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May 2011

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This article is in the news archives --- for current news go to the Third Branch News.


Making Room, Saving History

When your spring garage or attic cleaning freed up much needed space, it's likely it also turned up mementos to save. In a sense, the Judiciary is cleaning house and also putting aside important papers. The National Archives and Records Administration (NARA), the agency charged with storing the government's records, is working with the Judiciary to review millions of federal court cases accumulated since the 1970s at the Federal Records Centers (FRC) located throughout the country. At the same time, the Judicial Conference is asking judges to do their part to make sure the historically significant case documents among these files are retained.

magnifying glass and folders

By law, NARA is statutorily obligated to charge the Judiciary a fee for storage and last year storage cost the Judiciary over $6.2 million. "Records had accumulated for decades and had become an unmanageable mass," said Judge Steven Merryday (M.D. Fla.), then chair of the Records Subcommittee, part of the Judicial Conference Committee on Court Administration and Case Management (CACM). "With the potential of rising storage costs, we were facing catastrophic budget consequences." Merryday's subcommittee began by looking for ways to preserve what needed to be kept and what could be disposed. They sought the advice of the head of the National Archives and court representatives. The subcommittee went over, code by code, what would be found in a file, and agreed on what should be preserved. Then they made their recommendations to the full CACM Committee and then to the Judicial Conference.

Beginning in 2011, with Conference approval, NARA reduced the amount of time that case files are stored at FRCs. The majority of non-trial cases will be disposed of after 15 years. Over that same time period, as the new records schedule and the reappraisal of old files is fully implemented, it is estimated the Judiciary will save $35 million.

... as the new records schedule and the reappraisal of old files is fully implemented, it is estimated the Judiciary will save $35 million.

"I credit Judge John Tunheim, the past chair of the CACM committee, Noel Augustyn Assistant Director of the AO's Office of Court Administration (OCA), and Michel Ishakian, Chief of OCA's Public Access and Records Management Division, with making this project a tangible success," said Merryday. "With our subcommittee, they focused on the problem and found solutions."

This is the first time in more than 30 years that NARA has been able to dispose of any federal court case records. They've begun with paper civil case files dating back to 1970. But before they dispose of any files, courts have the ability to designate "non-trial temporary case" files between 1970 and 1995 as historic. These files will be retained and stored. All cases filed at any time that proceeded to trial, and all cases filed before 1970 are automatically designated permanent and will not be destroyed. The remaining cases will be indexed and become easier to access.

What is considered historically significant? The CACM Committee, working with NARA, federal judges, historians, and academics, proposes that certain case records be designated permanent. Cases of historic significance would involve particular issues such as state reapportionment cases, civil rights voting cases, treason, national security, family farm and historic bankruptcy cases, and death penalty habeas corpus cases. Judges and clerks of court also are asked to designate cases that:

  • Involved a lawyer, litigant, or witness of historical interest or importance;
  • Involved an issue of historical interest;
  • Involved a matter of national interest separate from the issues in the litigation; or
  • Received substantial media attention at the time.

To date, 13 district courts and 23 bankruptcy courts have completed their identification of historic case files.

... with electronic filing and automation, the amount of paper going to storage will dwindle.

Clerks of court will coordinate the permanent storage of any files on closed cases of historical significant with the Judiciary's Records Management Office. To ease future designation, the most recent release of the District Case Management/Electronic Case Files System will include a report to identify permanent and temporary civil files. Finally, to safeguard against the disposal of records without a court's approval, each FRC will be required to send notification to the clerk of court.

Fortunately, with electronic filing and automation, the amount of paper going to storage will dwindle. But the work isn't over.

"I call this a work in progress," said Merryday. "We've dealt with two groups of documents—those former documents in storage that could be disposed of, and the current paper case files. That leaves the retention issues still to be negotiated for electronic documents. Which will be managed during the term of Judge Julie Robinson, the current chair of CACM."