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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 pro. vide 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 recommendations, 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. Acce88.—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 deciassified 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,
ARTHUR S. MILLER,
Professor of Law. Attachment.
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.
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.
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.
II. MAKING THE FOIA WORK A. Can it be reworked ? 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. Coroles 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.
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
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.
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.
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.
John L. D. EISENHOWER,
Valley Forge, Pa., October 8, 1974. Hon. John BRADEMAS, Congressman 3d District, Indiana, Rayburn House Office Building, Washington, D.O.
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 Ameri. can 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.
ORGANIZATION OF AMERICAN HISTORIANS,
OFFICE OF EXECUTIVE SECRETARY,
Bloomington, Ind., October 23, 1974. Hon. John BRADEMAS, 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 spe lists 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,
AMERICAN COUNCIL ON PUBLIC AFFAIRS.
Washington, D.C., November 11, 1974. Ilon. 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,
M. B. SCHNAPPER,
Executive Secretary. (Attachment.)