The question surrounding whether e-mail is an agency record subject to access laws and any record-keeping statutes was first addressed the day before George Bush's inauguration, when the Reagan administration was dragged to court to prevent it from deleting the contents of the e-mail system at the National Security Council. That NCS' e-mail system contained copies of the surreptitious messages between Oliver North and John Poindexter made the question that much more sexy.

But the result of the protracted litigation established that e-mail was a record and, on the federal level, was subject to the same kind of treatment paper records receive under the Federal Records Act. The National Archives issued e-mail policy, placing the federal government in the forefront in dealing with records management issues concerning such records. But, while the Archives' policy was a good model, it was not flawless, and a U.S. district court judge has now told the Archives that parts of the policy are contrary to established administrative law.

In his decision in Public Citizen v. John Carlin, U.S. District Court Judge Paul Friedman agreed with Public Citizen, which represented writer/

researcher Scott Armstrong and other similarly situated plaintiffs, that the Archives had taken an inappropriate view of the retention of e-mail records.

The case involved General Records Schedule 20, promulgated by the Archives in 1995. Under a General Records Schedule, categories of records possessing characteristics that are typical across agencies can be destroyed without getting permission from the Archives. Traditionally, records described in a GRS are administrative in nature that, as a rule, have been determined beforehand to have no historical or long-term value.

Friedman found the Archives had strayed from the congressional purpose for using General Records Schedules, noting that "the legislative history shows that both houses of Congress contemplated that General Records Schedules would be used only for 'routine "housekeeping records," such as those relating to the hiring of personnel, procurement of supplies, and fiscal management that are common to many agencies.'" He indicated that "given the legislative history of Section 3303a(d) of the Federal Records Act regarding the scope of General Records Schedules, it is not surprising that every general records schedule promulgated to date, except GRS 20, covers administrative housekeeping records common to all agencies."

But the Archives argued that the term "specified form or character" in section 3303a(d) should be construed to mean record of a common medium. Friedman rejected that reading, noting that "the government's interpretation of Section 3303a(d) not only contradicts the clear intent of Congress, but is irrational on its face." He continued, "The general schedules were designed to handle records that document housekeeping functions, procedures and transactions, such as personnel, maintenance or procurement, not unique aspects of a given agency. The routine nature of these kinds of records makes them both of a character common to multiple agencies, and also of lesser value. Thus, there is a relationship between the commonality of records covered by a general schedule and their diminished value."

This commonality was not present in GRS 20, Friedman noted. He observed that "the common feature of records scheduled under GRS 20 -- the fact that they have been generated by electronic technology -- has no relation to each record's value. No one would argue, for example, that a cable from the Secretary of State to an ambassador at the U.S. Embassy about an impending crisis or an electronic mail message written by the Secretary of State regarding the President's decision to declare war on another country has the same value as a GSA word-processing file regarding procurement of desks, simply because both records were created by electronic technology. Unlike the GSA record, the Secretary of State's cable or electronic mail message documents unique and important operations of government that may have historic value. The archivist should not

Harry Hammitt  |  Contributing Writer