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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 officials have 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.

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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.)

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

s... "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.

HERBERT HOOVER,
THE WALDORF ASTORIA TOWERS,

New York, N.Y., December 15, 1960.
Hon. FRANKLIN FLOETE,
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

agreed upon between the Administrator of General Services, or his designee, and me or any representative. Excluded from this offer are the "war and peace" documents gathered since World War I, including records of such public organizations, which I have given to the War and Peace Library at Stanford University, Palo Alto, California, and which are now located there. There may be some other documents or materials which I or my representative shall determine to be excluded from this offer by reason of private or personal interest on my part or on the part of a member of my family.

My offer is conditioned upon acceptance by the United States of the offer of the land and buildings, known collectively as the Herbert Hoover Library Museum, which is being made by the Herbert Hoover Birthplace Foundation, Inc. My offer is further conditioned upon the agreement of the United States to maintain and operate the Library Museum at all times as a Presidential archival depository, as provided by the Act, for the storage of the papers and other historical materials I propose to give.

The papers and historical materials to be transferred to the United States pursuant to this offer are to be kept at the Library museum, permanently, provided that the Administrator of General Services, subject to general terms and conditions for the handling and preservation of my papers, which conditions are set forth in a “Statement of Conditions" attached to this letter, and designated as "Annex A," shall have the right in his discretion (a) to make temporary loans to such persons, organizations, or institutions as he shall determine, (b) to dispose by sale, exchange, or otherwise of any such papers or materials which the Archivist of the United States may determine to have no permanent or historical interest or to be surplus to the needs of such Library Museum, and (c) to remove from said Library Museum any or all such papers or materials if he deems it necessary to preserve them from threatened destruction.

I deem it necessary in the public interest, which is, of course, my interest, to prescribe the conditions contained in "Annex A.” This is primarily to protect the many confidences of which the President and former presidents of the United States are the recipients. In addition, the period of time covered by my papers is so extended and the subject matters with which they deal so diverse that I consider it essential, particularly during the period of transfer and initial processing, to operate within these conditions. is, however, my purpose to make available to the public, through your office, a substantial volume of my papers and historical materials at the earliest possible time and ultimately all of them as the passage of time and events may permit. Toward this end, I am establishing a Coordinating Committee, consisting of my sons and executors, to act with your office in my behalf as I shall direct during my lifetime, and to stand in my stead upon my death for such period of time as may be required. The committee will carry out my broad purpose to give the United States my papers and historical materials for access, while at the same time providing for the safeguarding of the information and its use. It is my expectation that the committee, under my direction, will establish procedures for its operation and perpetuation to be of maximum effectiveness in furthering my purposes and of optimum assistance to your office.

I wish to express my appreciation to you and to members of your Administration for your counsel in conection with this offer of mine. I belive the offer to be in accordance with those made to and accepted by you from others under the legislation providing for Presidential archival depositories. I am hopeful that in swift time we may see this Library Museum n operaton as one more source of the materials of which the history of this glorious country is made. With kindest regards, Yours faithfully,

HERBERT HOOVER.

(Attachment)

STATEMENT OF CONDITIONS

The following conditions shall govern the papers and other historical materi. als (as defined in the Act of August 12, 1955, 69 Stat. 695, and hereinafter called Materials) of Herbert Hoover to be transferred to the United States through the Administrator of General Services (hereinafter called Administrator) for deposit in the Presidential archival depository to be established at West Branch, Iowa, under the terms of a letter from former President Hoover to Administrator Floete, dated December 15, 1960, to which this Statement of Conditions is attached as a part.

1. PERSONS HAVING ACCESS

(a) Persons who shall have complete access to the Materials transferred shall be Herbert Hoover (hereinafter sometimes referred to as the Donor), persons designated by him in writing during his lifetime, and, after his death, persons designated in writing by the Coordinating Committee (hereinafter called the Committee) established by him.

(b) Notwithstanding the foregoing, designated employees of the National Archives and Record Service shall be allowed all access required for the proper performance of normal archival work processes on such materials, not however, to include any publication or any disclosure of such material, under the general supervision of the Archivist of the United States.

2. COORDINATING COMMITTEE

(a) Membership: A Committee is hereby established to serve without com. pensation and to exercise, after the death of Herbert Hoover, (or during his lifetime as he may designate) all powers referred to in this Statement of Condi. tions or which Herbert Hoover might have exercised in his lifetime with respect to the Materials. The Committee shall consist of Herbert Hoover, Jr., Allan Hoover, and such others as Herbert Hoover, Jr., and Allan Hoover or the survivor of them may appoint to bring the total number of the Committee to not less than two nor more than five. If vacancies shall occur, Herbert Hoover, Jr., and Allan Hoover or the survivor of them, or after the death of both of them, the then acting member or members of the Committee, shall have power to fill such vacancies by instrument filed with the Committee's Secretary. The Committee shall select its Secretary, and any action taken by the Committee shall be sufficiently evidenced by a certificate in writing made by the Secretary, upon which certificate the Administrator may rely, conclusively.

(b) Meetings: Meetings may be held at such place and at such time as the members may from time to time determine, with a majority of the members then acting to constitute a quorum for the transaction of business. The Committee may act without a meeting by any instrument signed by a majority of the members then acting.

(c) Delegation of Authority: The Committee may delegate any of its powers to one or more of its members (save the power to appoint new members as set forth in paragraph 2(a) and the power to remove conditions as set forth in paragraph 7 hereof) and may from time to time authorize one or more members, or any agent, to execute and deliver any instrument on behalf of the Committee.

(d) Amendment: Herbert Hoover shall by written instrument have the power to alter or amend this paragraph 2, relating to the establishment and functioning of the Coordinating Committee.

3. GENERAL ADVICE ON INDEXING, CATALOGING, EXHIBITION, AND STAFFING

The Administrator and the Archivist of the United States shall from time to time seek the advice of and confer generally with Herbert Hoover or with the Committee with respect to standards and procedures to be employed in the indexing, cataloging, and exhibition of the Materials, and with respect to the staffing of the Library Museum.

4. DEPOSITED AND TRANSFERRED MATERIALS

Materials transmitted to the Library Museum from time to time, by the Donor, or the Committee or others on behalf of the Donor, will be designated as Deposited Materials, title thereto to remain in the Donor, or after the Donor's death in the Committee, pending a determination, to be made during initial processing or as soon thereafter as possible, as to which, if any, of the Deposited Materials are to be excluded because of a personal or private interest of the Donor or a member of his family. Pending transfer of title, Deposited Materials so excluded may be withdrawn at any time by the Donor or Committee. Upon clearance in writing

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