FOIA, OPEN MEETINGS, AND PRIVATE NETWORKS

[James Love <love@essential.org>]

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TAXPAYER ASSETS PROJECT - INFORMATION POLICY NOTE

             PUBLIC AND PRIVATE NETWORKS, AND THE STATUS OF 
                 PUBLIC RECORDS, OPEN MEETINGS, AND FOIA
                                    
                            January 20, 1994
                   by James Love (love@essential.org)

This is a note about an emerging issue concerning electronic mail
and the Internet, and the status of public records and open
meetings, when PRIVATE networks are used.  Generally speaking,
most agency records which are stored in paper formats are subject
to the federal Freedom of Information Act (FOIA), and many
official agency meetings are open to the public, under the
Government in the Sunshine Act (5 U.S.C. 552b), as are official
Advisory Board meetings, under the Federal Advisory Committee Act
(FACA).

The status of electronic records under FOIA has been rapidly
evolving under caselaw, as federal judges have ruled on requests
to accord the public the same rights to access to electronic
records as it has had for paper records.  There is also current
litigation over whether or not electronic mail records are
subject to the Federal Records Act (FRA).

The so-called PROFS case is a lawsuit brought by Public Citizen
on behalf of Scott Armstrong, the American Historical
Association, the American Library Association, the Center for
National Security Studies and others, who contend that Executive
Branch agencies must "institute programs to manage, safeguard,and
dispose of agency records stored on computer systems -- just as
they must do with paper records," under the FRA.  The litigation
(Scott Armstrong, et al., v. Executive Office of the President,
et al.,) is often called the PROFS case, because it has included
discussions of the preservation of the PROFS email messages used
by Oliver North and others in the Iran/Contra scandal.

The one of the principal issues is whether or not government
agencies are required to provide the National Archives and
Records Administration (NARA) with copies of email messages which
are stored on government computers.  A related but *separate*
issue is also raised as to whether or not the data are available
to the public under FOIA.  That is, not all records that are
required to be archived are available under FOIA, since FOIA
provides for numerous exemptions, and not all federal agencies
are even subject to FOIA.

The White House is extremely upset over the PROFS case.  At a
recent White House meeting with telecommunications executives and
public interest groups, Vice President Gore spoke at length at
his frustration over efforts to make his email a government
record.

Government officials and agencies, from the White House down, are
also relying more and more on electronic communications to
conduct the public's business.  As noted in the PROFS case,
electronic communications systems are now used to permit agency
staff to create, send, and store letters, memoranda, schedules,
and other documents electronically, and many government records
are now only available in electronic formats.  There is also
increasing interest in using electronic mail discussion lists and
conferences as substitutes for meetings, including meetings of
Advisory boards.  These new and important uses of electronic mail
could lead to an expansion of the public's ability of monitor
government activities, or it could lead to more secrecy,
depending upon the rules for archiving records, and for
disclosure under FOIA or other methods of providing public
access.

Many public officials are anxious to develop ways of avoiding the
federal archiving requirements for email, and they are also
concerned about whether or not the public will have access to
their email under FOIA.

One response by the government has been to hire private firms, at
public expense, to provide public officials with access to non-
government computer networks, which in turn are used to send and
receive email, and also to carry out computer conferences, which
are rapidly becoming an important alternative to face-to-face
meetings.  

For example, Metasystems Design Group runs the Meta Network. 
This Arlington, Va. firm provides a number of government and non-
government clients with networking services, including email and
computer conferencing.  One such contract involves Vice President
Gore's National Performance Review (NPR).  According to Meta
Network officials (who can be reached at 703/243-6622), some
government agencies use public conferences, while others use
private closed conferences.  Even the public conferences,
however, are only available to Meta Network subscribers, who pay
$20 per month for the service.  Meta Network officials
acknowledge that some federal agencies prefer to use their
services because they believe the records will not be subject to
FOIA or archiving under the FRA.  Meta Network officials say that
the purported non-government status of the records that reside on
their system allow federal employees to be more candid and free
to express controversial views.  Meta Network officials are
knowledgeable about the FRA and FOIA and the PROFS notes lawsuit,
and seemed to view the desire of public officials to avoid
disclosure of their email as both an important public policy
question and a business opportunity for the Meta Network.

Scott Armstrong (sarmst@cni.org), one of the litigants under the
PROFS case, says that if government officials use email to
conduct official business, the records should be subject to FRA
and FOIA.  Armstrong said that if government officials use
private networks to send and receive email about official
business, they have a responsibility to download those records
and process them under the FRA, a scenario which seems unlikely
at best.  Armstrong said that for government officials to receive
email used for official business at a private site is similar to
a government employee using his private residence as an address
to receive postal mail for official business, or to take records
from the office to a private residence, and claim that they were
no longer public records.

Armstrong also noted that the issue of public access to email
messages has been raised in connection with the communications of
the Health Care task force, which used internet email
extensively.

A member of the Clinton Administration Information Infrastructure
Task Force (IITF) recently suggested on the Internet discussion
list COM-PRIV that the new NII Advisory Council set up a system
of email conferencing that was run on a private network, in order
to avoid problems under FOIA.  We objected at the time, since we
could not imagine the rationale for allowing this official
advisory committee to hold "meetings in cyberspace" that were
non-public.

Under current law, telephone conference calls involving federal
bodies are subject to the open meetings laws, if a quorum is
present to deliberate on official business, even if no actions
are taken.  The use of computer email lists or conferences
presents similar concerns to those raised by conference calls.

These issues are extremely important.  One of the first lessons
learned by investigative reporters is that organizations do not
operate without a "paper trail," involving schedules, agendas,
meeting notes, follow-up memorandum, and other mechanisms for
clarifying the decision making process.  These types of records
have typically been the subject of FOIA requests or even
discovery in civil or criminal cases where violations of the law
are involved.  The term "paper trail," however, is no longer
accurate, since many of these records are now stored and managed
in electronic formats.

One can easily imagine, for example, how today Oliver North could
use the Internet to maintain his records from the Iran/Contra
operations, perhaps storing the files in Zurich or Finland, where
they would be available instantly in his office, but far from
NARA, FOIA or a government subpoena.  Moreover, with data readily
accessible through high speed data networks, the types of records
which can be stored off-site could be far more than email
messages.  Ledgers, calendars, minutes of meetings, budgets,
contracts and other items could be maintained on computer
networks that are invisible to the general public.

   jamie love (love@essential.org)



               --------------------------------------------
                                 APPENDIX 

     The following is an EXCERPT of a brief filed in the
     U.S. Court of Appeals (DC Circuit) on May 3, 1993 by
     Public Citizen in SCOTT ARMSTRONG, ET AL., v. EXECUTIVE
     OFFICE OF THE PRESIDENT, ET AL..  (For a copy of the
     entire 120k brief, send a note to Eddie Becker, at
     ebecker@cni.org).

                BRIEF FOR THE APPELLEES/CROSS-APPELLANTS

                  Michael E. Tankersley
                  David C. Vladeck
                  Alan B. Morrison
                  Public Citizen Litigation Group
                  2000 P Street, N.W., Suite 700
                  Washington, D.C. 20036
                  (202) 833-3000

     The principal question presented by this appeal is whether
federal agencies that utilize electronic systems for transmitting
and storing information concerning government business may 
operate those systems as "nonrecord" or unofficial
"off-the-record" systems exempt from the FRA, as defendants
contend, or, as the district court ruled, agencies must institute
programs to manage, safeguard, and dispose of agency records
stored on computer systems -- just as they must do with paper
records.
   Beginning in 1985, the NSC and the EOP, like many federal
agencies, installed electronic communications systems to permit
agency staff to create, send, and store letters, memoranda,
schedules, and other documents electronically.  That same year,
the National Archives and Records Administration ("Archives")
issued a bulletin observing that "Federal agencies are relying
increasingly upon electronic office equipment and systems to
create, maintain, use and dispose of records," and, as a result,
"many records, the basis for official policy decisions, may 
never appear in paper form."  JA 720.  To prevent "a tremendous
increase in the unauthorized destruction of Federal records," the
Archives directed that the "Electronic Recordkeeping Guidelines"
attached to the bulletin be incorporated into agency policy
directives and plans, and urged "a major training effort" to 
educate staff on the recordkeeping issues presented by such
systems.  JA 721-22, 724.  
   The NSC and EOP disregarded the Archives' warning in 1985, and
again in 1987, when the same directive was reissued.  JA 193-197,
752-72.  Recordkeeping personnel gave no attention to the
materials filed electronically on these systems, and neither the
EOP nor NSC introduced any new directives, plans, or programs to
preserve records created on their computers.  Even after
plaintiffs brought this challenge in 1989, the agencies continued
to treat the records stored on their electronic communications 
systems as "nonrecord" material exempt from the FRA.  No
recordkeeping program for electronic records was instituted, nor
were any clear instructions concerning their preservation issued. 
Agency personnel continued routinely to destroy electronic
materials concerning the actions and deliberations of the EOP and
the NSC, without making any effort to appraise their archival 
value. JA 184-192.
   As the Archives predicted, this inaction led to "a tremendous
increase in the unauthorized destruction of Federal records."  JA
721.  Electronic communications recovered from backup tapes of
the NSC's system in investigating the Iran-Contra Affairs confirm
that these electronic communications systems contain many 
important, substantive communications concerning agency policies,
decisions and actions that may be recorded only in electronic
form.  Nonetheless, to this day, no effort has been made by the
agencies or the Archivist to preserve the electronic records on 
these tapes.  Moreover, the defendants continue to assert that
they are entitled to destroy these tapes, and all other
electronically stored materials, without following any of the
procedures prescribed by the FRA for the disposal of records.
   In this Court, defendants defend this conduct by arguing that
they have instructed staff to transfer information that is deemed
"appropriate" for preservation from electronic materials to
paper, and that they do not regard the remaining information on 
their electronic communications as being "essential" to
documenting the NSC's and EOP's activities.  These claims are
contradicted by undisputed facts showing that defendants'
recordkeeping personnel have never given any consideration to the
significance of the information filed in electronic format, and
have never given clear directives to staff to print out record 
material stored on computers.  Rather, the facts show that
recordkeeping personnel refuse to apply the FRA to these
electronic systems, and continue to operate on the premise that
computers provide a means to conduct agency business
"off-the-record," and exempt from the FRA.  These practices, the
district court correctly found, are unlawful because they permit
the destruction of electronic records -- including many 
records of historical importance -- that must be managed and
preserved in accordance with the FRA.

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