UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


PUB CITIZEN INC

v.

CARLIN, JOHN


97-5356a

D.C. Cir. 1999


*	*	*


Ginsburg, Circuit Judge: In 1995 the Archivist of the  United States
promulgated General Records Schedule 20  pursuant to his authority
under the Records Disposal Act.  See 44 U.S.C. s 3303a(d). GRS 20
requires each federal  agency to which the RDA applies to dispose of
word process- ing and electronic mail files located in personal
computers  once it has copied them to a paper or an electronic record-
keeping system. See General Records Schedule 20; Disposi- tion of
Electronic Records, 60 Fed. Reg. 44,643 (1995).


Public Citizen and others sued the Archivist, the Executive  Office of
the President, and two components of the EOP  (hereinafter
collectively referred to as the Archivist) under  the Administrative
Procedure Act, alleging that GRS 20  violates the RDA and is arbitrary
and capricious. The dis- trict court agreed and, on cross-motions for
summary judg- ment, entered a declaratory judgment holding the
schedule  invalid. See Public Citizen v. Carlin, 2 F. Supp. 2d 1
(D.D.C.  1997) (Carlin I).


The Archivist now appeals. We hold that GRS 20 is valid  and therefore
reverse the judgment of the district court.  Because we uphold GRS 20,
we need not decide whether, as  the Archivist maintains, the Executive
Office of the President  may not properly be sued as an "executive
agency" subject to  the Federal Records Act, see id. at 8-9, nor
whether the  district court lacked the power to enter an injunction
ordering  the Archivist to comply with its declaratory judgment


the schedule invalid. See Public Citizen v. Carlin, 2 F. Supp.  2d 18,
20 (D.D.C. 1998) (Carlin II).


I. Background


The Federal Records Act is a collection of statutes govern- ing the
creation, management, and disposal of records by  federal agencies.
See 44 U.S.C. ss 2101-18, 2901-09,  3101-07, 3301-24. The RDA portion
of the FRA establishes  the exclusive means by which records subject
to the FRA  may be discarded. See id. s 3314; see also id. s 3301 
(defining "records").


The RDA requires an agency to get the approval of the  Archivist before
disposing of any record. See Armstrong v.  EOP, 1 F.3d 1274, 1279
(D.C. Cir. 1993). This is ordinarily  done in either of two ways. In
one the agency submits to the  Archivist a list or schedule of records
it proposes to discard,  see s 3303, which the Archivist may approve
only if he  determines that the records "do not, or will not after the
 lapse of the period specified, have sufficient administrative, 
legal, research, or other value to warrant their continued 
preservation by the Government." s 3303a(a). In the other  the
Archivist promulgates a schedule listing types of records  held by
multiple agencies, which he has determined pursuant  to the same
standard of value should be discarded. See  s 3303a(d). Whether the
agency or the Archivist initiates the  process, however, for the
Archivist to authorize the disposal  of a record is to order its
disposal. See s 3303a(b). If the  Archivist errs in authorizing
disposal, therefore, valuable  federal records could be lost


Items 13 and 14, the only parts of GRS 20 challenged here,  authorize
the disposal of word processing and electronic mail  files that have
been copied to an agency recordkeeping sys- tem from a personal
computer (whether stand-alone or net- worked). See GRS 20, 60 Fed.
Reg. at 44,649/1.* In the 




__________

n * The challenged items provide:


13. Word Processing Files


preamble to GRS 20 the Archivist explained that a federal  agency needs
the authority to delete files from personal  computers in order "to
avoid system overload and to ensure  effective records management."
Id. at 44,644/2. He also  explained that for


records to be useful they must be accessible to all  authorized staff,
and must be maintained in recordkeep- ing systems that have the
capability to group similar  records and provide the necessary context
to connect the  record with the relevant agency function or
transaction.  Storage of electronic mail or word processing records on
 electronic information systems that do not have these  attributes
will not satisfy the needs of the agency or the  needs of future


Id. at 44,644/1. II. Analysis Public Citizen argues that in
promulgating GRS 20 the  Archivist exceeded his statutory authority in
two respects:  


__________

n Documents such as letters, memoranda, reports, handbooks, 
directives, and manuals recorded on electronic media such as  hard
disks or floppy diskettes after they have been copied to an 
electronic recordkeeping system, paper, or microform for 


Delete from the word processing system when no longer  needed for
updating or revision.


14. Electronic Mail Records


Senders' and recipients' versions of electronic mail messages  that
meet the definition of Federal records, and any attach- ments to the
record messages after they have been copied to an  electronic
recordkeeping system, paper or microform for  recordkeeping


Delete from the e-mail system after copying to a recordkeep- ing
system.


(Note: Along with the message text, the recordkeeping system  must
capture the names of sender and recipients and date  (transmission
data for recordkeeping purposes) and any receipt  data when


first, by applying the schedule to so-called "program" records,  as
opposed to "housekeeping" or administrative records, and  second, by
failing to set a specific time period for the reten- tion of records
before their disposal. Public Citizen also  challenges as arbitrary
and capricious the Archivist's determi- nation that electronic mail
and word processing files lack  sufficient value to warrant continued
preservation after they  have been copied and placed in an agency
recordkeeping  system.


A. Statutory Authority


Because the Archivist, as head of the National Archives and  Records
Administration, is charged with administering the  RDA, see 44 U.S.C.
s 3302, we review his interpretation of  the Act under the two-step
analysis of Chevron U.S.A., Inc. v.  NRDC, 467 U.S. 837 (1984). Under
step one, we ask "wheth- er Congress has directly spoken to the
precise question at  issue." Id. at 842. If so, "that is the end of
the matter; for  the court, as well as the agency, must give effect to
the  unambiguously expressed intent of Congress." Id. at 842-43.  If,
however, the statute is silent or ambiguous with respect to  the
specific issue, then at step two we "must defer to the  agency's
interpretation so long as it is reasonable, consistent  with the
statutory purpose, and not in conflict with the  statute's plain
language." OSG Bulk Ships, Inc. v. United  States, 132 F.3d 808, 814


1. Housekeeping versus program records


According to Public Citizen, "GRS 20 is contrary to law  because it ...
authorizes destruction of all types of word  processing and electronic
mail records without regard to  content." More specifically, Public
Citizen claims s 3303a(d)  applies only to an agency's "housekeeping"
records--that is,  records that relate to routine administrative
chores such as  personnel and procurement--and that the Archivist
exceeded  his statutory authority by promulgating a general records 
schedule covering "program" records, which document an  agency's
substantive functions.


a. Chevron step one


We begin the interpretive enterprise, as always, with the  text of the
statute. See Republican Nat'l Comm. v. FEC, 76  F.3d 400, 405 (D.C.
Cir. 1996). As the Archivist observes,  s 3303a(d) makes no reference
either to program or to house- keeping records; rather, it authorizes
him to schedule for  disposal "records of a specified form or
character." Because  this term is nowhere defined in the RDA, "our
task is to  construe it in accord with its ordinary or natural
meaning."  Director, Office of Workers' Comp. Pgms., Dep't of Labor v.
 Greenwich Collieries, 512 U.S. 267, 272 (1994). And  s 3303a(d) is
naturally read to authorize the Archivist to  schedule records in the
"form" of word processing and elec- tronic mail files. See Webster's
New Int'l Dictionary Una- bridged 992 (2d ed. 1942) ("In general, form
is the aspect  under which a thing appears, esp. as distinguished from
 substance" (emphasis in original)). Moreover, as the Archi- vist
observes, elsewhere in the RDA "form" is used to de- scribe the
physical attributes of a record rather than its  content. See s 3301
(" 'records' includes all books, papers,  maps, photographs, machine
readable materials, or other  documentary materials, regardless of
physical form or charac- teristics"). Indeed, we notice that in 1976
the Congress  amended s 3301 to provide that "records" may be in the 
"form" of "machine readable materials." Federal Records  Management
Amendments of 1976, Pub. L. No. 94-575,  s 4(c)(2), 90 Stat. 2723,


Although Public Citizen would have us read s 3303a(d) so  as not to
authorize the Archivist to schedule a record in the  form of a word
processing or electronic mail file if its content  relates to a
program function of the agency, it offers no  interpretation of the
statutory term "form." On the contrary,  Public Citizen concedes that
the "phrase ['of a specified form  or character'] in isolation
includes program records." Appar- ently, then, it means to suggest
either that the term "form"  really means "content" or that it should
be ignored. We can  not accept either suggestion. See Edison Elec.
Inst. v. EPA,  996 F.2d 326, 335 (D.C. Cir. 1993) (elementary canon of
 construction that court will not read word out of statute).


Public Citizen tries to overcome the plain meaning of the 
statute--which seems to reject rather than to compel the  proffered
distinction between program and housekeeping rec- ords--exclusively by
resort to the legislative history of the  RDA. As Judge Easterbrook
has explained, however:


The political branches adopt texts through prescribed  procedures; what
ensues is the law. Legislative history  may show the meaning of the
texts--may show, indeed,  that a text "plain" at first reading has a
strikingly  different meaning--but may not be used to show an 
"intent" at variance with the meaning of the text.


In re Sinclair, 870 F.2d 1340, 1344 (7th Cir. 1989) (enforcing  statute
prohibiting conversion of bankruptcy case from chap- ter 11 to chapter
12 despite conference report saying conver- sion possible and
describing circumstances in which it should  occur); see also Oliver
Wendell Holmes, The Theory of Legal  Interpretation, 12 Harv. L. Rev.
417, 419 (1899) ("We do not  inquire what the legislature meant; we
ask only what the  statute means").


In any case, we do not think the passages in the legislative  history
to which Public Citizen refers us suggest that the  Congress intended
only housekeeping records to be subject to  disposal under the RDA.
The primary concern of the Con- gress was to reduce the unnecessary
retention of records.  Agencies were retaining too many records, not
too few, and it  is unsurprising that the Congress especially
contemplated the  disposal of many housekeeping records. See H.R. Rep.
No.  79-361, at 1 (1945) ("The primary purpose of this bill is to 
prevent the United States Government from incurring large  and
unnecessary expenses resulting from the failure of many  agencies to
schedule for disposal routine 'housekeeping' rec- ords such as those
relating to the hiring of personnel, pro- curement of supplies, and
fiscal management, that are com- mon to many or all agencies"); S.
Rep. No. 79-447, at 1 (1945)  (same). As the Supreme Court has
observed, however, stat- utes "often go beyond the principal evil to
cover reasonably  comparable evils, and it is ultimately the
provisions of our  laws rather than the principal concerns of our


which we are governed." Oncale v. Sundowner Offshore  Servs., Inc., 523
U.S. 75, 79 (1998) (holding prohibition of  discrimination "because of
sex" in Title VII of Civil Rights  Act of 1964 applies to same-sex
harassment, though that "was  assuredly not the principal evil [with
which] Congress was  concerned").


Public Citizen also notes that in 1978, when the Congress  made the
Archivist's use of general records schedules binding  upon agencies
subject to the RDA, see Pub. L. No. 95-440, 92  Stat. 1063, 1063
(codified as amended at s 3303a(b)), the  committee reports not only
expressed concern with the un- necessary retention of housekeeping
records, but also stated  that if "the records are unique to an
agency, rather than  simply of a general nature, they would not be
affected by this  bill." H.R. Rep. No. 95-1263 at 2 (1978), reprinted
in 1978  U.S.C.C.A.N. 2623, 2624; S. Rep. No. 95-711 at 2 (1978). 
Public Citizen claims the 1978 amendment thus reaffirmed  the
limitation of s 3303a(d) to housekeeping records original- ly evinced
in the 1945 committee reports, inasmuch as pro- gram records could be
of a type unique to the agency that  administers the particular
program. As the Archivist points  out, however, the amendment made the
use of general rec- ords schedules mandatory by substituting a new s
3303a(b)  so providing, but did not in any way change s 3303a(d). If 
the latter section did not mean what Public Citizen claims it  meant
in 1945, then it still does not because nothing in the  1978 amendment
changed its meaning. Even if, however, we  were to assume the
statement in the 1978 reports demon- strates the committees'
understanding that s 3303a(d) had  been limited from the outset to
housekeeping records, we  would be reluctant to rely upon it; "the
views of one Con- gress as to the meaning of an Act passed by an
earlier  Congress are not ordinarily of great weight." United States 
v. X-Citement Video, Inc., 513 U.S. 64, 77 n.6 (1994); see also 
Republican Nat'l Comm., 76 F.3d at 405 (holding that where  subsequent
legislation merely carried over earlier provision  "without
substantial change, the House report is essentially  post-enactment


In sum, we cannot accept Public Citizen's invitation to use 
legislative history to supplant rather than to interpret the 


b. Chevron step two


We now proceed under step two of Chevron to examine  whether the
Archivist's interpretation "is reasonable in light  of the language,
legislative history, and policies of the stat- ute." Republican Nat'l
Comm., 76 F.3d at 406. Public  Citizen asserts that it would be
irrational to construe  s 3303a(d) in such a way as "to give the
Archivist the power  to authorize the destruction of all records
stored on a given  medium or created by a given technology, without
regard to  the records' purposes [or] content."


This argument is based upon a misunderstanding of GRS  20 and the
Archivist's rationale for adopting it. Under  s 3303a(d) the Archivist
must assess the "administrative,  legal, research, or other value" of
a record before authorizing  its disposal--which is inherently a
content-based judgment.  As the district court reasoned, there must be
"a relationship  between the commonality of records covered by a
general  schedule and their diminished value." Carlin I, 2 F. Supp. 2d
 at 12. We agree, for if there were little or no relation  between the
features common to a set of records and their  value, then they could
not be scheduled for disposal pursuant  to a general records schedule
because no categorical assess- ment could logically be made of their


The district court concluded from this that the "common  feature of the
records scheduled under GRS 20--the fact that  they have been
generated by electronic technology--has no  relation to each record's
value." Id. That captures only half  the matter, however. GRS 20 does
not authorize disposal of  electronic records per se; rather, such
records may be dis- carded only after they have been copied into an
agency  recordkeeping system.* Therefore, GRS 20 seems to us to 




__________

n * One might say, tracking the statute, that the records share both 
the "form" of being electronic and the "character" of having been 
duplicated and placed in an agency recordkeeping system.


embody a reasoned approach to accomplishing the potentially 
conflicting goals of the Congress: "[j]udicious preservation  and
disposal of records." s 2902(5).


We note also that in a neighboring part of the RDA the  Congress
codified the very approach that Public Citizen  claims it prohibited
in s 3303a(d). Section 3303(1) requires  the head of each agency to
submit to the Archivist


lists of any records in the custody of the agency that  have been
photographed or microphotographed under  the regulations and that, as
a consequence, do not appear  to have sufficient value to warrant
their further preser- vation by the Government.


Analogously, GRS 20 authorizes disposal of electronic mail  and word
processing files that have been copied to a record- keeping system
and, "as a consequence," id., lack sufficient  value to warrant their
continued preservation. The technolo- gy of duplication may be
different but the principle is the  same. We think this provision
highly persuasive in demon- strating that the Archivist's approach in
GRS 20 does not  reflect an unreasonable interpretation of the


Public Citizen also claims that "the Archivist's unexplained  departure
from prior statements that general schedules are  limited to
administrative records ... requires that [GRS 20]  be set aside." The
prior statements to which Public Citizen  refers, however, apparently
concerned authorizations to dis- card the only extant version of a
record, not a record that had  been copied to a recordkeeping system;
at the least, Public  Citizen has directed our attention to no prior
statement of the  Archivist concerning an approach analogous to that
in GRS  20. Moreover, the Archivist claims, and Public Citizen does 
not dispute, that GRS 23, the predecessor to GRS 20, applied  to
program records at the same time Public Citizen claims the 
Archivist's policy limited general schedules to housekeeping  records.
See GRS 20, 60 Fed. Reg. at 44,644/1 ("The GRS 23  that was approved
in 1988 authorized deletion of word pro- cessing and e-mail records
from [personal computers] after  they had been copied to paper or
microform. This authority  has now been moved to GRS 20 and is


deletion of [such records] after they have been copied to an 
electronic recordkeeping system"). When a general schedule  authorizes
disposal of an uncopied record, it is obvious why  the Archivist would
wish to exclude program records, for an  error means the loss of a
record; when a record is discarded  pursuant to GRS 20, however, it
has already been copied to  the agency's recordkeeping system, and
there is no risk that  information will be lost to future users. We
conclude, there- fore, that Public Citizen has identified no policy of
the Archi- vist with which GRS 20 is inconsistent. See Bush-Quayle '92
 Primary Comm. v. FEC, 104 F.3d 448, 454 (D.C. Cir. 1997)  ("We may
permit agency action to stand without elaborate  explanation where
distinctions between the case under review  and the asserted precedent
are so plain that no inconsistency  appears").


In sum, we hold under Chevron step one that s 3303a(d)  does not
preclude the Archivist from including program rec- ords in a general
schedule because the statutory source of his  authority draws no
distinction between program and house- keeping records. Under Chevron
step two we hold that the  Archivist permissibly construed the statute
to allow the dis- posal of program records the contents of which have
been  preserved in a recordkeeping system. Accordingly, we up- hold
the Archivist's interpretation against this challenge.


2. Time specified for disposal of records


The Archivist may authorize the disposal of records under  a general
schedule "after the lapse of specified periods of  time," if such
records will not then have sufficient value to  warrant their
preservation. s 3303a(d). In GRS 20 he in- structed agencies to delete
word processing and electronic  mail files after their transfer to a
recordkeeping system,  although word processing files may be retained
until "no  longer needed for updating or revision." GRS 20, 60 Fed. 
Reg. at 44,649/1.


Public Citizen argues that GRS 20 contravenes s 3303a(d)  because the
Archivist did not "specif[y] periods of time" in  months or years for
the retention of records. The Archivist  responds that the statute
does not require him to specify the 


time at which records may be discarded in months or years,  and that he
did specify the time for disposal of such records  by reference to a
condition subsequent, namely, the place- ment of the records in a
recordkeeping system. We agree.


As to Chevron step one, we do not see how the phrase  "specified
periods of time" can be said unambiguously to  require the Archivist
to select a period in terms of months or  years. Whether the period to
elapse before a record may be  discarded is expressed rigidly in terms
of months or years, or  more flexibly in terms of when a record has
been transferred  to a recordkeeping system, a precise moment has been
speci- fied. Similarly, under Chevron step two, if the Archivist is to
 make the best determination of when records of a certain  type will
cease to have sufficient value to warrant their  retention, then it is
eminently sensible that he be able to rest  that determination upon a
future condition the occurrence of  which will diminish the value of
the records, without requiring  that he predict precisely when that
will occur.*


Public Citizen argues next that the Archivist's approach  defeats the
purpose of the RDA because the event that  triggers the agency's
obligation to discard a record is within  the control of the agency,
not that of the Archivist, and that  GRS 20 thus removes the Archivist
as a check upon an  agency's disposal of records. This point is not
well taken for,  as the Archivist explains, he "has not provided an
open-ended  grant of authority for agencies to delete records at their
 leisure." Before an agency may discard electronic mail or  word
processing files, pursuant to GRS 20 it must first copy  them to a
recordkeeping system; an agency's control over the 




__________

n * Although Public Citizen claims the Archivist failed to make this 
argument to the district court, we see that the Archivist reasoned 
both in his reply memorandum in support of his motion for sum- mary
judgment and in GRS 20 itself that the statute authorizes him  to
order disposal of records "after they have been copied to [a] 
recordkeeping system." GRS 20, 60 Fed. Reg. 44,649/1 (items 13 &  14);
see National R.R. Pass. Corp. v. Boston & Maine Corp., 503  U.S. 407,
420 (1992) ("we defer to an interpretation which was a  necessary
presupposition of the [agency's] decision").


timing of that decision is irrelevant to the result that the  record is
preserved, and therefore that the Archivist has  indeed placed a
critical check upon an agency's disposal of  electronic records.


We therefore uphold the Archivist's interpretation of  s 3303a(d) as
permitting him to base the time for disposal of  records upon their
having been copied and placed in a record- keeping system.


B. Arbitrary and Capricious Challenge


Recall that under s 3303a(d) the Archivist may promulgate  general
records schedules authorizing the disposal of records  only if he
determines that "such records will not, at the end of  the periods
specified, have sufficient administrative, legal,  research, or other
value to warrant their further preserva- tion." Public Citizen claims
the Archivist made no such  determination of value in GRS 20.
Curiously, it then con- cedes he implicitly (and, Public Citizen
argues, erroneously)  determined that once a copy of such a record is
placed in a  paper or electronic recordkeeping system, the original
lacks  sufficient value to warrant its further preservation. We 
accept Public Citizen's concession that the Archivist made a 
determination of value, though we think it explicit rather than 
implicit: The Archivist explained--in a discussion entitled  "Value of
Electronic Records," see GRS 20, 60 Fed. Reg. at  44,643/3 to
44,645/2--that records located in personal comput- ers cannot
adequately be searched and are therefore "of  limited use to both the
originating agency and to future  researchers." Id. at 44,645/2. The
question we must now  decide is whether the Archivist's determination


We first note that Public Citizen does not contest the  permissibility
of discarding the electronic original of a record  that has been fully
copied to an electronic recordkeeping  system. Instead, Public Citizen
"stresse[s] that hard copy  [i.e., paper] records are not satisfactory
replacements for  records in electronic format[, citing] the
well-known advan- tages of electronic records for future research."
GRS 20, 60  Fed. Reg. at 44,643/3. Our focus, therefore, is upon


the Archivist acted arbitrarily and capriciously in determining  that a
paper copy in a paper recordkeeping system is an  adequate substitute
for the electronic original, that is, to the  point that the original
lacks sufficient value to warrant its  continued preservation. Two
considerations inform this in- quiry: (1) the superiority of
electronic records for searching,  manipulating, and indexing
information, and (2) the complete- ness of the information copied to a
paper recordkeeping  system.


1. Superiority


Public Citizen argues the Archivist acted arbitrarily and  capriciously
when he authorized (and thereby required) dis- posal of the original
electronic records after they have been  printed and placed in a paper
recordkeeping system; as the  Archivist himself recognized, records in
electronic form can  be searched, manipulated, and indexed in ways
that paper  records cannot. See, e.g., id. The Archivist explained his
 decision on the ground that these admitted benefits accrue to  any
significant degree only for electronic records that are  maintained in
an electronic recordkeeping system:


For records to be useful they must be accessible to all  authorized
staff, and must be maintained in recordkeep- ing systems that have the
capability to group similar  records and provide the necessary context
to connect the  record with the relevant agency function or
transaction.  Storage of electronic mail or word processing records on
 electronic information systems that do not have these  attributes
will not satisfy the needs of the agency or the  needs of future


Search capability and context would be severely limit- ed if records
are stored in disparate electronic files  maintained by individuals
rather than in agency- controlled recordkeeping systems. Furthermore,
if elec- tronic records are stored in electronic information sys- tems
without records management functionality, perma- nent records may not
be readily accessible for research.  Unless the records are adequately
indexed, searches,  even full-text searches, may fail to find all
documents 


relevant to the subject of the query. In addition, numer- ous
irrelevant temporary records, that would be segrega- ble in systems
with records management functionality,  may be found. Agency records
can be managed only if  they are in agency recordkeeping systems.


Id. at 44,644/1-2.


Public Citizen's argument ignores this obviously material  difference
between the value of records that are part of an  agency's centralized
recordkeeping system and the value of  those that are accessible only
by searching a particular  personal computer. We do not think the
Archivist acted  unreasonably in discounting the comparative value of
"dispa- rate electronic files maintained by individuals rather than in
 agency-controlled recordkeeping systems." Id.; see also id.  at
44,646/1 ("Even accessible network word processing direc- tories are
inadequate if they are part of information systems  that lack records
management functionality").


Public Citizen next claims that many agencies either are  now or will
in the foreseeable future be capable of managing  their records in
electronic form on an agency-wide basis.  This point, too, the
Archivist addressed in promulgating GRS  20, as follows:


Agencies must maintain their records in organized files  that are
designed for their operational needs. Agencies  that currently have
traditional paper files print their  electronic mail records, word
processing records, spread- sheets, and data base reports so that
their files are  complete, comprehensible, and in context with related
 records. Agency functions that have not been automated  must be
supported by hard copy files, even when some  types of related records
are generated electronically.  Agencies that decide to maintain their
records in elec- tronic recordkeeping systems do so for compelling
opera- tional needs, not for future researchers. In some cases  ...
agencies create automated indexes to hard-copy rec- ords rather than
digitizing all of the records themselves.  In any case, the decision
must be based on an analysis of 


the needs of and benefits to the agency, balanced against  available
resources.


Id. at 44,645/1.


According to Public Citizen this explanation, which permits  each
agency to decide whether to retain records in electronic  form or to
transfer them to paper based solely upon the  agency's operational
needs, i.e., the "administrative" value of  the records, fails
adequately to consider the "research" value  of the records. s
3303a(d). Public Citizen also relies upon  the following statement in
the preamble to another final rule  promulgated the same day as GRS
20, in which the Archivist  set standards whereby an agency may
establish a recordkeep- ing system for electronic mail:


Electronic recordkeeping systems may be the best means  to preserve the
content, structure, and context of elec- tronic records. In addition,
an automated system may  be more easily searched and manipulated than
paper  records. The electronic format may also allow simulta- neous
use by multiple staff members and may provide a  more efficient method
to store records. Furthermore,  when they are no longer needed by the
creating agency,  access by future researchers to permanently valuable
 electronic records would be enhanced by electronic pres- ervation.


Final Rule: Electronic Mail Systems, 60 Fed. Reg. 44,634,  44,639/1-2
(1995).


Contrary to Public Citizen, we think it plain that the  Archivist
adequately weighed not only the "administrative"  but also the "legal,
research, and other value" of records in  arriving at his decision. s
3303a(d). In the Electronic Mail  Systems rule upon which Public
Citizen relies, the Archivist  explained that "neither the standards
[in that rule] nor the  Federal Records Act require[s] electronic
recordkeeping," 60  Fed. Reg. at 44,634/3. He conceded that electronic
records  will be of greater use for research if maintained in
electronic  recordkeeping systems and even encouraged agencies to


velop those systems where practicable. But he also explained  that


the prospective interests of future researchers cannot be  used to
force agencies to do the impossible nor can these  interests dictate
to agencies how they should preserve  their records for their own use.
Agencies must create  and maintain records to conduct Government
business  and account for their activities. Only the agency can 
determine what format best serves these purposes.  Some agencies, or
components of agencies, may deter- mine that paper recordkeeping will
continue to be ade- quate and cost-effective for the documentation of
their  transactions.


Id. at 44,638/1-2.


Public Citizen's argument that the Archivist failed to con- sider the
research value of electronic records, therefore,  reduces to the
assertion that it is arbitrary and capricious for  the Archivist not
to require all agencies that create electronic  mail or word
processing records either to establish electronic  recordkeeping
systems immediately or to retain their elec- tronic records until such
time as they have electronic record- keeping systems. In view of the
Archivist's explanations in  both GRS 20 and the Electronic Mail
Systems Rule, however,  we think his decision to permit agencies to
maintain their  recordkeeping systems in the form most appropriate to
the  business of the agency is reasonable. Nor does Public Citi- zen
claim that agencies have a legal duty to establish elec- tronic


We agree with Public Citizen that electronic recordkeeping  has
advantages over paper recordkeeping, but our duty as a  reviewing
court is to ask only whether the Archivist's policy  choice is
arbitrary or capricious; manifestly it is not. All  agencies by now,
we presume, use personal computers to  generate electronic mail and
word processing documents, but  not all have taken the next step of
establishing electronic  recordkeeping systems in which to preserve
those records.  It may well be time for them to do so, but that is a


for the Congress or the Executive, not the Judiciary, to  decide.


In sum, we do not think the Archivist must, under the  RDA, require
agencies to establish electronic recordkeeping  systems. Nor do we
think it unreasonable for the Archivist  to permit each agency to
choose, based upon its own opera- tional needs, whether to use
electronic or paper recordkeep- ing systems. The Archivist's finding
that electronic records  are of limited use unless maintained in a
recordkeeping  system is reasonable as well. Consequently, we uphold
his  ultimate determination that a record in electronic form lacks 
sufficient value to warrant preservation once it is transferred 
intact to a paper recordkeeping system.


2. Completeness


In Armstrong we held that a paper printout of an electron- ic mail
record is not an "extra cop[y]" within the meaning of  s 3301 if it
does not include transmission data, such as the  names and addresses
of both the recipient and the author and  the date the message was
sent--the electronic equivalents of  the address, return address, and
date on correspondence sent  by conventional mail. See 1 F.3d at 1283.
Public Citizen  cites Armstrong for the proposition that electronic
records  often contain information that may not be transferred to 
paper when printed; its point is that GRS 20 is arbitrary and 
capricious because it does not require this information to be 
preserved. The Archivist responds that GRS 20 does in fact  require
that all such information be preserved in the agency's  recordkeeping
system before the electronic original may be  discarded. We agree with


With respect to electronic mail, GRS 20 on its face address- es the
concerns raised in Armstrong by requiring the record- keeping system
to capture all relevant transmission data.  See 60 Fed. Reg. at
44,646/3, 44,649/1 (item 14 and Note  thereto). Public Citizen
identifies no information that may  not be transferred when the record
is copied to paper pursu- ant to the requirements of GRS 20.


With respect to word processing files, Public Citizen claims,  based
upon the capabilities of extant computer software, that  there may be
hidden comments or summaries that are not  printed out--the electronic
equivalents of a Post-itR note or  an abstract--the preservation of
which is not required by  GRS 20. See id. at 44,649/1 (item 13).
Although the Archi- vist claims in his brief that GRS 20, properly
interpreted,  does require the preservation of such hidden items in
word  processing records, he did not make that point express in 
promulgating GRS 20. The Archivist explains that GRS 20  requires
retention of all such information, for the preamble to  the schedule
requires that a recordkeeping system "pre- serve[ ] the[ ] content,
structure, and context" of a record.  Id. at 44,644/1. In other words,
as counsel for the Archivist  put it at oral argument, if the
information is part of a record  under the RDA, see s 3301, then it
must be preserved. Thus,  the Archivist claims that GRS 20 says
precisely what Public  Citizen thinks it should but does not say.


The Archivist's interpretation of his own regulation is  "controlling
unless plainly erroneous or inconsistent with the  regulation." Auer
v. Robbins, 519 U.S. 452, 461 (1997). That  standard is easily met
here. We also note that the Archivist's  interpretation is consonant
with the requirement in GRS 20  that a word processing file be
"copied" to a recordkeeping  system. 60 Fed. Reg. at 44,649/1 (item
13); see Armstrong, 1  F.3d at 1283 (explaining that "unless the paper
versions  include all significant material contained in the electronic
 records ... the two documents cannot accurately be termed  'copies'
"). That the Archivist's interpretation comes for the  first time in
litigation does not make it unworthy of defer- ence, as "[t]here is
simply no reason to suspect that the  interpretation does not reflect
the agency's fair and consid- ered judgment on the matter in
question." Auer, 519 U.S. at  462. Considering the substance of that
interpretation, we  trust that Public Citizen is not aggrieved by this


Lastly, Public Citizen complains that the Archivist improp- erly relies
upon the preamble in his interpretation of the  general schedule. We
regularly rely upon the preamble in 


interpreting an agency rule. See National Mining Ass'n v.  EPA, 59 F.3d
1351, 1355 n.7 (D.C. Cir. 1995). The purpose of  the preamble, after
all, is to explain what follows. See 5  U.S.C. s 553(c) ("After
consideration of the relevant matter  presented, the agency shall
incorporate in the rules adopted a  concise general statement of their
basis and purpose").


In sum, we reject Public Citizen's claim that GRS 20 fails  to require
that all relevant information be transferred to a  paper recordkeeping
system before an electronic original may  be discarded.


III. Conclusion


For the foregoing reasons, we uphold GRS 20. We there- fore need not
decide whether the Executive Office of the  President is a proper
party to an action brought under the  RDA, nor whether the district
court had the power to enter  an injunction ordering the Archivist to
comply with its declar- atory judgment holding the schedule invalid.
Accordingly,  the judgment of the district court is


Reversed.