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
• Publication Date: January 21, 1980
• Content Type: MF

OGC Has Reviewed
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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
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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.,
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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."
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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."
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 STATINTL
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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
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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.
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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).
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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 .
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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.
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,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.
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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.
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{
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.
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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 contained
investigative reports and other related materials. Neither of these
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During that entire period, neither in connection with the
approval of the various plans and schedules nor during the interim
years 14/ did a single employee of the Archives see a single FBI
file. All decisions were made on the basis of representations
of the FBI--representations which, as noted below, were in some
respects incorrect, and in all respects unverified.
Some of the employees of the Archives having responsibility
for appraising FBI record retention and destruction plans testified
that they were capable of passing on such plans without ever having
seen any of the documents involved, whether by category, by type,
or by sample. The Court finds those- representations to be wholly
15/
incredible. The law imposes upon the Archivist and his staff
important responsibilities concerning the selection of what, among
the files of an agency, may have permanent or continuing value for
historical, research, legal rights, and other purposes. it -
strains credulity to accept the proposition that such decisions can
16/
be made wholly by remote control. The far more plausible
13/ (Copt' d . )
actions was actually implemented because of a moratorium imposed
pursuant to a Senate Resolution (S.- Res. --21, 94th Cong. , -1st Sess.),
121 Cong. Rec. 1432 (1975), which enjoined destruction of such
records. The moratorium remained in effect until August 15, 1977.
In June of that year, the Attorney General authorized the
recommencement of the destruction program, the Archivist gave
- his approval--on---August--1-5 ,-= 1977--and-the--field-offices
were authorized to proceed with destructions as of October 18, 1977
.(except for records-in litigation and those records which the
Senate Select Committee on Assassinations had asked to be retained).
14/ Archives has a continuing inspection responsibility. 41 C.F.R.
? 101-11.403-4(e).
15/ Even James E. O'Neill, Archivist of the United States, testified
that examination of the files being evaluated was "preferable" and
"desirable."
16/ See, e.g., the testimony of William Appleman Williams who
stated that such decisions cannot be made without review of
documents by historians or archivists.
r
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explanation for the failure of the archival authorities to
inspect the documents on which they were passing judgment--as
several government witnesses candidly conceded--is that the FBI,
in accordance with the policies estabished by its then Director
J. Edgar Hoover, was not in the habit of granting to anyone outside
the FBI access to its files; that the employees of the-Archives
were aware of this policy; and that in view of what they regarded
as the futility of making access demands they did not even attempt
to conduct personal inspections of the FBI's records.
It was only in 1978, as a result of media and congressional
interest concerning this problem, that two or three Archives
employees visited FBI headquarters and several field offices to
inspect, at least in part, some seventy-six files. But even
that 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).
It is thus clear that the Archivist. never discharged his
statutory responsibility to-make independent judgments concerning
the record 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
17/ The Archivist of the United States and other government wit-
nesses testified at length about the procedures they follow, and
they emphasized the professionalism of the staff. However, at
least in the context of the FBI files, for reasons of lack of
access to the files, the inadequacy of the staff for the vast
amount of work required, or both, in practice that staff exercised
no independent professional judgment.
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and procedures promulgated and approved by the archival authorities.
In the absence of an independent review, there is no guarantee,
any reason to believe, that the program is being carried out
in accordance with the will of Congress as expressed in the
records management laws The Congress concluded that its objectives
could not be met by records retention and disposall programs administered
by the operational federal agencies acting alone. The evidence
here shows an abdication by the Archives of its responsibility to
oversee that administration.
Nor was failure to inspect records the only evidence of
archival neglect. For example, the Archivist and his staff
also failed to conduct critical examinations of the schedules
submitted to him to ascertain whether, by the FBI's own
descriptions, records were being retained in accordance with the
standards imposed by law. The FBI submissions were generally so
brief and conclusory in nature as to be of little value for
genuine decision-making purposes. Nevertheless, the Archives
never requested explanations or details.
Likewise, no effort was made to require the FBI to submit
the very minimal forms required under the regulations. The 1969
records retention plan included a section, a so-called Part II, _
which was to have been a compilation by the FBI of specific series
of files included under the various broad categories described in
Part I. The completed Part II was not returned by the FBI to the
19/
Archives until 1976, about seven years later, and even then it was
incomplete.
18/ See 44 U.S_C. ?5 2901-2904, 3102, 3302-3303.
19/ It was claimed by Archives witnesses that they had access to
this document on the FBI premises.
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 r0
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The reality of the situation is that between 1946 and 1976,
a period of thirty years, when the FBI was experiencing an
0
unparalleled growth in personnel and importance, it was
operating its records retention and disposal programs without
the archival supervision and guidance required by the law.
Further, as will be discussed below (pp. 15-16), it was doing so
under plans that were based on at least two premises that on
examination have turned out to be false--that headquarters files
were duplicates of the field office files; and that the FBI, on its
own, was preserving not only records suited to its own bureaucratic
and operational needs but also records useful for historical and
other research and for.the safeguarding of legal rights.
. III
Defendants suggest that, whatever may have been the deficiencies
in their procedures in the past, the records control schedule. they
21/
adopted in 1977 satisfies their obligations under the law, and
that court intervention is unwarranted. That contention is not
well taken, for several reasons.
First. The 1977 schedule, like the previous plans and schedules,
was developed without any review of FBI documents, and thus for that
reason alone there could have been no valid determination
whether the categories of records with which the schedule deals
20/ Much of the increase in the FBI's security and applicant
checking duties occurred during that period.
21/ That schedule contains descriptive categories of both field
office and headquarters files and it proposes a timetable for
disposing of present and future records. It has been approved by
the Archivist but has not become effective because pursuant to
statute (44 U.S.C. 5 3303(a)) it was submitted to Congress for
review. Congress has yet to act on the submission but the
executive agencies are legally free to implement it without
congressional action. The schedule provides for the destruction
of about forty per cent of the current headquarters files of the
FBI.
Try
compelling threat to the conduct of national defense or 'foreign
policy." The FBI's central records system contains 191 classifica-
tions of files based on the type of crime involved, a number of
them relating to national defense or foreign policy. The 1977
schedule fails to utilize these classifications to define
more specifically the criteria for retention of files.
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unaffected, and that field office files may still be destroyed
in reliance on these plans notwithstanding the fact that they
were based on the assumption that the headquarters files duplicate
the field office records. See p. 15--16 infra.
In short, the 1977-schedule, despite some cosmetic changes,
does not correct the flaws of previous Archives-FBI understandings
and decisions.
None of the parties to this litigation, except the FBI, has
24/
had an opportunity to make a study of that agency's records, and
none, again except the FBI, ever saw any of its records before
they were destroyed. For that reason, it is not possible to
document fully the tangible harm done as a consequence of
the failure of the government to implement the requirements of
the law. The evidence does permit the drawing of certain
inferences in that regard, however.
The present focus of plaintiff's complaint are the FBI's field
office files. 25/ A great deal of evidence was adduced by both
parties concerning the extent to which the Bureau's headquarters
files do or do not duplicate the records in the several field
offices. While, as noted above, the-Archives has until recently"
proceeded on the assumption that the two--sets of records were-to
all intents and purposes identical, the evidence clearly shows
26/
24/ Except for the Archives' inadequate examination in 1978.
25/ Although the complaint refers to both the field office and the
FiJadquarters files, the evidence adduced at the hearing on the
motion for preliminary injunction dealt primarily with the field
offices, presumably because no destruction of headquarters files
is currently taking place. The motion for preliminary injunction
is addressed to both sets of records.
26/ The Archives' ignorance of the true situation may be attributed
to its failure to exercise its independent audit responsibilities.
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Raw investigative data--such as surveillance logs, wiretap
records, verbatim informant evidence, and the like--are ordinarily
maintained solely in the field offices, and only summaries of
the information are forwarded to and kept at headquarters. In
a very real sense, insofar as historians and other investigators
are concerned, the field office files would be the stuff of primary
research, at least in the areas of how and why FBI investigations
are conducted (as distinguished from the ultimate-decision-making
process). Similarly, those who claim that their legal rights
were violated by FBI investigative-practices are far more likely
to find evidence to sustain those contentions in the field
office files (where the logs evidencing investigative techniques
are kept) than at headquarters. Destruction of the field office
files thus of necessity entailed violations of the substantive
standards and purposes of the records management statutes.
Instructions were, to be sure, given to field office personnel
that all important--or "pertinent" as one witness phrased it--
information was to be forwarded to headquarters, and there is no
reason to believe that these instructions were not carried out.
But-the problem with this approach is that it was, and still is,
-focused solely on usefulness to the FBI. As the government's witnesses
conceded, what was important to the FBI were records which would
assist headquarters in its law enforcement and decision-making
functions. No effort was made at any time to forward to head-
quarters data which might be regarded as useful or significant
in other respects; e.g., records having historical or research
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 ff:
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value, documents bearing on the legal rights of individuals, or
records which might reflect unfavorably on the Bureau, its
27/
personnel, or its practices. (One consequence of this
selectivity has been that the field office files on any particular
subject typically exceed in volume those kept at headquarters by
a ratio of four or five to one.) The destruction of the field
office records in these areas has meant, and unless present
disposal plans are halted will continue to mean, the unavailability
of the information contained in such documents for all time.
Nor are these the only "substantive" results of the failure
of the Archives to implement the responsibilities vested in
it by the Congress. The Archivist did not stop, indeed he
acquiesced in, FBI measures to escape the burdens of the
Freedom of Information Act by disposing of some of its
files. The effective date of the FOIA (February 19, 1975)
was followed within two months by an FBI request for the destruction
of field office files, and that request was promptly granted.
Thereafter, in the summer of 1976, Archives and FBI personnel began
to confer regarding possible policy changes in the records retention
area. These conferences- I ~which ultimately led to the adoption
of the 1977.schedule, were motivated at least in part by the
problems the agencies felt they had with the FOIA, and that Act
was repeatedly mentioned during the discussions as a significant
factor.
It is not necessary to accept plaintiffs' contention that
records were sought to be disposed of to prevent the detection of
27/ If, for example, someone were researching the circumstances of
the FBI's investigation of Dr. Martin Luther King, or the Rosenbergs,
what he could secure from the headquarters files would be limited
to summaries and conclusions. Inasmuch as the completeness of the
headquarters summaries varies in proportion to the notoriety of the
person or incident being investigated, this would be even more true
with respect to research on less well-known figures. In any event,
the field office files would be far more likely to reveal the actual
surveillance methods used, the duration of particular methods of
surveillance, possible deviations from prescribed standards, and
the like.
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FBI improprieties through FOIA requests and disclosures.
It appears likely that the agencies' concerns were more modestly
limited to minimizing the administrative difficulties involved
in handling such requests. Even so, it is clear that the FOIA
Influenced the drafting-of the 1977 schedule and reflected a bias,
on impermissible grounds, in favor of the destruction rather than the
preservation of governmental records.
The Court concludes on the basis of all the evidence that
current document disposals contravene both the procedural
directives and the substantive purposes of the record manage-
28/
ment laws, and that plaintiffs have demonstrated that they
are likely to prevail on the merits of their complaint.
V
Under WMATA v. Holiday Tours, Inc., supra, and Petroleum
? Jobbers Assn. v_ FPC, supra, the Court must consider next the
relative injuries and the public interest.
Plaintiffs are seeking an order which would restrain the FBI
from the further destruction of any of its records, direct that
the Bureau submit to the Court an inventory of all its files and
28/ As detailed in Part I supra, plaintiffs, or some of them, have
a legitimate interest in the preservation of these records.
.`Additionally, insofar as specifically the field office files
are concerned, the evidence shows the following. Katherine L. Camp,
of the Women's International League for Peace and Freedom, has
made FOIA requests for documents which can only be found in field
offices. Victor Navasky, editor of the Nation magazine, testified
that his magazine depends to a significant part upon the production
of FBI records, many of them available only in field offices.
William Appleman Williams, a historian, stated that the field office
records are the primary evidence of historical research and thus
essential to anyone doing serious historical research. Harold
Fruchtbaum, professor of history and philosophy, who is conducting
research on the role of scientists in the Rosenberg case, stated
that he has relied on a sizeable Quantity of documents that came
from the field offices, including surveillance files on scientists
and others. Paul Robeson, writer and lecturer, has relied on and
expects to need in the future documents from the field office files
in writing a book on his parents and detailing the government
surveillance of them. John Rosenberg, who is completing a book
on Clifford Durr, has relied extensively on field office files
and has a continuing need for access to them.
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records, and provide for a special master to be appointed by
the Court to insure the completeness of the inventory and the
preservation of the files pending their eventual delivery to
29/
the Archives.
There is no need to consider relative injuries with regard to
the most far-reaching aspects of the relief sought by plaintiffs, for
they have not shown an entitlement. to such relief on any basis. There
is no indication that, except for its institutional reluctance
to permit anyone not employed by the FBI-to have access to its
records, and the relatively isolated instances with respect to
the Freedom of Information Act, the.FBI has been acting
with deliberate intent to frustrate statutory directives.
Certainly no such purpose can be-laid at the doorstep of the
Bureau's present leadership. For that reason, the Court will not,
through the submission of inventories, the appointment of a
special master, or otherwise, assume direct or indirect control
of the-FBI's files.
At the same time, plaintiffs have demonstrated a sufficient
likelihood that the records management laws have not been complied
with that the Court must consider whether, with respect to the
remainder of the relief requested, defendants would be more
substantially injured by the grant of an injunction or plaintiffs
by its denial, -= - -_ _ -_ -- - -- _ - -
Upon the basis of the evidence
the preceding
portions of this Opinion, it is clear that plaintiffs will suffer
significant, irreparable injury if defendants' continuing destruction
of FBI files is not enjoined. The destruction program as presently con-
ducted is not in compliance with law. Numerous witnesses have testifiec
that the files which continue to be disposed of contain historical,
29/ As part of their request for permanent relief, plaintiffs are
asking that all FBI files be made permanent records of the Archives.
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research, and other information of potential value to these plaintiffs
in their various capacities. Denial of an injunction to halt the
disposal program in these circumstances would irreparably injure
plaintiffs.
Defendants argue that significant weight should be given to
their interest in minimizing the logistical and the financial
costs associated with the storage of records. In their view,
any requirement that the record disposal programs be suspended
permanently would impose a very heavy burden upon them, especially
if the suspension were to be projected on a government-wide basis.
The permanent and the government-wide aspects of defendants'
argument may be laid to one side. As will be seen infra,
the Court does not envision a permanent ban on the disposal of
FBI records but merely a pause of sufficient duration to give
30/
defendants an opportunity to formulate, adopt, and implement disposal
plans and schedules that meet the requirements of the law.
As concerns the question of the scope of relief beyond the
records of the FBI, the short answer is that the present action
concerns only that agency. Even if it be assumed that the Archives
is no more conscientious in discharging its statutory responsibilities
with respect to other agencies and bureaus than it has been with
31/
regard to the FBI, it does not follow that identical relief
would be appropriate with respect to them and their files. For
the reasons described below, the FBI's relationship to this country's
history and the legal rights of its citizens is unique, and the
intensity of the scrutiny to which its files should be subjected
before they are authorized to be destroyed must reflect that uniqueness
30/ Seven million cubic feet of records are generated by the federal
government per year. The FBI alone generates some 400,000 pages of
documents per day_.
31/ That assumption is not necessarily accurate, however, for few,
if any, other agencies are likely to have been as guarded about
their records as the FBI under its former director.
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 That 1anvPs for consideration the public interest. Conqress
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More broadly, it is clear that the interest of the government
in minimizing the costs and administrative burdens associated with the
storage of what it regards as unneeded and unwanted documents cannot
be deemed to outweigh the interest of plaintiffs in the preservation
of records which may be,of substantial economic and other value
to them. The basic judgment in that regard was made by the
Congress. By enacting the various records management laws, it made
a decision that the administrative and financial problems
-associated with archival review as a prerequisite to record
disposal must take second place to the necessity for such review
as a means for preserving documents which may have certain specified
values. It is also useful to recall in this connection that the FBI,
either on its own initiative or upon prompting by the Attorney
General or the Congress, has operated for substantial periods of
.time on the basis of several moratoriums on the destruction of
32/
records, all without disastrous consequences for its operations.
The Court concludes that the imposition of a judicially-imposed
33/
moratorium on the further destruction of FBI files until
satisfactory record-retention standards and procedures are established
would not impose an injury on defendants outweighing the harm done
to plaintiffs from a failure-to grant relief.
has determined that federal record-keeping shall accommodate not
32/ At present, the FBI on its own, or at the direction of the Attorney
General, is operating under a moratorium on the destruction of head--
auarters files and those field office files which relate to national
security investigations. These moratoriums were declared as a conse-
quence of pending or anticipated discovery requests in prosecutions
involving former FBI officials. United States v. Keay, 436 F.
Supp. 1108 (S.D.N.Y. 1977); United States v. Gray and United States v.
Miller and Felt (D.C. Crim. No. 78-179 . Additionally, there is a
moratorium in effect on a limited number of files at the request of
the Senate Committee on intelligence Activities (the so-called Church
Committee)- All of these moratoriums are voluntary on the part of
the FBI and, absent a court order, may be ended at any time by the
FBI's unilateral action.
33/ The immediate practical effect of such an order is only to halt
the disposal of field office files relating to criminal-investigations,
since other records are not currently being destroyed under the FBI's
own moratoriums. See note 32 supra.
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only the operational and administrative needs of the particular
agencies but also the right of the people of this nation to know
34/
what their government has been doing. The thrust of the laws
Congressrhas enacted is that governmental records belong to the
American people and should be accessible to them---barring security
and privacy considerations--for legitimate historical and other
research purposes.. The thrust of the actions of the FBI, perhaps
naturally so, has been to preserve what is necessary or useful for
its operations. The Archives, which should have safeguarded the
interests of both the FBI and the public, in practice considered
only the former.
Yet the congressional mandate has special relevancy to the Federal
Bureau of Investigation. its files, perhaps more than those of any
other agency, constitute a significant repository of the record of the
recent history of this nation, and they represent the work product of
an organization that has touched the lives of countless Americans.
Many of these have been in public life, others have -achieved fame
or notoriety of a different sort, still others have merely been the
subject of routine investigations (security checks, suspected criminalit
or inquiries into background or character). The files of such an
agency contain far more of the raw materials of history and research
and far fmore -data pertaining to the-rights' of citizens than do
the files of bureaus with more pedestrian mandates. The public
interest demands that great care be taken before such records are
35/
committed to destruction.
34/ Hence the direction in the law requiring the preservation of
3ocu-nents having historical or research value and those which are
needed for the protection of the legal rights of citizens. The
Freedom of Information Act is related to those interests and
serves similar purposes.
35/ The testimony of the government witnesses reveals no awareness
that more exacting preservation standards might be in order when
dealing with records of, say, the FBI, the Department of State, or
the White House than with the accumulated files of the Bureau of
Fisheries and Wildlife or those of the Bureau of Reclamation and
Irrigation. Indeed, judging by the failure of the archival
authorities ever to view the FBI's records, they may have applied
less rigorous standard to that organization than to other govern-
mental departments.
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According to the statutory mandate, basic decisions concerning
the preservation and destruction of government documents are to
be made by the impartial professionals of the Archives. The
evidence shows that this mandate is not being carried out, and
the public interest demands the entry of a court order halting
further destructions until a plan has been devised that meets the
congressional directive.
.The grant of such relief will serve not merely the technical
function of compelling compliance with the various reccrds manage-
ment laws; it will guarantee that records will not be destroyed until
qualified historians and archivists have had a chance to sort them
out so as to ascertain which ones are of genuine historical value
36/
and which ones nay be disposed of without damage to anyone.
Some, or many, of the FBI's records presently destined for
disposal deserve to be preserved, not only for the benefit of
plaintiffs and others like them but as part of the national
heritage. George Santayana taught us that "those who cannot
remember the past are condemned to repeat it." The lessons of
history can hardly be learned if the historical record is allowed
to vanish.
vz
it is -obviously--impossible=to identify with precision-every
document which may at some time in the future be of interest to a
scholar, journalist, historian, or other person with a legitimate
claim to access. But it is not impossible to identify in broad
terms what records are likely to be of such value, nor should it-
be impossible to do so in a way that does not amount for a forfeit
of the statutory responsibility of the Archives. That agency might,
for example, designate those categories of records within the
36/ The preservation of valuable historical records is of course
important not only to these plaintiffs but to the public in general.
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FBI's classification system which have obvious historical value,
37/
for preservation in toto. with respect to other categories,
38/
records might be preserved on a more selective basis. Still
other categories of records might be marked for disposal after
Archives personnel become convinced, following a personal
inspection of typical files, that they lack special historical
39/
or other value.
.The precise means for achieving an adequate record retention
system cannot be prescribed by the Court nor should its formulation,
as in the past, be left essentially to the FBI. Under the law, it
is the Archivist who is charged-with-the responsibility for the
records preservation program of the United States. He and his
staff, or other prcfessionals retained on a consulting basis, must,
in the first instance, establish an appropriate program. The
individuals engaged in this work should be familiar with the
historical context in which the documents were generated, they
should be conversant with current and expected demands for records
for legitimate purposes, and they should understand the FBI's
method of operation and its system of keeping records- Needless
40/
to say, these persons should have-access--to-the FBI's - files--- -----
_-A preliminary-injunction issued this date requires the Archivist
and.his staff,-with the assistance of the FBI, to formulate a.
37/ ~~, documents classified under "atomic Energy Act-Criminal,"
Overthrow or Destruction of the Government," and "Foreign Police
Cooperation-" -
38/ Ems., in such classifications as ."Selective Service Act" and
"Obstruction of Justice" only records relating to electronic
surveillance, to relationship to demonstrations, or to individuals
who achieved notoriety, might be retained-
39/ E.g., "Theft from Interstate Shipment" or "Mail Fraud."
40/ Such employees would, of course, have to meet appropriate
security standards.
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retention plan for FBI records meeting the statutory standard
as interpreted herein, and it requires the FBI to formulate
.records control schedules consistently with that plan. The plan
and the schedules should be submitted to the Court for its approval
within ninety days hereof. In any event, until such submission
has been made, any further destruction of FBI records will have
to be halted, and the injunction so provides. Upon approval by
the Court of the plan and schedules, that injunction will be
lifted.
Harold H. Greene
United States District Judge
January 10, 1980
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 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
American Friends Service
Committee, et al.,
Plaintiffs,
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William H. Webster, et al.,
Defendants.
JAMES F. DAVEY, Clerk
In accordance with the findings of fact and conclusions
of law contained in the Opinion published contemporaneously
herewith, it is this 10th day of January, 1980,
ORDERED That a preliminary injunction be and it is hereby
issued restraining defendants from destroying or otherwise
disposing of or approving the destruction or disposition of
any Federal Bureau of Investigation files until such time as
the defendants have developed and submitted to this Court
detailed records retention plans and schedules, encompassing
both headquarters and field office files,'based on inspection
of FBI files by trained archivists and historians and formulated
in accordance with the standards outlined in the-Opinion, and
_ORDEREDThat this injunction
such time as this Court approves the submissions made by the
defendants pursuant to this Order or until fur4her order of
L-L
Harold H. Greene
United States District Judge
January 10, 1980
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Civil Action No. 79-1655
FILED
JAN 1013
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Next 1 Page(s) In Document Exempt
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