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RECORDS MANAGEMENT
Document Type:
CREST
Collection:
General CIA Records
Document Number (FOIA) /ESDN (CREST):
CIA-RDP86-00895R000100010004-9
Release Decision:
RIPPUB
Original Classification:
K
Document Page Count:
30
Document Creation Date:
December 15, 2016
Document Release Date:
November 19, 2003
Sequence Number:
4
Case Number:
Publication Date:
January 21, 1980
Content Type:
MF
File:
Attachment Size
PDF icon CIA-RDP86-00895R000100010004-9.pdf 1.38 MB
Body:
OGC Has Reviewed Approved For Release 2004/05/12 : CIA-RDP86-00895R000 OGC 80-00506 21 January 1980 MEMORANDUM FOR: Chief, Records Management Division, DDA STATINTLFRUM SUBJECT Records Management REFERENCE American Friends Service Committee v. Webster, Fed Supp , 79-1655 (January 10, 1980, U.S. District Court for the District of Columbia) 1. In a recent decision in the U.S. District Court for the District of Columbia, Judge Harold Greene ruled that the FBI's records disposition program violated federal statutes designed to ensure the Archivist of the United States reviewed such records to determine whether they should be preserved for historical purposes. I believe this decision could prove to be of some significance to CIA. Accordingly, a copy of that decision is)provided for your review. The pertinent portions of the opinion, for records management purposes, are pages 2-4 and 6-14. Pages 8-12 are of particular importance, although I commend the entire opinion to you. 2. Because of the length of the opinion, I will highlight what I believe are the salient factual findings and legal conclusions of the court. These highlights will be provided below in the order in which they appeared in the opinion. Facts. A number of historians, attorneys, subjects of FBI investigations, organizations, and writers brought a suit for injunctive relief against the FBI. The purpose of this suit was to require the FBI to cease the destruction or disposition of any of its files until the FBI developed and submitted to the court "detailed records retention plans and schedules, based on inspection of FBI files by trained archivists and historians...." These plaintiffs advanced a number of claims regarding their need to have access to FBI records of potential historical significance. Those plaintiffs, who were historians, journalists and teachers, claimed a professional need for the records. Another group of plaintiffs--the subjects of allegedly illegal FBI investigations--claimed they would be irreparably injured if the FBI improperly destroyed records of potential historical significance and, thus denied them access to such records in order to develop Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 potential claims against the FBI. The remaining plaintiffs argued the FBI records should be retained in order to allow them to disseminate information for organizational, educational or political purposes. A number of the records at issue had also been the subject of FOIA requests from some of the plaintiffs.*/ Ruling. In its discussion of the applicable law, the court noted that federal statutes require the preservation of records having sufficient "administrative, legal, research or other value." The court then recounted the duties of the Archivist of the United States with respect to the establishment of records management standards. The court placed particular emphasis on the Archivist's obligation to review records for their possible research, legal or historical value prior to authorizing their destruction. The court then recounted the practices that existed between the FBI and the Archivist and concluded that: "...the evidence before the court shows that the Archivist... failed for a period of over thirty years adequately to carry out these statutory and regulatory responsibilities...." In reaching this conclusion, the court cited a number of circumstances which, in its view, supported this result. These circumstances included the following: the fact all of the decisions of National Archives and Records Service (NARS) were made an the basis of representations of FBI records management officials--representations which the court characterized as "...in some respects incorrect, and in all respects unverified." the fact no NARS employee ever reviewed--for a period of approximately 30 years--a single FBI file in connection with NARS approval of various FBI records disposition schedules; */The opinion indicates, at page 4, that some FBI records were destroyed despite the pendency of FOIA requests. It is STATINTL also significant to note that some of the plaintiffs involved in the FBI claims to CIA; e.g., Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 the fact the court labeled as "incredible" the assertions of NARS employees that they could evaluate FBI records retention and destruction plans without "ever having seen any of the documents involved, whether by category, by type, or by sample."*/ the fact the FBI did not desire NARS employees to have access to its files and the fact NARS employees were aware of this attitude and did not make a serious effort to inspect FBI files or independently review the Bureau's records disposition and destruction schedules. the fact that, when NARS employees had inspected certain FBI files in 1978, this inspection was limited to " ..records which FBI personnel had preselected (after the Archives employees had designated the general areas in which they wished to conduct audits)"; the fact that, due to the procedures outlined above, NARS employees never exercised independent professional judgment regarding the validity of the FBI's records disposition or destruction schedules. In light of the circumstances highlighted above, the court held that: "It is thus clear that the Archivist never discharged his statutory responsibility to make independent judgments concerning the records retention and destruction practices of the Federal Bureau of Investigation. This neglect, without more, fatally flaws the legality of any further destruction of records by the FBI: The Bureau's records disposal program, never having been considered and passed upon in any meaningful way by the Archives, cannot continue to be implemented consistently with the statutory mandate that records may be destroyed only pursuant to standards and procedures (established by NARS)...." (emphasis added). */The opinion suggests NARS employees could not appraise the validity of any records disposition or destruction schedule without some type of professional inspection of the particular records. The court noted, with respect to the challenged FBI-NARS procedures, that "it strains credulity to accept the proposition that such decisions can be made wholly by remote control." In support of this conclusion, the court cited testimony to the effect that "such decisions (i.e., decisions regarding the continuing historical value of records) cannot be made without review of documents by historians or archivists." Approved For Release 2004/05/ 32 : CIA-RDP86-00895R000100010004-9 Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 Scope of the Injunction. Having found the FBI-NARS procedures invalidated NARS' approval of the Bureau's records destruction and disposition schedules, the court enjoined the FBI from destroying or disposing of any FBI files until the FBI developed a records management plan that included an "inspection of FBI files by trained archivists and historians...." In addition, any plan so adopted could not be implemented until it was reviewed and approved by the court. 3. It is significant to note that the court did not spell out precisely what type of "inspection" of the FBI files by NARS personnel was required. A fair reading of the opinion would suggest that NARS personnel must be permitted access to Agency records sufficient to permit them to make an independent professional judgment regarding the need to preserve the records for historical, legal or research purposes. The opinion further suggests this review should be made by professional NARS personnel and that any review by FBI nonprofessional personnel to determine the historical or legally protected value of FBI records is insufficient. The opinion does not expressly require, however, that the FBI provide NARS personnel complete and unrestricted access to all its records. Access on a systematic or representative basis--i.e., records sampling or other valid inspection approach--appears to be adequate. 4. The key to the opinion, in my mind, is that it must appear NARS professional archivists or historians have been allowed sufficient access to records to permit them to exercise their independent professional judgment regarding the continued retention of any records on historical or other grounds. In order for such judgments to be truly independent, the court seems to be saying the Agency should not preselect records or unduly restrict NARS personnel from access to records they believe to be worthy of inspection. Moreover, the court clearly suggests that decisions regarding the historical value of records are to be made by NARS personnel and not by Agency records management officials. 5. Another rationale of the court is also of some significance to CIA. The court noted the FBI files were of particular historical significance because of the uniqueness of the FBI's activities in this country and because of the type of information likely to be found in FBI files. The court suggested the FBI and NARS were under a particularly strict duty to ensure records of potential historical value were carefully reviewed prior to their destruction. This rationale clearly applies to CIA since its files also contain what the court termed "...the raw materials of history." Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 STATINTL Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 6. While the opinion did not specify what procedures NARS and the FBI should develop to validate the FBI's records destruction and disposition schedules, the court did offer a few general suggestions. The court opined that certain FBI records having "obvious" historical value could be identified by NARS for preservation in toto. Other categories of records might be preserved on a more selective basis, and still other categories of records could be marked for disposal after "...Archives personnel become convinced, followin a personal inspection of t ical files, that they lack special historical or other value." (emphasis added) 7. The court was not, in spite of its ruling, unsympathetic to FBI security concerns since the opinion indicates that NARS personnel, while entitled to personally inspect FBI files, would be required "...to meet appropriate security standards." 8. The opinion, if it stands for nothing else, clearly indicates that NARS acquiescence in an agency's records management practices will not immunize those practices from critical judicial review. Both NARS and the FBI believed the FBI's records management practices were adequate, but a federal district court judge did not, and so he promptly enjoined the FBI. We should meet regarding this opinion and satisfy outselves that CIA's current relationship with NARS is compatible with the concerns identified by the court. In addition, I will determine whether any appeal is being taken by the government from this decision. I will also attempt to obtain a copy of the FBI's proposed procedures once those procedures have been accepted by the court as being in conformance with its mandate. 9. I would like to meet with you at your earliest convenience regarding the matters raised in this memorandum. cc: General Counsel C/SLD C/GLD Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 NQW R eas 0 0 Approved Fo el e 2004/05/12 : CIA-RDP86-00895R 00 0001 UNITED'STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA American Friends Service Committee, et al., Plaintiffs, Civil Action No. 79-1655 William H. Webster, et al., Defendants. JAN1GIM OPINION FILED JAMES F. DAVEY, Clerk STATINTL This is an action to enjoin the disposal of records of the Federal Bureau of Investigation. Plaintiffs are individuals and organizations which claim that the FBI's record destruction program violates various laws and interferes in a number of respects with their rights and interests- The defendants, 1/ officials of the National Archives and Records Service (MARS) and of the Federal Bureau of Investigation, claim that the Court lacks-jurisdiction; that plaintiffs have no standing to-bring this action; and that the records destruction program is being carried out as a housekeeping neasure, strictly in accordance with law, with a purpose to eliminate from storage obsolete documents and files. Presently before the Court are defendants' motion to dismiss and plaintiffs' motion for a preliminary injunction. Voluminous memoranda and other documents have been filed with the Court, and an evidentiary hearing has been held. The government's contentions regarding jurisdiction and standing may be disposed of summarily. 1/ Responsibilities relating to the retention and disposal of records are now and have in the past been exercised by the Archivist of the United States, NARS and, since 1970, by the General Services Administration. P.L. 81-152- For the sake of clarity, and unless otherwise required, all these agencies will hereinafter generally be collectively referred to as the Archivist or the Archives. Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 The government argues that the Court lacks jurisdiction over the subject matter of the complaint because the various records management statutes (see Part II infra) do not create private rights of action enforceable in the courts. However, in the cases relied on by the government in support of 2/ that argument, the private remedy issue arose because both plaintiffs and defendants were private parties and no official misconduct was alleged. The present suit, on the other hand, involves various governmental entities and officials who are claimed to have violated their statutory duties. In that context it is largely irrelevant whether the various records management statutes create a private remedy: where governmental action is being challenged, absent other, specific methods for bringing about judicial consideration, the question is whether review of the challenged agency action is available under the Administrative procedure Act. Sections 10, 10(a), and 10(c) of that Act, 5 U.S.C. ?9 701, 702, 706, provide that the action of an administrative agency is subject to judicial review unless a statute precludes review or the matter is by law committed to agency discretion. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1975). None of the records management statutes expressly im pliedly precludes r.:view -N of the actions of either the Archivist or the FBI, nor are the actions of the officials of these agencies "committed to agency discretion" as that term is properly understood. Official actions are deemed to be committed to discretion when the statutes involved are drawn in such broad terms that there is no law to apply." Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 410. 2/ Touche Ross & Co. v. Redington, 47 U.S.L. Week 4732, 442 U.S. TS.Ct. June 18, 1979); Cannon v. University of Chicago, 441 U.S. 677 (1979); Chrysler Corp. v. Brown, 441 U.S. 281 1979); Cort v. Ash, 422 U.S. 66 (1975). Approved For Release 2004/05/12 : CIA-REP 08~J'SFtD00100010004-9 t J Approved For Release 2004/05/12 : CIA-RDP86-00895R 001010004-9 The records management laws contain specific standards and directives with respect to record preservation which the administrators are required to follow, and there clearly is "law to apply." Thus, review is available under the Admini- strative Procedure Act to determine whether the official actions were arbitrary or capricious, constituted an abuse of discretion, or failed to meet statutory or procedural requirements, and the Court has jurisdiction under 28 U.S.C. ? 1331. There is likewise no merit to defendants' standing argument. It is settled that a party has standing to sue if (1) a case or controversy exists, that is, if the parties have a sufficiently personal stake in the outcome and are able to demonstrate that they have suffered injury in fact, and (2) there is a fairly traceable causal connection between the claimed injury and the challenged conduct, such as where the claims asserted are within the zone of interests protected or regulated by the statutes 3/ involved. - The plaintiffs in this litigation fall basically into three categories: (1) individuals and organizations whose claimed need for FBI documents arises out of their professions as historians, journaiists, teachers, film writers, or attorneys; (2) individuals who, as subjects of FBI investigations or alleged victims of FBI activities, claim to have suffered legal wrongs, and (3) organi- zations whose goals and purposes are alleged to require access to the files and records of the FBI in order to enable them to disseminate information for organizational, educational, and political purposes. 3/ This provides the necessary concreteness for the exercise of the judicial power. Baker v. Carr, 369 U.S. 186, 204 (1962); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 9 1978 ; Barlow v. Collins, 399 U.S. 159 (197D); ssociation of Data Processing Service Organizations v. Camp, 397 U.S. 150 (1970); Arlington Heights v. r;etronolitan Housing Dev. Corp., 429 U.S. 252, 261 (1977); Simon v. Eastern K'. Welfare Rights Organi- zation, 426 U.S. 26, 41-2 (1973 . Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 . Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 Plaintiffs in the first category have in the past made requests for FBI documents under the Freedom of Information Act, 5 U.S.C. ? 552 et seq., but such documents reportedly were destroyed notwithstanding such requests; they have similar requests for documents pending now; and they assert that they intend to request additional FBI files in the future. These plaintiffs have a need for such documents and files in order to carry out 4 research in their respective professional fields, and they will suffer concrete and personal damage if the destruction of the documents is allowed to continue. It may be that the asserted damage to their career pursuits-rises to the level of economic harm which has been the traditional test of standing to sue; but at a minimum it is equivalent to the type of non-economic injury recognized by the Supreme Court in United States v. SCRAP, 412 U.S. 5/ 669, 686 (1972) as sufficient for standing purposes. The second category of plaintiffs--those who are or have been the subject of FBI investigations and have requested or 6/ - intend to request FBI files --may have suffered actionable legal wrongs by virtue or as a consequence of those investigations. -Their--interest in the preservation of the documents-.relates to - the possibility that, through FOIE. requests, they will discover the evidence necessary for legal action to remedy these alleged wrongs. They are harmed by an inability to obtain the FBI 4/ See, e.a., testimony and affidavits of Harold Fruchtbaum, associate professor of history and philosophy of public health at Columbia University; John S. Rosenberg, writer and historian; Blanche Weisen Cook, associate professor of history at the C
Address of my home neighbor down 401 F Street apartment 4
when the statutes involved are drawn in such broad terms that there is no law to apply." Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 410. 2/ Touche Ross & Co. v. Redington, 47 U.S.L. Week 4732, 442 U.S. TS.Ct. June 18, 1979); Cannon v. University of Chicago, 441 U.S. 677 (1979); Chrysler Corp. v. Brown, 441 U.S. 281 1979); Cort v. Ash, 422 U.S. 66 (1975). Approved For Release 2004/05/12 : CIA-REP 08~J'SFtD00100010004-9 t J Approved For Release 2004/05/12 : CIA-RDP86-00895R 001010004-9 The records management laws contain specific standards and directives with respect to record preservation which the administrators are required to follow, and there clearly is "law to apply." Thus, review is available under the Admini- strative Procedure Act to determine whether the official actions were arbitrary or capricious, constituted an abuse of discretion, or failed to meet statutory or procedural requirements, and the Court has jurisdiction under 28 U.S.C. ? 1331. There is likewise no merit to defendants' standing argument. It is settled that a party has standing to sue if (1) a case or controversy exists, that is, if the parties have a sufficiently personal stake in the outcome and are able to demonstrate that they have suffered injury in fact, and (2) there is a fairly traceable causal connection between the claimed injury and the challenged conduct, such as where the claims asserted are within the zone of interests protected or regulated by the statutes 3/ involved. - The plaintiffs in this litigation fall basically into three categories: (1) individuals and organizations whose claimed need for FBI documents arises out of their professions as historians, journaiists, teachers, film writers, or attorneys; (2) individuals who, as subjects of FBI investigations or alleged victims of FBI activities, claim to have suffered legal wrongs, and (3) organi- zations whose goals and purposes are alleged to require access to the files and records of the FBI in order to enable them to disseminate information for organizational, educational, and political purposes. 3/ This provides the necessary concreteness for the exercise of the judicial power. Baker v. Carr, 369 U.S. 186, 204 (1962); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 9 1978 ; Barlow v. Collins, 399 U.S. 159 (197D); ssociation of Data Processing Service Organizations v. Camp, 397 U.S. 150 (1970); Arlington Heights v. r;etronolitan Housing Dev. Corp., 429 U.S. 252, 261 (1977); Simon v. Eastern K'. Welfare Rights Organi- zation, 426 U.S. 26, 41-2 (1973 . Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 . Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 Plaintiffs in the first category have in the past made requests for FBI documents under the Freedom of Information Act, 5 U.S.C. ? 552 et seq., but such documents reportedly were destroyed notwithstanding such requests; they have similar requests for documents pending now; and they assert that they intend to request additional FBI files in the future. These plaintiffs have a need for such documents and files in order to carry out 4 research in their respective professional fields, and they will suffer concrete and personal damage if the destruction of the documents is allowed to continue. It may be that the asserted damage to their career pursuits-rises to the level of economic harm which has been the traditional test of standing to sue; but at a minimum it is equivalent to the type of non-economic injury recognized by the Supreme Court in United States v. SCRAP, 412 U.S. 5/ 669, 686 (1972) as sufficient for standing purposes. The second category of plaintiffs--those who are or have been the subject of FBI investigations and have requested or 6/ - intend to request FBI files --may have suffered actionable legal wrongs by virtue or as a consequence of those investigations. -Their--interest in the preservation of the documents-.relates to - the possibility that, through FOIE. requests, they will discover the evidence necessary for legal action to remedy these alleged wrongs. They are harmed by an inability to obtain the FBI 4/ See, e.a., testimony and affidavits of Harold Fruchtbaum, associate professor of history and philosophy of public health at Columbia University; John S. Rosenberg, writer and historian; Blanche Weisen Cook, associate professor of history at the City University of New York; Victor Navasky, author and editor; Frank J. Donner, attorney and author; Robert and Richard 2?:eeropol, sons of Julius and Ethel Rosenberg, who are teachers, writers, and lecturers; John Anthony Scott, historian, writer, and teacher. 5/ In that case, the Court stated that aesthetic or environmental injury was sufficient to confer standing. 6/ See, e.g., the affidavit of Alan McSurely and that of Jonathan W. Lubell on behalf of a former member of the Black Panthers. Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 ,documents relating to their particular claims, and accordingly they have the requisite stake in this action- The injury claimed by the third group of plaintiffs for standing 7/ purposes is more questionable. That group consists of organizations which assert that their activities include the furtherance of civil liberties; civil rights; social, cultural, and economic change; and world 8/ peace. These organizations, suing in their own behalf and on behalf of their members, claim to have a need for access to FBI files under the FOIA to pursue their various goals, and they contend that if the files are destroyed, they will be deprived of raw material for primary research in the areas of their activities. It is unsettled whether the requisite injury-in-fact standard is met by a claim that government documents, earmarked for destruction, are needed for organizational political purposes. However, it is not necessary to decide that question here because even if the organiza- tions in this category of plaintiffs have failed in that regard, the plaintiffs in the other groups have adequately shown injury for standing purposes. All the plaintiffs satisfy the second prong of the standing test--that the claimed rights must be within the zone of interests protected and regulated by, the statutes at issue, and that there be a fairly traceable causal connection between the claimed injury and the challenged conduct. As noted, the various laws here involved govern the creation, 7/ Requirements for organizational standing are similar to those for the standing of individuals. United States v. SCRAP, supra. 8/ Plaintiffs in this category include the American Friends Service Committee, the Women's International League for Peace and Freedom, Interreligious Foundation for Community Organization, Inc., Alliance to End Repression, American Indian Movement, National Security Studies, Historians for Freedom of Information, Project for Open Government of the Fund for Constitutional Government, Nation Associates, and the National Committee Against Repressive Legislation. Some of these organizations also claim to have a need for the documents, for themselves or their members, for professional and occupational purposes, and to that extent they have standing as part of the first category of plaintiffs. Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 V Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 preservation, maintenance, and disposal of federal records. These laws are designed primarily for the orderly management of government files, but among their other important purposes, is the preservation of documents which may be of use to private citizens. In that respect, the three categories of plaintiffs who seek information about agency action that affects or has affected them are within the zone of interests protected by these laws, and their claimed injury is directly traceable to the conduct of defendants. Thus, these plaintiffs, or.some of them, have standing to maintain this action. Accordingly, the Court must turn to the merits of plaintiffs' claims. Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 180 U.S. App. D.C. $8, 559 F.2d 841, 843 (1977); Virginia Petroleum Jobbers Assn. v. Federal Power Commission, 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (1958). zI Maintenance and disposal of the records of the United States government is governed by a series of laws codified in title 44 of the United States Code. The Archivist of the United States, under the administrative direction of the General Services 9/ Administration, has overall responsibility for the management and disposal of governmental records. His duties and those of the various agencies which generate, collect, maintain, and dispose of records, are set forth in the Archival Administration Act (44 U.S.C. ? 2101 et seq.); the Records Management by Federal Agencies Act (44 U.S.C. ? 3101 et seq.); the Disposal of Records Act (44 U.S.C. ? 3301 et seq.); and various regulations promulgated pursuant to these laws. 9/ See 44 U.S.C. ? 2905, 41 C.F.R. ? 101-11.403-1 (1978). 11any of the duties assigned to the Administrator of GSA in the statute have been delegated to the Archivist and to MARS. 41 C.F.R. 5 101-11.401 et seq. Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 .
of the uniqueness of the FBI's activities in this country and because of the type of information likely to be found in FBI files. The court suggested the FBI and NARS were under a particularly strict duty to ensure records of potential historical value were carefully reviewed prior to their destruction. This rationale clearly applies to CIA since its files also contain what the court termed "...the raw materials of history." Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 STATINTL Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 6. While the opinion did not specify what procedures NARS and the FBI should develop to validate the FBI's records destruction and disposition schedules, the court did offer a few general suggestions. The court opined that certain FBI records having "obvious" historical value could be identified by NARS for preservation in toto. Other categories of records might be preserved on a more selective basis, and still other categories of records could be marked for disposal after "...Archives personnel become convinced, followin a personal inspection of t ical files, that they lack special historical or other value." (emphasis added) 7. The court was not, in spite of its ruling, unsympathetic to FBI security concerns since the opinion indicates that NARS personnel, while entitled to personally inspect FBI files, would be required "...to meet appropriate security standards." 8. The opinion, if it stands for nothing else, clearly indicates that NARS acquiescence in an agency's records management practices will not immunize those practices from critical judicial review. Both NARS and the FBI believed the FBI's records management practices were adequate, but a federal district court judge did not, and so he promptly enjoined the FBI. We should meet regarding this opinion and satisfy outselves that CIA's current relationship with NARS is compatible with the concerns identified by the court. In addition, I will determine whether any appeal is being taken by the government from this decision. I will also attempt to obtain a copy of the FBI's proposed procedures once those procedures have been accepted by the court as being in conformance with its mandate. 9. I would like to meet with you at your earliest convenience regarding the matters raised in this memorandum. cc: General Counsel C/SLD C/GLD Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 NQW R eas 0 0 Approved Fo el e 2004/05/12 : CIA-RDP86-00895R 00 0001 UNITED'STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA American Friends Service Committee, et al., Plaintiffs, Civil Action No. 79-1655 William H. Webster, et al., Defendants. JAN1GIM OPINION FILED JAMES F. DAVEY, Clerk STATINTL This is an action to enjoin the disposal of records of the Federal Bureau of Investigation. Plaintiffs are individuals and organizations which claim that the FBI's record destruction program violates various laws and interferes in a number of respects with their rights and interests- The defendants, 1/ officials of the National Archives and Records Service (MARS) and of the Federal Bureau of Investigation, claim that the Court lacks-jurisdiction; that plaintiffs have no standing to-bring this action; and that the records destruction program is being carried out as a housekeeping neasure, strictly in accordance with law, with a purpose to eliminate from storage obsolete documents and files. Presently before the Court are defendants' motion to dismiss and plaintiffs' motion for a preliminary injunction. Voluminous memoranda and other documents have been filed with the Court, and an evidentiary hearing has been held. The government's contentions regarding jurisdiction and standing may be disposed of summarily. 1/ Responsibilities relating to the retention and disposal of records are now and have in the past been exercised by the Archivist of the United States, NARS and, since 1970, by the General Services Administration. P.L. 81-152- For the sake of clarity, and unless otherwise required, all these agencies will hereinafter generally be collectively referred to as the Archivist or the Archives. Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 The government argues that the Court lacks jurisdiction over the subject matter of the complaint because the various records management statutes (see Part II infra) do not create private rights of action enforceable in the courts. However, in the cases relied on by the government in support of 2/ that argument, the private remedy issue arose because both plaintiffs and defendants were private parties and no official misconduct was alleged. The present suit, on the other hand, involves various governmental entities and officials who are claimed to have violated their statutory duties. In that context it is largely irrelevant whether the various records management statutes create a private remedy: where governmental action is being challenged, absent other, specific methods for bringing about judicial consideration, the question is whether review of the challenged agency action is available under the Administrative procedure Act. Sections 10, 10(a), and 10(c) of that Act, 5 U.S.C. ?9 701, 702, 706, provide that the action of an administrative agency is subject to judicial review unless a statute precludes review or the matter is by law committed to agency discretion. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1975). None of the records management statutes expressly im pliedly precludes r.:view -N of the actions of either the Archivist or the FBI, nor are the actions of the officials of these agencies "committed to agency discretion" as that term is properly understood. Official actions are deemed to be committed to discretion when the statutes involved are drawn in such broad terms that there is no law to apply." Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 410. 2/ Touche Ross & Co. v. Redington, 47 U.S.L. Week 4732, 442 U.S. TS.Ct. June 18, 1979); Cannon v. University of Chicago, 441 U.S. 677 (1979); Chrysler Corp. v. Brown, 441 U.S. 281 1979); Cort v. Ash, 422 U.S. 66 (1975). Approved For Release 2004/05/12 : CIA-REP 08~J'SFtD00100010004-9 t J Approved For Release 2004/05/12 : CIA-RDP86-00895R 001010004-9 The records management laws contain specific standards and directives with respect to record preservation which the administrators are required to follow, and there clearly is "law to apply." Thus, review is available under the Admini- strative Procedure Act to determine whether the official actions were arbitrary or capricious, constituted an abuse of discretion, or failed to meet statutory or procedural requirements, and the Court has jurisdiction under 28 U.S.C. ? 1331. There is likewise no merit to defendants' standing argument. It is settled that a party has standing to sue if (1) a case or controversy exists, that is, if the parties have a sufficiently personal stake in the outcome and are able to demonstrate that they have suffered injury in fact, and (2) there is a fairly traceable causal connection between the claimed injury and the challenged conduct, such as where the claims asserted are within the zone of interests protected or regulated by the statutes 3/ involved. - The plaintiffs in this litigation fall basically into three categories: (1) individuals and organizations whose claimed need for FBI documents arises out of their professions as historians, journaiists, teachers, film writers, or attorneys; (2) individuals who, as subjects of FBI investigations or alleged victims of FBI activities, claim to have suffered legal wrongs, and (3) organi- zations whose goals and purposes are alleged to require access to the files and records of the FBI in order to enable them to disseminate information for organizational, educational, and political purposes. 3/ This provides the necessary concreteness for the exercise of the judicial power. Baker v. Carr, 369 U.S. 186, 204 (1962); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 9 1978 ; Barlow v. Collins, 399 U.S. 159 (197D); ssociation of Data Processing Service Organizations v. Camp, 397 U.S. 150 (1970); Arlington Heights v. r;etronolitan Housing Dev. Corp., 429 U.S. 252, 261 (1977); Simon v. Eastern K'. Welfare Rights Organi- zation, 426 U.S. 26, 41-2 (1973 . Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 . Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 Plaintiffs in the first category have in the past made requests for FBI documents under the Freedom of Information Act, 5 U.S.C. ? 552 et seq., but such documents reportedly were destroyed notwithstanding such requests; they have similar requests for documents pending now; and they assert that they intend to request additional FBI files in the future. These plaintiffs have a need for such documents and files in order to carry out 4 research in their respective professional fields, and they will suffer concrete and personal damage if the destruction of the documents is allowed to continue. It may be that the asserted damage to their career pursuits-rises to the level of economic harm which has been the traditional test of standing to sue; but at a minimum it is equivalent to the type of non-economic injury recognized by the Supreme Court in United States v. SCRAP, 412 U.S. 5/ 669, 686 (1972) as sufficient for standing purposes. The second category of plaintiffs--those who are or have been the subject of FBI investigations and have requested or 6/ - intend to request FBI files --may have suffered actionable legal wrongs by virtue or as a consequence of those investigations. -Their--interest in the preservation of the documents-.relates to - the possibility that, through FOIE. requests, they will discover the evidence necessary for legal action to remedy these alleged wrongs. They are harmed by an inability to obtain the FBI 4/ See, e.a., testimony and affidavits of Harold Fruchtbaum, associate professor of history and philosophy of public health at Columbia University; John S. Rosenberg, writer and historian; Blanche Weisen Cook, associate professor of history at the City University of New York; Victor Navasky, author and editor; Frank J. Donner, attorney and author; Robert and Richard 2?:eeropol, sons of Julius and Ethel Rosenberg, who are teachers, writers, and lecturers; John Anthony Scott, historian, writer, and teacher. 5/ In that case, the Court stated that aesthetic or environmental injury was sufficient to confer standing. 6/ See, e.g., the affidavit of Alan McSurely and that of Jonathan W. Lubell on behalf of a former member of the Black Panthers. Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 ,documents relating to their particular claims, and accordingly they have the requisite stake in this action- The injury claimed by the third group of plaintiffs for standing 7/ purposes is more questionable. That group consists of organizations which assert that their activities include the furtherance of civil liberties; civil rights; social, cultural, and economic change; and world 8/ peace. These organizations, suing in their own behalf and on behalf of their members, claim to have a need for access to FBI files under the FOIA to pursue their various goals, and they contend that if the files are destroyed, they will be deprived of raw material for primary research in the areas of their activities. It is unsettled whether the requisite injury-in-fact standard is met by a claim that government documents, earmarked for destruction, are needed for organizational political purposes. However, it is not necessary to decide that question here because even if the organiza- tions in this category of plaintiffs have failed in that regard, the plaintiffs in the other groups have adequately shown injury for standing purposes. All the plaintiffs satisfy the second prong of the standing test--that the claimed rights must be within the zone of interests protected and regulated by, the statutes at issue, and that there be a fairly traceable causal connection between the claimed injury and the challenged conduct. As noted, the various laws here involved govern the creation, 7/ Requirements for organizational standing are similar to those for the standing of individuals. United States v. SCRAP, supra. 8/ Plaintiffs in this category include the American Friends Service Committee, the Women's International League for Peace and Freedom, Interreligious Foundation for Community Organization, Inc., Alliance to End Repression, American Indian Movement, National Security Studies, Historians for Freedom of Information, Project for Open Government of the Fund for Constitutional Government, Nation Associates, and the National Committee Against Repressive Legislation. Some of these organizations also claim to have a need for the documents, for themselves or their members, for professional and occupational purposes, and to that extent they have standing as part of the first category of plaintiffs. Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 V Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 preservation, maintenance, and disposal of federal records. These laws are designed primarily for the orderly management of government files, but among their other important purposes, is the preservation of documents which may be of use to private citizens. In that respect, the three categories of plaintiffs who seek information about agency action that affects or has affected them are within the zone of interests protected by these laws, and their claimed injury is directly traceable to the conduct of defendants. Thus, these plaintiffs, or.some of them, have standing to maintain this action. Accordingly, the Court must turn to the merits of plaintiffs' claims. Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 180 U.S. App. D.C. $8, 559 F.2d 841, 843 (1977); Virginia Petroleum Jobbers Assn. v. Federal Power Commission, 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (1958). zI Maintenance and disposal of the records of the United States government is governed by a series of laws codified in title 44 of the United States Code. The Archivist of the United States, under the administrative direction of the General Services 9/ Administration, has overall responsibility for the management and disposal of governmental records. His duties and those of the various agencies which generate, collect, maintain, and dispose of records, are set forth in the Archival Administration Act (44 U.S.C. ? 2101 et seq.); the Records Management by Federal Agencies Act (44 U.S.C. ? 3101 et seq.); the Disposal of Records Act (44 U.S.C. ? 3301 et seq.); and various regulations promulgated pursuant to these laws. 9/ See 44 U.S.C. ? 2905, 41 C.F.R. ? 101-11.403-1 (1978). 11any of the duties assigned to the Administrator of GSA in the statute have been delegated to the Archivist and to MARS. 41 C.F.R. 5 101-11.401 et seq. Approved For Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 . Approved Fon Release 2004/05/12 : CIA-RDP86-00895R000100010004-9 { These statutes contemplate and require the preservation inter alia of the following categories of records: (1) those which contain "documentation of the organization, functions, policies, decisions, procedures, operations, and essential transactions of an agency" (sections 3101, 3301); (2) those having "sufficient historical or other value to warrant their continued preservation" (section 2103); (3) those which are necessary to protect the financial and legal rights of persons directly affected by an agency's activities (section 3101); and (4) those which have sufficient "administrative, legal, research, or other value to warrant their-further preservation" (section 3303). Pursuant to these general substantive guidelines, the Archivist is charged by law with the duty to establish records management standards, procedures, and guidelines, as well as the more specific responsibility to set standards for the selective retention of records of continuing value (section 2901, 2902, 2904). He must also promulgate procedures for the disposal of records authorized to be destroyed (section 3302). The various agencies, in turn, are required to cooperate with the Archivist in applying these standards, procedures, and techniques section 3102) and to submit to him lists and schedules of records proposed for disposal. The Archivist examines these schedules and lists in order to determine whether the documents have such value as to warrant their preservation under the law (sections 3302, 3303(a)). The Archivist has.issued detailed regulations to implement these statutory directives. The regulations require the estab- llsh.?nent with respect to each agency of records retention plans and 10/ records control schedules (41 C.F_R. ? 101-11.401-1, 403-2(c)), 10/ Records retention plans are developed by the Archivist. They focus on classes of records which have permanent value or are of continuing value (S 101-11.403-3). Records control schedules, which are based on these plans, are developed by each operational agency (S 101-11.401-3) for all its records. The schedules more specifically designate classes of records to be destroyed, timetables for disposition and records to be retained, all in accordance with the-plans. Although under the regulations the Archivist has primary responsi- bility for development of the retention plans, the agencies cooperate with him in their development. Approved For Release 2004/05/12 : CIA-RDPffr-O0IT5R00U100010004-9 Approved For Release 2004/05/12 CIA-RDP86-00895R000100010004-9 the maintenance of inventories of the records in the custody of an agency, and periodic inspections by the Archivist to insure that permanent records are being maintained (section 101-11.403-4(e)). Schedules submitted by an agency requesting authority to destroy records must be appraised by the Archivist for possible research or historical value (section 101-11.406-3). After such review, the Archivist determines whether the records are disposable, and if they are, he permits their destruction (section 101-11.406-5). The evidence before the Court shows that the Archivist and those under his supervision have failed for a period of over thirty years adequately to carry out these. statutory and regulatory responsi- bilities with respect to the records of the Federal Bureau of Investigation. The Archivist took action with respect to FBI records on four 11/ occasions during that thirty-year period- A records disposal request was approved by the Archives in 1946. That approval granted authority to the FBI to destroy all closed field- office files, the theory being that these files were mere duplicates of the records being maintained at FBI headquarters. No further guidelines were issued by the Archives until 1969, when the agency promulgated a new plan purporting to establish document retention standards and providing thatFBI records officers would 12/ identify the specific series of files to be retained. Thereafter, in 1975 and 1976, the FBI requested authority to dispose of certain field office files and both of these requests 13/ were promptly granted. 11/ Additionally, there were several minor actions concerning the struction of administrative materials. 12/ That plan again did not recommend the permanent retention of field office files. 13/ The 1975 action authorized the destruction of field office zles after a ten-year retention period if no prosecutive action had been taken, the perpetrators were unidentifiable, or the investigation was beyond the jurisdiction of the FBI. The 1976 authorization broadened the previous disposal schedule-to include the destruction of closed field office files which contai