law of electronic mail - The impact of the White House case on you!, The

Recent news coverage addressed the lawsuit filed against the White House regarding electronic mail. Initially, the District of Columbia District Court ordered that electronic mail from the Reagan presidency be preserved since it may constitute a federal record and may be subject to the Freedom of Information Act.

In a recent appellate decision, the United States Court of Appeals, District of Columbia Circuit rendered the most extensive judicial decision ever recorded related to electronic mail [62 USLW 2109, 1993 WL 304567, decided August 13,1993]. This article reviews the scope and conclusions of that decision and discusses the impact on electronic mail for both the government and private sectors.

FACTS

Since the mid-1980s, the Executive Office of the President and the National Security Council utilized an electronic mail system to exchange information and improve efficiency. Over 1300 federal employees used this system to "relay lengthy substantive--even classified --'notes' that, in content, are often indistinguishable from letters or memoranda." The system operates similar to other electronic mail systems in government and the private sector. Besides the actual text being communicated, the system tracked other information related to the communication, including the originating party name, receiving party name, date of transmission, acknowledgment of receipt, etc.

The sending or receiving parties could instruct the computer to delete, store, or print the message. Employees were instructed that "when any electronic document meets the definition of a federal record, the employee should either print out the information that appears on the computer screen or incorporate the material into a written memorandum." This procedure did not require that all information (such as transmission date, recipient's acknowledgment, etc.) related to the electronic message be preserved. Although backup tapes were maintained of the electronic mail, the Office of the President intended to destroy these tapes in the future.

On January 19, 1989, the day before President Ronald Reagan relinquished the presidency to George Bush, the National Security Archive filed a Freedom of Information Act request for the materials stored in the electronic mail system from the time of inception to the date of the request. Simultaneously, other plaintiffs filed suit requesting a declaratory judgment specifying that the records contained in the electronic communications system and the backup tapes were federal and presidential records, and requesting an injunction to prohibit destroying these records.(1) On appeal, the District of Columbia Circuit Court of Appeals affirmed the injunction prohibiting the destruction of the tapes until the merits of the case could be heard.

On January 3, 1993, the District of Columbia District Court issued a ruling [Armstrong v. Executive Office of the President, 810 F.Supp. 335 (D.D.C. 1993)] specifying that the electronic mail records were, in fact, federal records under the Federal Records Act. The court also determined that the procedure selectively to print electronic mail records followed by the Office of the President and the National Security Council was seriously flawed. These actions violated federal law as well as prevailing procedures of the National Archives and Records Administration (NARA) for the retention of records. The defendants appealed this decision.

In the August 1993 Court of Appeals decision, the District Court conclusions were upheld. In addition, the Court of Appeals established guidelines for reviewing presidential procedures under the Presidential Records Act to determine whether federal records were properly categorized as also presidential records. This issue will be decided at a later date.

BACKGROUND

The Federal Records Act [44 USC Chapter 21, 29, 31 and 33] was approved by Congress to assure "accurate and complete documentation of policies and transactions of the federal government, control of the quantity and the quality of records produced by the federal government, and judicious preservation and disposal of records." Congress intended for the Act to guarantee that the records management programs of federal agencies strike a balance between developing an efficient and effective records management program and the substantive public need for federal records.

Under the Act, the heads of each federal agency must "make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities" [44 USC sec3101]. As a result, each agency must have an economical and efficient records management program, safeguard records against their removal or loss, and comply with the requirements of NARA.

The Federal Records Act indicates the mechanism for disposing of federal records and specifically prohibits the destruction of records by procedures other than those provided in the Act. For purposes of the Act, "records" was defined as follows:

All books, papers, maps, photographs, machine-readable materials (emphasis added), or other documents or materials, regardless of physical form or characteristics, made or received by an agency of the United States government under federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency...as evidence of the organization, functions, policies, decisions, procedures, operations or other activities of the government or because of the information value of the data in them. Library and museum material made or acquired solely for reference of exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of processed documents are not included. [44 USC sec3314].

Once a record qualifies as a federal record, it may only be destroyed under retention procedures approved by NARA. An agency may submit a listing of records slated for destruction and may then destroy them with specific approval from the Archivist, or alternatively, an agency may regularly destroy records according to a records retention and disposal schedule approved in advance by NA.

THE DECISION

The District Court concluded that the Executive Office of the President and the National Security Council did not prepare a written procedure related to the destruction of records in the electronic mail system. Individual employees were empowered to decide whether the Act addressed the E-mail records. In principle, when federal records were detected, they were to be printed and maintained. No written guidelines even existed to assist federal employees in making this decision. Employees could exercise their own discretion when destroying records. And, certainly, no records retention procedures had been approved by NARA.

The Court decided that all the electronic mail records must initially be considered federal records since they were prepared in the conduct of federal business. Since no approved procedure existed to distinguish which records were not federal records, none of the electronic mail records could be destroyed under prevailing practices. Thus, the court concluded that the electronic version of the electronic mail must be maintained until proper disposition can be determined.

In addition, the Court determined that electronic mail records could not be preserved simply by printing out the text that appeared on the screen. The Court also concluded that the electronic version contained a great deal of additional information, such as the date of transmission, date of receipt, detailed listing of recipients, linkages between messages sent and replies received, etc., not contained in the screen print. For this reason, the printed version could not be considered even a copy of the original version under the Federal Records Act.

The Court also expressed concern over the possibility that the Office of the President could indiscriminately declare that all records in the Executive Branch were protected from court review under the Presidential Records Act. The Court indicated a need for a specific procedure and methodology to determine which records would be "presidential" and which were not. This matter is now being reviewed further by the District of Columbia District Court.

IMPLICATIONS FOR FEDERAL AGENCIES

This court decision impacts the electronic mail system of all federal agencies. In essence, all electronic records produced by the federal government will be considered "records" under the Federal Records Act unless appropriate procedures have been properly approved and implemented to exclude those records. For example, the electronic version of a word processing file could technically be excluded from the definition of the Federal Records Act if the text is printed in full onto a paper document. The electronic version would then become a copy of the record and could be discarded.

This procedure, however, may not suffice for electronic mail records. The Court clearly indicated that merely printing of the screen text does not constitute printing of the entire electronic record. The Court seems to require that a paper print produced from an electronic mail system include other "informational content" contained in the electronic version, such as date of transmission, date of receipt, distribution, etc.

In order to overcome this objection, federal agencies should establish formal procedures to determine which electronic mail records are federal records and assign authorized records retention periods. In a previous article,(2) I recommended that some affirmative action be required to convert an electronic mail record into a formal record of an organization. This procedure could be adopted by federal agencies to comply with the court decision.

A federal agency should first define which classes of communication within the electronic mail system constitute a federal record and which communications do not. For example, a communication regarding a purely administrative procedure, such as scheduling a meeting, may not achieve record status--because such a communication can be defined as a "tool" to accomplish federal government business, not as the government business itself. Records creators could be required to complete an initial screen before transmitting information that would establish the identity, classification, retention, status and other information related to the record. When appropriate, this status information could be attributed to copies of the record by default that are subsequently transferred to a recipient's database or remote computer. Recipients could also utilize a pop-up screen to reclassify the record, or, alternatively, accept the default classification of this record as a duplicate.

Regardless, the court clearly indicated that electronic records within the federal domain may not be destroyed without formal procedures. It appears that the court was particularly disturbed by the informality of the procedures followed by the Executive Office of the President and the unlimited discretion given to federal employees.

After carefully reading this decision, it seems probable that the Court would not have overturned appropriate procedures established for the electronic mail system that included records retention provisions approved by NARA. For that reason, federal agencies should review existing procedures or develop new ones that establish guidelines for creating, managing, and destroying electronic mail records.

The court carefully indicated that its decision was not designed to impose significant new burden on the federal government not to preclude the use of a cost-effective technology. In reality, this decision could have a detrimental effect on federal government E-mail systems.

E-mail is often used as a convenient tool to communicate information. As with telephone calls, the parties may intend the communication to be private and not subject to scrutiny by others. Many certainly do not intend to create federal records though E-mail communications.

As a result of this court decision, some federal employees may elect to limit their use of the E-mail system or revert back to live, unrecorded conversations. Both outcomes would decrease their efficiency, reduce their response time to resolving problems, and increase the cost of government. This would be an unfortunate consequence.

IMPACT ON STATE GOVERNMENT

The Federal Records Act does not apply to state government. However, most states have enacted comparable state laws that would include electronic records within the definition of state government records. For this reason, the recommendations provided above for federal agencies should also be followed by state governments. Formal procedures should be established for electronic mail records and, when necessary, records retention procedures approved by the state archives.

IMPACT ON THE PRIVATE SECTOR

This decision may actually have no relevance to the private sector. Clearly, the Federal Records Act does not apply to private organizations. For purposes of evidence, the definition of records will include computer records since one may introduce computer records into evidence. In addition, computer records can also be subpoenaed by adverse parties during litigation.

Some regulations permit records to be kept in any form including computer form. At least one version of the records (computer, paper, microfilm, or other form) must be maintained for the retention period.

No known law affecting the private sector requires that electronic mail records must be kept in the first place. A large body of case law, however, suggests that records, once created, should be destroyed only under a records retention program. For this reason, indiscriminate destruction of even electronic mail records (or other records that the law does not require you to create) might cause legal problems.

Although the Armstrong case does not immediately impact the private sector, it does serve as an additional reminder--establish and document procedures related to the creation, management, and destruction of electronic mail records in the system. Records managers know the importance of records retention schedule and detailed procedures. This case merely reminds us that the time has come to include electronic records in our overall retention program.

1. The Iranian-Contra Affair was a "hot" issue at the time. Many groups were interested in the involvement of the White House Staff and the President. Some believed that the E-mail records could provide some answers as to who knew about the manner and who was responsible.

2. See Skupsky, Donald S., "Establishing Retention Periods for Electronic Records," Records Management Quarterly, April 1993.

Copyright Association of Records Managers Administrators Inc. Jan 1994
Provided by ProQuest Information and Learning Company. All rights Reserved