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Public and Private Networks, and the Status of Public Records, Open Meetings, and FOIA

by James Love
Taxpayer Assets Project

CPSR News Volume 13, Number 2: Summer 1995

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 of access to electronic records as to paper records. There is also current litigation over whether or not electronic mail records are subject to the Federal Records Act (FRA).

Of particular note 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.

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

The federal administration 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 about his frustration over efforts to make his email a government record.

The firm's officials acknowledge that some federal agencies prefer Meta Network services because they believe the records will not be subject to FOIA or archiving under the FRA.

Government officials and agencies, from the White House down, rely more and more on electronic communications to conduct public business As noted in the PROFS case, agency staff now use electronic communications systems to create, send, and store letters, memoranda, schedules, and other documents, 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 advisory board meetings. These new and important uses of electronic mail could either lead to an expansion of the public's ability to monitor government activities, or to more secrecy, depending upon the rules for archiving records, and for methods of providing public access, such as disclosure under FOIA.

Many public officials are anxious to find ways of avoiding the federal archiving requirements for email; they are also concerned about whether the public will have access to their email under FOIA. As a result, some governmental bodies have begun 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, the Meta Network, run by the Metasystems Design Group in Arlington, Virginia, provides governmental and other 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 a month for the service. The firm's officials acknowledge that some federal agencies prefer Meta Network 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-governmental status of the records that reside on their system allow federal employees more freedom to communicate candidly and express controversial views. Meta Network representatives, who are knowledgeable about the FRA and FOIA and the PROFS lawsuit, 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 their company.

Scott Armstrong (sarmst@cni.org), one of the litigants in the PROFS case, has said that if government officials use email to conduct official business, the records should be subject to the FRA and FOIA. He asserted that if government employees 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 that seems unlikely at best. Armstrong maintains that a government employee's receiving email used for official business at a private site is similar to receiving postal mail for official government business at a private address, or taking records from the office to a private residence and claiming they are 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's 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 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 nonpublic.

Under current law, telephone conference calls involving federal bodies are subject to laws about open meetings, as long as a quorum is present to deliberate on official business, even if no actions are taken. The use of computer email lists or conferences presents concerns similar 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 memoranda, 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 when 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 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 instantly available to his office, but far from NARA, FOIA, or a government subpoena. Moreover, with data readily accessible through high-speed networks, many more types of records than email messages can be stored off-site. Ledgers, calendars, minutes of meetings, budgets, contracts, and other items could be maintained on computer networks that are invisible to the general public.

This Taxpaper Assets Project (TAP) Information Policy Note Noms originally distributed to TAP-INFO a free Internet distribution list. Subscription requests may be sent to listserver@essential.org. James Love is the Director of TAP and may be reached at love@essential.org.

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