Judge rules agencies can't get rid of electronic records

A federal judge Thursday ordered the Archivist of the United States to instruct federal agencies not to destroy electronic records without special approval.

Judge Paul L. Friedman of the U.S. District Court for the District of Columbia gave Archivist John W. Carlin ten days to publish a notice in the Federal Register declaring a regulation allowing agencies to destroy electronic records null and void.

In October, Friedman struck down General Records Schedule 20, a regulation that allowed agencies to destroy certain electronic records if paper copies were available. Electronic records have historical value because they contain elements like dates and revision histories, Friedman ruled. The government appealed Friedman's ruling, and in March Carlin issued a memorandum to agencies saying that "pending the appeal, government agencies may continue to rely upon GRS 20."

Friedman said Carlin's action "flagrantly violated" the judge's October ruling.

Alan Morrison, co-counsel for Public Citizen, the interest group that challenged GRS 20 in court, told GovExec.com that Thursday's ruling means "the vacuum cleaner approach no longer can be allowed. Agencies can't rely on the General Records Schedule to dispose of electronic records."

Lewis Bellardo, deputy archivist and chief of staff at the National Archives and Records Administration, said his agency is pleased that the judge recognized the efforts of the archives' Electronic Records Work Group, which last month proposed three options for replacing GRS 20.

"We will certainly be complying with the judge's order," Bellardo said, adding that the court-ordered Federal Register announcement tells agencies they "may continue to follow their present disposition practices" until the archives comes up with a replacement for GRS 20. The Electronic Records Work Group will submit its suggestions to the archivist in July, Bellardo said. The archives will have a replacement plan ready by the end of the fiscal year, he said.

The appeals court has not yet acted on the government's challenge to Friedman's ruling. Public Citizen has filed a motion for the appeals court to affirm the district court's decision.