crew v. nara, adrienne thomas (acting archivist): regarding failure to fulfill federal records act...

8/6/2019 CREW v. NARA, Adrienne Thomas (Acting Archivist): Regarding Failure to Fulfill Federal Records Act Duties: 6/1/200

1/15

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY ANDETHICS IN WASHINGTON1400 Eye Street, N.W., Suite 450Washington, D.C. 20005

Plaintiff,v. Civil Action No.

THE NATIONAL ARCHIVES ANDRECORDS ADMINISTRATION (NARA)8601 Adelphi RoadCollege Park, MD 20740ADRIENNE THOMAS, ACTINGARCHIVIST OF THE UJ'J"ITED STATES(in her official capacity)8601 Adelphi RoadCollege Park, MD 20740

Defendants.

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF1. This civil action for declaratory, injunctive, and mandamus relief, brought under the

Administrative Procedure Act ("APA"), 5 U.S.c. 701, e t ~ , the Federal Records Act("FRA"), 44 U.S.c. 2901, e t ~ , and the Declaratory Judgment Act, 28 U.S.c. 2201 and2202, challenges as contrary to law the defendants' refusal to fulfill their mandatory duties underthe FRA, including the duty to conduct inspections or surveys of the records and recordsmanagement programs and practices of federal agencies. As a result of defendants' failure tofulfill these mandatory duties, federal agencies have not complied with their record keepingobligations under the FRA and that non-compliance has resulted in agencies failing to preserve


2/15

records that would otherwise be available to plaintiff and the public pursuant to the Freedom ofInformation Act ("FOIA").

JURISDICTION AND VENUE2. This Court has personal and subject-matter jurisdiction over this action pursuant to 28

U.S.C. 1331 (action arising under the laws of the United States), 1361 (mandamus), 5 U.S.c. 701, 702 and 706 (the APA), and 28 U.S.C. 2201 and 2202 (Declaratory Judgment Act).

3. Venue in this district is proper pursuant to 28 U.S.C. 1391(e).PARTIES

4. Plaintiff Citizens for Responsibility and Ethics in Washington ("CREW") is a nonprofit, non-partisan corporation, organized under section 501(c)(3) of the Internal Revenue Code.CREW is committed to protecting the right of citizens to be informed about the activities ofgovernment officials and to ensuring the integrity of government officials. To advance itsmission, CREW uses a combination of research, litigation, advocacy, and public education todisseminate information to the public about public officials and their actions.

5. The FOIA provides CREW with one of its most effective tools by granting CREWaccess to records and information that offer valuable insight in the formulation andimplementation of an administration 's policies and priorities. CREW disseminates informationand records it obtains in a variety of ways, including posting records it has received throughFOIA requests on its website, www.citizensforethics.org, and on a website CREW founded,www.governmentdocs.org, and writing and publishing reports. CREW's research and reportsfrequently rely on government records made available to it under the FOIA.

6. Since its inception, CREW has filed hundreds of FOIA requests with a wide variety of

2


3/15

government agencies and covering a wide variety of subject matters. Currently CREW has over20 different FOIA requests pending on topics ranging from transparency in the financial bailoutprograms to the diagnosis of post traumatic stress disorder in veterans and returning soldiers. Invirtually all of its FOIA requests CREW seeks both electronic and paper records. Through itsresearch and dissemination activities, CREW uses and intends to continue using and makingavailable to the public records that are created or received by federal agencies and offices thatshed light on the conduct of government agencies and officials.

7. CREW has a direct and longstanding interest in the preservation of federal recordsunder the FRA, as that preservation is critical to CREW's ability to access federal records underthe FOIA. CREW is especially interested in the preservation of electronic records, as thoserecords often offer the most insight into the basis for an agency's action or decision. To advancethis interest CREW conducted a study of electronic record keeping in the federal government andpublished a report in April 2008, Record Chaos: The Deplorable State of Electronic RecordKeeping in the Federal Government. That report documents the multiple ways in which thefederal government has fallen woefully behind in managing its electronic records, with blamefalling squarely on the National Archives and Records Administration ("NARA"), which hasabandoned its previous practice of conducting annual audits of agency compliance andproclaimed publicly that the responsibility rests first and last with individual federal agencies.

8. In addition, CREW has brought lawsuits against the Department of Education forfailing to comply with its record keeping responsibilities in managing the agency's electronicrecords, and NARA and the archivist for their failure to take steps to ensure the preservation andrestoration of deleted federal electronic records maintained on White House servers. In a

3


4/15


5/15

agency policies and transactions as well as proper records disposition. In carrying out theseresponsibili ties federal law requires the Archivist to take a series of affinnative actions, includingconducting inspections or surveys of the records and records and records management programsand practices of federal agencies.

STATUTORY AND REGULATORY FRAMEWORK

The Federal Records Act

12. The FRA, a collection of statutes, governs the creation, management, and disposal offederal or "agency" records. 44 U.S.C. 2101-18,2901-09,3101-07 and 3301-24. The FRArequires generally that federal agencies establish: (1) a program to make and preserve agencyrecords; (2) effective controls over the creation, maintenance and use of records; and (3)safeguards against the removal or loss of records. 44 U.S.C. 3101, 3102 and 3105.

13. Specifically, the FRA mandates that: "[t]he head of each Federal agency shall makeand preserve records containing adequate and proper documentation of the organization,functions, policies, decisions, procedures, and essential transactions of the agency." 44 U.S.C. 3101. The FRA defines federal agencies as "any executive agency or establishment in thelegislative or judicial branch of the Government." 44 U.S.C. 2901(14).

14. The FRA defines federal or "agency" records as "all books, papers . . . or otherdocumentary materials, regardless of physical form or characteristics . . . made or received by anagency of the United States Government under Federal law or in connection with the transactionof public business and preserved or appropriate for preservation by that agency . . . as evidence ofthe organization, functions, policies, decisions, procedures, operations or other activities of theGovernment or because of the infonnational value of data in them." 44 U.S.C. 3301.

5


6/15

15. Specific provisions of the FRA govern the disposal of any federal record. 44 U.S.C. 3301 et (Ch. 33. Disposal of Records). These provisions provide the exclusive procedureby which all federal records may be disposed or destroyed. 44 U.S.C. 3314.

16. Under these provisions, federal records may not be disposed or destroyed without theauthorization of the Archivist. Specifically, prior to destroying any federal record, the head ofeach agency must submit to the Archivist a list of any federal records that do not appear to havesufficient value to warrant continued preservation. 44 U.S.C. 3303. After examining the list,the Archivist may authorize the agency head to destroy those federal records listed only after theArchivist has: (1) made a determination that the federal records listed do not have sufficientadministrative, legal, research or other value to warrant their continued preservation, and (2)published notice in the Federal Register providing an opportunity for interested persons to submitcomment son the proposed destruction of the federal records. 44 U.S.C. 3303a(a).

17. In addition to determining which records are suitable for disposal, the FRA imposeson the Archivist the mandatory responsibility to guide and assist federal agencies to ensure theadequate and proper documentation of the policies and transactions of each agency. 44 U.S.c. 2904(a). In furtherance of these duties, the Archivist must: (1) promulgate standards,procedures, and guidelines for federal agency records management; (2) conduct research onimproving records management practices and programs; (3) collect and disseminate informationon training programs, technological developments, and other records management activities; (4)provide for an exchange of information among federal agencies on records management throughthe establishment of interagency committees and boards; (5) continue to direct attention ofagencies and Congress to the need for adequate records management policies; (6) conduct

6


7/15

records management studies; (7) conduct inspections or surveys of records and recordsmanagement programs and practices of and between federal agencies; and (8) report to theappropriate congressional committees and the director of the Office of Management and Budgeton the Archivist's results of these activities, federal agency responses to evaluations orrecommendations, and the costs to the federal government of agencies' failure to implementNARA's recommendations. 44 U.S.C. 2904.

18. In furtherance ofNARA's and the Archivist's obligations to conduct inspections inorder to provide recommendations for the improvement of an agency' s records managementpractice and programs, the FRA specifically authorizes the Archivist to inspect agency records.44 U.S.C. 2906. NARA's implementing regulation states that agencies must provide NARAaccess to agency records in order for NARA to conduct inspections and studies. 36 C.F.R. 1220.18(a).

19. The FRA also imposes on heads of federal agencies the affinnative duty to implementthe standards and guidelines for the retention of federal records. Specifically, each agency headmust maintain an active records management program that provides for effective controls overthe creation and use of federal records and that ensures the application of the Archivist'sstandards and procedures for the preservation of federal records. 44 U.S.c. 3102.Furthermore, agency heads must establish safeguards against the removal or loss of recordsdetennined by the agency to be necessary and required by regulations of the Archivist. 44 U.S.c. 3105.

20. NARA's implementing regulations spell out the evaluation process NARA claims touse in conducting inspections or surveys of agency records and records management programs.

7


8/15

Under those regulations, such evaluations may include either comprehensive reviews of agencyrecords management programs or more selective reviews focused specifically on "adequate andproper documentation, on records disposition, on the management of specific types of recordmedia or on the management of records in particular program areas." 36 C.F.R. 1220.52(b).

21. NARA regulations further specify that NARA selects agencies for evaluation "on thebasis of perceived need by NARA or specific request by the agency, or on the basis of acompliance monitoring cycle developed by NARA." 36 C.F.R. 1220.54(a). NARA determinesthe scope of the evaluation. Id.

FACTS GIVING RISE TO PLAINTIFF'S CLAIMS FOR RELIEF

22. A June 2002 report from the United States General Accounting Office ("GAO"),Information Management: Challenges in Managing and Preserving Electronic Records,documented the failure ofNARA's records management guidance to keep pace with thechallenges of electronic records. GAO identified the limited nature ofNARA's inspectionprogram as one overall cause of agency records management problems, noting NARA's failure tomonitor agency performance of records management programs and practices on an ongoingbasis.

23. Although in 2000 NARA had replaced agency evaluations with more targetedassistance, GAO concluded in its June 2002 report that this approach was no substitute forsystematic inspections and evaluations of federal records programs. In particular, NARA'sapproach of targeted assistance was voluntary and initiated by a written request from the agency,meaning that NARA was evaluating only those agencies that already appreciated the importanceof records management. Another flaw of the targeted approach was that its scope and focus were

8


9/15

detennined by the requesting agency, not NARA. NARA's approach did not provide NARAwith systematic and comprehensive infonnation to assess agency progress in recordsmanagement over time.

24. Based on its findings, GAO recommended in its June 2002 report that the Archivist"develop a documented strategy for conducting systematic inspections of agency recordsmanagement programs to (l) periodically assess agency progress in improving recordsmanagement programs and (2) evaluate the efficacy ofNARA's governmentwide guidance."

25. In July 2003, GAO issued a follow-up report, Electronic Records: Management andPreservation Pose Challenges. Noting its previous recommendation that NARA developstrategies for performing systematic inspections, GOA described the limited progress NARA hadmade on this front:

[NARA] has devised a comprehensive approach to improvingagency records management that includes inspections andidentification of risks and priorities, but its approach does notinclude provisions for using inspections to evaluate the efficacyof its governmentwide guidance, and an implementation planfor the approach has yet to be established. Until NARA fullyaddresses the need to assess and improve agency recordsmanagement programs and develop an implementation plan,the risk is increased that records management programs willcontinue to show the weaknesses that led to the schedulingand disposition problems that we and NARA described inearlier work.

26. The July 2003 GAO report identified the likely result ofNARA's failure to respond

fully to GAO's "recommendation for a revitalized inspection program," as depriving NARA ofcritical infonnation it needs "to improve its guidance and to support its redesign of federalrecords management."

9


10/15

27. In April 2008, nearly six years after its initial report, GAO again spelled out thechallenges agencies continue to face in managing email in testimony before the Subcommittee onInformation, Census, and National Archives of the House Committee on Oversight andGovernment Reform. Linda Koontz, Director of GAO's Information Management Issues,testified that agencies continue to face challenges in preserving email records similar to thoseidentified in GAO's prior studies. And while agency policies generally comply with NARA'srecord keeping regulations, agencies do not apply those policies consistently. As a result,agencies are not consistently preserving email records of senior officials.

28. In June 2008, GAO issued another report, Federal Records: National Archives andSelected Agencies Need to Strengthen E-Mail Management. Among its principal findings, GAOincluded the following:

Although NARA has responsibilities for oversight of agencies'records and records management programs and practices,including conducting inspections or surveys, performingstudies, and reporting results to the Congress and the OUiceofManagement and Budget (OMB), in recent years NARA'soversight activities have been primarily limited to performingstudies. NARA has conducted no inspections ofagencyrecords management programs since 2000, because it usesinspections only to address cases of the highest risk, and norecent cases have met its criteria. In addition, NARA has notconsistently reported details on records management problemsor recommended practices that were discovered as a result ofits studies. Without more comprehensive evaluations ofagency records management, NARA has limited assurancethat agencies are appropriately managing the records in theircustody and that important records are not lost.

(Emphasis added).29. GAO specifically identified as a factor contributing to agency non-compliance with

10


11/15

record keeping requirements the lack of "periodic evaluations or other controls to ensure thatstaff receive training and are carrying out their responsibilities." As a result, "agencies have littleassurance that e-mail records are appropriately identified, stored, and preserved."

30. The June 2008 GAO report observed that although NARA had laid out a strategy forperforming inspections and studies in its 2003 oversight plans, it has not conducted anyinspections since 2000, instead deeming inspections a "tool of last resort" for "exceptionalcircumstances." In lieu of inspections, NARA conducted a Resource Allocation Project thatrelied primarily on NARA's in-house information sources and expertise and from which NARAconcluded that "risks to records were being addressed and managed by the Archives' ownrecords management activities and those of the agencies."

31. GAO, however, termed the Resource Allocation Project no "substitute forexaminations of agency programs, surveys of practices, agency self-assessments, or otherexternal sources of information." Similarly, although NARA had planned to use targetedassistance rather than inspections, its use of targeted assistance over the past five years had"declined significantly."

32. In its June 2008 report GAO concluded once again that NARA's failure to implementa "comprehensive method of evaluating agency records management programs" meant that"NARA lacks assurance that agencies are effectively managing records throughout their lifecycle."

33. On information and belief, NARA still has not implemented a comprehensivemethod of evaluating agency records management programs, and still does not conductinspections or surveys of agency compliance with federal record keeping requirements. As a

11


12/15

direct result of this failure, agencies still are not properly preserving all of their records, makingthose records unavailable to CREW and the public under the FOIA.

PLAINTIFF'S CLAIMS FOR RELIEFCLAIM ONE

(For a Declaratory Judgment that NARA and the Archivist are in Violation of the FRA)34. Plaintif f re-alleges and incorporates by reference all preceding paragraphs as if fully

set forth herein.35. The FRA requires NARA and the Archivist to take a series of actions in fulfillment of

their affirmative responsibilities to guide and assist federal agencies to ensure the adequate andproper documentation of the policies and transactions of each federal agency. These mandatoryactions include, inter alia, conducting records management studies and inspections or surveys ofrecords and records management programs and practices of and between federal agencies. 44D.C. 2904.

36. Despite this statutory mandate, NARA and the Archivist have refused for years toconduct inspections or surveys, with full knowledge that without inspections or surveys they canhave no assurance agencies are effectively managing their records in full compliance with theirfederal record keeping requirements.

37. Defendants' refusal to comply with their mandatory obligations to conductinspections or surveys and take other steps to ensure agencies are complying with their federalrecord keeping obligations violates the FRA.

38. Plaintiff, a non-profit corporation that makes information in a wide range ofgovernment records available to the public, has a direct interest in ensuring that agency records

12


13/15

are maintained, preserved and made accessible to the public in accordance with federal law.39. Defendants' refusal to comply with their mandatory obligations to ensure agency

compliance with federal record keeping obligations have harmed and will continue to harmplaintiff by depriving it of present and future access to agency records that agencies are notidentifying, storing, and preserving.

40. Defendants' refusal to comply with their mandatory obligations under the FRAconstitutes agency action that is not in accordance with law within the meaning of the APA, 5U.S.C. 706(2). Plaintiff therefore has a right to judicial review of such action under 5 U.S.C. 702, and 706, and is entitled to re lief in the form of a declaratory judgment pursuant to theDeclaratory Judgment Act, 28 U.S.C. 2201 and 2202, that NARA and the Archivist are inviolation of their statutory responsibilities under 44 U.S.C. 2904.

CLAIM TWO(For a Writ of Mandamus Compelling NARA and the Archivist to Comply With TheirNon-Discretionary Duties Under the FRA)

41. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as if fullyset forth herein.

42. The FRA is clear and the duties thereunder plainly defined: all records made orreceived by an agency as evidence of the organization, functions, policies, decisions, procedures,operations or other activities of the government or because of the informational value of the datain them, are to be preserved as federal records. 44 U.S.C. 3301.

43. The FRA sets forth clear, plainly-defined, and non-discretionary duties for NARAand the Archivist in guiding and assisting federal agencies in the adequate and proper

13


14/15

documentation of agency policies and transactions. These non-discretionary duties include, interalia, conducting records management studies and inspections or surveys of records and recordsmanagement programs and practices of and between federal agencies. 44 U.S.C. 2904.

44. By failing to conduct records management studies or inspections for at least the pasteight years, defendants NARA and the Archivist have violated their non-discretionary ministerialduties under 44 U.S.C. 2904, thereby harming pla intiff by denying it present and future accessto important agency documents that would otherwise be preserved and that would shed light onthe conduct of public officials.

45. Plaintiff is therefore entit led to relief in the form of a wri t of mandamus orderingdefendants Archivist and NARA to comply with their statutory duties to conduct recordsmanagement studies and inspections of agency compliance with federal record keepingrequirements.

PRAYER FOR RELIEF

WHEREFORE, plaintiff respectfully requests that this Court:(1) Declare defendants' refusal to comply with their mandatory obligations to conduct

inspections or surveys and take other steps to ensure agencies are complying with their federalrecord keeping obligations a violation of federal law;

(2) Order defendants, in the form of injunctive and mandamus relief, to comply with theirstatutory duties to conduct records management studies and inspections of agency compliancewith federal record keeping requirements;

(3) Award plaintiff its costs, expenses and reasonable attorney's fees in this action; and(4) Grant such other and further relie f as the Court may deem just and proper.

14


15/15

Respectfully submitted,

Attorneys for PlaintiffDated: June 1, 2009

15

crew v. nara, adrienne thomas (acting archivist): regarding failure to fulfill federal records act...

Documents