, administrative records common to several or all agencies that do not, after a specified period of time, have sufficient administrative, legal, research or other value to warrant their continued preservation.

In mid-August 1995, the archivist issued the present version of GRS 20, permitting federal agencies to erase word processing files recorded on electronic media and e-mail messages after they have been copied to paper, microform or an electronic recordkeeping system, “when no longer needed for updating or revision.”

In late December 1996, Public Citizen, a national nonprofit organization that conducts research and educational programs on government regulatory and information policies, joined by historians, journalists and researchers, filed suit in federal District Court in Washington, D.C. alleging that the archivist “improperly ignored the unique value of electronic records” in granting federal agencies blanket authority to delete files stored in electronic form.

The federal government contended that Congress did not intend to limit General Records Schedules to records documenting housekeeping functions, but rather meant for GRSs to apply to records relating to substantive government functions. The government also argued that once information from an electronic record has been preserved on paper, microfiche or other recordkeeping system, as required by GRS 20, the original electronic version is a duplicate that may be routinely destroyed.

The court held that Congress intended General Records Schedules to be limited to records documenting routine housekeeping functions — such as those relating to the hiring of personnel, procurement of supplies and fiscal management — common to all agencies, because these records have a diminished value. Further, the court held that electronic records often have a number of unique and valuable features — such as the ability to search, manipulate, index and transmit data — not found in paper print outs. (Public Citizen v. Carlin; Plaintiff’s Counsel: Michael Tankersley, Washington, D.C.)