law of electronic mail - The impact of the White House case on you!, The

ARMA Records Management Quarterly, Jan 1994 by Skupsky, Donald S

Recent news coverage addressed the lawsuit filed against the White House regarding electronic mail. Initially, the District of Columbia District Court ordered that electronic mail from the Reagan presidency be preserved since it may constitute a federal record and may be subject to the Freedom of Information Act.

In a recent appellate decision, the United States Court of Appeals, District of Columbia Circuit rendered the most extensive judicial decision ever recorded related to electronic mail [62 USLW 2109, 1993 WL 304567, decided August 13,1993]. This article reviews the scope and conclusions of that decision and discusses the impact on electronic mail for both the government and private sectors.

FACTS

Since the mid-1980s, the Executive Office of the President and the National Security Council utilized an electronic mail system to exchange information and improve efficiency. Over 1300 federal employees used this system to "relay lengthy substantive--even classified --'notes' that, in content, are often indistinguishable from letters or memoranda." The system operates similar to other electronic mail systems in government and the private sector. Besides the actual text being communicated, the system tracked other information related to the communication, including the originating party name, receiving party name, date of transmission, acknowledgment of receipt, etc.

The sending or receiving parties could instruct the computer to delete, store, or print the message. Employees were instructed that "when any electronic document meets the definition of a federal record, the employee should either print out the information that appears on the computer screen or incorporate the material into a written memorandum." This procedure did not require that all information (such as transmission date, recipient's acknowledgment, etc.) related to the electronic message be preserved. Although backup tapes were maintained of the electronic mail, the Office of the President intended to destroy these tapes in the future.

On January 19, 1989, the day before President Ronald Reagan relinquished the presidency to George Bush, the National Security Archive filed a Freedom of Information Act request for the materials stored in the electronic mail system from the time of inception to the date of the request. Simultaneously, other plaintiffs filed suit requesting a declaratory judgment specifying that the records contained in the electronic communications system and the backup tapes were federal and presidential records, and requesting an injunction to prohibit destroying these records.(1) On appeal, the District of Columbia Circuit Court of Appeals affirmed the injunction prohibiting the destruction of the tapes until the merits of the case could be heard.

On January 3, 1993, the District of Columbia District Court issued a ruling [Armstrong v. Executive Office of the President, 810 F.Supp. 335 (D.D.C. 1993)] specifying that the electronic mail records were, in fact, federal records under the Federal Records Act. The court also determined that the procedure selectively to print electronic mail records followed by the Office of the President and the National Security Council was seriously flawed. These actions violated federal law as well as prevailing procedures of the National Archives and Records Administration (NARA) for the retention of records. The defendants appealed this decision.

In the August 1993 Court of Appeals decision, the District Court conclusions were upheld. In addition, the Court of Appeals established guidelines for reviewing presidential procedures under the Presidential Records Act to determine whether federal records were properly categorized as also presidential records. This issue will be decided at a later date.

BACKGROUND

The Federal Records Act [44 USC Chapter 21, 29, 31 and 33] was approved by Congress to assure "accurate and complete documentation of policies and transactions of the federal government, control of the quantity and the quality of records produced by the federal government, and judicious preservation and disposal of records." Congress intended for the Act to guarantee that the records management programs of federal agencies strike a balance between developing an efficient and effective records management program and the substantive public need for federal records.

Under the Act, the heads of each federal agency must "make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities" [44 USC sec3101]. As a result, each agency must have an economical and efficient records management program, safeguard records against their removal or loss, and comply with the requirements of NARA.

The Federal Records Act indicates the mechanism for disposing of federal records and specifically prohibits the destruction of records by procedures other than those provided in the Act. For purposes of the Act, "records" was defined as follows: