The Information Management Implications of Public Citizen v. Carlin.

In 1999, at 184 F.3d 900, the United States Circuit Court for the District of Columbia rendered its opinion in Public Citizen v. Carlin. The opinion reversed the trial court and ruled that retention of a paper printout of an e-mail, as opposed to retention of the electronic record itself, constituted compliance with the Federal Records Act. On its face, Public Citizen v. Carlin is not about records retention -- particularly not for workers outside the narrow sphere of the U.S. federal government. Rather, it is about management of government e-mail records and the value of metadata. It represents the latest in a line of cases ratifying reasonable conduct in implementing retention decisions. Because of this, its implications extend far beyond the question of e-mail and metadata.

Misconceptions About Case Law

Case law is a bit counterintuitive to most people, who have little familiarity with the decisions or with the legal processes by which they are first reached, then later used as precedent is subsequent cases. The layperson makes a number of assumptions about case law which are not so.

Misconception 1: Factual Precision

The first of these is factual precision. For example, laypersons concerned with imaging system legalities will often hope to locate a case decision on legality of magneto-optical imaging systems used by power utilities in the State of New York to image personnel files. Unfortunately, however, they search in vain, not because of poor search techniques, but because a case decided on these precise facts almost certainly does not exist. The underlying reality is that the potential number of fact situations in the real world makes it highly unlikely that one exactly like the one now faced has made it to court, been decided, and been published. Very rarely, it does actually happen (such a case is said in legal jargon to square "on all four corners" with your case), and when it does, and the outcome agrees with your position, such a case is valuable indeed.

Most of the time, however, lawyers and others interested in case law must make do with cases involving less than ideal facts -- different jurisdiction, industry, kinds of records, cause of action, theory of liability, and so on. Fortunately, this is not the impediment that it appears to be because of a second misconception about case law involving the precision of the legal doctrine arising out of a decided case.

Misconception 2: Doctrinal Precision

Anyone who has studied the U.S. tax code or the Environmental Protection Agency's air quality regulations for even a few minutes readily observes that these laws are concerned with minute, precise regulation of the matters they address. It is tempting to assume that other law is equally precise and regulates in similarly detailed fashion.

For case law, this is generally not true. A rule of law arising out of a case decision is likely to be broad in scope and, to the untrained reader, a bit vague. This vagueness is often difficult for trained readers as well -- lawyers often puzzle for hours over case decisions whose import or application are not at all clear, trying to discern their actual meaning. The U.S. Supreme Court is famous for issuing such decisions.

In theory, this broadness decides the case facing the court and simultaneously articulates a rule of law applicable to similar cases that have not yet arisen. Faced with such a case, and wishing to apply it to a specific situation, the question naturally arises: How similar is similar enough to ensure that a rule of law really is applicable to the facts of that situation? This question introduces another common misconception about case law: the definitive case that answers all questions and resolves all disputes.

Misconception 3: Doctrinal Comprehensiveness

Rarely does it actually happen that a single case resolves an issue entirely. Instead, a single case usually articulates a small piece of legal doctrine. The overall legal doctrine is fleshed out by a number of cases, usually over a period of many years as courts look at different fact situations, consider the long-term implications of the doctrine they are fashioning, and generally fine-tune the law. In theory, and quite often in practice, reading such a group of cases (a "line of cases" in legal jargon) reveals a steady progression as a doctrine is first announced, and its limits and nuances are defined over time. As later cases apply the doctrine to new facts, each will (it is hoped) be a logical extension.

How Case Law Is Used

Applying this rule of law to a situation involves analyzing whether the facts warrant a logical extension. Those who do not want the rule of law to apply must analyze whether they can legitimately distinguish their case from those to which the doctrine has already been applied. Whichever the choice, they must then argue the analysis before a court, either orally or in written briefs, or both.

On the other hand, the rule of law articulated in a case is likely broad enough to apply to a wide variety of fact situations, industries, and legal disputes. Public Citizen v. Carlin is itself illustrative of this: Although it decides a narrow legal question involving government records and a particular statute, it cites as precedent cases involving oil companies, adult theaters, bankruptcies, and other parties who have no connection at all to government e-mail records or to the Federal Records Act. Nonetheless, these cases state principles of law applicable to the case in Public Citizen v. Carlin.

This process is the heart of appellate law -- examining prior lines of cases and arguing the application of their doctrines to various aspects of the case now before the court. Each side may argue using the same case law -- why it is or is not applicable to the present case or how it should be interpreted -- or each side may cite different cases and argue why their cases, and not their opponent's, should control the present case's outcome. The side that makes the more persuasive argument wins the day and literally changes the course of the law.

Lining up the Cases

In the New York imaging system example already noted, what would happen if one argues in favor of image admissibility before an appellate court, and it is the very first New York case of its kind (a "case of first impression" in legal jargon)? Among other things, one would cite to the court the following:

* Monarch Savings and Loan v. Genser, 383 A.2d 475 (N. J. Super. 1977), a New Jersey mortgage foreclosure case involving a bank computer system decided long before the advent of imaging technology

* People v. Bovio, 455 N.E.2d 829 (Ill. App. 1983), an Illinois criminal case involving a bank computer, also decided long before the advent of imaging

* State v. Swed, 604 A.2d 978 (N. J. Super. 1992), a New Jersey criminal case decided in the early 1990s

* State v. Ford, 501 N.W.2d 318 (Ne. App. 1993), a Nebraska criminal case involving a computer security system in a hotel

Surprisingly, these cases lead exactly where one wants to go, even though they are not about imaging, do not involve either utilities or personnel files, and, being from other states, are not binding precedent for the New York appellate court. This is because the contemplated use of an imaging system is a logical -- and moderate -- extension of the cases just listed. Monarch Savings and Loan and People v. Bovio answer the question of whether computer systems (of which an imaging system is but one example) generally are capable of generating admissible records in the same manner as paper-based records systems. In both cases the answer is "yes." In both cases, the industry, the precise storage format, hardware, and software are irrelevant to the analysis -- both cases are about computer systems generally. This simplifies the argument and prevents the opponent from successfully arguing that the cases decided the question only for a particular industry or technology and that the current situation is somehow different. The cases' ages -- more than 20 years for both -- are actually beneficial, allowing the characterization of the issue as mundane, old-hat business that was settled long ago.

The second two cases allow one to demonstrate the law's evolution in this area -- both State v. Ford and State v. Swed demonstrate that by the early 1990s, admission of computer-generated records had become routine, and courts had become so confident in computer systems that they had completely dispensed with requirements for testimony about the systems' accuracy and reliability.

That the cases are from other states is not particularly a hindrance; when deciding an issue for the first time, courts often look to cases from other states for guidance. That one can cite cases from several states is actually beneficial. Collectively, these cases show that this doctrine has been applied in many jurisdictions, to a wide variety of facts, and always with the same outcome (i.e., computer-generated records are as admissible as their paper-based counterparts). This case, it is argued, is merely one of many ordinary situations that fall within this general rule, with no characteristic that demands a different outcome.

Thus is the argument now fully developed: "This is a routine matter, long ago addressed by many states' courts, and each of them decided the matter exactly as now advocated. This court should decide the same way because there is simply no reason to stray from a course long set." If the court adopts the argument and rules in favor, there will be one more case for the next litigant.

This is how case law develops -- a general principle arises, and each new case adds nuance to the principle, while continuing on the same course as before. Rarely does case law veer sharply in a different direction after having followed a well-defined course for a long time.

Public Citizen v. Carlin's Place in the Line of Records Retention Case Law

With this analysis in mind, we turn to Public Citizen v. Carlin. Analyzed strictly, Public Citizen is a narrowly drawn case: Does preserving a paper printout of an e-mail constitute adequate compliance with the Federal Records Act mandate that all federal records be preserved and managed? Does preserving only a paper copy destroy metadata that constitutes part of the "federal record" within the meaning of the act?

The principles of law articulated by the court are, however, much broader than mere yes/no answers to these questions. The court speaks to the environment and factors facing the archivist in making the decisions he or she made and to the archivist's discretion in addressing those issues in the discharge of his or her duties. It is that discussion that is valuable to others.

Duty: The court makes an important pronouncement: The duty that the archivist must carry out is that set forth in the statute and no more. Put another way, if the archivist complies with the letter of the law, there is no additional implied or moral duty. The court will not impose additional burdens upon him or her as if performance warranted anything more than the action described in the statute.

In this case, the duty in question is prescribed by a single statute, applicable only to narrowly defined records and parties, namely, the Federal Records Act, e-mail, and the archivist. The legal principle, however, is applicable by analogy to many situations: Records retention or information management duty is defined solely by the statute's plain words. Actions that comply with those words fully discharge the duty. There is no additional, implied duty.

This is an important concept for records retention. A duty to maintain records for three years means three years -- not four, or 10, or some uncertain period. There is no sanction for not keeping them longer, and if the statute is silent as to media, storage arrangements, or other matters, there is no implied duty in these issues.

Discretion: The Federal Records Act contains little substantive guidance on how to implement its strictures. Thus, how exactly they might be met is guesswork for those charged with responsibility under them. In Public Citizen, the court took the position that this absence of guidance permitted the archivist to construe and apply the act in a discretionary manner, so long as the results were not inconsistent with demands of the act. This contrasted markedly with the position taken by the plaintiffs, who argued that the act's wording implicitly required that the archivist take steps not explicitly set forth in the act.

Strictly speaking, this doctrine is set forth in a very narrow context (i.e., that federal agencies are entitled to deference in their construing of the statutes they are charged with implementing). Nonetheless, a far more general rule can be derived from it: When a rule of law is silent as to its implementation, those with duties under it are allowed reasonable latitude in performing them. There is no implied or assumed course of action whose violation can be charged to the duty-bound party, so long as the course chosen produces the called-for result.

Efficient Use of Organization Resources: The Carlin Court ratified the archivist's determination that agency needs and resource limitations were legitimate concerns that could outweigh such considerations as the perceived needs of others outside the agency's scope and the law's purpose. Again, this concept has wide application. Public Citizen v. Carlin rejects the commonly made argument that organizations have a duty to retain records for various reasons (typically for the benefit of plaintiffs' attorneys) regardless of the cost of doing so.

A Line of Cases

Collectively, Public Citizen v. Carlin extends nicely the doctrine of the following prior case law concerning records retention:

* United States v. ABC Sales Corp., 95 F.R.D. 316 (D. Ariz. 1982) stands for the proposition that records must be kept for legally required retention periods.

* Moore v. General Motors, 558 S.W.2d 720 (1977) established the legitimacy of records retention programs conducted in the regular course of business when those programs comply with applicable law.

* EEOC v. Jacksonville Shipyards Inc., 690 F. Supp. 995 (M.D. Fla. 1988) stands for the proposition that a business cannot be sanctioned for failing to maintain records past a legally required retention period when they were unaware of any potential legal actions involving those records.

Public Citizen v. Carlin states that

* there are no additional implied duties outside the statute's plain language

* the details of how retention is accomplished is a discretionary determination so long as the records are maintained per the law

* organizational needs and efficient use of organizational resources are legitimate considerations in making that determination

This is a sound, broad extension of the law and one that gives information managers more confidence than ever that courts will not second-guess their records retention decisions.

John C. Montana, J.D., is an attorney and records management consultant based in Landenburg, Pennsylvania. He may be reached at [e-mail]