Agencies don't need to keep e-records, court rules

A federal appeals court last week reversed a lower court decision requiring federal agencies to preserve electronic records.

The ruling overturns an October 1997 decision in a case involving National Archives and Records Administration policies that were challenged by Public Citizen, a watchdog group founded by Ralph Nader.

NARA's policy allowed agencies to delete electronic records as long as they kept paper copies of them. Public Citizen argued that electronic files, such as e-mail and word processing documents, contain information lost in the printed version of records and should therefore be preserved.

Public Citizen won the case at the district level. Since then, NARA has issued a bulletin outlining new steps agencies must take to preserve electronic records.

But on Friday the U.S. Court of Appeals for the District of Columbia ruled that agencies have the right to decide how best to preserve their records.

"Agencies must maintain their records in organized files that are designed for their operational needs," Judge Douglas Ginsburg wrote in the appeals court's opinion. "All agencies by now, we presume, use personal computers to generate electronic mail and word processing documents, but not all have taken the next step of establishing electronic recordkeeping systems in which to preserve those records. It may well be time for them to do so, but that is a question for the Congress or the Executive, not the Judiciary, to decide."

The decision to use paper or electronic records should be made based on an analysis of available resources, Ginsburg said. Some agencies "may determine that paper recordkeeping will continue to be adequate and cost-effective," he said.

Under NARA bulletin 99-04, issued on March 25, agencies had until February 1, 2000 to submit to NARA a plan outlining how they would include electronic files in their current record schedules, or to simply submit new schedules that cover electronic files.

Now, however, NARA must review the new court decision to see if that bulletin will still be enforced. A NARA spokesman said the agency will issue a new statement to agencies as soon as it has had time to analyze the latest ruling.