Lawyers argue electronic-doc policy

The government argued in U.S. District Court last month that a National Archives and Records Administration regulation that allows agencies to destroy electronic documents if they first preserve the contents on paper is the only practical way for the government to manage its burgeoning computer files.

The policy known as General Records Schedule (GRS) 20 was challenged last December by a coalition of public-interest groups historians and researchers who contend that NARA allows agencies to delete historically valuable records.

But Justice Department attorney Anne Weismann said the disputed rule is justified because many agencies do not have the electronic record-keeping systems necessary to retain the contents of those records. "We don't have the capability to preserve them in an electronic system that makes any sense " Weismann said. "If you don't have that capability what do you do with information accumulating in enormous volume?"

The plaintiffs led by the consumer-advocacy group Public Citizen do not think every digital record needs to be preserved in its original form. But the group's senior staff attorney Michael Tankersley told Judge Paul Friedman that the policy violates the Federal Records Act because it treats all electronic records the same. The law is the basis for NARA records management regulations.

"There are instances where the archivist has found [electronic records] worthy of preserving " Tankersley said but the 2-year-old rule leaves that up to agencies to decide. "This schedule is not limited to agencies that do not have electronic capabilities."

Weismann said such determinations already are covered under other NARA rules. Even when agencies decide to delete digital copies she said these rules demand that agencies print out data such as transmission information that is important to the historical record.

But Tankersley said this argument contradicts NARA policies that deem electronic records have unique qualities worth maintaining.

NARA issued GRS 20 in response to a court victory by some of the same plaintiffs in 1993 when U.S. District Court Judge Charles Richey ruled that agencies had to preserve their e-mail messages. One problem raised by the case was that NARA's guidelines did not describe clearly how electronic information should be kept and GRS 20 was meant to clarify the rules.The government is seeking to have the current lawsuit Public Citizen v. Carlin dismissed. But the plaintiffs have asked Friedman to declare the regulation invalid.

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