PRIVATE CITIZENS CAN SUE PRESIDENT ON COMPUTER TAPES

JUDGE RULES ON LAWSUITS CHALLENGING ERASURES

Correction: A Sept. 16 story on a court ruling involving a case filed by the National Security Archives and other groups against the president referred to a previous ruling barring the destruction of 12 days of tapes stored on a computer system in the Executive Office of the President. The tapes were made over a 12-day period, but contain information covering a period of at least a year. (Published 9/16/89)

A federal judge here yesterday ruled that private citizens can take the president to court to challenge White House decisions to erase computer tapes such as those discovered by investigators in the Iran-contra scandal.

The ruling by U.S. District Judge Charles R. Richey marks the first time private citizens have been given the right to sue the president under the terms of the Administrative Procedures Act. Until now, that law had been used to give individuals the right to challenge "arbitrary and capricious" actions by agencies in the executive branch.

The ruling also leaves open the possibility that such computer records, which were essential to the successful criminal prosecution of former National Security Council aide Oliver L. North, may contain information that must be preserved under the Presidential Records Act of 1978.

The ruling came in a lawsuit filed on the next-to-last day of the Reagan administration by the National Security Archives, a Washington nonprofit group that researches national security issues. The lawsuit sought to prevent the scheduled destruction of 12 days' worth of secret electronic messages contained on tapes in the Professional Office System (PROFS) used in the Executive Office of the President.

Attorneys for the plaintiffs, who also included the 47,000-member American Library Association, the American Historical Association, the Center for National Security Studies of the American Civil Liberties Union (ACLU) and several individuals, called the decision a significant victory.

"The court's ruling strengthens public accountability of the president by denying him the right to destroy government documents . . . to cover up embarrassing or illegal activities," said Gary M. Stern, a research associate at the ACLU center, and an individual plaintiff in the lawsuit.

Justice Department spokeswoman Gina Talamona said the ruling is being reviewed, "and we will be consulting with the White House on whether to appeal."

Besides asserting that the separation of powers doctrine bars federal judges from reviewing the president's decisions on such matters, Justice Department lawyers had argued that the computer messages were the equivalent of telephone calls -- ephemeral and impossible to record permanently.

Judge Richey compared them to taped telephone calls. If the president routinely recorded such calls, he noted, "a good portion would undoubtedly qualify as presidential or agency records."

Though yesterday's decision did not settle the issue of whether these tapes must be preserved, Richey noted that under the Presidential Records Act of 1978 "the president simply may not, for political reasons . . . decide not to retain documents that otherwise qualify as presidential records."

If information on the tapes is of historical value, then "the president's unilateral decision to 'flush' the PROFS system would appear to be an exercise of discretion that violates" the records act, he added.

Twelve days of tapes are stored on orders of U.S. District Judge Barrington Parker, who issued a temporary restraining order in January barring their destruction before the case went to Richey. Katherine A. Meyer, an attorney for the plaintiffs, said they plan to ask the White House to describe the general contents of the tapes -- although, she added, "It's unlikely the White House is going to tell us exactly what each PROFS message says."

Articles appear as they were originally printed in The Washington Post and may not include subsequent corrections.