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

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

All books, papers, maps, photographs, machine-readable materials (emphasis added), or other documents or materials, regardless of physical form or characteristics, made or received by an agency of the United States government under federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency...as evidence of the organization, functions, policies, decisions, procedures, operations or other activities of the government or because of the information value of the data in them. Library and museum material made or acquired solely for reference of exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of processed documents are not included. [44 USC sec3314].

Once a record qualifies as a federal record, it may only be destroyed under retention procedures approved by NARA. An agency may submit a listing of records slated for destruction and may then destroy them with specific approval from the Archivist, or alternatively, an agency may regularly destroy records according to a records retention and disposal schedule approved in advance by NA.

THE DECISION

The District Court concluded that the Executive Office of the President and the National Security Council did not prepare a written procedure related to the destruction of records in the electronic mail system. Individual employees were empowered to decide whether the Act addressed the E-mail records. In principle, when federal records were detected, they were to be printed and maintained. No written guidelines even existed to assist federal employees in making this decision. Employees could exercise their own discretion when destroying records. And, certainly, no records retention procedures had been approved by NARA.

The Court decided that all the electronic mail records must initially be considered federal records since they were prepared in the conduct of federal business. Since no approved procedure existed to distinguish which records were not federal records, none of the electronic mail records could be destroyed under prevailing practices. Thus, the court concluded that the electronic version of the electronic mail must be maintained until proper disposition can be determined.

In addition, the Court determined that electronic mail records could not be preserved simply by printing out the text that appeared on the screen. The Court also concluded that the electronic version contained a great deal of additional information, such as the date of transmission, date of receipt, detailed listing of recipients, linkages between messages sent and replies received, etc., not contained in the screen print. For this reason, the printed version could not be considered even a copy of the original version under the Federal Records Act.

The Court also expressed concern over the possibility that the Office of the President could indiscriminately declare that all records in the Executive Branch were protected from court review under the Presidential Records Act. The Court indicated a need for a specific procedure and methodology to determine which records would be "presidential" and which were not. This matter is now being reviewed further by the District of Columbia District Court.