Free Statement - District Court of Colorado - Colorado

Case 1:01-cv-02076-LTB-PAC

Document 436

Filed 02/09/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-02076-LTB-PAC MARK ALLEN TAYLOR, Plaintiff, v. SOLVAY PHARMACEUTICALS, INC., Defendant. Civil Action No. 00-cv-00808-LTB-PAC BRIAN H. ROHRBOUGH, et al., Plaintiffs, v. WAYNE N. HARRIS, et al., Defendants.

STATEMENT BY THE NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

The National Archives and Records Administration ("NARA"), through its undersigned counsel, submits this statement in response to the Court's order dated January 26, 2007. INTRODUCTION At the Status Conference on January 26, 2007, the Court indicated that it was proposing to transfer certain materials from the Evidence Room to NARA subject to a sealing order, and ordered the parties and amici to submit position statements regarding this proposal within two weeks.

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NARA's position respecting that proposal is being submitted in this pleading pursuant to that order. In brief, NARA's position is that the Court's proposal is workable, but will function most effectively if certain steps are taken. NARA is submitting a proposed order herewith that reflects NARA's view regarding the type of order the Court might enter if it determines to proceed with the approach it has proposed. I. Determinations to be made regarding the materials in the Evidence Room. NARA believes that as an initial matter, a determination should be made whether any or all materials in the Evidence Room are "records" subject to the Federal Records Act (FRA), 44 U.S.C. Chapters 21, 29, 31 and 33, and the Court's NARA-approved records schedule governing closed cases. See also 44 U.S.C. 2901(14) (a United States District Court is a "federal agency" for purposes of FRA); 44 U.S.C. 3301 (defining "records"). This determination is generally performed by an agency's records officer. Here, a determination should be made regarding whether the materials at issue in the Evidence Room are properly considered part of the civil case files for the cases to which they relate. NARA has previously explained that there are various considerations (including, in particular, the Court's "records schedule" that has been approved by the Archivist of the United States) that are relevant in this determination. NARA's prior briefs outlined these considerations. See Civil Action No. 01-cv-02076-LTB-PAC, Docket Nos. 363, 403; Civil Action No. 00-cv-00808-LTB-PAC, Docket Nos. 231, 269. NARA represents that it is willing to assist in this determination, if the Court so desires. Specifically, NARA can provide two staff members who will help the Court make that determination. If the Court desires such assistance from NARA, NARA requests that the Court make clear in its order that these NARA staff assisting in this task would have full access to materials in the Evidence Room. 2

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If the determination is made that some materials in the Evidence Room are not properly part of the case file, such materials should not be deemed federal records within the meaning of the Federal Records Act and should be disposed of by further order of this Court. As for materials in the Evidence Room that are determined to be federal records, the Court's Records Disposition Schedule 2, Item A(7)(b)(3), which, as stated above, has been approved by the Archivist of the United States, notes that any case file that NARA and the Court agree to be of historic value shall be deemed permanent. NARA's position is that any materials determined to be federal records in this case are of historic value and should be treated as permanent records of the United States. Thus, pending agreement by the Court after its review of the Evidence Room materials, these records would not be destroyed or disposed of but would be preserved permanently. II. Considerations for transfer of custody of records to NARA. The Court has proposed that records from the Evidence Room would be transferred to NARA. NARA represents that it has the capacity and ability to accept and safeguard such records properly and in accordance with law at its Denver Federal Records Center regional facility. NARA requests, however, that any order by the Court transferring custody of such records to NARA include certain terms. As an initial matter, NARA notes that existing guidance accompanying the Court's records schedule contemplates that court records will be physically transferred to NARA's physical custody any time up to five years from the time of case closure. While the schedule does not expressly address subsequent transfer of legal custody of the records to NARA, historically NARA accepts legal custody of agency records that have been in existence for over thirty years, see 44 U.S.C. 2107(2), but has authority to accept legal custody earlier. See id. § 3

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2107(1). In the case of court records, NARA's Denver Region has routinely accepted legal custody twenty years from case closure. When NARA has physical custody but the agency retains legal custody, NARA maintains and safeguards the records, but the originating agency continues to make the determinations of access to the records. See 36 C.F.R. § 1256.4. Accordingly, NARA recommends that if the Court wishes to transfer the records to NARA, that it follow that approach here ­ i.e., by transferring physical custody immediately to NARA, with legal custody to pass to NARA at a later time in accordance with NARA's accepted practice as stated in the preceding paragraph. NARA notes that its understanding from the Status Conference is that the Court may decide to impose a blanket seal restricting access to the records for a defined period of time. NARA generally notes that it supports open access to records. However, NARA affirms that it has the ability to ensure that the records remain sealed from unauthorized access should the Court wish to do so. If the Court does decide to seal the materials, NARA believes it makes sense for the Court's order to provide that legal custody of the materials will be transferred to NARA at the same time that the seal ends, whenever that may be as the Court directs. When the seal is lifted, NARA then would assume legal custody at the same time. This in turn would presumptively allow for full public access to open court records residing in NARA's legal custody. NARA requests that the scope and extent of any seal be made as clear as possible with respect to questions of future access by any means for the benefit of all interested parties. In accordance with these concerns, NARA suggests that if the Court does decide to seal these

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records, it may be appropriate to include in its order the following provision (or similar language): The records so transferred shall remain sealed until [the date the seal ends]. Absent further order of this Court, the seal on public access to these records shall remain complete and without qualification, so as to protect the records from access under any provision of applicable law, short of a direct request from the Court, for the duration of the seal through [the date the seal ends and legal custody is transferred]. NARA notes that it has not included the suggested sealing language in its proposed order because it is not taking a position on the terms by which the Court wishes to seal federal records from future access. Nor does NARA intend to suggest that if the Court determines to impose a seal, that the seal should extend for any particular length of time. These recommendations regarding the seal simply reflect NARA's understanding that the Court's proposal indicated an intention to impose a seal on any such records that are currently sealed and provide them to NARA as sealed; NARA's position is intended to set forth considerations regarding the most effective method of achieving this result. CONCLUSION As noted, NARA has submitted a proposed order that reflects NARA's position regarding the type of order the Court might enter if it determines to transfer custody of any records from the Evidence Room to NARA. If the Court determines that it is appropriate to seal these records, NARA further requests that the order include language similar to the language proposed above regarding the seal.

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Respectfully submitted this 9th day of February, 2007. TROY A. EID United States Attorney s/Kevin T. Traskos Kevin T. Traskos Assistant United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0100 Fax: (303) 454-0404 E-mail: [email protected] Attorneys for Defendant

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on February 9,2007, I electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail addresses: William V. Allen [email protected],[email protected] Ericka Houck Englert [email protected] Michael J. Gates [email protected],[email protected] Steven Gregory Greenlee [email protected],[email protected] James Ernest Hooper [email protected],[email protected] A. Bruce Jones [email protected],[email protected] Mark Frank Kennedy [email protected],[email protected] Craig Ruvel May [email protected],[email protected] C. Michael Montgomery [email protected],[email protected],[email protected] Amy L. Padden [email protected],[email protected],[email protected] Richard G. Peterson [email protected],[email protected] Kevin Thomas Traskos [email protected],[email protected],[email protected]

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I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name:

John W. DeCamp (mail) DeCamp Legal Services, P.C. 414 South 11th Street Lincoln, NE 68508 Joel A. Kolodny (mail) Montgomery Kolodny Amatuzio & Dusbabek, LLP-Denver Colorado 475 Seventeenth Street #1600 Denver, CO 80202 Candace Mudgett McCune (mail) Peterson, Dymond & Reagor, LLP 8400 East Prentice Avenue #1040 Greenwood Village, CO 80111-2922 Ronald V. Miller (mail) Miller & Zois, LLC 30 East Ordnance Road Glen Burnie, MD 21060 Janet Dian Zimmerman (mail) 430 Jackson Street Sterling, CO 80751

s/Kevin T. Traskos Kevin T. Traskos Assistant United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0100 Fax: (303) 454-0404 E-mail: [email protected]

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