Judge's ruling on storage of digital files expected this week

A federal judge may decide this week whether agencies have to evaluate all existing electronic files and decide how long they should be preserved. Despite efforts by the National Archives and Records Administration to craft a short-term digital records policy, a top NARA official said it is not practical for agencies to store all electronic files.

In the past 10 days, a group of agency officials and private-sector consultants headed by Michael Miller, director of the Modern Records Program at NARA, proposed options for a temporary electronic records policy that will be issued this fall. "Even if we kept everything, finding it is always a problem, managing it is a problem, and the other issue, which has not been discussed very well in the press, is the quality of the record,'' or how the files relate to one another, Miller said. "We recognize that electronic records are being deleted, [but] we have yet to see cases of records that should have been [saved but that] are being deleted.''

U.S. District Court Judge Paul Friedman may decide this week whether agencies will be required to save the files anyway, while the government appeals a court ruling that voids a NARA policy that allows agencies to delete e-mail and word processing files as long as the agencies kept paper copies. In an order issued last week, Friedman berated government officials for missing a filing deadline in the case and said he could rule against them if they do not offer a good reason "for their disregard of the court's rules.''

Scott Armstrong, a plaintiff who challenged the policy, said NARA officials "are missing their opportunities'' to prevent valuable electronic records from disappearing forever. Even if most electronic records end up being destroyed, the assumption that they should be destroyed has to be tested, Armstrong said.

The working group on electronic records has proposed three options for a temporary electronic-records management policy (see www.fcw.com). But Miller said some of the options could be "labor-intensive,'' requiring more training of federal employees in how to organize files, while others could consume vast amounts of storage space and make it difficult to find important files later. For example, the Department of Health and Human Services generates "1 million e-mail messages a day,'' Miller said. "Doing something that says 'Retain all electronic-mail messages for three years' "— one of the suggested solutions— "could be a massive implementation problem...especially if all that material would have to be searched for a [Freedom of Information Act] request.''

Rick Barry, an Arlington, Va.-based consultant who is advising the electronic-records working group, said some electronic documents, such as payroll records, would be "amenable to scheduling automatically'' because they are created and maintained within a computer system that is used for a specific business function. But sorting files inside e-mail systems, which support multiple agency operations, requires human intervention "in [the] absence of some sophisticated intelligent software, which is just coming out,'' he said.

"That's the first weak link in the chain,'' Barry added, because the people who create the documents are left to decide whether those documents need to be retained. That could lead, he said, to an incomplete trail of records because the person who sends an e-mail might retain it, but the person who replies to it might not save his answer.

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