N ’ n-€‘¢- . /.~...,...,.._.,. 9.93BrNce O5 _ . '- _‘ _ s k:$&Al8'A xmaaa-gm >:>oo'.r ;r;,—.w.w,.—.»,;:;\T..:;',".‘:",...,.:—.,&.... -.'\.A.'Jv\r..\'nn!\r ,,.... CONGRESSIONAL RESEARCH nIImii"‘"°iFu II°iu”I‘IT°"'inulfiflimii O10-103861162 ONGRESS PUBLIC ACCESS TO GOVERNMENT RECORDS Issmz BRIEF NUMBER IB78018 AUTHOR: Relyea, Harold C. Government Division THE LIBRARY OF CONGRESS CONGRESSIONAL RESEARCH SERVICE MAJOR ISSUES SYSTEH DATE ORIGINATED DATE UPDATED FOR ADDITIONAL INFORHATION CALL 287-5700 0310 cns- 1 113780 18 upmx-1-1:-03/1io/a-o l§§Q§-2§EI!lI£Q§ In adopting legislation in 1974 preserving and guaranteeing access to the n papers and materials of office of former President Nixon, Congress also established a national study commission to explore the control, disposition, and preservation of records and documents produced by or on behalf of Eederal » officials. This panel indicated that such documents, with the exception of those clearly pertaining to private life, should belong to the Government and should be accessible to the public. The papers of former Chief Executives are now governed by the Presidential Records Act of 1978 (92 Stat. 2523) and Congress continues to consider the application of the Commission's policy proposal to other quarters of the Federal Government. §AQ§§§QQ!2.A§2.2QLL§l-A!ALY5 § Public access to Federal executive branch records, thwarted for almost two centuries by a "need to know" policy, was facilitated by a new operational premise in Government information law in 1966. Presuming all executive_ department and agency documents should be available to the citizenry, other than categories permissively exempted from disclosure by the statute, the Freedom of Information Act (5 0.5.6. 552) provided both the basic authority ~and the procedures for realizing "the people’s right to. know“ about the activities and operations of one branch of the national Government. ’ Until recent times, however, experience with the P.0.I Act was not found 'ully satisfactory. In 197$, after Congress discovered certain failures of the executive branch to consistantly and faithfully administern the statute, amendments were made to the original law to assure its efficient operation. Efforts toward further refining the F.0.I. Act and its administration continue. ' 1 It was also in 197a that Congress completed action on the Privacy Act (5 U.S.C. 552a), extending the freedom of information concept in such a way that the American people might retrieve personally identifiable records or ‘files pertaining to themselves from executive departments and agencies. This statute also curbed the generation of unwarranted state dossiers and limited the bases for inter-agency exchanges of personally identifiable information. Neither the Freedom of Information Act nor the Privacy Act applied to Congress, the Federal courts, or the Chief Executive. Senators, Representatives, and judges can, and do, take away papers produced by themselves or on their behalf when departing office and retain such materials . as their personal property. These officials are immunei to petitions for documents pursuant to the F.0.I. Act, and they are under no legal compulsion to preserve papers deriving from their governmental positions. But it was also in 197R, as a consequence of the Watergate scandal, that a new approach to information availability emerged when Congress adopted the Presidential Recordings andv materials Preservation Act which, in part, secured and guaranteed access to the papers and records of ioffice of the signed Chief Executive, Richard M. Nixon. This law (88 Stat. 1695) assured the availability of these documents and tape recordings for pending judicial proceedings and, with some qualification, for public scrutiny’ as well. Though the Act was challenged by the former President, it was subsequently C115. 2 IB78018 UPDATE-03/10/80 affirmed by the Supreme court (hirer v- Aémimi§rrar-r- 2:- Qeneral- éerrieeso This same statute also addressed the larger question of the retention and popular inspection of the papers and materials of office of all Federal public officials by establishing a distinguished body of Americans to explore the matter (88 Stat. 1698).- named the National Study Commission on Records and Documents of Federal Officials, this panel was given the statutory duty "to study problems and questions with respect to the control, disposition, and preservation of records and documents produced by or on behalf of Federal officials, with a view toward the development of appropriate legislative recommendations and other recommendations regarding appropriate rules and procedures with respect to such control, disposition, and preservation" (88 p Stat.-1699). when the group's final report was issued in March 1977, it reflected some disagreement among the commissioners as to how their primary proposal was to be implemented. Nevertheless, the principal policy objective was clear: the papers and records produced by or on behalf of Federal officials, with the exception of those clearly pertaining to their private lives, should belong to the Government and, with some degree of reasonable exception to disclosure, should be presumptively available, upon request, to ‘the American people. In the aftermath of the legislation and litigation pertaining to the Nixon presidential papers, as well as= the report of the Public Documents Commission, new interest was expressed in preserving and making publicly accessible the records of former Presidents. This. concern culminated with the enactment of the Presidential Records Act of 1978 (92 Stat. 2523). In addition, efforts are underway in the House of Representatives to study both the operative and archival document holdings of that Chamber, its committees, and its officers. Both the physical condition of this material and the prospect of making it more available to the public are under consideration.! 3 £residen-ial.2e2e2§ ' 1 Although the Government of the United States is based upon a- written Constitution and laws, the management and preservation of the public records of the Federal. establishmenti were generally neglected during the first century and a half of the existence of the Republic. ilnattentiveness to the maintenance of official papers prevailed both within the infant bureaucracy and the White House. while the secretary of State bore the responsibility for retaining copies of they most important psovernment documents, lesser papers without immediate administrative significance disappeared, in :a clutter, disintegrated, became otherwise lost or were destroyed by design. ' Within this atmosphere, departing Presidents had little choice with regardi to the disposition of their records: there was no national archive to receive such papers and for reasons of etiquette and/or policy, there was reluctance to leave them behind. Thus, the early Chief Executives carried away their documents of office, entrusting themi to their family, friends, westate executors, and often to fate. After decades of private iownership, many collections of presidential records have. been established within the libraries of State and private universities, State historical societies, and the Library of Congress. However, time levied a price ion some caches c ithese documents before they came to rest in responsible institutions. V Traditionally, then, the papers of the President were regarded as his personal property. But, as the Federal Government grew, questions began to cns- 3 IB78018 UPDATE-O3/10/80 arise as to the propriety and wisdom of this practice. Historians became alarmed that papers were accidently destroyed, lost, and often selectively ' released for scrutiny. Archivists lamented omissions in the national record that this situation created. Not only might entire files be carried from the white House, but presidential correspondence might be retrieved from departmental and agency holdings. As it applied to Government records, the concept of presidential papers knew no bounds.. This aspect of the practice became particularly acute in the aftermath of the creation of the Executive office of the President. Franklin D. Roosevelt established a panoply of emergency and wartime entities within this domain, all of which served the President in an advisory capacity and all of which could be regarded as producers of "presidential papers." The removal of the records of these units has been regarded as a records management problem and an administrative continuity difficulty. A y Franklin D. Roosevelt sought to return presidential papers to the public realm through a new type of institution -- the presidential library. The Chief Executive's plan for creating such an entity was apparently conceived in 1938. .The basic scheme required the organization of a building committee to fund and supervise the construction of a library facility at a location agreeable to the President. Hhen this structure was completed, the Chief Executive would place his retired records on file and deed both the building and his papers to the United States as an archive to be maintained by the Federal Government. ' A 3 The Roosevelt Library was established through special legislation (53 Stat. 1062) enacted in 1939. Similar institutions. for succeeding Chief Executivesf were brought into existence under the provisions of the ’Presidential Libraries Act of 1955 (69 Stat. 695). As provided in the F.D.R. .odel for such facilities a President could take Avirtually any papers he wanted upon leaving office, sort them with a view to security classification or other statutoryu restrictions and/or personal wishes regarding their placement in the public realm, and construct an edifice with private funds t house them together with other materials of his Adminisration. j During the 95th Congress, action was completed on the Presidential Records Act of 1978 (92 Stat. 2523), which shall become effective on Jan. 20, 1981. This law provides that, in the future, the papers and materials of office of former Chief Executives shall become Government property upon the expiration of the incumbent's term. .A former President may impose certain restrictions, as provided in the statute, governing public access to the retired documents deriving from his or her office. The duration of these restrictions shall not exceed 12 years, after which time the provisions of. the Freedom of Information Act (5'U.S.C. 552) shall apply. The Archivist of the United states serves as the custodian and general manager of materials covered by the Presidential Records Act. Presidential library facilities in honor of a ~ particular Chief Executive may be deeded to the Federal Government and the Archivist may transfer relevant retired epresidential records to such an institution in accordance with prevailing law (an U.S.C. 2107-2108). -Q.1.1.91.3§§§iQ2§..1...P§.2§32§ While Congress has provided for strict control‘ over its linstitutional ,cords (see Senate Rule 30 and House Rule 37), the condition of these earchived materials is uncertain and public access to them continues to be governed by a "need to know“ policy. As in the case of former Presidents, A departing Members of Congress, as public officials, are under no obligation cns- a 13730 18, UPDATE.-O3/10/8:0 to preserve their papers, entrust them toi Federal care, or make them available for public inspection. Any effort to require Government retention iof member records and/or to develop procedures facilitating popular access to these or archived institutional documents of Congress involves a multiplicity of privacy, confidentiality, privilege, and security concerns. Because exploration of these matters is continuing in the House and is just beginning in the Senate, it is premature at this time to identify specific issues or policy approaches. 1 L§§l§LA1LQ! H.R. 3571 (Jacobs)/S. 1112 (Leahy) Eliminates the exemption for the Congress from certain provisions of Federal law, including the Freedom of Information Act (5 0.S.C. 552) and the Privacy Act (5‘0.S.C. 552a). House bill introduced Apr. 10, 1979; referred jointly to Committee on Education and Labor, Government Operations, and Ways and Beans; Senate measure offered may 10, 1979; referred to the Committee on Governmental Affairs.“ Subcommittee on ioversight off Government Hanagement began hearings Sept. 20, 1979. EEAEEEEE 0.5. Congress. House. .Committee on House Administration. GSA regulations to implement Title I of the Presidential Recordings and Haterials Preservation Act. Hearings, 90th Congress, 1st session. may 22, and June 3, 1975. Washington, 0.3. Govt. Print. Off., 1975. 576 p. —---- The “Public Documents Act.“ Hearings, 93rd Congress, 2d session. Sept. 30 and Oct. 0, 1970. Washington, 0.5. Govt. Print. Off., 1970. 239 p. 0.5. Congress. House. Committee on Government Operations. Presidential Records Act of 1978. Hearings, 95th Congress, 2d session. Feb. 23, 28; Bar. 2 and 7, 1978. Washington, 0.5. Govt. Print. Off., 1978. 896 p. 0.5. Congress. Senate. Committee on Government Operations. GSA regulations implementing Presidential Recordings and.. uaterials Preservation Act. Hearings, 90th Congress, 1st session.'{Hay 13, 1975. Washington, 0.3. Govt. Print. Off., 1975. #57 p. ----- The Presidential Records Act of 1978 - S. 339E. Hearings, 95th Congress, 2d session. Sept. 15, 1978. Washington, 0.5. Govt. Print. Off., 1979. 05 p. .0.S. Congress. Senate. Committee on Government operations. Hsugcommittee on oversight of Government Hanagement. To eliminate congressional and federal double standards. Hearing, 96th Congress, 1st session. Sept. 20, 1979. Washington, 0.5. Govt. Print. Off., 1979. 87 p. CRS- 5 IB78018 UPDATB’03/10/80 U.S. Congress. House. Committee on House Administration. Amending Title 44, United States Code, to provide a one-year extension for the preparation of the report of the National Study Commision on Records and Documents of Federal Officials, and for other purposes. Washington, U.S. Govt. Print. Off., 1976. 5 p. (9nth Congress, 2d session. House. Report No. 9a-97a) -+--- Disapproving certain regulations proposed by the General Services Administration implementing Section 10¢ of the Presidential Recordings and Materials Preservation Act. Rashington, U.S. Govt. Print. Off., 1976. 27 p. (9uth Congress, 2d session. House. Report no. 9u-1u35) -—-- Disapproving regulations proposed by the General Services Administration implementing the Presidential Recordings and Haterials Preservation Act. Hashington, U.S. Govt. Print. off., 1975. 69 p. (94th Congress, 1st session. House. Report No. 9n-560) ----- Presidential Recordings and Haterials Preservation Act. Washington, U.S. Govt. Print. 0ff.. 197a. 25 p. (93rd Congress, 2d session. House. Report No. 93-1507) ---- Providing for the orderly shipment of official records and papers of Members of the House of Representatives. Washington, 8.5. Govt. Print. off., 1978. 2 p. (95th Congress, 2d session. House. Report No. 95-1477) U.S. Congress. House. Committee on Government Operations. gPresidential Records Act of 1978. Washington, U.S. Govt. Print. Off., 1978. 24 p. (95th Congress, 2d session. House. Report No. 95-1487, Part I) , U.S. Congress. ‘senate. Committee on Appropriations. Amendment to the 1977 appropriations requested for the National Study Commission on Records and Documents of Federal Officials: Communication from the President. Washington, 8.5. Govt. Print. off., 1976. 3 p. 94th Congress, 2d session. Senate. Document No. 9u—195) U.S. Congress. Senate. vcommittee on Government Operations. Disapproving certain regulations proposed by the Administrator of General Services Under Section 104 of the Presidential Recordings and Raterials Preservation Act. Washington, 0.5. Govt. Print. 0ff., 1976.1 24 p. (9uth Congress, 2d session.i Senate. Report No. 94-7&8) ----- Disapproving the regulations proposed by the General Services Administration implementing the Presidential Recordings and Haterials Preservation Act. washington, U.S. Govt. Print. Off., 1975. R9 p.n (9uth Congress, 1st session. Senate. Report No. 94-368) cns- 6 11378018 UPDATE-O3/10/8'0 -a - Preservation, protection, and public access with respect to certain tape recordings and other materials. U .5 0 0 5 ' 2d session. ---- Public Documents Act Amendments. Print. Off., 1976. Washington, 10 p. (93rd Congress, 93-1181) 197a. Senate- Report No. Washington, U.S. Govt. 5 p.P (9uth.Congress, 2d session. Senate. Report No. 94-713) §§oN-;9sI 9 11/04/78 10/1H/78 10/13/78 10/10/73 10/05/78 09/11$/78 07/19/78 07/13/78 02/28/78 06/23/77 o3/3 1/17 F EV§-2§. President Carter signed the Presidential Records Act (P.L. 95-591). The House agreed to the Senate amendments to H.R. 13500, clearing the bill for the President's signature. A The Senate amended H.R. 13500, adopted the bill, and returned it to the House. The House passed H.R. 13500, after amending the bill to contain the language of H.R. 1u2u9, and sent it to the Senate. A H.R. 1u2u9 was introduced by Rep. Brooks. Although similar to H.R. 13500, the bill contains certain modifications agreed to by the sponsors. The office of Senate Historian organized a conference on ‘Research Use and Disposition of Senators‘ Papers-" House Committee on Government Operations reported H.R. 13500 (H.Rept. 95-1u37), the Presidential Records Act, with amendments. Subcommittee on Government Information and Individual Rights reported H.R. 1336u, the Presidential Records Act, to the House Committee on Government Operations. - House Select Committee on Congressional Operations agreed to begin a study of the volume, preservation, condition, and public availability of the records of the House of Representatives. -United States Supreme Court upheld the constitutionality ~ of the Presidential Recordings and Materials Preservation pp Act in Airen v .- (S.C. NO. 75-1605.) The National Study Commission on Records and Documents of Federal Officials issued its final report which, among other considerations, recommended Government ownership of the papers of the principal officials of all three Federal branches and procedures to facilitate public access to such retired records. cns- 7 IB78018 UPDATE-O3/1Q/80 04/11/76 -—-President Ford approved an amendment (P.L. 94-261) to the Presidential Recordings and Materials Preservation Act changing the report date of the National Commission on Records and Documents of Federal Officials from Mar. 31, 1976, to Bar. 31, 1977. 12/19/vu 9-President Ford approved the Presidential Recordings * and Haterials Preservation Act (P.L. 93-526, 88 Stat. 1695) placing the records of former President Nixon under Federal control and establishing the National Study Commission on Records and Documents of Federal Officials. 09/08/7n ——-President Ford announced that the White House had . negotiated an agreement between former President Nixon and the Federal Government concerning the disposition of the papers, tape recordings, and other materials relating to his tenure in office. Under the terms of the agreement all such materials were presumed to be the private property of the former President, thereby vesting him with control over the preservation and availability of same. The tape recordings would be destroyed at the time of the former President's death or on Sept. 1, 1984, whichever event might first occur. é22l1l9!AL.B§EE§§E§§_§Q§£E§§ American Assembly. The records of public officials: Final report of the forty-eighth American Assembly. The American archivist, v. 38, July 1975: 329-337. Ball, Howard. No pledge of privacy. Port Washington, Kennikat Press, 1977. 1nu p. ‘ Berstein, Barton J. who owns history? Inquiry magazine, v. 1, Hay 1, 1978: 6-8. ' Cook, J. Frank. "Private papers" of public officials. The American archivist, v. 38, July, 1975: 299-325. Graebner, Norman A. The records of public officials. New York, The American Assembly, 1975. no p. Hamby, Alonzo and Edward Weldon, eds. Access to the papers of recent public figures: the New Harmony conference. Bloomington, Organization of American Historians, 1977.y 107 p. Jones, H.G. The records of a fiation. New York, Atheneum, 1969. 309 p. ’ ‘ Nelson, Anna Kasten, ed. The records of Federal officials. New York and London, Garland Publishing, 1978. n16 p. cns- 8 IB780 18 UPDATE-O3/10/810 Note. Government control of Richard Nixon's Presidential material. gYa1e law journal, v. 87, July, 1978: 1601-1635. SchnaPper;aH.Q.* Public papers and private gain. Nation, v. 227, oflova 24. 1979: 524-526. G U.S. national Study Commission on Records and Documents of Federal Officials. Final report. Washington, U.S. Govt. Print. Off., 1977.p 137 p. ---—- Henoranda of law. Washington, U.S. Govt. Print. Off., 1977. 3&7 p. Henorandum of findings on existing custom or law, fact and opinion. Washington, U.S. Govt. Print. Off., 1977. 373 p. Public hearings background memorandum. Washington, U05: Po ---- Study of the records of Supreme Court justices. Washington, U.S. Govt. Print. off., 1977. zou p. UBRARY OF WASHINGTON lJNI\’ERSlTY 3ILflUE-M0-