What's in a record? Public citizen v. Carlin

The advent of e-mail and other paperless communication technologies has undoubtedly been a benefit to government, as well as private industry. On the other hand, it has not been a development without its difficulties, and growing pains associated with the introduction and use of EDI continue to arise. Old notions of "record" and "records management" must constantly be revisited, and both practices and doctrines changed in response to new conditions.

COMPUTERS AND INFORMATION CAPTURE

Prominent among the new issues is that of what to do with the vast amounts of information that computers are capable of acquiring and storing. Users have quickly discovered that computers are capable of information capture many orders of magnitude greater than paper systems. In paper-based systems, drafts, notes, communication routing information and other information were either never permanently captured, or were disposed of quickly due to the sheer impossibility of retaining them over the long term. In contrast, computers not only are capable of doing capturing and retaining this information, but they also often do so automatically, frequently without the user even being aware of it. The space and cost constraints of paperbased storage are equally inapplicable, with the result that many organizations end up retaining huge amounts of information, much of which may be of little interest to them, simply because the system does so more or less automatically.

UTILITY V. COST

While at least some of this information might prove useful to its owners, there are costs that must be balanced against this perceived utility. Although computer systems often capture huge amounts of information, much of it is captured in ways that are not very useful. For example, although a computer system's library of backup tapes might contain every draft of a document created over a period of years or every e-mail a system has ever produced, this information will typically be buried among a mountain of other data, and the library must be exhaustively searched if it is to be obtained. The cost of such a search can be expected to be quite high. Owners of large systems often discover that the commonest need to obtain this information arises when it is sought by an opponent in a lawsuit for use against the organization, thereby necessitating considerable inconvenience and large expenditures for purposes unlikely to benefit the organization.

The costs of producing this information, either for the organization's own use, or for that of others, can be reduced by managing the information more effectively, but this entails its own costs. The system must be carefully organized, indexes must be created and maintained and resources and personnel must be diverted from other activities. The greater the amount of data that the organization chooses to retain and manage, the greater these costs-or in the alternative, the greater the costs that arise when the disorganized tape library or other archive must be searched. In an ideal world, all this vast amount of information would be retained and managed in such a manner as to be instantly available to whoever needed it. In the real world, however, hard decisions must be made as to what will be kept and what will be purged from the system.

These decisions must balance the competing interests, and this often entails balancing the competing views of the parties who may have an interest in the information.

PUBLIC INFORMATIONA SPECIAL CASE

Nowhere is this more true than in the arena of public records. In contrast to the records of a private organization, the records of a government agency are normally open to anyone who wishes to see them. In the federal arena, the Freedom of Information Act (FOLA) grants this right to anyone, for any reason, for virtually all federal records. Most states have an open records act which operates in a similar manner for state and local records.

The parties interested in these records are as numerous and varied as are their interests. On one side, records managers, legal staff, and others who must expend whatever energy is associated with managing the information have a strong interest in reducing the total amount managed to that minimum necessary to the efficient functioning of the organization. On the other side, private citizens, archivists, historians, public interest groups, and litigants have a strong interest in the retention of any bit of information that will shed light on the issues that may be of interest to them. These interests create an inevitable tension as the parties wangle over exactly what and how much information ought to be retained.

Until now, the needs of efficient records management-retention scheduling to reduce the amount of information managed-have had the upper hand in this debate. Government agencies charged with management of public records have quite commonly promulgated retention schedules, and properly promulgated and implemented retention schedules have consistently been approved by the courts.

The situation is, however, changing. As outside parties interested in public records and information have become more sophisticated about the nature and scope of electronic data capture, they have become less acquiescent in the retention decisions made by government, and insistent that a greater portion of the electronic data created by government be captured in a formal, and potentially permanent, manner.

NARA AND RECORDS RETENTION

The National Archives and Records Administration (NARA) is the federal agency charged with management of the federal government's mountains of records and other information. Litigation involving NARA and its records management practices is illustrative of some of the issues involved in the area of electronic records, and records generally.

NARA's electronic records policies first came at issue in Armstrong v. Executive Office of the President, 1 F.3d 127 (D.D.C. 1993). In that case, the plaintiffs, several public interest groups, charged that the White House was violating the Federal Records Act (FRA) by failing to include e-mail and other computerborne communications generated by the White House staff on its retention schedules, and instead letting staffers determine on an ad hoc basis what to print out and retain. The plaintiffs' theory was that the White House had an obligation under the FRA to define those electronic communications that met the definition of a federal record, and to formally retain and schedule those that met the definition. The Armstrong court agreed and concluded that, in the absence of an e-mail policy, it had no choice but to conclude that the purging of the e-mail was improper.

In response to Armstrong, NARA promulgated its electronic records management regulations at 34 CFR Part 1234. These regulations set forth procedures for determining what electronic communications are federal records, and scheduling those that meet the definition of federal record. The ultimate result of those regulations was NARA's General Records Schedule 20, which calls for retention of print-outs or microform versions of electronic communications meeting the definition of a federal record. The printout or microform is retained as a federal record and scheduled for retention and destruction purposes according to General Schedule 20.

PRINTOUTS V. ELECTRONIC RETENTION

Promulgation of NARA's regulations and schedule did not stem the controversy. In a lawsuit filed in the United States District Court for the District of Columbia, Public Citizen v. Carlin, 96 CV02840 (1996), a plaintiffs' group composed of historians, archivists, public interest groups and others, has challenged the legality of General Schedule 20. This suit has strong implications for the future of electronic records management, both public and private.

Public Citizen v. Carlin

The gist of the plaintiffs' arguments is that General Schedule 20 fails to provide for the retention of vital information contained in the electronic version of such communications and e-mail and word processing files-routing and distribution information, time stamping, drafts and other information over and above the actual final text of the communication itself. The plaintiffs assert that this information is part of the federal record, is not preserved in a paper or microform copy, and is vital information for historical research, public interest inquiries, and other valuable purposes. The plaintiffs therefore seek to have this information retained, presumably by retention of the electronic communications in their original format. At the heart of the plaintiffs' argument is the definition of "record." NARA has implicitly taken the position that the "record" is the final text. The plaintiffs take the position that all information associated with the record is at least potentially part of the "record."

For those parties who have an active interest in public records and information, the plaintiffs' position is not without merit. For example, retention of all drafts of an important policy document, as well as information about who received e-mail copies of them, is certainly possible, and on a variety of issues, this information would be both interesting and valuable for researchers and others. Thus, if NARA prevails, some information of undoubted historical and research interest will be unavailable within a very short period of time after its creation.

On the other hand, the challenge posed by the plaintiffs' position is no small matter for those charged with management of public records. A large computer system generates huge volumes of system data related to file creation and transmission, a wide variety of temporary files, and a large assortment of other information about any activity within the system. All this information and its linkages would have to be accounted for, and careful decisions made and formalized about which information was to be retained and managed.

Retention of this information, especially considering the large number of documents potentially affected, would undoubtedly entail large costs in terms of disk space, system management and staff time for indexing, archiving and other records management activities. Thus, if the plaintiffs prevail, valuable and scarce resources now spent on other activities would be diverted to maintaining this information, as well as to researching and providing it to the many parties who would seek to obtain it.

Public Citizen therefore ultimately poses the question of what resource expenditures are appropriate to fulfill a duty to preserve information which may be of public interest. Is a cost-benefit analysis justified, possibly leading to a conclusion that retention and management of some information on a formal basis is just too costly; or do the demands of open government demand that any expenditure, no matter how great, is the only manner in which the principles of accountability and open government be upheld?

IS Public Citizen ONLY ABOUT ELECTRONIC INFORMATION?

On its face, Public Citizen is only about electronic records and information. However, the principle involved may have consequences far beyond the electronic arena if the plaintiffs prevail. Stated generally, the plaintiffs' position is that the "record" includes not only the text of the record, but also all information, even transient information, necessary to produce the final text and route it through the system to its final form and destination.

The information the plaintiffs seek to have retained is directly analogous to routing slips, post-it notes, delivery receipts and the other miscellaneous and voluminous bits of information associated with the traditional paper office environment. If a court concludes that there is a statutory duty to retain, manage and schedule such information, there is no reason such a duty should be media-dependent. Either this court or the court in a following case could readily conclude that the duty to retain and manage such miscellaneous information extends to paper and other media, as well as electronic records.

A duty to manage paper document drafts, post-it notes, and other bits of paper in the same manner as their electronic counterparts, but without the benefit of a system which automates much of the activity, and automatically links related bits, would pose a formidable challenge to any records management system. The sheer volume of paper (even without consideration of the sizes, formats and other problems) would create an enormous burden.

COULD Public Citizen REALLY BE EXTENDED TO PAPER RECORDS?

The Federal Records Act is media neutral-if a type of information meets the definition of a federal record, there is no reason to believe that the duty to preserve it would change due simply to the medium on which it was created. Should the plaintiffs prevail, the duty to retain information associated with a record would therefore likely be general in nature. Even if this court ruled narrowly, an extension to paper analogues of the electronic data at issue here would not be much of a stretch for the next court. The next plaintiff need only observe the simple fact that there is no legally recognized difference between paper and electronic information-therefore, if a kind of information created electronically must, as a matter of law, be retained and managed, there is no reason why the paper version ought to be treated differently.

The Implications

Like Armstrong v. Executive Office of the President, Public Citizen is directly applicable only to federal records. However, like Armstrong, Public Citizen may ultimately have profound implications beyond the federal records arena. The definition of "federal record" is directly at issue-and by implication, the definitions of "public record" and "record." If "federal record" is determined to be the text, plus all ancillary information accumulated along the way, there is no reason why "public record" and "record" ought not to be similarly defined-after all, the only difference is in the custodian, not in the information or record itself.

This analogy would doubtless prove tempting to a variety of parties. Other courts, struggling with similar issues, could look to existing decisions for guidance and conclude that public records from a state or local system, being essentially the same as federal records, ought to be treated similarly. Litigants seeking access to information in a private records system, or sanctions for failure to preserve it, could argue that since a "federal record" includes all the ancillary information, so does a private "record." Thus, the argument might go, the duty to retain a private "record" includes the duty to retain the ancillary information associated with it.

Should the court rule the other way, each of these scenarios may still arise-the guidance provided by this decision is simply reversed, and the various parties are provided with authority for the proposition that a "record" does not include all the ancillary information. Thus, however the court decides, its reasoning may end up influencing records management in areas far beyond the formal scope of the decision.

CONCLUSION

Public Citizen v. Carlin is far from decided-at this writing, it is still in the earliest stages of litigation. What the court will ultimately decide is far from clear. This case does, however, emphasize issues which must be decided by both public and private entities:

What information is appropriately part of a "record"?

How much of that total ought to be retained? For how long?

What cost-benefit analysis is appropriate for deciding this?

How can these decisions be justified, based upon policy and applicable law?

NARA will have these issues decided in court-others have the opportunity to decide them in less adversarial circumstances. Forwardthinking organizations will do just that-make, formalize, and justify these decisions prior to the litigation that will place the decision in the hands of someone outside the organization and far less familiar with the issues involved than those who face them on a day-to-day basis. This may not prevent the controversy, but at least the organization will be positioned to defend its decisions as effectively as possible.

Frances (Fuller) Chartier

Frances (Fuller) Chartier, Corporate Records Manager of The Coastal Corporation, passed away May 19, 1997, in Houston, Texas. She served as a Chapter officer as well as a member and chair of numerous committees in her twenty-year tenure with the Houston Chapter of ARMA. She will be most remembered for her Chairmanship of ARMA International's Legislative and Regulatory Committee and her testimony before Congress on the Paperwork Reduction Act of 1980. Frances was well-respected for her energy, gentleness and generous nature. Her passing leaves a great void, not only for her chapter, but also for our entire profession.

JOHN MONTANA, J.D. Denver, Colorado

Copyright Association of Records Managers and Administrators Inc. Jul 1997
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