Citizens for Responsibility and Ethics in Washington v. National Archives and Records Administration

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
CITIZENS FOR RESPONSIBILITY )
AND ETHICS IN WASHINGTON et al., )
)
Plaintiffs, )
)
v. ) Case No. 20-cv-00739 (APM)
)
NATIONAL ARCHIVES AND RECORDS )
ADMINISTRATION et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION
I. INTRODUCTION
In December 2019, the National Archives and Records Administration (“NARA”)
approved a request from U.S. Immigration and Customs Enforcement (“ICE”) to schedule the
disposal of certain agency records for which ICE no longer had a business use. Plaintiffs have
challenged NARA’s approval of that request as arbitrary and capricious, an abuse of discretion,
and contrary to law. The parties have cross-moved for summary judgment. For the reasons that
follow, the court grants in part and denies in part each motion.
II. BACKGROUND
A. Legal Background
The Federal Records Act provides the legal framework for the collection, preservation, and
disposal of records produced by the federal government. As relevant here, the Act requires that
federal agencies “make and preserve records containing adequate and proper documentation of the
organization, functions, policies, decisions, procedures, and essential transactions of the agency
. . . to protect the legal and financial rights of the Government and of persons directly affected by
the agency’s activities.” 44 U.S.C. § 3101. The Federal Records Act entrusts the Archivist, who
is the head of NARA, to provide “guidance and assistance to Federal agencies” to ensure that such
federal records are properly preserved. See id. § 2904(a).
The Archivist works cooperatively with federal agencies to determine which records an
agency must preserve in the archives and which records may be segregated and disposed because
of their “temporary value.” See id. § 3102(3). Agency heads request “disposition authority”—
permission to discard records—from the Archivist and submit to the Archivist plans to dispose of
records that are no longer “needed by [the agency] in the transaction of its current business and
that do not appear to have sufficient administrative, legal, research, or other value to warrant their
further preservation.” Id. § 3303(2). These plans can include “schedules proposing the disposal”
of records that lose their “administrative, legal, research, or other value” over time and do not
qualify for permanent retention. Id. § 3303(3). The Archivist “examine[s] the lists and schedules”
and, following a public notice and comment period, determines if any of the records “have
sufficient, administrative, legal, research, or other value to warrant their continued preservation.”
Id. § 3303a(a).
Pursuant to its statutory authority to “establish standards for the selective retention of
records of continuing value,” id. § 2905(a), NARA has promulgated an “Appraisal Policy” that
“sets out the strategic framework, objectives, and guidelines that [it] uses to determine whether
Federal records have archival value.” Nat’l Archives & Records Admin., Appraisal Policy of the
National Archives § 1 (Sept. 2007), https://www.archives.gov/records-mgmt/scheduling/
appraisal#policy [hereinafter Appraisal Policy]. As the Appraisal Policy states: “Records
appraisal is not a rote exercise. It requires informed judgments, knowledge of and sensitivity to
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researchers’ interests, recognition of resource considerations, and a willingness to acknowledge
and understand comments and suggestions from diverse perspectives.” Id. The Appraisal Policy
sets forth how appraisers are to make such informed judgments.
The Policy explains that, as the first step to appraising records, NARA “collect[s] essential
evidence from Federal agencies.” Id. § 6. “Essential evidence” is broken down into three
categories: (1) “[r]ecords that document the rights of citizens” and enable citizens “to establish
their identities, protect their rights, and claim their entitlements”; (2) “[r]ecords that document
actions of Federal officials” and “enable them to explain past decisions, form future policy, and be
accountable for consequences”; and (3) “[r]ecords that document the national experience” and
“provide the means for evaluating the effects of Federal actions on the nation and for understanding
its history, science, and culture, including the man-made and natural environment.” Id. Not all
“essential evidence” requires permanent retention, and “the essential evidence categories” serve
merely “as the beginning point for appraisal.” Id. §§ 6–7.
Sections 7 and 8 of the Appraisal Policy provide guidance on how, within the three
categories of essential evidence, NARA identifies records that require permanent preservation.
Of the records constituting essential evidence, NARA seeks to permanently retain (1) records
whose “importance . . . for protecting legal rights endures despite the passage of time,” (2) records
“containing significant documentation of Government activities” that are “essential to
understanding and evaluating Federal actions,” and (3) records that are “essential to understanding
the role of the Federal Government and the history of our nation, its people, and the environment.”
Id. § 7. NARA treats these categories as a “high-level strategic framework” for identifying
permanent records, and section 8 in turn provides six more granular categories of records that
should be permanently retained. See id. § 8. These categories include, for example, records that
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“[r]etain their importance for documenting legal status, rights and obligations of individuals,
groups, organizations, and governmental bodies despite the passage of time”; “[p]rovide evidence
of significant policy formulation and business processes of the Federal Government”; and
“[p]rovide evidence of Federal deliberations, decisions, and actions relating to major social,
economic, and environmental issues,” among many others. Id.
While sections 7 and 8 of the Appraisal Policy provide categories of documents that
warrant permanent preservation, those categories are descriptively quite broad, and NARA “uses
the general guidelines outlined in Appendix 1” as more concrete criteria for “determining which
records support its appraisal objectives and thus warrant permanent retention.” Id. § 9. Appendix 1
consists of a series of questions that “NARA staff must address” in reaching a recommendation to
the Archivist. Id. app. 1 (emphasis added). The Appendix notes that “[a]pplying the guidelines to
specific cases will not be a mechanical process akin to adding up points or checking boxes,” but
that the guidelines therein are intended to “make decision making easier” and generate “more
consistent appraisal judgments.” Id.
Of significance to this case is Appendix 1’s first archival guideline. It asks: “How
significant are the records for research?” Id. This question, the guidance notes, “is the most
difficult variable to determine” because “[w]hat is of relatively low research use today may become
of great research use in the future.” Id. Despite the difficulty of accurately appraising a
document’s research value, “it is important to consider this question in making appraisal
decisions.” Id. Appendix 1 therefore states that “[i]t is necessary to consider the kinds and extent
of current research use and to try to make inferences about anticipated use both by the public and
by the Government.” Id. (emphasis added).
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 B. Factual Background
The current lawsuit challenges NARA’s decision to approve a records disposition schedule
for “Detainee Records” (Schedule No. DAA-0567-2015-0013) maintained by ICE (the
“Disposition Schedule”).
1. ICE’s First Proposed Schedule
In October 2015, ICE submitted to NARA a Request for Records Disposition Authority for
eleven types of detainee records. See J.A. at 646; 1 Pls.’ Mot. for Summ. J., ECF No. 9 [hereinafter
Pls.’ Mot.], Pls.’ Mem. in Supp. of Mot. for Summ. J., ECF No. 9-1 [hereinafter Pls.’ Br.], at 8.
As it pertains to Plaintiffs’ challenge, the request sought disposition authority for the following
categories of records:
(1) Sexual Abuse and Assault Files. These “[r]ecords document[] the reporting
and investigation of sexual abuse or assault allegations between detainees as well as by
employees, contractors, or volunteers against detainees. Records include, but are not
limited to, police reports; summaries of medical exam results; supporting memos and video
(if any); evidentiary materials pertaining to the allegation; and investigation outcomes.”
J.A. at 3. ICE proposed a 20-year retention period for Sexual Abuse and Assault Files. Id.
at 648.
(2) Death Review Files. These files consist of “[c]omprehensive reports on
findings from reviews of circumstances surrounding detainee deaths. The files include,
but are not limited to, investigative reports, correspondence, witness statements, extracts
of pertinent information, immigration records, medical records, photographs, video and
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Citations to “J.A.” can be found in the five-volume Joint Appendix, see ECF Nos. 19, 19-1, 19-2, 19-3, 19-4.
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voice recordings, death certificates, and autopsy reports.” Id. at 648. ICE proposed
permanent retention of the Death Review Files. Id.
(3) Detention Monitoring Reports. Detention Monitoring Reports “document[]
on-site monitoring of detention facilities for appropriate and timely resolution of problems
and concerns that may arise daily during facility operations.” Id. at 6. They are provided
weekly by facilities “to the Detention Monitoring Unit” to “identify[] concerns within the
facility and corrective actions taken to remedy them.” Id. ICE proposed a three-year
retention period for Detention Monitoring Reports. Id. at 650.
(4) Detainee Escape Reports. These reports “document[] details of successful
detainee escapes from ICE custody or detention facilities,” id. at 6, and ICE proposed a
seven-year retention period for such records, id. at 651.
(5) Detention Information Reporting Line Records (“DRIL Records”). DRIL
Records “document[] calls to the Detention Reporting and Information Line (DRIL).” Id.
at 7. “DRIL is a toll-free service providing a direct channel for individuals in ICE custody,
the public, non-governmental organizations, faith-based organizations, academic
institutions, attorneys, and advocacy groups to communicate directly with ICE to answer
questions and resolve concerns.” Id. These “[r]ecords include, but are not limited to,
communications in any form (phone, etc.), correspondence, and supporting
documentation.” Id. ICE suggested a five-year retention period for DRIL Records. Id.
at 651–52.
(6) Detainee Segregation Case Files. These records “document[] the placement
of detainees in segregated housing, including reasons for segregation placement,
compliance with applicable detention standards, alternative arrangements explored, and
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assessment of the best course of action.” Id. at 7. The records may result from segregation
that is “administrative, disciplinary, protective . . . , or self-requested by the detainee.” Id.
ICE included a three-year retention period for Detainee Segregation Case Files. Id. at 652.
After ICE submitted the proposed schedule to NARA, NARA offered two comments.
First, as to the Death Review Files, NARA appraised the files as “temporary” rather than
permanent and recommended that they “be long term temporary, i.e. something in the
neighborhood of 50 y[ea]rs.” Id. at 631. As NARA’s appraiser explained, “These review files
may be of interest to individuals and organizations but do not warrant permanent retention in the
National Archives because they do not document significant actions of federal officials, the legal
rights and interests of US citizens, or the national experience.” Id. Second, NARA confirmed
with ICE that there were other permanent records that captured “information on sexual assault
incidents” in ICE detention. See id.; id. at 627 (ICE responding that sexual assault incidents are
also captured in “the Sexual Assault Case Management System”).
ICE thereafter submitted a revised version of its disposition authority request. The primary
change ICE made in this iteration was that it proposed to retain the Death Review Files for 20 years
rather than permanently. Defs.’ Cross-Mot. for Summ. J., ECF No. 14 [hereinafter Defs.’ Mot.],
Defs.’ Mem. in Supp. of Defs.’ Cross-Mot. for Summ. J. & in Opp’n to Pls.’ Mot. for Summ. J.,
ECF No. 14-1 [hereinafter Defs.’ Br.], at 7.
In a four-page appraisal memorandum dated June 20, 2017, the NARA appraiser
recommended that the Archivist approve ICE’s proposed schedule (the “First Appraisal Memo”).
J.A. at 610. The First Appraisal Memo explained the appraiser’s justifications for the approval
recommendation. Importantly here, the Memo contained scant discussion of the research value of
the records ICE sought to destroy. It merely stated that the Death Review Files, Detention
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Monitoring Reports, Detainee Escape Reports, DRIL Records, and Detainee Segregation Case
Files have “little or no research value.” See id. at 611–13. Additionally, the Memo did not include
any evaluation or conclusion regarding the research value of the Sexual Abuse and Assault Files
and instead justified temporary retention of those files on the basis that they do “not document
significant actions of Federal officials.” Id. at 610.
2. First Notice and Comment Period
In July 2017, NARA published a notice regarding the proposed Disposition Schedule in
the Federal Register and requested public comment. Records Schedules; Availability and Request
for Comments, 82 Fed. Reg. 32,585 (July 14, 2017). NARA received “an unprecedented number
of comments”—approximately 25,000 of them—on the proposed Disposition Schedule. See
Defs.’ Br. at 8; J.A. at 154. “The general comments received from individuals, organizations, and
signers of petitions overwhelmingly asked NARA not to approve the disposition request entirely;
not to approve the request to destroy records related to death, abuse, and detainee segregation; or
to preserve all records on the pending record schedules.” J.A. at 154.
One of the themes expressed in numerous comments was that the records on ICE’s
Disposition Schedule were valuable to researchers and thus merited longer or permanent
preservation. See id. (noting commenters suggested the records were needed for, among other
things, “sociologists and psychologists researching social problems” and “historical research into
treatment of detainees and conditions of detention”). As one example of many, 28 congressional
representatives signed a letter urging NARA to “err on the side of preservation” of ICE’s records.
Id. at 486. The representatives argued that preservation was necessary because “the relatively
recent government restructuring of our immigration agencies, the increased centrality of
immigration in American public debate, and strong congressional attention to this issue indicate
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that the treatment of immigrants will be of high historical and research value to future scholars and
legislators in understanding our country’s actions during this moment in time.” Id. at 485–86.
Similarly, the ACLU, which submitted a petition supported by 23,758 comments, id. at 154,
observed that “[m]any of the records that ICE proposes for destruction have served as the basis for
research and literature offering proof of the mistreatment endured by people in detention, including
sexual abuse, excessive use of solitary confinement, and death.” Id. at 494. The ACLU stressed
that “the records in this schedule have significant legal, research and historical value” and “offer
a critical window into the treatment of immigrants in the United States.” Id. at 500–01.
In response to the comments, NARA suggested several revisions to ICE’s proposed
schedule. NARA increased the retention period for Sexual Abuse and Assault Files from 20 years
to 25 years in order to ensure the records are “preserved for the time required for ICE’s business
needs.” See id. at 173. NARA also split the Death Review Files into two items: a temporary
Enforcement and Removal Operations Detainee Death Review File (“ERO Death Review File”)
with a 20-year disposition and a permanent Office of Professional Responsibility Detainee Death
Review File (“OPR Death Review File”). See id. at 174. According to NARA, the two sets of
files, named for the separate ICE offices that maintain them, significantly overlap, and “[t]he most
significant contents of the ERO Death Review file are covered by the OPR Death Review File.”
Id. at 174–75. Finally, NARA increased the retention period for DRIL Records from five to seven
years to “ensure maintenance of records for an appropriate length of time to ensure legal rights
and accountability” and increased the retention period for Detainee Segregation Case Files from
three to seven years “to support interests of legal rights and accountability.” See id. at 178–79.
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3. Second Notice and Comment Period
On June 21, 2019, NARA published the modified proposed schedule in the Federal
Register and invited a second round of public comments. See Changes to Agency Records
Schedule; Request for Comments, 84 Fed. Reg. 29,247 (June 21, 2019). Once again, NARA
received multiple comments expressing concerns that, under the proposed schedule, “sufficient
records w[ould] not be available for historical and human rights research.” J.A. at 15. NARA
received, for example, a comment from two professors at Durham University, a public university
in the United Kingdom, who had requested in the course of their previous research numerous
documents now slated for disposition. See id. at 86–102. The professors attached their recent
research paper based on FOIA requests to ICE detention centers and noted that “[r]esponses to our
FOIA requests clearly demonstrate research value for social scientists and legal scholars
documenting patterns of behaviour, human rights concerns and abuse in detention.” Id. at 86.
According to the professors, “[d]ocuments due for rescheduling are already used in research and
are essential to research on US immigration detention facilities.” Id. at 87. Disposing of such
records, the professors urged, “would have a demonstrable and negative impact upon academic
research in this field.” Id. Similarly, the Archivists Round Table of Metropolitan New York
(“ART”) commented that many of the records proposed for disposition, including Detainee
Segregation Case Files, would be “significant for research for future generations.” Id. at 111 (also
commenting that “ERO Detainee Death Review Files will be researched by future generations”).
ART also emphasized that NARA should carefully consider how preserving summaries of other
records sacrificed the “more inclusive perspectives” preserved in original documents. See id.
at 110. For that reason, ART recommended permanently preserving Sexual Abuse and Assault
Files, as well as ERO Death Review Files and DRIL Records. Id. at 110–11.
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 Following the second notice and comment period, NARA published a second consolidated
reply to comments. See id. at 14. NARA acknowledged receiving a number of comments
expressing that, “[u]nder the proposed schedule, sufficient records will not be available for
historical and human rights research, accountability of ICE employees, to support the legal rights
of harmed persons, or family member interest.” Id. at 15. NARA responded to commenters’
concerns regarding the research value of the scheduled records by stating, “When the National
Archives appraises a series of records as temporary rather than permanent, it does not mean that
the activities the records document are unimportant, or that the records lack any research use.” Id.
at 17. “Rather,” NARA explained, “it means that the anticipated research use will be more
contemporary rather than many years into the future.” Id. The agency’s conclusion that
“anticipated research use will be more contemporary” was the only insight it provided into its
consideration of the research value of the records.
NARA also noted that some commenters were concerned that preserving summaries of
significant detention events rather than all contemporaneous documentation would not “promote
‘inclusive perspectives.’” Id. at 22. NARA explained that retaining inclusive perspectives was a
lesser priority for the agency in selecting which documents to preserve: “As the archives of the
U.S. Government, our policy does in fact consider documentation of high-level federal
decision-making more archivally significant than ‘inclusive perspectives of all who are involved.’”
Id. Therefore, NARA concluded, “complaints that proceed through agency processes are more . . .
likely to meet criteria for permanent retention because they reflect more thorough investigation
and assessment.” Id.
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action under the APA, “the district judge sits as an appellate tribunal,” and “[t]he entire case on
review is a question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.
Cir. 2001) (internal quotation marks omitted). The court’s analysis must be confined to the
administrative record and should involve “neither more nor less information than” was before “the
agency when it made its decision.” CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (internal
quotation marks omitted). The district court’s “review is ‘narrow’ and [it] will ‘not substitute [its]
judgment for that of the agency.’” U.S. Sugar Corp. v. EPA, 830 F.3d 579, 605 (D.C. Cir. 2016)
(alterations omitted) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. (State
Farm), 463 U.S. 29, 43 (1983)).
The APA requires courts to “hold unlawful and set aside agency action, findings, and
conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with the law.” 5 U.S.C. § 706(2)(A). “Although the arbitrary and capricious standard of review
is deferential, the court will ‘intervene to ensure that the agency has examined the relevant data
and articulated a satisfactory explanation for its action.’” BellSouth Corp. v. FCC, 162 F.3d 1215,
1221–22 (D.C. Cir. 1999) (alterations omitted) (quoting Petroleum Commc’ns, Inc. v. FCC, 22
F.3d 1164, 1172 (D.C. Cir. 1994)). An agency’s decision is arbitrary and capricious if the agency
relies “on factors which Congress has not intended it to consider, entirely fail[s] to consider an
important aspect of the problem, offer[s] an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be ascribed to a difference in
view or the product of agency expertise.” State Farm, 463 U.S. at 43.
IV. DISCUSSION
Plaintiffs argue that NARA’s approval of ICE’s Disposition Schedule was arbitrary and
capricious for seven reasons. Specifically, Plaintiffs argue that NARA (1) “failed to sufficiently
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evaluate the research value of the ICE records,” (2) “failed to address significant and relevant
public comments,” (3) “disregarded that historical predecessors of the ICE records are archived in
NARA’s permanent collections,” (4) “failed to sufficiently consider the research value of primary
material,” (5) failed to adequately explain its approval of the “destruction of the ERO detainee
death review files,” (6) “disregarded NARA appraisal policies on ‘periodic reports’ in approving
destruction of ICE’s detention monitoring reports,” and (7) “provided no assessment of the volume
of records at issue or the cost considerations for long-term maintenance, despite citing ‘resource
considerations’ as a basis for approving the ICE schedule.” Pls.’ Br. at 18. The court reaches only
the first two of these arguments. The court finds that, as to all but the Detainee Escape Reports,
NARA’s approval of the schedule was arbitrary and capricious on the grounds that NARA failed
to evaluate the research value of the ICE records and that NARA failed to address significant and
relevant public comments.
Plaintiffs’ lead argument centers on the agency’s failure to adequately account for the
records’ research value and to respond to comments raising this inadequacy. Plaintiffs contend
that NARA failed to “analyze[] the kinds and extent of current research use of the ICE records by
individuals engaged in historical and human rights research” and “to make inferences about
anticipated use based on how historians have utilized comparable immigration detention records
in the past.” Pls.’ Br. at 20 (internal quotation marks omitted). They point out that NARA’s
Appraisal Policy requires the agency to make both inquiries, and that, particularly in light of the
fact that the agency “received significant public comments on these points,” its failure to do so
was arbitrary and capricious. See id.
It is black letter law that an agency acts arbitrarily and capriciously when it “entirely fail[s]
to consider an important aspect of the problem.” State Farm, 463 U.S. at 43. An agency also must
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respond to “relevant” and “significant” public comments. Home Box Office, Inc. v. FCC (HBO),
567 F.2d 9, 35 & n.58 (D.C. Cir. 1977). These two requirements—that the agency consider
important aspects of the problem and respond to all relevant and significant public comments—
interact to ensure that the agency’s decision is responsive to major areas of concern. Accordingly,
“‘[t]he failure to respond to comments is significant only insofar as it demonstrates that the
agency’s decision was not based on a consideration of the relevant factors.’” Sherley v. Sebelius,
689 F.3d 776, 784 (D.C. Cir. 2012) (quoting Covad Commc’ns v. FCC, 450 F.3d 528, 550 (D.C.
Cir. 2006)). And, inversely, “[t]he requirement that agency action not be arbitrary or capricious
includes a requirement that the agency adequately explain its result and respond to ‘relevant’ and
‘significant’ public comments.” Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993)
(citation omitted) (quoting HBO, 567 F.2d at 35 & n.58). “[N]either requirement is particularly
demanding.” Id.
Here, NARA was required by both the governing statutes and the agency’s Appraisal
Policy to consider the research value of the records in ICE’s Disposition Schedule, and it failed to
meaningfully do so. To begin, the Archivist is required by statute to examine schedules submitted
by agency heads and determine if “any of the records listed in a list or schedule . . . 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.” 44 U.S.C. § 3303a(a)
(emphasis added); see also Am. Friends Serv. Comm. v. Webster, 720 F.2d 29, 64–65 (D.C.
Cir. 1983) (requiring NARA to “provide[] an explanation of what factors were considered in
arriving at the conclusion that the records listed do not have sufficient administrative, legal,
research, or other value to warrant their continued preservation” (internal quotation marks
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omitted)). Before approving a schedule for disposition, NARA is therefore required to consider
as one of several factors whether the records’ research value warrants continued preservation.
NARA’s Appraisal Policy reflects this statutory mandate. Under the Appraisal Policy,
NARA appraisers “use[] the general guidelines outlined in Appendix 1” to “determin[e] which
records support its appraisal objectives and thus warrant permanent retention.” Appraisal Policy
§ 9. In turn, Appendix 1 lists questions that “NARA staff must address” when “developing
appraisal recommendations for the Archivist of the United States.” Id. app. 1 (emphasis added).
The very first required question each appraiser must address is, “How significant are the records
for research?” Id. To make that assessment, Appendix 1 directs that “[i]t is necessary to consider
the kinds and extent of current research use and to try to make inferences about anticipated use
both by the public and by the Government.” Id. (emphasis added). NARA’s obligation to consider
the research value of records scheduled for disposition is thus at the forefront of the Appraisal
Policy.
The record before this court, however, does not reveal that NARA considered current
research use or made inferences about the anticipated use of the documents in future research. In
its appraisal memorandum to ICE, NARA noted that the OPR Death Review Files have “[h]igh
potential research value” and that “Congress and the public have shown considerable interest in
records of detainee deaths.” J.A. at 176. But for other files, including Detention Monitoring
Reports, Detainee Escape Reports, DRIL Records, and Detainee Segregation Case Files, NARA
merely commented that the records have “little or no research value” without providing any
analysis of the records’ current or anticipated future research use. See id. at 177–78. What’s more,
NARA did not provide any conclusion as to the research value of the Sexual Abuse and Assault
Files. Id. at 172–73. Without “an ‘attempt at explanation or justification’” this court is left with
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no means of discerning whether the agency actually considered the research value of the records
on ICE’s Disposition Schedule. See Nat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 564 (D.C. Cir.
2002) (quoting Engine Mfrs. Ass’n v. EPA, 20 F.3d 1177, 1182 (D.C. Cir. 1994)).
NARA, for its part, does not contest that it had to consider the research value of the records
on ICE’s Disposition Schedule. Instead, it argues that it was not “required to provide further
explanation regarding the documents’ research value.” Defs.’ Br. at 26. According to NARA,
“potential research value is just one of many factors that informed NARA’s decision to approve
the Schedule,” and “[n]either the APA nor the Appraisal Policy required NARA to specifically
address each of these myriad factors in its public explanation of why it approved the Schedule.”
Id.
The court might agree with NARA were it not for the numerous comments touting the
current and anticipated future research value of the records and criticizing the agency for not
properly measuring their true value. The court agrees that the steps laid out in the Appendix to the
Appraisal Policy do not create some rote, box-checking exercise. For example, where the lack of
research value is self-evident and uncontroverted, it would be unreasonable to demand that the
agency provide a fulsome explanation for that conclusion. But once, as here, NARA receives
numerous comments discussing the research value of records in dispute, it has a duty to respond
to such comments and to explain its reasoning. As the D.C. Circuit has noted, “a dialogue is a
two-way street: the opportunity to comment is meaningless unless the agency responds to
significant points raised by the public.” HBO, 567 F.2d at 35–36 (footnote omitted).
During the two notice and comment periods, NARA received specific comments that the
Sexual Assault and Abuse Files, ERO Death Review Files, Detainee Segregation Case Files,
Detention Monitoring Reports, and DRIL Records possessed significant research value on matters
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of public interest. See J.A. at 499 (Sexual Assault and Abuse Files); id. at 110–11, 496 (ERO
Death Review Files); id. at 80, 324–25 (Detainee Segregation Case Files); id. at 27, 95–96
(Detention Monitoring Reports); id. at 111 (DRIL Records). Rather than grapple with these
significant points, NARA summarily answered that the records’ “anticipated research use will be
more contemporary rather than many years into the future.” Id. at 17. It said no more. NARA’s
response is a conclusion, not an explanation of its rationale, and it provides the public—and the
court—with no insight into how the agency determined that the records had contemporary rather
than long-term research value. NARA did not reference “the kinds and extent of current research
use”—a consideration the Appendix deems “necessary”—or explain its “inferences about
anticipated use”—which the Appendix states the agency must “try” to make. See Appraisal Policy
app. 1. The D.C. Circuit has made clear that more is required of the agency than “to note the
concerns of others and dismiss those concerns in a handful of conclusory sentences.” Gresham v.
Azar, 950 F.3d 93, 103 (D.C. Cir. 2020); see also Getty v. Fed. Sav. & Loan Ins., 805 F.2d 1050,
1055 (D.C. Cir. 1986) (noting that, even where formal findings were not required, “an agency must
provide the court an explanation sufficient to allow [it] to properly carry out [its] review”).
Accordingly, as to the Sexual Abuse and Assault Files, ERO Death Review Files, Detainee
Segregation Case Files, Detention Monitoring Reports, and DRIL Records, NARA’s approval of
the Disposition Schedule was arbitrary and capricious because it failed to consider an important
factor—the research value of the records—and failed to adequately respond to comments pointing
out that it had failed to consider that factor.
The court reaches a different conclusion as to the Detainee Escape Reports. Plaintiffs have
not identified—and the court is unaware of—any comments suggesting that the Detainee Escape
Reports have significant research value. See Hr’g Tr., ECF No. 20, at 36:6–16 (conceding that,
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with respect to the Detainee Escape Reports, “we would not point to specific comments that NARA
disregarded as to research value, apart from the generalized objection that we raise concerning the
[Significant Event Notification] system”). Because commenters did not specifically identify that
NARA failed to appreciate the research value of the Detainee Escape Records, the court concludes
that NARA’s approval of ICE’s Disposition Schedule was not arbitrary and capricious as it
pertains to the Detainee Escape Records. 2 See Advocates for Highway & Auto Safety v. Fed. Motor
Carrier Safety Admin., 429 F.3d 1136, 1150 (D.C. Cir. 2005) (“[A] party will normally forfeit an
opportunity to challenge an agency rulemaking on a ground that was not first presented to the
agency for its initial consideration.”).
The court notes two additional considerations that motivate its decision today. First,
assessing the future research value of records is an inherently difficult and uncertain task, and, as
Plaintiffs point out, NARA has previously underestimated the research value of important
immigration records. Pls.’ Br. at 28–29. In 2018, the San Francisco office of NARA published a
guide related to Record Group 85, which contains records of the Immigration and Naturalization
Service’s enforcement of the Chinese Exclusion Act. See Nat’l Archives at S.F., Record Grp. 85,
Immigration and Naturalization Service. 3 The guide notes that “many sought-after records . . . no
longer exist” from this time period because “[r]ecords now considered priceless by historians,
social scientists, and genealogists were thought by some to have little or no future value fifty years
ago.” Id. at 3 (emphasis omitted). 4 The lessons of Record Group 85 provide all the more reason
2
Plaintiffs have not brought any other arguments that NARA’s approval of the Detainee Escape Reports specifically
was arbitrary and capricious, and the briefing makes little mention of the Detainee Escape Reports in general. As
such, the court concludes that NARA’s approval of the portion of the Disposition Schedule addressing the Detainee
Escape Reports was not arbitrary and capricious.
3
Available at: https://static1.squarespace.com/static/5a81dadde9bfdff9a97b0da7/t/5d276e576e392d000188df98/
1562865246177/NARA+San+Francisco+District+Inventory+(rev.+12-2018).pdf.
4
In addition, the San Francisco office of NARA noted that the destruction of some of these records occurred because
the Immigration and Nationalization Service “believed at the time, incorrectly, that” many administrative records were
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for NARA to carefully consider the future research value of the records listed in ICE’s Disposition
Schedule.
Second, the court notes that NARA has justified its retention periods for the Sexual Abuse
and Assault Files, ERO Death Review Files, Detention Monitoring Reports, and DRIL Records in
part on the basis that information contained in those records is “[c]aptured elsewhere” in long-term
temporary or permanent records. J.A. at 173, 175, 177–78. While the court does not reach
Plaintiffs’ challenge to these justifications, see Pls.’ Br. at 30–33, the agency should nonetheless
use remand as an opportunity to consider the research value of any primary source material that is
not fully captured in other records. The D.C. Circuit has previously cautioned NARA not to
assume that “summaries are always sufficient to maintain all information of value.” Am. Friends
Serv. Comm., 720 F.2d at 66 n.61. “In some cases, summaries cannot be trusted to address all
important research issues that may arise . . . .” Id.; see also id. at 65 (noting “summaries need to
account in some reasonable fashion for historical research interests and the rights of affected
individuals”). Accordingly, as NARA considers the research value of the specified records on
remand, it should also weigh the research value of any information that is preserved in primary
sources but is not captured by secondary summaries or other documents that are permanently
preserved.
V. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment, ECF No. 9, is
granted in part and denied in part, and Defendants’ Motion for Summary Judgment, ECF No. 14,
is granted in part and denied in part. The court vacates NARA’s approval of the ICE Disposition
summarized or substantially duplicated elsewhere. Nat’l Archives at S.F., Record Grp. 85, Immigration and
Naturalization Service, at 3.
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Schedule as to the Sexual Abuse and Assault Files, ERO Death Review Files, Detainee
Segregation Case Files, Detention Monitoring Reports, and DRIL Records and remands those
portions of the Schedule to NARA for further consideration. The court grants Defendants
summary judgment as to the Detainee Escape Reports. A final order accompanies this
Memorandum Opinion.
Dated: March 12, 2021 Amit P. Mehta
United States District Court Judge
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