## Facts

- Researchers and nonprofit organizations sued components of the Executive Office of the President, including the National Security Council (NSC) and Office of Science and Technology Policy (OSTP), and sued the Archivist of the United States.
- The agencies used electronic communications systems (including email) for government business, but treated paper printouts as the official record and allowed deletion of electronic versions.
- Electronic versions contained additional information not necessarily preserved in printouts (e.g., transmission/receipt data, distribution lists, and sometimes content).
- Plaintiffs alleged the agencies’ electronic recordkeeping guidelines permitted destruction of federal records without compliance with the Federal Records Act (FRA) scheduling and approval requirements.
- Plaintiffs also alleged the Archivist failed to perform statutory oversight duties to address unlawful removal or destruction of records.
- The district court granted summary judgment to plaintiffs on the FRA claim and ordered new electronic-records guidelines; agencies appealed and plaintiffs cross-appealed limits the district court placed on review of “record” versus “non-record/personal” distinctions.

## Issues

1. Whether agency recordkeeping guidelines governing electronic records and the Archivist’s related actions are judicially reviewable under the APA for compliance with the FRA.
2. Whether the FRA permits courts to order agencies or the Archivist to retrieve, reconstruct, or specifically enjoin destruction of records, as opposed to limiting courts to review of policies and programmatic compliance.
3. Whether, and to what extent, the NSC is subject to the FRA and APA given its mix of presidential advisory and statutory “agency” functions.

## Decision

- The D.C. Circuit largely affirmed that the challenged electronic recordkeeping guidelines were unlawful to the extent they allowed destruction of federal records and failed to preserve information uniquely contained in electronic systems.
- The court held that recordkeeping guidelines and practices may constitute final agency action reviewable under the APA for consistency with the FRA.
- The court rejected the view that agencies and the Archivist have unreviewable discretion to define “records” in a manner that defeats the FRA’s purpose.
- The court limited remedies, holding the FRA’s enforcement structure precludes courts from ordering the Archivist or agencies to retrieve records or to take particular case-specific enforcement actions beyond the statute’s mechanisms.
- The court held the NSC is subject to the FRA when performing statutory “agency” functions, while recognizing that purely presidential records implicate different statutory and constitutional constraints.
- The case was remanded for further proceedings consistent with these limits, including careful separation of federal records from presidential materials in the NSC context.

## Legal Principles

- Although the FRA lacks a private right of action, plaintiffs may obtain APA review of final agency action to ensure recordkeeping guidelines and programs comply with the FRA’s preservation duties.
- Agencies may not treat paper printouts as an automatic substitute for electronic records when electronic systems contain additional information needed to document agency functions and transactions.
- The FRA establishes a detailed enforcement scheme centered on the Archivist and agency heads; that scheme restricts courts from issuing direct, case-specific orders to recover records or to conduct enforcement in the manner sought by private litigants.
- The NSC is covered by the FRA for its “agency” activities carried out under statutory authority, but judicial review must avoid intrusion into presidential recordkeeping and materials governed outside the FRA.

## Conclusion

The D.C. Circuit held that federal courts may review, under the APA, agency and Archivist recordkeeping policies for compliance with the Federal Records Act—including requirements applicable to electronic records—but may not use the FRA to compel record retrieval or to direct case-specific enforcement beyond the statute’s prescribed executive-branch procedures.


Armstrong v. Exec. Off. of the President, 1 F.3d 1274 (D.C. Cir. 1993)