Appeals court sides with National Archives in electronic-records case

Tuesday, August 17, 1999

A federal appeals court has upheld a government policy allowing agencies to delete electronic records provided they've kept paper copies, thus overturning a lower court ruling that took the national archivist to task over the practice.

The policy, a 1996 regulation drafted by the National Archives and Records Administration, “seems to embody a reasoned approach” to adhering to laws requiring agencies to properly maintain their records, wrote Judge Douglas Ginsburg for the U.S. Circuit Court of Appeals for the District of Columbia.

Ginsburg noted that digital files have advantages over paper but added that an agency should be allowed “to choose, based upon its own operational needs, whether to use electronic or paper record-keeping systems.”

The National Archives praised the ruling on the policy known as “General Records Schedule 20.” In a statement, officials said they welcomed “the opportunity … to continue in an orderly way to develop practical, workable strategies and methods for managing and preserving records in the electronic age.”

The Aug. 6 decision in Public Citizen v. Carlin overturns an Oct. 22, 1998, ruling from U.S. District Judge Paul Friedman, who said U.S. Archivist John Carlin acted illegally when he issued orders allowing federal agencies to destroy, without review, all types of electronic records if paper copies exist.

In April, Friedman ruled a second time, determining that Carlin “flagrantly” violated his order by continuing the deletion practice.

Michael Tankersley, an attorney with Public Citizen, said the lobbying group was disappointed in the decision because “it means there is going to be a continued period when a lot of electronic records are not going to be properly preserved for historical purposes.”

Tankersley said Public Citizen hadn't decided whether to appeal.

But he said that federal agencies, out of necessity, may eventually not need the policy. He says that maintaining electronic files can be much more efficient than paper records, noting that the information can be easily searched or posted on the Internet.

“But in the meantime, because of the current policy, there's going to be a great gap created in the historical record,” he said.