Electronic Records Management Defined by Court Case and Policy.

• Author: WALLACE, DAVID A.
• Position: (Armstrong v. Executive Office of the President

Two lawsuits offer bookends to a decade's worth of federal-level recordkeeping litigation in the United States. These are the PROFS (Armstrong v. Executive Office of the President) and General Records Schedule 20 [hereafter "GRS 20"] (Public Citizen v. Carlin). These cases established e-mail recordkeeping policy for the entire U. S. federal government, from message creation through disposition. As such, they speak directly to issues of e-mail management that many information management professionals are currently facing.

This article provides a synopsis of the litigation, examining its roots, the questions it raised, and the judicial rulings it produced. It then focuses on areas where the lawsuits opened key conceptual and definitional issues regarding e-mail and its management. It concludes with observations about the impact of these cases and offers an assessment of their place within the broader social transformation currently being wrought by the mass proliferation of desktop computing and messaging.

The litigation of these two cases deals with a specific environment, one comprised of its own legalities, technologies, and work practices. As a microcosm, however, it raises and addresses substantive e-mail management issues relevant to any information management professional concerned with e-mail. It speaks specifically to those who must operate in a legal environment where recordkeeping practices are specified in law. The plaintiffs recognized early on that recordkeeping laws do more than provide guidance on appropriate practice for the government's own administration of its information assets. They establish an enforceable set of legal recordkeeping requirements. The plaintiffs successfully argued that recordkeeping laws also provide for a public interest in government recordkeeping -- an interest that can be litigated.

Case Synopsis

Electronic mail was introduced into the U.S. National Security Council (NSC) on a pilot basis in 1982. In April 1985, it was made more widely available throughout the NSC via PROFS software.(1) The PROFS system allowed users to exchange e-mail, transfer text documents, and share calendar information. PROFS e-mail functionality provided users the ability to log on to the system and compose, transfer, display, receive, store, file, forward, print, and delete electronic messages. Backup tapes of all messages stored on the system were made on a rotating nightly and weekly basis (Armstrong v. Executive Office of the President [EOP] 6 February 1989, 2; U.S.A. v. Poindexter 15 March 1990).

PROFS System Gains Notoriety

The PROFS e-mail produced by the NSC gained wide public notoriety in late 1986 and throughout 1987 with the exposure and investigation into the "Iran-Contra Affair," an illegal initiative in which arms were sold to Iran to obtain the release of U.S. hostages held in the Middle East and then the profits from these sales were used to fund the U.S.-created Contra army in Nicaragua in its efforts to overthrow the Sandinista government.

The PROFS system provided the primary communications conduit between two of the key participants in this diversion scheme -- NSC staffer Oliver L. North and his boss, National Security Advisor John M. Poindexter (U.S. Congress 1987, 138). In the days before the scandal erupted publicly, North and Poindexter collectively deleted approximately 6,000 messages from their e-mail user spaces on the computer; the vast majority being deleted by Poindexter.

The White House Communications Agency, however, had set aside backup tapes containing snapshots of their user spaces before the mass deletion. Through these backup snapshots, various Iran-Contra investigations were able to recover the deleted e-mail. The first major investigation into the affair, the Tower Commission, called the recovered e-mail a critical "first-hand, contemporaneous, account of events" (Tower Commission 1987).

E-mail -- Record vs. Nonrecord

In early 1987, NSC policy towards e-mail was that it served primarily as a surrogate/substitute for "information that would be otherwise handled by phone" (U.S. National Security Council 5 March 1987). E-mail, then, was viewed primarily as a communications medium that relayed nonrecord material. On those (presumed) rare instances when an official record was created, users were directed to print the e-mail message onto paper and file it or, alternatively, to codify the message contents within a written memorandum or letter. Once the message was reduced to paper, the remaining electronic version could be erased as a "convenience copy."(2)

At times, this policy conflicted with actual practice. At one point in early 1988, NSC staff had to be admonished to keep the length of their e-mail messages to a minimum and to create a typed formal memorandum instead of composing long, complex messages (U.S. National Security Council 21 January 1988). Despite some contradictions evident between policy and practice, the print-and-file policy remained in force. During preparation for the January 1989 Reagan/Bush presidential transition, White House employees were reminded to "take care" and review their computer data, including their e-mail user storage areas, to "ensure" that they had made a "hard copy of all `record' material ..." (U.S. Executive Office of the President. Office of Counsel to the President 1 December 1988).

E-mail Erasure Policy Challenged

Given what it believed was a sound policy for managing e-mail, the government fully expected in January 1989 to erase all Reagan-era e-mail stored on the live system to free disk space for the incoming Bush administration. A legal challenge to this proposed erasure opened the government's management of its NSC e-mail to public scrutiny and, probably to everyone's surprise, initiated a decade-long legal battle that reached its terminus in March 2000 when the U.S. Supreme Court declined to hear the case's final appeal.

In January 1989, representatives of the U.S. National Archives and Records Administration (NARA) told representatives of the National Security Archive(3) that electronic versions of e-mail messages would be purged from the White House's live system because all official record e-mail was assumed to have been proactively printed out and filed into official recordkeeping systems. NARA believed that the proposed erasure was clearly in line with both policy and law.

The National Security Archive found the government's reasoning to be faulty. They were quite skeptical as to the completeness of the paper record derived from electronic versions of e-mail based on what they had witnessed with Iran-Contra related e-mail; namely, that the North and Poindexter e-mail recovered was never printed out and filed. Facing what they believed would be a certain mass erasure of official-record e-mail in electronic form, they decided in January 1989 to file suit.

The government countered that PROFS was not a recordkeeping system. Rather, it was a communications system that normally did not produce records as records. The existing print-and-file policy was seen as compliant with federal recordkeeping law because it covered the preservation of record e-mail. Because the print versions of record e-mail contained all information that users saw on their own screens, the remaining electronic version was a deletable convenience copy (Armstrong v. Executive Office of the President 8 August 1992). The government would also argue that North and Poindexter's use was atypical and that the system for managing e-mail should not be condemned based on their practices.

The plaintiffs argued that the near-blanket assignment of non-record status to electronic e-mail messages was arbitrary, that the "form and content" of the electronic version was unique, and that paper printouts did not fully capture the entire record. Specifically, the plaintiffs held that certain metadata(4) -- such as the identities of senders and the recipient, acknowledgement receipts that provided senders with a date and time confirmation that their messages were received, and system usage statistics such as user logon/logoff and connect time -- appeared nowhere on the printouts they had seen. Furthermore, they argued that the existence of a paper...