Judge takes U.S. archivist to task over deletion of electronic records

Tuesday, April 14, 1998

A federal judge last week determined that Archivist of the United States John W. Carlin “flagrantly” violated a five-month-old court order prohibiting the blanket deletion of government electronic records.

In an Oct. 22 ruling, U.S. district court Judge Paul Friedman said Carlin acted illegally when he issued a regulation allowing federal agencies to destroy, without review, all types of electronic mail and computer records if paper copies exist.

Despite Friedman's earlier ruling, Carlin continued to issue notices telling federal agencies to refer to the 1996 regulation known as General Records Schedule 20. Government officials said a records-deletion policy is needed to prevent computer systems from becoming overloaded or crashing.

But Friedman said the government never asked for a stay of the order and said Carlin's office “flagrantly violated the Court's order” for the last five months.

“The Court's language and conclusion could not have been more clear: The Archivist was violating the law in promulgating and implementing GRS 20,” Friedman wrote in his decision last week.

His latest order requires Carlin to publish a notice in the Federal Register within 10 days informing federal agencies that the regulation is “null and void.”

Michael Tankersley, an attorney with Public Citizen, which filed the lawsuit on behalf of historians, researchers and journalists, praised the decision saying it prevents Carlin from abdicating his responsibility in determining which records are valuable and which are not.

Tankersley said that Friedman's decision is a good one “because it prevents the blanket destruction of the electronic version of the records which are important indicators of how policies are made and decisions are reached.”

Sandra Davidson-Scott, a journalism law professor at the University of Missouri, said eliminating computer records essentially leaves the government with only “partial records.”

Although a paper copy of the computer record may seem to be complete, it could possibly eliminate pertinent data such as a list of other recipients of the e-mail or record in question.

Davidson-Scott said that while many records, such as lunch-time e-mail, may appear to be minutiae, they could have some purpose for a researcher or journalist.

“If you're concerned that someone has been having lunch with the wrong person, you think it could be undue influence, even lunch-time e-mails could have great value,” she said.

She said possibly the only way to ensure that nothing of value is deleted is to treat everything as a record.

“It's a technology question in part. Can a system be designed — I think it should be possible — where all of the information can be available to be printed out?” Davidson-Scott asked. “I think all of the e-mail needs to be treated like a public record. We need all of the information and in an electronic form.”