Pub Citizen Inc v. Carlin, John ( 1999 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 20, 1998 Decided August 6, 1999
No. 97-5356
Public Citizen, et al.,
Appellees
v.
John Carlin, Archivist of the United States, et al.,
Appellants
Consolidated with
98-5173
Appeals from the United States District Court
for the District of Columbia
(No. 96cv02840)
Matthew M. Collette, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs were
Frank W. Hunger, Assistant Attorney General, Douglas N.
Letter, Appellate Litigation Counsel, and Miriam Nisbet,
Special Counsel for Information Policy, National Archives and
Records Administration.
Michael E. Tankersley argued the cause for appellees.
With him on the brief was Alan B. Morrison.
Before: Silberman, Williams, and Ginsburg, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: In 1995 the Archivist of the
United States promulgated General Records Schedule 20
pursuant to his authority under the Records Disposal Act.
See 44 U.S.C. s 3303a(d). GRS 20 requires each federal
agency to which the RDA applies to dispose of word process-
ing and electronic mail files located in personal computers
once it has copied them to a paper or an electronic record-
keeping system. See General Records Schedule 20; Disposi-
tion of Electronic Records, 60 Fed. Reg. 44,643 (1995).
Public Citizen and others sued the Archivist, the Executive
Office of the President, and two components of the EOP
(hereinafter collectively referred to as the Archivist) under
the Administrative Procedure Act, alleging that GRS 20
violates the RDA and is arbitrary and capricious. The dis-
trict court agreed and, on cross-motions for summary judg-
ment, entered a declaratory judgment holding the schedule
invalid. See Public Citizen v. Carlin, 2 F. Supp. 2d 1 (D.D.C.
1997) (Carlin I).
The Archivist now appeals. We hold that GRS 20 is valid
and therefore reverse the judgment of the district court.
Because we uphold GRS 20, we need not decide whether, as
the Archivist maintains, the Executive Office of the President
may not properly be sued as an "executive agency" subject to
the Federal Records Act, see id. at 8-9, nor whether the
district court lacked the power to enter an injunction ordering
the Archivist to comply with its declaratory judgment holding
the schedule invalid. See Public Citizen v. Carlin, 2 F. Supp.
2d 18, 20 (D.D.C. 1998) (Carlin II).
I. Background
The Federal Records Act is a collection of statutes govern-
ing the creation, management, and disposal of records by
federal agencies. See 44 U.S.C. ss 2101-18, 2901-09,
3101-07, 3301-24. The RDA portion of the FRA establishes
the exclusive means by which records subject to the FRA
may be discarded. See id. s 3314; see also id. s 3301
(defining "records").
The RDA requires an agency to get the approval of the
Archivist before disposing of any record. See Armstrong v.
EOP, 1 F.3d 1274, 1279 (D.C. Cir. 1993). This is ordinarily
done in either of two ways. In one the agency submits to the
Archivist a list or schedule of records it proposes to discard,
see s 3303, which the Archivist may approve only if he
determines that the records "do not, or will not after the
lapse of the period specified, have sufficient administrative,
legal, research, or other value to warrant their continued
preservation by the Government." s 3303a(a). In the other
the Archivist promulgates a schedule listing types of records
held by multiple agencies, which he has determined pursuant
to the same standard of value should be discarded. See
s 3303a(d). Whether the agency or the Archivist initiates the
process, however, for the Archivist to authorize the disposal
of a record is to order its disposal. See s 3303a(b). If the
Archivist errs in authorizing disposal, therefore, valuable
federal records could be lost forever.
Items 13 and 14, the only parts of GRS 20 challenged here,
authorize the disposal of word processing and electronic mail
files that have been copied to an agency recordkeeping sys-
tem from a personal computer (whether stand-alone or net-
worked). See GRS 20, 60 Fed. Reg. at 44,649/1.* In the
__________
* The challenged items provide:
13. Word Processing Files
preamble to GRS 20 the Archivist explained that a federal
agency needs the authority to delete files from personal
computers in order "to avoid system overload and to ensure
effective records management." Id. at 44,644/2. He also
explained that for
records to be useful they must be accessible to all
authorized staff, and must be maintained in recordkeep-
ing systems that have the capability to group similar
records and provide the necessary context to connect the
record with the relevant agency function or transaction.
Storage of electronic mail or word processing records on
electronic information systems that do not have these
attributes will not satisfy the needs of the agency or the
needs of future researchers.
Id. at 44,644/1.
II. Analysis
Public Citizen argues that in promulgating GRS 20 the
Archivist exceeded his statutory authority in two respects:
__________
Documents such as letters, memoranda, reports, handbooks,
directives, and manuals recorded on electronic media such as
hard disks or floppy diskettes after they have been copied to an
electronic recordkeeping system, paper, or microform for
recordkeeping purposes.
Delete from the word processing system when no longer
needed for updating or revision.
14. Electronic Mail Records
Senders' and recipients' versions of electronic mail messages
that meet the definition of Federal records, and any attach-
ments to the record messages after they have been copied to an
electronic recordkeeping system, paper or microform for
recordkeeping purposes.
Delete from the e-mail system after copying to a recordkeep-
ing system.
(Note: Along with the message text, the recordkeeping system
must capture the names of sender and recipients and date
(transmission data for recordkeeping purposes) and any receipt
data when required.)
first, by applying the schedule to so-called "program" records,
as opposed to "housekeeping" or administrative records, and
second, by failing to set a specific time period for the reten-
tion of records before their disposal. Public Citizen also
challenges as arbitrary and capricious the Archivist's determi-
nation that electronic mail and word processing files lack
sufficient value to warrant continued preservation after they
have been copied and placed in an agency recordkeeping
system.
A. Statutory Authority
Because the Archivist, as head of the National Archives and
Records Administration, is charged with administering the
RDA, see 44 U.S.C. s 3302, we review his interpretation of
the Act under the two-step analysis of Chevron U.S.A., Inc. v.
NRDC, 467 U.S. 837 (1984). Under step one, we ask "wheth-
er Congress has directly spoken to the precise question at
issue." Id. at 842. If so, "that is the end of the matter; for
the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress." Id. at 842-43.
If, however, the statute is silent or ambiguous with respect to
the specific issue, then at step two we "must defer to the
agency's interpretation so long as it is reasonable, consistent
with the statutory purpose, and not in conflict with the
statute's plain language." OSG Bulk Ships, Inc. v. United
States, 132 F.3d 808, 814 (D.C. Cir. 1998).
1. Housekeeping versus program records
According to Public Citizen, "GRS 20 is contrary to law
because it ... authorizes destruction of all types of word
processing and electronic mail records without regard to
content." More specifically, Public Citizen claims s 3303a(d)
applies only to an agency's "housekeeping" records--that is,
records that relate to routine administrative chores such as
personnel and procurement--and that the Archivist exceeded
his statutory authority by promulgating a general records
schedule covering "program" records, which document an
agency's substantive functions.
a. Chevron step one
We begin the interpretive enterprise, as always, with the
text of the statute. See Republican Nat'l Comm. v. FEC, 76
F.3d 400, 405 (D.C. Cir. 1996). As the Archivist observes,
s 3303a(d) makes no reference either to program or to house-
keeping records; rather, it authorizes him to schedule for
disposal "records of a specified form or character." Because
this term is nowhere defined in the RDA, "our task is to
construe it in accord with its ordinary or natural meaning."
Director, Office of Workers' Comp. Pgms., Dep't of Labor v.
Greenwich Collieries, 512 U.S. 267, 272 (1994). And
s 3303a(d) is naturally read to authorize the Archivist to
schedule records in the "form" of word processing and elec-
tronic mail files. See Webster's New Int'l Dictionary Una-
bridged 992 (2d ed. 1942) ("In general, form is the aspect
under which a thing appears, esp. as distinguished from
substance" (emphasis in original)). Moreover, as the Archi-
vist observes, elsewhere in the RDA "form" is used to de-
scribe the physical attributes of a record rather than its
content. See s 3301 (" 'records' includes all books, papers,
maps, photographs, machine readable materials, or other
documentary materials, regardless of physical form or charac-
teristics"). Indeed, we notice that in 1976 the Congress
amended s 3301 to provide that "records" may be in the
"form" of "machine readable materials." Federal Records
Management Amendments of 1976, Pub. L. No. 94-575,
s 4(c)(2), 90 Stat. 2723, 2727.
Although Public Citizen would have us read s 3303a(d) so
as not to authorize the Archivist to schedule a record in the
form of a word processing or electronic mail file if its content
relates to a program function of the agency, it offers no
interpretation of the statutory term "form." On the contrary,
Public Citizen concedes that the "phrase ['of a specified form
or character'] in isolation includes program records." Appar-
ently, then, it means to suggest either that the term "form"
really means "content" or that it should be ignored. We can
not accept either suggestion. See Edison Elec. Inst. v. EPA,
996 F.2d 326, 335 (D.C. Cir. 1993) (elementary canon of
construction that court will not read word out of statute).
Public Citizen tries to overcome the plain meaning of the
statute--which seems to reject rather than to compel the
proffered distinction between program and housekeeping rec-
ords--exclusively by resort to the legislative history of the
RDA. As Judge Easterbrook has explained, however:
The political branches adopt texts through prescribed
procedures; what ensues is the law. Legislative history
may show the meaning of the texts--may show, indeed,
that a text "plain" at first reading has a strikingly
different meaning--but may not be used to show an
"intent" at variance with the meaning of the text.
In re Sinclair, 870 F.2d 1340, 1344 (7th Cir. 1989) (enforcing
statute prohibiting conversion of bankruptcy case from chap-
ter 11 to chapter 12 despite conference report saying conver-
sion possible and describing circumstances in which it should
occur); see also Oliver Wendell Holmes, The Theory of Legal
Interpretation, 12 Harv. L. Rev. 417, 419 (1899) ("We do not
inquire what the legislature meant; we ask only what the
statute means").
In any case, we do not think the passages in the legislative
history to which Public Citizen refers us suggest that the
Congress intended only housekeeping records to be subject to
disposal under the RDA. The primary concern of the Con-
gress was to reduce the unnecessary retention of records.
Agencies were retaining too many records, not too few, and it
is unsurprising that the Congress especially contemplated the
disposal of many housekeeping records. See H.R. Rep. No.
79-361, at 1 (1945) ("The primary purpose of this bill is to
prevent the United States Government from incurring large
and unnecessary expenses resulting from the failure of many
agencies to schedule for disposal routine 'housekeeping' rec-
ords such as those relating to the hiring of personnel, pro-
curement of supplies, and fiscal management, that are com-
mon to many or all agencies"); S. Rep. No. 79-447, at 1 (1945)
(same). As the Supreme Court has observed, however, stat-
utes "often go beyond the principal evil to cover reasonably
comparable evils, and it is ultimately the provisions of our
laws rather than the principal concerns of our legislators by
which we are governed." Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 79 (1998) (holding prohibition of
discrimination "because of sex" in Title VII of Civil Rights
Act of 1964 applies to same-sex harassment, though that "was
assuredly not the principal evil [with which] Congress was
concerned").
Public Citizen also notes that in 1978, when the Congress
made the Archivist's use of general records schedules binding
upon agencies subject to the RDA, see Pub. L. No. 95-440, 92
Stat. 1063, 1063 (codified as amended at s 3303a(b)), the
committee reports not only expressed concern with the un-
necessary retention of housekeeping records, but also stated
that if "the records are unique to an agency, rather than
simply of a general nature, they would not be affected by this
bill." H.R. Rep. No. 95-1263 at 2 (1978), reprinted in 1978
U.S.C.C.A.N. 2623, 2624; S. Rep. No. 95-711 at 2 (1978).
Public Citizen claims the 1978 amendment thus reaffirmed
the limitation of s 3303a(d) to housekeeping records original-
ly evinced in the 1945 committee reports, inasmuch as pro-
gram records could be of a type unique to the agency that
administers the particular program. As the Archivist points
out, however, the amendment made the use of general rec-
ords schedules mandatory by substituting a new s 3303a(b)
so providing, but did not in any way change s 3303a(d). If
the latter section did not mean what Public Citizen claims it
meant in 1945, then it still does not because nothing in the
1978 amendment changed its meaning. Even if, however, we
were to assume the statement in the 1978 reports demon-
strates the committees' understanding that s 3303a(d) had
been limited from the outset to housekeeping records, we
would be reluctant to rely upon it; "the views of one Con-
gress as to the meaning of an Act passed by an earlier
Congress are not ordinarily of great weight." United States
v. X-Citement Video, Inc., 513 U.S. 64, 77 n.6 (1994); see also
Republican Nat'l Comm., 76 F.3d at 405 (holding that where
subsequent legislation merely carried over earlier provision
"without substantial change, the House report is essentially
post-enactment history, carrying little probative weight").
In sum, we cannot accept Public Citizen's invitation to use
legislative history to supplant rather than to interpret the
statute.
b. Chevron step two
We now proceed under step two of Chevron to examine
whether the Archivist's interpretation "is reasonable in light
of the language, legislative history, and policies of the stat-
ute." Republican Nat'l Comm., 76 F.3d at 406. Public
Citizen asserts that it would be irrational to construe
s 3303a(d) in such a way as "to give the Archivist the power
to authorize the destruction of all records stored on a given
medium or created by a given technology, without regard to
the records' purposes [or] content."
This argument is based upon a misunderstanding of GRS
20 and the Archivist's rationale for adopting it. Under
s 3303a(d) the Archivist must assess the "administrative,
legal, research, or other value" of a record before authorizing
its disposal--which is inherently a content-based judgment.
As the district court reasoned, there must be "a relationship
between the commonality of records covered by a general
schedule and their diminished value." Carlin I, 2 F. Supp. 2d
at 12. We agree, for if there were little or no relation
between the features common to a set of records and their
value, then they could not be scheduled for disposal pursuant
to a general records schedule because no categorical assess-
ment could logically be made of their value.
The district court concluded from this that the "common
feature of the records scheduled under GRS 20--the fact that
they have been generated by electronic technology--has no
relation to each record's value." Id. That captures only half
the matter, however. GRS 20 does not authorize disposal of
electronic records per se; rather, such records may be dis-
carded only after they have been copied into an agency
recordkeeping system.* Therefore, GRS 20 seems to us to
__________
* One might say, tracking the statute, that the records share both
the "form" of being electronic and the "character" of having been
duplicated and placed in an agency recordkeeping system.
embody a reasoned approach to accomplishing the potentially
conflicting goals of the Congress: "[j]udicious preservation
and disposal of records." s 2902(5).
We note also that in a neighboring part of the RDA the
Congress codified the very approach that Public Citizen
claims it prohibited in s 3303a(d). Section 3303(1) requires
the head of each agency to submit to the Archivist
lists of any records in the custody of the agency that
have been photographed or microphotographed under
the regulations and that, as a consequence, do not appear
to have sufficient value to warrant their further preser-
vation by the Government.
Analogously, GRS 20 authorizes disposal of electronic mail
and word processing files that have been copied to a record-
keeping system and, "as a consequence," id., lack sufficient
value to warrant their continued preservation. The technolo-
gy of duplication may be different but the principle is the
same. We think this provision highly persuasive in demon-
strating that the Archivist's approach in GRS 20 does not
reflect an unreasonable interpretation of the statute.
Public Citizen also claims that "the Archivist's unexplained
departure from prior statements that general schedules are
limited to administrative records ... requires that [GRS 20]
be set aside." The prior statements to which Public Citizen
refers, however, apparently concerned authorizations to dis-
card the only extant version of a record, not a record that had
been copied to a recordkeeping system; at the least, Public
Citizen has directed our attention to no prior statement of the
Archivist concerning an approach analogous to that in GRS
20. Moreover, the Archivist claims, and Public Citizen does
not dispute, that GRS 23, the predecessor to GRS 20, applied
to program records at the same time Public Citizen claims the
Archivist's policy limited general schedules to housekeeping
records. See GRS 20, 60 Fed. Reg. at 44,644/1 ("The GRS 23
that was approved in 1988 authorized deletion of word pro-
cessing and e-mail records from [personal computers] after
they had been copied to paper or microform. This authority
has now been moved to GRS 20 and is extended to authorize
deletion of [such records] after they have been copied to an
electronic recordkeeping system"). When a general schedule
authorizes disposal of an uncopied record, it is obvious why
the Archivist would wish to exclude program records, for an
error means the loss of a record; when a record is discarded
pursuant to GRS 20, however, it has already been copied to
the agency's recordkeeping system, and there is no risk that
information will be lost to future users. We conclude, there-
fore, that Public Citizen has identified no policy of the Archi-
vist with which GRS 20 is inconsistent. See Bush-Quayle '92
Primary Comm. v. FEC, 104 F.3d 448, 454 (D.C. Cir. 1997)
("We may permit agency action to stand without elaborate
explanation where distinctions between the case under review
and the asserted precedent are so plain that no inconsistency
appears").
In sum, we hold under Chevron step one that s 3303a(d)
does not preclude the Archivist from including program rec-
ords in a general schedule because the statutory source of his
authority draws no distinction between program and house-
keeping records. Under Chevron step two we hold that the
Archivist permissibly construed the statute to allow the dis-
posal of program records the contents of which have been
preserved in a recordkeeping system. Accordingly, we up-
hold the Archivist's interpretation against this challenge.
2. Time specified for disposal of records
The Archivist may authorize the disposal of records under
a general schedule "after the lapse of specified periods of
time," if such records will not then have sufficient value to
warrant their preservation. s 3303a(d). In GRS 20 he in-
structed agencies to delete word processing and electronic
mail files after their transfer to a recordkeeping system,
although word processing files may be retained until "no
longer needed for updating or revision." GRS 20, 60 Fed.
Reg. at 44,649/1.
Public Citizen argues that GRS 20 contravenes s 3303a(d)
because the Archivist did not "specif[y] periods of time" in
months or years for the retention of records. The Archivist
responds that the statute does not require him to specify the
time at which records may be discarded in months or years,
and that he did specify the time for disposal of such records
by reference to a condition subsequent, namely, the place-
ment of the records in a recordkeeping system. We agree.
As to Chevron step one, we do not see how the phrase
"specified periods of time" can be said unambiguously to
require the Archivist to select a period in terms of months or
years. Whether the period to elapse before a record may be
discarded is expressed rigidly in terms of months or years, or
more flexibly in terms of when a record has been transferred
to a recordkeeping system, a precise moment has been speci-
fied. Similarly, under Chevron step two, if the Archivist is to
make the best determination of when records of a certain
type will cease to have sufficient value to warrant their
retention, then it is eminently sensible that he be able to rest
that determination upon a future condition the occurrence of
which will diminish the value of the records, without requiring
that he predict precisely when that will occur.*
Public Citizen argues next that the Archivist's approach
defeats the purpose of the RDA because the event that
triggers the agency's obligation to discard a record is within
the control of the agency, not that of the Archivist, and that
GRS 20 thus removes the Archivist as a check upon an
agency's disposal of records. This point is not well taken for,
as the Archivist explains, he "has not provided an open-ended
grant of authority for agencies to delete records at their
leisure." Before an agency may discard electronic mail or
word processing files, pursuant to GRS 20 it must first copy
them to a recordkeeping system; an agency's control over the
__________
* Although Public Citizen claims the Archivist failed to make this
argument to the district court, we see that the Archivist reasoned
both in his reply memorandum in support of his motion for sum-
mary judgment and in GRS 20 itself that the statute authorizes him
to order disposal of records "after they have been copied to [a]
recordkeeping system." GRS 20, 60 Fed. Reg. 44,649/1 (items 13 &
14); see National R.R. Pass. Corp. v. Boston & Maine Corp., 503
U.S. 407, 420 (1992) ("we defer to an interpretation which was a
necessary presupposition of the [agency's] decision").
timing of that decision is irrelevant to the result that the
record is preserved, and therefore that the Archivist has
indeed placed a critical check upon an agency's disposal of
electronic records.
We therefore uphold the Archivist's interpretation of
s 3303a(d) as permitting him to base the time for disposal of
records upon their having been copied and placed in a record-
keeping system.
B. Arbitrary and Capricious Challenge
Recall that under s 3303a(d) the Archivist may promulgate
general records schedules authorizing the disposal of records
only if he determines that "such records will not, at the end of
the periods specified, have sufficient administrative, legal,
research, or other value to warrant their further preserva-
tion." Public Citizen claims the Archivist made no such
determination of value in GRS 20. Curiously, it then con-
cedes he implicitly (and, Public Citizen argues, erroneously)
determined that once a copy of such a record is placed in a
paper or electronic recordkeeping system, the original lacks
sufficient value to warrant its further preservation. We
accept Public Citizen's concession that the Archivist made a
determination of value, though we think it explicit rather than
implicit: The Archivist explained--in a discussion entitled
"Value of Electronic Records," see GRS 20, 60 Fed. Reg. at
44,643/3 to 44,645/2--that records located in personal comput-
ers cannot adequately be searched and are therefore "of
limited use to both the originating agency and to future
researchers." Id. at 44,645/2. The question we must now
decide is whether the Archivist's determination of value is
arbitrary and capricious.
We first note that Public Citizen does not contest the
permissibility of discarding the electronic original of a record
that has been fully copied to an electronic recordkeeping
system. Instead, Public Citizen "stresse[s] that hard copy
[i.e., paper] records are not satisfactory replacements for
records in electronic format[, citing] the well-known advan-
tages of electronic records for future research." GRS 20, 60
Fed. Reg. at 44,643/3. Our focus, therefore, is upon whether
the Archivist acted arbitrarily and capriciously in determining
that a paper copy in a paper recordkeeping system is an
adequate substitute for the electronic original, that is, to the
point that the original lacks sufficient value to warrant its
continued preservation. Two considerations inform this in-
quiry: (1) the superiority of electronic records for searching,
manipulating, and indexing information, and (2) the complete-
ness of the information copied to a paper recordkeeping
system.
1. Superiority
Public Citizen argues the Archivist acted arbitrarily and
capriciously when he authorized (and thereby required) dis-
posal of the original electronic records after they have been
printed and placed in a paper recordkeeping system; as the
Archivist himself recognized, records in electronic form can
be searched, manipulated, and indexed in ways that paper
records cannot. See, e.g., id. The Archivist explained his
decision on the ground that these admitted benefits accrue to
any significant degree only for electronic records that are
maintained in an electronic recordkeeping system:
For records to be useful they must be accessible to all
authorized staff, and must be maintained in recordkeep-
ing systems that have the capability to group similar
records and provide the necessary context to connect the
record with the relevant agency function or transaction.
Storage of electronic mail or word processing records on
electronic information systems that do not have these
attributes will not satisfy the needs of the agency or the
needs of future researchers.
Search capability and context would be severely limit-
ed if records are stored in disparate electronic files
maintained by individuals rather than in agency-
controlled recordkeeping systems. Furthermore, if elec-
tronic records are stored in electronic information sys-
tems without records management functionality, perma-
nent records may not be readily accessible for research.
Unless the records are adequately indexed, searches,
even full-text searches, may fail to find all documents
relevant to the subject of the query. In addition, numer-
ous irrelevant temporary records, that would be segrega-
ble in systems with records management functionality,
may be found. Agency records can be managed only if
they are in agency recordkeeping systems.
Id. at 44,644/1-2.
Public Citizen's argument ignores this obviously material
difference between the value of records that are part of an
agency's centralized recordkeeping system and the value of
those that are accessible only by searching a particular
personal computer. We do not think the Archivist acted
unreasonably in discounting the comparative value of "dispa-
rate electronic files maintained by individuals rather than in
agency-controlled recordkeeping systems." Id.; see also id.
at 44,646/1 ("Even accessible network word processing direc-
tories are inadequate if they are part of information systems
that lack records management functionality").
Public Citizen next claims that many agencies either are
now or will in the foreseeable future be capable of managing
their records in electronic form on an agency-wide basis.
This point, too, the Archivist addressed in promulgating GRS
20, as follows:
Agencies must maintain their records in organized files
that are designed for their operational needs. Agencies
that currently have traditional paper files print their
electronic mail records, word processing records, spread-
sheets, and data base reports so that their files are
complete, comprehensible, and in context with related
records. Agency functions that have not been automated
must be supported by hard copy files, even when some
types of related records are generated electronically.
Agencies that decide to maintain their records in elec-
tronic recordkeeping systems do so for compelling opera-
tional needs, not for future researchers. In some cases
... agencies create automated indexes to hard-copy rec-
ords rather than digitizing all of the records themselves.
In any case, the decision must be based on an analysis of
the needs of and benefits to the agency, balanced against
available resources.
Id. at 44,645/1.
According to Public Citizen this explanation, which permits
each agency to decide whether to retain records in electronic
form or to transfer them to paper based solely upon the
agency's operational needs, i.e., the "administrative" value of
the records, fails adequately to consider the "research" value
of the records. s 3303a(d). Public Citizen also relies upon
the following statement in the preamble to another final rule
promulgated the same day as GRS 20, in which the Archivist
set standards whereby an agency may establish a recordkeep-
ing system for electronic mail:
Electronic recordkeeping systems may be the best means
to preserve the content, structure, and context of elec-
tronic records. In addition, an automated system may
be more easily searched and manipulated than paper
records. The electronic format may also allow simulta-
neous use by multiple staff members and may provide a
more efficient method to store records. Furthermore,
when they are no longer needed by the creating agency,
access by future researchers to permanently valuable
electronic records would be enhanced by electronic pres-
ervation.
Final Rule: Electronic Mail Systems, 60 Fed. Reg. 44,634,
44,639/1-2 (1995).
Contrary to Public Citizen, we think it plain that the
Archivist adequately weighed not only the "administrative"
but also the "legal, research, and other value" of records in
arriving at his decision. s 3303a(d). In the Electronic Mail
Systems rule upon which Public Citizen relies, the Archivist
explained that "neither the standards [in that rule] nor the
Federal Records Act require[s] electronic recordkeeping," 60
Fed. Reg. at 44,634/3. He conceded that electronic records
will be of greater use for research if maintained in electronic
recordkeeping systems and even encouraged agencies to de-
velop those systems where practicable. But he also explained
that
the prospective interests of future researchers cannot be
used to force agencies to do the impossible nor can these
interests dictate to agencies how they should preserve
their records for their own use. Agencies must create
and maintain records to conduct Government business
and account for their activities. Only the agency can
determine what format best serves these purposes.
Some agencies, or components of agencies, may deter-
mine that paper recordkeeping will continue to be ade-
quate and cost-effective for the documentation of their
transactions.
Id. at 44,638/1-2.
Public Citizen's argument that the Archivist failed to con-
sider the research value of electronic records, therefore,
reduces to the assertion that it is arbitrary and capricious for
the Archivist not to require all agencies that create electronic
mail or word processing records either to establish electronic
recordkeeping systems immediately or to retain their elec-
tronic records until such time as they have electronic record-
keeping systems. In view of the Archivist's explanations in
both GRS 20 and the Electronic Mail Systems Rule, however,
we think his decision to permit agencies to maintain their
recordkeeping systems in the form most appropriate to the
business of the agency is reasonable. Nor does Public Citi-
zen claim that agencies have a legal duty to establish elec-
tronic recordkeeping systems.
We agree with Public Citizen that electronic recordkeeping
has advantages over paper recordkeeping, but our duty as a
reviewing court is to ask only whether the Archivist's policy
choice is arbitrary or capricious; manifestly it is not. All
agencies by now, we presume, use personal computers to
generate electronic mail and word processing documents, but
not all have taken the next step of establishing electronic
recordkeeping systems in which to preserve those records.
It may well be time for them to do so, but that is a question
for the Congress or the Executive, not the Judiciary, to
decide.
In sum, we do not think the Archivist must, under the
RDA, require agencies to establish electronic recordkeeping
systems. Nor do we think it unreasonable for the Archivist
to permit each agency to choose, based upon its own opera-
tional needs, whether to use electronic or paper recordkeep-
ing systems. The Archivist's finding that electronic records
are of limited use unless maintained in a recordkeeping
system is reasonable as well. Consequently, we uphold his
ultimate determination that a record in electronic form lacks
sufficient value to warrant preservation once it is transferred
intact to a paper recordkeeping system.
2. Completeness
In Armstrong we held that a paper printout of an electron-
ic mail record is not an "extra cop[y]" within the meaning of
s 3301 if it does not include transmission data, such as the
names and addresses of both the recipient and the author and
the date the message was sent--the electronic equivalents of
the address, return address, and date on correspondence sent
by conventional mail. See 1 F.3d at 1283. Public Citizen
cites Armstrong for the proposition that electronic records
often contain information that may not be transferred to
paper when printed; its point is that GRS 20 is arbitrary and
capricious because it does not require this information to be
preserved. The Archivist responds that GRS 20 does in fact
require that all such information be preserved in the agency's
recordkeeping system before the electronic original may be
discarded. We agree with the Archivist.
With respect to electronic mail, GRS 20 on its face address-
es the concerns raised in Armstrong by requiring the record-
keeping system to capture all relevant transmission data.
See 60 Fed. Reg. at 44,646/3, 44,649/1 (item 14 and Note
thereto). Public Citizen identifies no information that may
not be transferred when the record is copied to paper pursu-
ant to the requirements of GRS 20.
With respect to word processing files, Public Citizen claims,
based upon the capabilities of extant computer software, that
there may be hidden comments or summaries that are not
printed out--the electronic equivalents of a Post-itR note or
an abstract--the preservation of which is not required by
GRS 20. See id. at 44,649/1 (item 13). Although the Archi-
vist claims in his brief that GRS 20, properly interpreted,
does require the preservation of such hidden items in word
processing records, he did not make that point express in
promulgating GRS 20. The Archivist explains that GRS 20
requires retention of all such information, for the preamble to
the schedule requires that a recordkeeping system "pre-
serve[ ] the[ ] content, structure, and context" of a record.
Id. at 44,644/1. In other words, as counsel for the Archivist
put it at oral argument, if the information is part of a record
under the RDA, see s 3301, then it must be preserved. Thus,
the Archivist claims that GRS 20 says precisely what Public
Citizen thinks it should but does not say.
The Archivist's interpretation of his own regulation is
"controlling unless plainly erroneous or inconsistent with the
regulation." Auer v. Robbins, 519 U.S. 452, 461 (1997). That
standard is easily met here. We also note that the Archivist's
interpretation is consonant with the requirement in GRS 20
that a word processing file be "copied" to a recordkeeping
system. 60 Fed. Reg. at 44,649/1 (item 13); see Armstrong, 1
F.3d at 1283 (explaining that "unless the paper versions
include all significant material contained in the electronic
records ... the two documents cannot accurately be termed
'copies' "). That the Archivist's interpretation comes for the
first time in litigation does not make it unworthy of defer-
ence, as "[t]here is simply no reason to suspect that the
interpretation does not reflect the agency's fair and consid-
ered judgment on the matter in question." Auer, 519 U.S. at
462. Considering the substance of that interpretation, we
trust that Public Citizen is not aggrieved by this indulgence.
Lastly, Public Citizen complains that the Archivist improp-
erly relies upon the preamble in his interpretation of the
general schedule. We regularly rely upon the preamble in
interpreting an agency rule. See National Mining Ass'n v.
EPA, 59 F.3d 1351, 1355 n.7 (D.C. Cir. 1995). The purpose of
the preamble, after all, is to explain what follows. See 5
U.S.C. s 553(c) ("After consideration of the relevant matter
presented, the agency shall incorporate in the rules adopted a
concise general statement of their basis and purpose").
In sum, we reject Public Citizen's claim that GRS 20 fails
to require that all relevant information be transferred to a
paper recordkeeping system before an electronic original may
be discarded.
III. Conclusion
For the foregoing reasons, we uphold GRS 20. We there-
fore need not decide whether the Executive Office of the
President is a proper party to an action brought under the
RDA, nor whether the district court had the power to enter
an injunction ordering the Archivist to comply with its declar-
atory judgment holding the schedule invalid. Accordingly,
the judgment of the district court is
Reversed.