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d. There have not been so many cases under FOIA that each case could not be considered and ruled upon by Commission despite agency tergiversation.

IV. THE ONLY ALTERNATIVE

A. The "Hinder" Part of the Access Problem.

1. The access to newer and more current materials demands.

1. The access to newer and more current materials demands narrowed definitions of what is meant by classified or restricted records. Exemptions in order to be meaningful must be clear, reliable, and applicable across the board. There must be thorough understanding.

2. There must be streamlined resolution of disputes by an agency-wide Commission capable of review of an access problem in case of non-acceptance of the agency finding.

3. This process would involve no slowing of the appellate process into federal court from the agency decision, but might assist someone in making a decision whether or not to pursue an appeal.

4. Governmentally-created records are those of the people, made by their officials. Even officers who are appointed under Civil Service are "responsibe". The influence of Watergate and its aftermath should speed an acceptance of this burden of responsibility. The public (better informed) may thus keep both its elected and appointed officials "responsive" and less self-assured of a position with the complacency that is inbred under Civil Service.

Hon. JOHN BRADEMAS,
Congressman 3d District, Indiana,

JOHN L. D. EISENHOWER, Valley Forge, Pa., October 8, 1974.

Rayburn House Office Building, Washington, D.C.

DEAR MR. BRADEMAS: I would like to express my appreciation of the opportunity afforded me to testify before your Committee regarding Presidential papers. The subject interests me and in addition I found the experience rather exciting. My purpose in writing, however, is to add a couple of comments to my testimony. First regards your own bill H.R. 16902. When driving home from Washington it occurred to me that you might face certain difficulties by having a member of the Supreme Court as a member of the National Study Commission, unless you make said member the chairman. The members of the Supreme Court are extremely busy and it seems, frankly, that prima donna factor might enter in if such a member found himself sitting on a council chaired by someone else. The same thinking could apply elsewhere, but to a lesser degree.

You may recall that at one instance I said that perhaps I was "painting myself into a corner." This remark was made relative to the existence of microfilms. To clarify my thinking on this issue, it would seem to me most logical that two or three microfilms should be made of all the Presidential papers and stored in archives not available to private citizens or the members of the Government, except with written permission of the former President, or of course in case of subpoena.

Again my thanks for your hospitality.
Sincerely yours,

JOHN EISENHOWER.

DEPARTMENT OF HISTORY, UNIVERSITY OF MASSACHUSETTS, Amherst, Mass., September 24, 1974.

The time has come, in my opinion, for the Congress to decide by a specific law that presidential papers are public property and that access to them is to be determined by a public authority. Such a law would have to include:

I. Provision for the determination of what constitutes presidential papers. II. Provision for deciding the regulations for access to such presidential papers.

My recommendation is that the Archivist of the United States, with the advice of a representative Board, should be responsible for the administration of both Provisions. Appropriate members of the Board might be:

1. Bipartisan representation from the Congress.

2. The Librarian of Congress.

3. Representatives of such professional associations as the American Historical Association, the Organization of American Historians, and the Society of American Archivists.

The principles enunciated above may be simply stated, but their proper application will require time and study, especially in connection with their relation to the present act of Congress establishing the presidential libraries.

My own conviction is that the disposition of presidential papers is so important to the nation that a special study should be made immediately of the problems involved in their custody and use. My hope is that the American Historical Association will sponsor such a study, with the support and assistance of other appropriate professional associations, and actively seek funds for the purpose. I wish to make clear that the above statement embodies my personal views. LEWIS HANKE.

Hon. JOHN BRADEMAS,

ORGANIZATION OF AMERICAN HISTORIANS,

OFFICE OF EXECUTIVE SECRETARY,
Bloomington, Ind., October 23, 1974.

U.S. House of Representatives, Rayburn House Office Building, Washington, D.C. DEAR CONGRESSMAN BRADEMAS: Dr. Mack Thompson, the Executive Director of the American Historical Association, and Herman Kahn have informed me of your bill to create a national study commission on federal records and papers of elected officials. Dr. Thompson has also informed me that he recommended to you that the commission should include a representative from the Organization of American Historians. I wish to express my conviction that your proposal is a very valuable one and to state that the OAH would welcome an opportunity to be represented on this commission.

I enclose a brochure that describes the OAH. It is a national organization based on the Indiana University campus. The membership consists of approximately 8,500 individuals, most of them specialists in American history teaching the subject in universities and colleges and many of them actively involved in research and publication in the field. There is no group in the country with a stronger interest in the preservation of and access to federal records and papers of elected officials. Many scholars in this group could serve in a well-informed and very helpful way on your proposed commission.

I hope that you will succeed with this legislative effort, and I wish to assure you that we stand ready to be helpful in any possible way.

Sincerely yours,

RICHARD S. KIRKENDALL,

Executive Secretary.

AMERICAN COUNCIL ON PUBLIC AFFAIRS,
Washington, D.C., November 11, 1974.

Hon. JOHN BRADEMAS,

House of Representatives,
Washington, D.C.

DEAR MR. BRADEMAS: Passage of your Public Documents Act will, I believe, lay the groundwork for the solution of a problem that has deeply concerned historians.

For far too long there has been an extraordinary amount of free wheeling in this area at enormous disadvantage to the public. In effect past practices have made something of a mockery of accountability to Congress and the provision of the Constitution's granting Congress sole power "to dispose of and make all needful rules and regulations respecting . . . property belonging to the United States."

I am attaching several statements with the request that they be included in the printed hearings relating to your measure.

Sincerely,

(Attachment.)

M. B. SCHNAPPER,
Executive Secretary.

TREATMENT OF OFFICIAL DOCUMENTS AS PRIVATE PROPERTY CHALLENGED BY HISTORIANS AND ARCHIVISTS

The undersigned view with dismay and concern the proclivity of public servants for treating official documents as private property.

Documents prepared at public expense in the course of the performance of official duties are public property that cannot properly be regarded as private property that can be sold, concealed, or destroyed at the whim of present or former public officials acting in their personal capacity.

To all indications, unfortunately, a large number of public servants-Presidents, members of Congress, Cabinet members, and even lower level officialshave in recent years taken substantial tax deductions on "gifts" to the government or private institutions of documents generated at public expense for official purposes. This we feel is incompatible with the obligations of public servants, particularly since there is not and never has been a statutory law permitting any official to transform official documents into private property.

Contrary to general belief, the problem was far from solved by the Tax Reform Act of 1969. This law does not stipulate that public officials cannot go on treating the documents of their office as private property. This law does not even allude to public officials as such. It merely places limits on the tax benefits any citizen can derive from a "charitable contribution" of "a letter, memorandum, or similar (copyrightable) property."

Accordingly, we urge the Congress to enact a law explicitly stating that all documents prepared in the course of the performance of official duties and funded for official purposes are official property. The problems that have arisen in the past must, of course, be taken into due account. Obviously it is impractical for the government to store all documents indefinitely. There are many routine letters and memoranda of little or no ongoing or historical value that can be discarded under proper safeguards. Obviously, too, there are documents which cannot be made public instanter under existing laws. In suitable circumstances the public interest would not be adversely affected if certain types of documents are deposited with historical societies or libraries. Matters of this sort must be carefully considered. But it is of the utmost importance that present freewheeling practices be stopped.

Gerald Ham, president of the Society of American Archivists.
Lewis Hanke, president of the American Historical Association.

Dumas Malone, historian and editor.

H. R. Jones, former director of North Carolina's Department of Archives.

James MacGregor Burns, professor of political science at Williams College.

E. Wilder Spaulding, historian and former State Department editor.

Edwin Knoll, editor of The Progressive.

Robert Sherrill, Washington correspondent of The Nation.

Alan Barth, former editorial writer of the Washington Post.

Carey McWilliams, editor of The Nation.

M. B. Schnapper, editor of Public Affairs Press.

PRESIDENTIAL PAPERS AND THE PUBLIC INTEREST

By M. B. Schnapper

Contrary to representations made by or in behalf of President Nixon and other public officials who took tax deductions on "gifts" of official documents, no law has ever sanctioned such practices.

The only directly relevant statutes, the Presidential Libraries Act of 1955, merely states that the General Services Administration is authorized "to accept for deposit the papers and other historical materials of any President or former President, or any other official or former official of the Government, and other papers relating to and contemporary with any President or former President." Several early drafts of this law did have clauses stipulating that the documents of Presidents and "other officials" be "deemed gifts" exempt from federal taxation but these clauses do not appear in the enacted measure. Moreover, the latter refers to the donation of "land, buildings, and equipment" for Presidential libraries as "gifts" but authorizes the acceptance of "The papers and other official or former official" merely as "deposits". The sharp distinction makes a world of difference.

41-660-74 -9

Nevertheless, recent Presidents and other public servants have considered their "charitable contributions" of official documents to the National Archives of the GSA as the equivalent of private gifts entitled to tax deductions under the internal revenue laws.

Prior to July 21, 1947, when the Surrogate Court of Dutchess County, New York, held that the official documents of President Franklin D. Roosevelt were the property of the United Sttaes, as FDR had announced in 1938 when he initiated arrangements for the establishment of the Franklin D. Roosevelt Library as a public institution, most Presidential papers-i.e., those of Andrew Jackson, Martin Van Buren, Abraham Lincoln, Ulysses S. Grant, James Garfield, Grover Cleveland, Benjamin Harrison, William McKinley, Theodore Roosevelt, William Howard Taft, Woodrow Wilson, and Calvin Coolidge-were turned over to the Library of Congress without any financial quid pro quo deals.

The removal of official papers by outgoing Presidents had no legal sanction and took place chiefly in a period when the Library of Congress did not exist or had severely limited space in several rooms of the U.S. Capitol. The National Archives did not come into existence until 1934.

In a recent study (1969) commissioned by the American Historical Association, H. G. Jones, a leading archivist, challenges the assumption that Presidents or ex-Presidents have the right to treat their documents as private property. He points out that the practice is a "prerogative [derived from] . . . a lingering vestige of the attributes of monarchy, not an appropriate or compatible concept. for the head of a democratic state."

It is also pertinent to note that the Tax Reform Act of 1969 which effectively stopped the tax deductions taken by recent Presidents as well as other public servants on their official records does not imply that such deductions had been legal. The law does not even allude to public officials. It merely limits the tax benefits any "taxpayer" can derive from a "charitable contribution" of "a copyright . . . a letter, memorandum, or similar property" in which the "taxpayer" holds common law copyright.

The proclivity of government officials for treating their official documents as their private or copyrightable property runs counter to Section 8 of the Constitution's first article: "The Congress shall have power... to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Officially generated writings, official records of governmental affairs, can hardly be considered private property.

Moreover, Section 8 of the Copyright Act states that "No copyright shall subsist in the original text of any work which is in the public domain . . . in any publication of the United States Government, or in any reprint in whole or in part thereof. . ."

In various court cases, including the Pentagon Papers case, the Justice Department has contended that documents prepared in connection with official duties are government property that cannot be used for private purposes. This issue came up in Admiral Rickover vs. Public Affairs Press, a 1962 Supreme Court case in which the key question was whether 22 press releases issued by the Defense Department and the Atomic Energy Commission were governmental documents or the private property of the Admiral. Subsequently the Admiral withdrew his copyright claims on the press releases.

Section 3 of the Constitution's fourth article gives Congress sole “power to . . . make all needful rules and regulations respecting . . . property belonging to the United States." Congress has never enacted a law sanctioning the personal ownership of official documents by Presidents or other officials who have treated their documents as private property for personal benefit.

That no federal official or agency has any right to exercise discretion in the disposition of government property was underscored by U.S. District Court Judge Barrington Parker as recently as January 17, 1974, in a decision against the General Services Administration, the agency which has been party to the arrangements under which scores of public officials have taken tax deductions on "gifts" to the GSA of official documents.

Section 1 of the Constitution's second article stipulates that a President "shall not receive [apart from his salary] any other emolument from the United States." Substantial emoluments were received by Presidents who have taken tax deductions on gifts of their documents to the government. Since the clear purpose of the emoluments article is to prevent a President from getting more for his services than his salary, it's patently illegal for Mr. Nixon to derive any income

from the sale of his White House tapes and documents. (Their value has been put at five million dollars by an official of the Joint Congressional Committee on Internal Revenue Taxation.)

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What has generally been overlooked in the past is that if Presidents and other public officials are permitted to continue to treat their documents of office as private property, they and their heirs remain free to sell those documents to the highest bidder, keep them secret as long as they choose to do so, or simply destroy them. This the American people cannot afford to tolerate any longer.

Unfortunately, the question of public ownership of official records got totally obscured by all the attention given to the improper manner in which President Nixon took $576,000 in tax deductions on "charitable gifts" of his Vice Presidential documents to the very government that had generated and paid for them in the first place.

The report of the Joint Congressional Committee on Internal Revenue Taxation kept Mr. Nixon from getting his tax bonanza but the report made matters worse by conceding that "public officials generally" are free to treat the documents of office as private property. That's equivalent to saying that "public officials generally" are free to sell, conceal, or, if they feel like it destroy records arising out of the performance of their official responsibilities.

This doesn't make such sense but here's exactly what the report says on page 28:

"A question that has been raised in connection with President Nixon's gift of his pre-Presidential papers is whether he actually owns the papers generated during his public career. If the papers were considered to be public property rather than personal property, the President would not, of course, be permitted to take a charitable contribution deduction for the donation of any of these papers ..

"Since the time of George Washington it has been customary for Presidents of the United States to treat their papers as their own personal property . . . As far as the staff can determine, this custom of treating papers generated during a public career as personal property has been followed in the case of public officials generally. As a result, the staff believes that the historical precedents taken together with the provisions set forth in the Presidential Libraries Act suggest that the papers of President Nixon are considered his personal property rather than public property."

In short, on merely the basis of belief and suggestion it was stated for the first time that "public officials generally" could do as they personally choose with documents relating to and arising out of their duties.

Hon. FRANKLIN FLOETE,

HERBERT HOOVER,

THE WALDORF ASTORIA TOWERS,
New York, N.Y., December 15, 1960.

Administrator, General Service Administration,
Washington 25, D.C.

DEAR MR. FLOETE: Through the generosity of friends and the labors of the Herbert Hoover Birthplace Foundation, Inc., a library museum building is now being completed on the Foundation property of some 28 acres at West Branch, Iowa, on which are also situated the cottage in which I was born and various other structures. The holdings of the Foundation, designated collectively as the Herbert Hoover Library Museum, are to be offered as a gift to the United States to house my papers and other historical materials under Section 507 (f) of the Federal Property and Administrative Services Act of 1949, as amended, providing for Presidential archival depositories. I am indeed grateful for this action of the Foundation.

In furtherance of it I hereby offer to the United States, under Section 507(e) of the Act and subject to the terms hereinafter set forth, all of my collected Presidential papers, wherever they may now be housed, as well as papers accumulated by me prior to my presidency and those accumulated since leaving the White House. These documents will probably number several million papers. My offer also includes other historical materials I have accumulated, such as books, photographs, motion pictures and memorabilia of various kinds. I will transfer these papers and materials as soon as practicable after the transfer to the United States of the Foundation property, at such time or times as may be

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