1. Evidence in the Columbine Cases: A Case Study in Defining Court Records Kevin Traskos Assistant U.S. Attorney District of Colorado All remarks are personal views of the presenter and are not official views of the Department of Justice or the National Archives and Records Administration.

2. NARA’s involvement in the Columbine case When should materials in a lawsuit be considered “records” protected by the Federal Records Act?

3. The Columbine cases Killing spree by Eric Harris and Dylan Klebold. Lawsuits. –Plaintiffs: The victims’ parents –Defendants: Pharmaceutical manufacturer. Sheriff’s department. Parents of Harris and Klebold No involvement by any U.S. agency

4. The evidence Included: –Videotapes made by Eric Harris and Dylan Klebold. –Transcripts of depositions of Harris and Klebold’s parents. –Physical materials seized from the Harris and Klebold homes. –Other?? Collected by the parties. In the possession of the lawyers --- not in the courthouse.

5. Confidentiality The parents of Harris and Klebold sought to keep certain materials confidential: To protect their privacy. To protect the public from copycat crimes. All parties and the court agreed on a protective order.

6. The terms of the protective order Materials to be kept confidential, and not disclosed to third parties. Certain materials filed with the judge must be filed “under seal”: –Any confidential materials. –Any references to confidential matters. At the end of case, such materials to be either returned to the parties or destroyed.

7. The “Evidence Room” All highly confidential materials to be kept in a room at the courthouse. Nothing left the room. Special master to oversee the room.

8. Rules for referring to the Evidence Room materials Usual rule: –If you submit a document to the judge and want him/her to look at it, you have to attach it. Special rule: –You could refer the judge to the document in the Evidence Room – without attaching it. UNUSUAL!

9. The settlements Cases settled under confidential terms. The judge’s “Evidence Room Order.” –Empty the Evidence Room: everything to be returned to parties or destroyed.

10. NARA learns of the issue Reports in local papers over what to do with materials. –NARA was lucky to learn of the issue! Questions: –Were the materials records? –Could they be destroyed without violating the Federal Records Act? NARA’s concern: avoid any violation of the Federal Records Act.

11. NARA takes action Informed court that the Federal Records Act might apply. Communicated to court in two ways: –Letter to Administrative Office. –Brief to the judge, through local U.S. Attorney’s office. Not as party but as “friend of the court.”

12. Which court documents are “records” subject to the Act? Are courts subject to different rules? Not as much as you might think. –The Federal Records Act applies to them. Applies to federal district and appellate courts, just like other agencies. Excludes U.S. Supreme Court. –Same regulations apply.

13. The schedule system Same system as with other agencies. –The courts developed a schedule that lists types of records and defines how long each type must be kept. –The courts submitted the schedule to the Archivist of the United States for approval. –Courts may dispose of records only in accordance with the approved schedule.

14. How the schedules apply Under the district court’s schedule: –Sealed materials: Kept until unsealed After unsealed, subject to the rules for whatever category they fall into. –Civil cases that settle before trial: Kept for either 20 years or permanently, depending on whether the materials have historical value.

15. Easy to tell which court materials are records? Well-organized filing systems. –Usual way to submit a document is through the clerk’s office. –When a document is filed, it is put in the file in the clerk’s office for the appropriate case. –Easy to see what is in the case file! Rules about which documents must be filed in the clerk’s office.

16. The ambiguities What materials fall into a particular category (like civil case files)? How to decide what to do with sealed files (whose contents are unknown)? Columbine issues: –Are the Evidence Room materials part of the case file? –Are they “records”?

17. The general standards Definition in statute: long and confusing! [44 U.S.C. § 3301] Key points: “records” are documentary materials that are: 1.“Made or received” by the agency in connection with public business; and 2.“Preserved” or “appropriate for preservation” as evidence of the agency’s activities or because of their informational value.

18. Issues presented by the Evidence Room materials Were they “received” by the Court? –They were kept at the courthouse. –They were not officially filed. Are they “appropriate for preservation”? Other factors: –What about the protective order? –What about their historical value?

19. Argument #1: What if everyone in a case agrees that the materials can be destroyed? The argument: “If all the parties in a case agree in the case that all confidential documents will be destroyed at the end of the case, and the court signs an order to that effect, the court should allow destruction of the documents.” NOT NECESSARILY.

20. Not enough to agree Private parties may think they can agree to the ground rules for documents. –Normally: if the documents never enter the courthouse, they do have the right to agree. What if the documents are kept at the courthouse? –Even if all parties expect the confidential documents back, the documents still might meet the definition of records. –The expectations do not govern! –Key question: were they “received”?

21. Argument #2: What if the materials were never officially filed with the court? The argument: “If the materials were never officially filed in the court’s filing system, they are not records subject to the Act.” NOT NECESSARILY.

22. The right questions Whether the document was filed is relevant but does not resolve whether it is a record. The right questions are: –Was the document “made or received” by the agency? –Is the document “appropriate for preservation”? The Evidence Room materials were never filed, but they were kept at the courthouse.

23. Official filing is not the only factor One factor: “Should the document have been filed?” “Appropriate for preservation” includes materials “which in the judgment of the agency should be filed... even though the materials may not be covered by its current filing procedures.” [36 C.F.R. § 1222.12(b)(6)]

24. Argument #3: If you ask a judge to rely on a document, does the document become a court record? The argument: “If you make a motion or argument to a judge and rely on document X, then document X is a record under the Act, even if you never officially filed it.” MAYBE.

25. Reliance on a document may be a factor –If a document was presented to the court, and the court then issues a decision, the decision may not make sense later unless you still have the materials the court relied upon. –But don’t forget question #1: Was the document “made or received” by the court?

26. Evidence Room documents: Were they relied upon? We don’t know! –The Evidence Room materials were available to the judge. –If the parties referred to those materials, they had to do it secretly, in sealed envelopes. –Because the filings are under seal, we don’t know if the parties or the court referred to them.

27. Another factor: Filing rules The district court’s rules say that if you “use” certain materials, you must file them. [Federal Rule of Civil Procedure 5(d)] –If you ask a court to consider document X, you have “used” document X. –Evidence Room records: If the parties referred to them, they “used” them, and should have filed them. Check if there is a rule about what parties are supposed to file.

28. Argument #4: May documents be destroyed to avoid release? The argument: “When a court decides that certain documents should never be made public, it may destroy them.” NOT NECESSARILY.

29. Destruction and release aren’t the only options In the Columbine case, two main sides: –some favoring destruction (some parents) –some favoring release (some newspapers, state commission) NARA: preserve the documents! Main goal right now is to prevent any unlawful destruction.

30. Argument #5: Is historical value enough to make it a record? The argument: “The Columbine documents should be kept because they have historical value.” IT DEPENDS.

31. The threshold question: were they received? Historical value isn’t enough by itself. –The first question is whether the materials were “made or received” by the court.

32. Historical value can be relevant –“Records” is defined to include documents that should be preserved “because of the informational value of data in them.” [44 U.S.C. § 3301] –What is “informational value”? Anything historically interesting? Only if relevant to the court’s activities?

33. Who decides what is “appropriate for preservation”? Archivist plays a role: –Archivist “shall provide guidance and assistance to Federal agencies with respect to ensuring adequate and proper documentation of the policies and transactions of the Federal Government.” [44 U.S.C. § 2904(a)] Court plays a role: –Appropriate for preservation includes materials “which in the judgment of the agency should be filed...” [36 C.F.R. § 1222.12(b)(6)]

34. Who at the court makes these decisions? The records officer or the judge? Best answer: the records officer, at first. –Records officer has expertise. –Records officer can make written report to the judge, who can then make the final decision.

35. Back to Columbine: what to do? Who to contact? –Records officer? The expert but not the decider. –Judge? The decider but not the expert. –Administrative Office of U.S. Courts? Like an agency head, but not the decider. How to communicate with the court? –Can’t just make a phone call! –A brief? Tricky: not a party to the case.

36. NARA’s brief –The Federal Records Act exists. The court is under a legal obligation to comply. –Archivist has legal obligation to take action to prevent improper destruction. Not just being friendly! –Records officer should review the materials to determine whether they are covered by the Act.

37. Columbine: an education effort Effort in brief was to –inform court about the Act –offer assistance –be cooperative in an adversarial setting Case is still pending.

38. What if an agency decides to violate its legal obligation? What if an agency says: “Sorry, we are going to destroy these records.” Remedy of last resort: lawsuit. –If the Archivist has notified the agency head of the impending improper destruction, and agency refuses to comply, the Archivist “shall request the Attorney General to initiate such an action, and shall notify the Congress” [31 U.S.C. § 3106]

39. How records officers can help Take steps to be aware whenever others are making decisions about destruction of materials. –Columbine: unusual or not? Education. Keep in touch with NARA when issues arise.

40. My contact information: 1225 17th Street, Suite 700 Denver, CO 80202 (303) 454-0184 Kevin.Traskos@usdoj.gov