The pack rats and hoarders among us know how quickly old papers pile up. How long should we keep those old bank statements, report cards and project notes?
When it comes to the federal government, the question becomes a matter of national policy. A proposal to change how quickly documents are destroyed at the Department of the Interior has raised concerns about how transparent the agency will be in coming Endangered Species Act (ESA) disputes.
“I got a call from a federal biologist who said, ‘Whoa, they’re trying to disappear everything we do,’” said Missoula attorney Tim Bechtold. “It looks like they’re trying to throw everything in a hole. My question was, who makes the call? The response was it looks like the politicos.”
A proposed DOI Departmental Records Schedule detailing what should go to the National Archives is up for public comment until Nov. 26. In an explanation of the plan, National Archives appraiser Jessica Blessman noted the Interior Department currently has 200 records schedules with more than 2,330 separate retention periods. The change would collapse that to 37 functions and 189 retention periods.
In a blog post, National Archives supervisory analyst Arian Ravanbakhsh tried to clarify the “mysterious” records scheduling process.
“Many of our readers may have seen recent items in the news media, social media or on listservs that make it seem like the Department of the Interior is making an unusual request to destroy federal records,” Ravanbakhsh wrote on Monday. “In this specific instance, the DOI has NOT made any requests to immediately destroy large numbers of records. They have put in a normal request to consolidate and revise their previous records schedules into ‘big buckets.’”
Interior oversees activity on the nation’s public lands, Indian reservations and offshore territories. That includes logging, grazing, energy exploration, mineral mining, fishing, renewable energy development and water resources.
The proposal has six areas involving fish and wildlife activity. Endangered Species Act management and plan files would be kept permanently. But things like draft species recovery plans, unmade critical habitat designations, coordination reports between the U.S. Fish and Wildlife Service and other agencies, wildlife survey data for critical habitat decisions and species management files for non-endangered species under the Wild Bird Conservation Act of 1992 would not.
Other sections include energy and mineral lease records, recreation planning materials, wild horse and burro records, land use permits, water use permits and dam projects.
“It’s just amazing what they think of not having any value,” said James Jacobs, a government documents librarian at Stanford University. “Habitat analyses, oil and gas exploration records, fish and wildlife decisions, ESA management — that’s all kinds of stuff I look at as having very much research value.”
Jacobs said a large part of his job involves helping other researchers draft Freedom of Information Act requests to agencies for documents about agency decisions.
“I would say half of FOIA requests don’t get fulfilled for reasons such as ‘it’s not there or not there anymore,’” Jacobs said. “This would further shrink the bowl of what’s there.”
The proposal comes at a time when the Trump administration has made several other moves to restrict or destroy records. Last week, Courthouse News Service reported a leaked memo allegedly advising Fish and Wildlife Service staff to withhold or delay FOIA requests involving Endangered Species Act matters.
The National Archives also refused to release several million pages of documents related to Associate Supreme Court Justice Brett Kavanaugh’s past government activity during his confirmation process before the Senate Judiciary Committee. The National Archives news staff said its “longstanding and consistent practice has been to respond only to requests from the Chair of Congressional Committees, regardless of which political party is in power.”
Previous administrations have made similar recommendations. In 2015, the Obama Administration’s U.S. Immigration and Customs Enforcement Agency asked the National Archives to speed up destruction of its accounts of solitary confinement, sexual abuse and death investigations of people in ICE custody. The proposal was still under review in 2018 after the American Civil Liberties Union and others objected.
Alliance for the Wild Rockies Executive Director Michael Garrity said his legal challenges to agencies like the U.S. Forest Service depend on the government’s own records. Those files form the basis for management decisions on grizzly bears, Canada lynx, bull trout and other controversial and threatened species.
“If there’s a battle of experts, the judges are required to defer to the government,” Garrity said, referring to a legal rule known as agency deference. “The judge can only consider what’s in the administrative record. So when the government makes a decision demonstrating they’re following the law, they must have records showing they thoroughly investigated the matter or they’re following NEPA (the National Environmental Policy Act) or the ESA.”
Garrity said that played out recently when the alliance sued the Forest Service over the Fleecer timber sale near Butte 10 years ago.
“We won because they didn’t analyze the effects on lynx and grizzly bears,” Garrity recalled. “They said there were no lynx in the Beaverhead-Deerlodge National Forest. We showed the judge all the records showing there were lynx throughout the national forest. If there were no records, we would have lost that case. It would have been our word against theirs, and if it’s just our word, we lose.”
The public comment period on the document removal policy was initially set to close on Oct. 29. Some errors in publication prompted the National Archives to push the deadline back to Nov. 26.
University of Montana Mansfield Library head of archives Donna McCrea said the national move didn’t appear alarming to her, but she was glad the comment period was extended.
“It sounds like a push to destroy records, but it’s standard operating procedure for national archives,” McCrea said. “You’re always thinking: Where is the historical value, the legal value, the administrative value? What’s worth retaining in the long term? It changes and evolves. We missed some records that in the past weren’t determined to have long-term value.”