- The Washington Times - Thursday, January 12, 2012

The destruction of millions of old federal court records is well under way after a judicial committee last year said it was “cleaning house,” a move estimated to save millions of dollars but one that has raised sharp concerns in the private-security industry.

The National Archives says no criminal case files are being destroyed yet, pending final approval, but millions of old civil cases have been destroyed and bankruptcy cases are now heading to the shredder. Archivists say docket sheets that include names of parties and the outcome of cases will be preserved.

Still, Peter Psarouthakis, chairman of the trade group Investigative and Security Professionals for Legislative Action, said the loss of so many court records would hurt the ability of companies to conduct background checks, including those on people applying for government security clearances.

“All of a sudden, you’re taking away a huge section of public records and making them go away forever,” said Mr. Psarouthakis, president of Michigan-based EWI & Associates. “It’s catastrophic what they’re doing here.”

The trade group recently told its members in a website posting that the policy will “seriously” hamper background checks on litigants, potential business partners and prospective employees.

“The wanton destruction of an entire generation of public records is utterly unacceptable and action must be taken to prohibit this from occurring,” it said.

The policy means millions of civil and criminal court files, none of which went to trial, will be destroyed, along with bankruptcy cases from 1970 to 1995. More current cases are often filed online.

Back when news of the policy surfaced last summer, a National Archives and Records Administration (NARA) blog entry posted on the agency’s website called it “simply untrue” that the courts are destroying records to save money on their storage costs.

By law, NARA charges the courts for the cost of storing old judicial records.

“What is happening is the result of a multiyear, nationwide effort by appraisal staff of the National Archives to develop some objective criteria by which records are identified for permanent retention,” the NARA post stated.

According to a separate NARA news release, under the previous retention schedule for civil case files, only cases that went to trial were scheduled as permanent unless otherwise appraised as “historically significant.”

Under the new revised schedule, officials said, a large number of nontrial cases are being designated permanent, including cases involving civil rights, the environment and the death penalty.

Nonetheless, the cost of storing the old files merited a prominent mention in a May 2011 newsletter of the U.S. courts concerning the court records policy, which was reported on last year by the Center for Public Integrity. In the newsletter, judicial officials said the courts paid NARA more than $6 million in 2010 to store old court records.

U.S. District Judge Steven Merryday of Florida, who was chairman of a records subcommittee studying the issue for the courts, was quoted in the newsletter as saying, “With the potential of rising storage costs, we were facing catastrophic budget consequences.”

“It’s a delicate balance,” Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said of the policy. “There has to be a balance between being able to inform the public while recognizing that the courts have a lot of information. But it has never been unusual for case files as they get older to be thrown out, and most state courts do it sooner than federal courts.”

But Pat Clawson, a former CNN investigative reporter and a private investigator who has been a vocal critic of the policy, said even though cases that went to trial will be preserved, many other important cases are filed in civil courts and never make it to trial.

He said important information in background checks often turns up in old court files. But he said that sort of information won’t be evident from the docket sheets kept when the files are destroyed.

“It poses a national security risk,” he said.

• Jim McElhatton can be reached at jmcelhatton@washingtontimes.com.

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