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Plaintiff telephoned the White House and informed Gerald Ford, President of the United States, at about 3:35 P.M. by relaying the information to one who was identified as Jay French; plaintiff telephoned the Attorney General's Office and informed William B. Saxbe, Attorney General of the United States, at about 2:50 P.M. by relaying the information to one who was identified as being in Paterson's Office; Plaintiff telephoned the Special Prosecutor's Office and informed Leon Jaworski, Special Prosecutor for the United States, at about 4:00 P.M. by relaying the information to one identified as Campbell; plaintiff telephoned the General Services Administration Office and informed Arthur F. Sampson, Administrator of the General Services Administration of the United States, at about 4:05 P.M. by relaying the information to one identified as Barth. 9. Plaintiff has previously made application for the relief requested herein, as follows:

On September 20, 1974, plaintiff made a request to the United States District Court for the Eastern District of New York for an Order to Show Cause, requesting both a temporary restraining order and a preliminary injunction. Judge Örrin G. Judd, who considered the application, did not grant the temporary restraining order but did order the defendants to show cause at 10:00 A.M. on Friday, September 27, 1974, why a Preliminary injunction should not be issued. However, said action is being voluntarily dismissed by plaintiff and there will therefore be no hearing therein. On the aforesaid application for a temporary restraining order, defendants were given no notice of plaintiff's said application. To the extent that the failure to give notice to any of the defendants may have determined Judge Judd to not grant a temporary restraining order, as aforesaid, that situation is not present herein, and, in fact, precisely the opposite is true, as all of the defendants have been notified of this application, as is noted aforesaid.

Wherefore your deponent respectfully requests that this court grant the attached order temporarily restraining the defendants in the manner set forth therein, and for such other and further relief as to this court may seem just and proper.

Sworn to before me this 26th day of September, 1974.

JOSEPH H. KOFFLER.

[Seal] ANN D. COLLINS, Notary Public. My commission expires November 30, 1976.

Mr. BRADEMAS. At this point in the record, I would like to insert a statement from H.G. Jones, curator, University of North Carolina Library.

[The statement referred to follows:]

THE UNIVERSITY OF NORTH CAROLINA LIBRARY.

Chapel Hill, N.C., October 1, 1974.

Re H.R. 16902 and related bills concerning Presidential records.

Hon. JOHN BRADEMAS,

Rayburn House Office Building,

Washington, D.C.

DEAR CONGRESSMAN BRADEMAS: I regret very much that I cannot be present on Friday, October 4, to testify before your committee concerning bills relating to Presidential Records.

However, I am glad to enclose a brief statement for the record.

Having for years "preached" the doctrine of public ownership of official records of government officials, I am encouraged by the interest of Congressmen like yourself, and I urge prompt Congressional action to retain in Government custody the records of former President Nixon's administration. I also approve the commission proposed in your H.R. 16902, though I do make a suggestion in my statement for the addition of two additional members. Thank you for giving me the opportunity of commenting. Sincerely yours,

Enclosure.

H. G. JONES,

Curator.

STATEMENT OF DR. H. G. JONES, CURATOR, NORTH CAROLINA COLLECTION, UNIVERSITY OF NORTH CAROLINA LIBRARY (FORMER PRESIDENT, SOCIETY OF AMERICAN ARCHIVISTS)

I regret that circumstances prevent my accepting Chairman Brademas' kind invitation for me to testify before his committee, but I am glad to furnish this brief statement for the record.

In my book, The Records of a Nation (1969), I urged a President of the United States to exercise an "act of statesmanship" by renouncing private claim to the official records of his office. Now, five years later, the subject has been brought to the attention of the American people by an act of ignominy. Thus, though formerly the concern over private claim to public property was restricted to a tiny group of ineffective archivists, now the incongruity of the "almost unvaried understanding of all three branches of the Government since the beginning of the Republic" (as Attorney General Saxby put it) is open to view by the country as a whole. It is high time that we "call into question the practices of our Presidents since the earliest times."

When George Washington carried off the official records of his administration, he did so as the custodian of "a species of public property" because the young government had developed no national archival program. The facts that Washington later willed the records to his nephew and that the Congress eventually repurchased them led Justice Story to assume that the initial act had 'been legal', and it is interesting that the present Attorney General uses this particular case to justify the conclusion that a former President, even after the establishment in 1934 of a national archival program, has private claim to official records. Thus an act by our first President, taken in the interest of the preservation of the records of the Presidency, is now used as legal support for a tradition that has long outlived whatever merit it once possessed. Indeed, as is so clearly manifest in the agreement signed between former President Nixon and GSA Administrator Sampson on September 6, 1974, further acquiescence in the "tradition" that official records of the nation become the personal property of a private citizen cannot be tolerated.

The Congress must act now while the incongruity of the "practices of our Presidents since the earliest times" is so demonstrable. My first reaction was to support legislation that would make clear and unequivocal the public ownership of the records made or received by any member of the executive branch of the federal government in connection with official government business. However, I do not believe that the same claim to public ownership of the records of a President or Vice President can be made of the records of members of the legislative branch of the government-Congressmen and Senators-who are less the people's employees than their representatives. The problem area lies not in the offices of our legislators but in the offices of the President, Vice President, and members of the Cabinet.

A simple statutory enactment could end the past practice of private claim to official records, but the implementation of the statute would require careful planning. The National Archives and Records Service would have to be provided with the flexibility needed to develop a program to replace the present Presidential Libraries system. This in turn would require adequate budgetary support. And, of course, there still lurks the question of whether in the General Services Administration the National Archives and Records Service is sufficiently free from political influence to be able to administer such a program strictly in accordance with professional principles.

In view of the need for careful study of the existing problem, my second and more mature reaction is to support legislation which would require Government retention of the records of former President Nixon, and to supplement this act with H.R. 16902, "A bill to establish a commission to study rules and procedures for the disposition and preservation of records and documents of Federal officials." The latter bill would allow an intensive study of the subject.

I do have, however, some anxiety over the membership of the commission proposed in H.R. 16902. This membership would be weighted toward Federal officials rather than public members. My anxiety lies in my doubt that officials who in previous years have had no choice but to argue in favor of private title to official

records will now feel free to reconsider that position. I recommend, therefore, that consideration be given to adding one member each to be selected respectively by the governing councils of the Organization of American Historians and the American Association for State and Local History. In this way the number of members representing professional organizations would match the number of appointed officials from the executive branch of the Government.

Minor details such as the composition of the commission, however, should not be allowed to prevent prompt action on the part of the Congress to insure the Government's retention of the records of former President Nixon's administration and in the studying and drafting of adequate legislation to insure future public ownership of official records of the Presidency and Vice-Presidency.

Mr. BRADEMAS. The Chair again wants to thank all the witnesses for their attendance.

The subcommittee is adjourned.

(Whereupon, at 12:15 p.m., the subcommittee was adjourned.)
[The following material was subsequently supplied for the record:]

THE GEORGE WASHINGTON UNIVERSITY,
Washington, D.C., October 9, 1974.

Hon. JOHN BRADEMAS,
Subcommittee on Printing, Committee on House Administration, House of Rep-
resentatives, Washington, D.C.

DEAR MR. BRADEMAS: At the end of my testimony on October 4, in which I suggested that the Congress should enunciate some criteria of judgment to be used by the Commission to be established pursuant to H.R. 16902, you requested that I furnish the Subcommittee with my views as to what those criteria should be. This letter is in compliance with that request.

First, some general remarks: As I said in my testimony for too long Congress has established administrative agencies and given them the power of goverance with few or no criteria by which their decisions may be evaluated. This, of course, is a truism insofar as the permanent bureaucracy is concerned. Your bill, however, deals with a temporary commission. I believe the same criticism can be made with respect to it.

Furthermore, I have come to the opinion that rather than a temporary commission to recommend legislation, what is needed is a type of permanent commission, responsible to the Congress, vested with power. under definite boundaries, to deal with the question of preservation of governmental records and access thereto. In this connection, I am attaching a copy of an outline of a paper, the first draft of which is now being written by one of my students, which will eventually be published in a law journal. The thrust of the paper is to state the case for a "national commission for documentary access." You will note, I am sure, that the problem is of considerable magnitude and complexity, for it deals not only with preservation but with access to records.

Specifically: Some of the guidelines that should be considered include the following:

1. Ownership.-As stated in my oral testimony, it is my view that Congress can and should make a decision as to ownership of all kinds of records accumulated during the tenure of any federal official, elected or appointed. Further, since so many federal programs are in fact administered by state and local officials or by recipients of federal contracts or grants, attention should be accorded to those dimensions of the problem of ownership, retention. and access. My recommendation is that Congress assert complete and full title in the federal government to any materials produced by anyone who gets paid. directly or indirectly, with federal funds. (This is not to say that all should be preserved; but it should settle the question of ownership.)

2. Uniformity.-Congress should require that records, speaking generally, be treated in a uniform manner. This of course does not mean that classifications could not be made (as under the equal protection clause of the Fourteenth Amendment), with the net result of uniformity within classes (but not neces sarily across the board). At the present time, there is a wide disparity in practice among the governmental agencies.

3. Release after period of time.-Rules should be established that would provide for the full release of all governmental documents after a certain period of time. That period could be set by Congress. Quite possibly, however, you may wish to vest the commission with the responsibility of producing recommenda

tions, which would then have to be presented to Congress for its affirmative approval. I put it that way in order to oviate the all too prevalent practice of laying certain decisions, administrative and judicial, before the Congress, with those decisions becoming law if Congress does nothing. I think it preferable for Congress to have to act affirmatively for them to be adopted.

4. Access. The Freedom of Informaton Act, enacted in 1967, has proved by and large to be a failure. It has not done much to open government to public scrutiny. In this connection, the permanent commission recommended above could act as an arm of Congress (an "ombudsman") to determine the validity of agency refusals to produce data. The rule should be that access is refused only in exceptional circumstances; and the burden should always be on the government to prove "exceptional circumstances." Cf. Vaughn v. Rosen, decided in 1973 by the United States Court of Appeals for the District of Columbia Circuit.

5. Classification.—Testimony before a Senate Committee by William Florence, a former Department of Defense security officer, maintained that about 99 percent of classified documents are over-classified, and that they could be declassified without harm to the national security. The permanent commission, recommended above, could be vested with a continuing responsibility to monitor the classification of government records.

6. Third-party control.-Attention should be accorded the extent to which, if at all, communications from other persons to government officials, which are in government files, may be controlled as to access and other restrictions by those persons. My view is that the documents are also "public," and should be so treated. Cf. Nichols v. United States.

In sum, in a nation such as the United States, which prides itself upon being an open society, secrecy in the public's affairs is dysfunctional-save in extraordinary circumstances. And even in those circumstances, the secrecy lid should be lifted after a reasonable time.

Beginning about forty years ago, the pervasiveness of the federal government into the lives of all Americans took a quantum jump. We are all intimately concerned with government, whether we like it or not. About forty years ago, also, the presidency began to take on its present-day characteristics of size and power. It is long past time for Congress to face up to the question of government documents in a systematic manner.

Sincerely,

Attachment.

ARTHUR S. MILLER,
Professor of Law.

P.S. May I repeat what I sad on October 4: There is a pressing need for the House to pass the bill that passed the Senate 56-7 on October 4, dealing with preservation of the tapes and other documents of the Nixon administration. This short-term bill is urgently required. After it is enacted into law, then attention should be paid to the much more complex problems posed by H. R. 16902. A.S.M. WEAVING A SEAMLESS WEB OF ACCESS TO PRIMARY SOURCES: THE CASE FOR A NATIONAL COMMISSION ON DOCUMENTARY ACCESS

I. THE PROBLEM

A. The Law of July 1967 and the "Secret Agency Law" which has grown up since.

1. Systematic violation now a fact.

2. Nine exemptions offer loopholes for agency avoidance.

3. Two loopholes which are the focus of this investigation:

a. Investigatory files.

b. The fishbowl and the darkroom: Internal communications and candid agency discussions:

i. Wu v. National Endowment For the Humanities.

ii. International Paper v. F.P.C.

iii. American Mail Line v. Gulick.

4. the delay factor: a built-in exemption.

B. The total of cases and their significance:

1. To March 1969, a total of 40 cases.

2. To January 1974, a total of 200 cases.

3. Act therefore not being used to secure relief in proportion to need for relief.

A. Can it be reworked?

II. MAKING THE FOIA WORK

1. Three clear cases stressing the usefulness of portions of the Act. a. Stokes v. Brennan.

b. Nichols v. U.S.

c. Shakespeare Co. v. U.S.

2. Should investigatory files be exempt?

a. Wellford v. Hardin.

b. Cooney v. Sun Shipbuilding & Drydock.

c. Cowles Communications v. Department of Justice.

d. Bristol Myers Co. v. F.T.C.

e. Benson v. U.S.

f. Williams v. I.R.S.

3. "Final Opinions" and their factual documentation.

a. Grumman Aircraft Engineering Corp. v. Renegotiation Board.

b. Long v. I.R.S.

4. Informants' Privilege.

a. Barceloneta Shoe Corp. v. Compton.

b. NLRB v. Clement Bros., Inc.

B. The Release of Internal Memoranda Should Occur After a Period of Time. 1. Saving in staff review.

2. Agency can accommodate its practices to suit this policy.

3. Electorate can be better informed.

4. More workmanlike and responsible memoranda will result.

C. The Anomalous Extension of Executive Privilege.

1. Presidential privilege and Soucie v. David.

2. Presidential Libraries as examples of executive privilege.

3. Executive privilege extended: the Federal Classification System and § 552 (b) 1.

a. Epstein v. Resor.

b. Moss v. Laird.

c. Mink v. E.P.A.

d. The "Polish Ship Move" of 1968: a case from the TOP SECRET/NODIS files of the Department of State.

III. A FEDERAL DOCUMENTARY COMMISSION MUST BE CREATED TO KNIT A SEAMLESS WEB OF ACCESS TO DOCUMENTATION, GOVERNMENT-WIDE

A. The FOIA loopholes must be plugged.

B. But loophole elimination is not enough.

1. There should be created a Commission whose Executive Director or Ombudsman would be charged with assisting those preparing appeals from agency determinations.

a. The director and staff will be prepared to consider agency-wide situations. b. An inspector-general function would be included.

c. The Commission would be responsible to Congress.

i. Linking citizen complaint (or that of another agency) with the need of the sophisticated requester in need of particularized information.

ii. Responsible solely to Congress because of the bad record of the Executive in terms of access to its own papers.

2. The archivist's contribution to the seamless web.

a. Individual historical pleas and efforts to be coordinated.

b. Office of the Chief of Military History, Chief of Naval Historical Research, Historical Office of the Department of State, and the National Archives Declassification Project: the historian may go so far as the bureaucracy permits

him.

c. The value of inventories over indexes.

d. No usurpation of functions of principal repositories of Federally-owned records, The National Archives and Records Service and the Library of Congress. 3. Will it change the agencies' attitude toward disclosure?

a. It may channel, not change. Its existence a rebuke to agency willfully withholding records, and an example to those wishing to be more efficient.

b. The example of a changing attitude: Robles, Trujillo v. E.P.A. and Vaughn v. Rosen.

c. A unitary approach toward the problem is more welcomed besides being more needed today than ever before.

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