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Archival Issues Raised by Litigation:
Challenging General Records Schedule 20
Adopted by the Executive Committee on the advice of Council
(with one abstention)
May 3, 1997
Few issues in recent time have presented the international archival community
greater challenge than the proper retention, access, and preservation
of records created or stored in electronic form. The Society of American
Archivists (SAA), the oldest and largest association of archivists in
the United States, representing more than 3,300 individuals and 500 institutions,
has over the past two decades been actively engaged with the problems
and opportunities electronic records present. Through its committees,
task forces, commissioned publications, curricular offerings, strategic
plan, and policy statements, SAA has sought to improve the ability of
the archival and records management community to deal with electronic
records.
One of the more controversial mechanisms used to expand the discussion
of archival records issues has been litigation, most notably in Armb,
et al., plaintiffs v. Executive Office of the President, et al., defendants,
popularly known as the PROFS litigation. More recently, SAA was asked
to join in a new lawsuit, Public Citizen et al., plaintiffs, v. John
Carlin, et al., defendants (inappropriately known as PROFS 2). The
suit challenges the promulgation by the Archivist of the United States
on 28 August 1995 of General Records Schedule 20: Disposition of Electronic
Records (GRS 20).
While SAA has endorsed in principle the joining of litigation when it
advances archival interests, SAA's Governing Council at its meeting on
26 January 1997 declined the invitation to join this suit, believing that
both the object of the litigation, GRS 20, and the reasoning of the legal
arguments are inadequate.
Regardless of SAA's participation, the litigation may have far-reaching
effects on the archival profession. Decisions made by non-archivists as
a result of the suit may have a lasting impact on the nature of the historical
record in the information age and on the ability of present and future
researchers to use electronic records as reliable and authentic evidence
of past events, facts, and actions. Therefore, both to inform the discussion
surrounding this particular case, and to help advance in general our ability
to meet the challenges presented by the widespread use of electronic information
systems, SAA makes the following observations on the issues in the case.
1. General Records Schedule 20 is a complex document, seemingly in
conflict with the current state of archival theory and practice. In
addition, because of its complexity, it is likely that it will be difficult
to implement (and hence be of little use to the agencies it is intended
to assist). Three areas in particular stand out:
As its title suggests, GRS 20 focuses on records created and stored
on a particular medium. Good record keeping ensures that adequate
documentation for legal, operational, accountability, and historical
purposes is created and retained, regardless of the specific technology
used to create or store the records. We believe that NARA should resist
definitions of "records" according to the specific technology
used to create them, and should instead rely on general principles
applicable to all records, regardless of format. NARA should allude
to the specific characteristics of the technology that created records
only when the technology raises concerns that cannot be addressed
through the general principles.
Because GRS 20 lacks a consistent, clear focus, it is in conflict
with the purpose of a general records schedule. As NARA's own Disposition
of Federal Records: A Records Management Handbook notes, general
records schedules are intended to provide disposition authority for
administrative or housekeeping functions common to several or all
Federal agencies. Some items in GRS 20 (items 1, 2, 4, 5, 6, 7, 8,
10, 11 and 12) relate disposition to the role of the records in the
life cycle of an information system; other items (items 13, 14, and
15) base disposition on the relationship of records to copies in a
record keeping system; other items (items 3 and 9) refer only to the
electronic medium on which the record is stored; and some of these
items may reflect programmatic activity inappropriate for inclusion
in a general records schedule. This lack of clear focus makes GRS
20 different in many ways from other general records schedules issued
by NARA, and undermines the effectiveness of GRS 20 as a records management
tool.
Because GRS 20 is difficult for agencies to implement properly, it
can be easily misused, thus defeating in part one of the functions
of a general records schedule: simplifying record-keeping decisions
for agencies. The most successful schedules provide agencies with
specific advice on retention, and in an easily implemented fashion.
Specific advice also ensures that only records truly not needed to
adequately document the activity of the agency will be destroyed.
GRS 20 offers instead broad and inconsistent categories that agency
personnel will find hard to understand and apply. Further, the authorizations
GRS 20 provides are qualified by exceptions. While the exceptions
may be appropriate, implementation of some important disposition authorizations
requires a very close and careful reading of the document. In sum,
it requires too much intervention and decision-making by agency personnel,
requiring them to understand both the definition of a record and to
identify the appropriate retention period on what appears to be a
case-by-case basis for individual e-mail messages. This degree of
end user involvement is labor-intensive and time-consuming, and is
likely to lead to inconsistent decisions and incomplete documentation.
2. The complaint, Public Citizen v. Carlin, is a seriously flawed
document. It reflects a basic misunderstanding of fundamental archival
principles and practice. Two areas in particular stand out:
The complaint argues that to remain useful, information must remain
in the form in which it was created. While archivists are committed
to facilitating access to records for research purposes, they also
must maintain the reliability, authenticity, and context of the records.
In many cases, archivists can maintain records in their original form,
but in other cases, for programmatic, financial, or preservation needs,
it may become necessary to transfer records to new media. Paper records
are occasionally duplicated onto microfilm and then the originals
are destroyed; important video tapes are transferred to motion picture
film in order to preserve their information even though film is in
many ways more difficult to manage; and electronic statistical data
is routinely copied onto new media or in some cases imported into
new applications. Archivists have developed procedures to ensure that
when information is transferred to another medium, important contextual
information about the creation and use of the records needed to support
the authenticity, accuracy, and reliability of records is also preserved.
The question of the format in which to save records is a difficult
one and should be made only after the decision on whether to retain
or destroy the record has already been made.
General records schedules, when used to manage records united by
functional similarities of an administrative or housekeeping nature,
ease of identification, and limited retention period, are one of the
most efficient and widely-used tools available for the management
of modern records. The complaint suggests that the whole concept of
general records schedules should be abandoned because they do not
allow for input from outsiders and because of the ease by which they
can be abused by agencies. It is the belief of SAA that carefully-
and precisely-defined general records schedules, limited to administrative
records common to many agencies, can greatly assist in the scheduling
of records, leaving the archivist and the records manager time to
address more significant records series.
All archivists are struggling to establish effective programs to deal
with the records generated by revolutionary new means of recording and
communicating information. SAA encourages NARA to rescind its GRS 20 for
the present, and work to integrate disposition instructions involving
electronic records into the existing schedules that focus on government
functions. In particular, NARA should first test its e-mail approaches
in targeted agencies on an experimental basis to ensure that its guidance
does not lead to the unwanted destruction of part of the permanent historical
record. In addition, NARA should actively pursue the development of electronic
record keeping systems that could automatically and effectively identify
and store records created in electronic form of enduring value. SAA also
encourages Public Citizen and the other plaintiffs in the case actively
to seek resolution of their grievances in a venue other than the courts.
NARA will not be able to address effectively the important issues in electronic
records management if it must defend itself against ill-informed attacks
in the court. Only by working together will we be able to develop the
standards that will serve the needs of agencies, citizens, and history.
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