use the same disposal criteria applied to the GSA procurement document on the secretary's message just because both records are found on computers."

Friedman explained that "the government surely would not argue that Section 3303a(d) gives the archivist authority to schedule the disposal of all handwritten records for disposal once their contents have been preserved in electronic or microfiche record-keeping systems, simply because handwritten documents are created by a method common to all agencies. A schedule that would include all handwritten documents would be inconsistent with the limited purpose of general schedules to provide an efficient method of disposing of records common to several or all agencies that do not possess long-term value. For the same reasons, it is inconsistent with the limited purpose of General Records Schedules to schedule all electronic records simply because they were created or stored on government computers. Simply put, Congress did not intend that records of such disparate value be lumped together under one disposition schedule. Such a method for disposing of records is inconsistent with the responsibility placed on the archivist to insure the protection and preservation of valuable government records."

The D.C. Circuit previously ruled in Armstrong v. Executive Office of the President that electronic records did not lose their value when printed off in paper form, since, at that time, there were elements of e-mail messages that did not appear when transformed to paper copies. While the archives had addressed these problems, Friedman noted that "electronic records often have a number of other unique and valuable features not found in the paper print-outs of the records." Some of these unique features were directly tied to the medium -- increased indexing and search capabilities, and the ability to disseminate the information through phone lines -- that could not be duplicated in paper form.

Friedman concluded that the archivist failed in his statutory duty to oversee the appropriate retention and destruction of federal records. He noted that "[the archivist] implicitly determined that no electronic records have sufficient administrative, legal, research or other value to warrant continued preservation once copies of such records are placed in paper, microfiche or electronic record-keeping systems. This is an irrational determination, and one that is necessarily premised on the illogical notion that a paper copy adequately preserves the value of an

electronic record. While, in some cases, paper copies may in fact adequately preserve the administrative, legal, research or historical value of an electronic record, there is no rational basis for the archivist's conclusion that a paper copy invariably adequately preserves such value in all cases and that electronic records never retain any administrative, legal, research or other value once such records have been copied to paper." He indicated that "the archivist has absolved both himself and the federal agencies he is supposed to oversee of their statutory duties to evaluate specific electronic records as to their value. The archivist has also given agencies carte blanche to destroy electronic versions without the archivist's approval when the agency believes they are no longer needed by the agency."

He added that "leaving to the agency the decision of `when' to discard records turns Section 3303a(d) on its head. Under GRS 20, an agency's decision to dispose of records determines the records' retention period. But Congress intended just the opposite -- that the lapse of a specified retention period, along with a determination by the archivist, in advance, that the records will not possess value in the future, would govern when records may be destroyed. The [Records Disposal Act] unequivocally requires the archivist's approval over any schedule submitted by, or imposed upon, a federal agency. The archivist's failure to set a specified retention period in GRS 20 essentially removes the archivist as a check on the destruction of electronic records."

Friedman was sympathetic to the government's concern that many

Harry Hammitt  |  Contributing Writer