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press; his decisions are scrutinized by his opponents for some misjudg. ment; and his friends may seek to influence his actions. The grist of his occupation is communication and compromise, and all of this is reflected in his files. Elective office, whether it be that of a Member of Congress or the President, represents an intimate combination of political activity and public administration.
Elected officials are political as well as public men. It does not necessarily follow that because a man holds public office his personal and political involvements should be disclosed as soon as he leaves that office. Many former Presidents and Members of Congress continue in other public positions after leaving Congress or the Presidency. For example, two former Presidents were elected to Congress following their terms as President; one former President, William Howard Taft, became Chief Justice of the Supreme Court; and many Members of Congress have held responsible positions or State and local levels after leaving national office. Immediate disclosure of their files including their frank appraisals of people, events, and programs-could be potentially embarrassing and might seriously damage their effectiveness in their new positions.
The traditional view holds that it is impossible to separate the personal and political files of an elected official from the files that have a direct bearing upon his public responsibilities. Furthermore, the traditional view holds that to declare these confidential files of an elected official public property would both diminish his political freedom and also lessen the likelihood that the most sensitive materials bearing on his conduct in office would be retained.
Let me say, Mr. Chairman, that I do not feel comfortable in what seems to be a lecture to professional politicians on the nature and art of politics. Functionally, archivists are supposed to be around to pick up the pieces after the events occur in which politicians and others take part. We don't ordinarily manipulate or try to control the events that we seek only to record. And let me add that we look forward to the time when we archivists can be restored to our rightful function of sifting history's pages instead of appearing on the front pages of today's papers. But I want to alert you to the political nature of the problem.
Let me elucidate some of the problems to which I think the study commission should address itself. If the requirements for documentation in the modern era have gone beyond the traditionalist's view, it is not because we have suddenly discovered that the papers were typed on a Government typewriter by a Government secretary, it is because the process and organization of Government has grown ever more complex. For example, where the President of the United States once had only one or a very few secretaries, he now has a complex organization approximating 500 staff members. Originally, the small staff in the White House office could be personally supervised by the President and he could review almost all of the material they produced. But as the office grew in size and complexity, along with general executive branch growth, staff members might not see the President and they might produce memoranda and reports which were never reviewed and acted on by him.
There has not been a consistent policy specifying which organizations within the executive office of the President produce records which are to be included among the President's personal papers. For example,
the institutional records of the National Security Council and its permanent staff have remained within the Government from one administration to another. Yet the papers of the President's national security adviser, who heads the NSC staff, have been considered part of the personal papers of the President. The records of the Council of Economic Advisers have often been removed as the personal papers of the men who served as members of the CEA. Some of these files have been donated to Presidential libraries or other archival depositories at some later date. On the other hand, the records of the Office of Management and Budget (and its predecessor the Bureau of the Budget), which is also located within the Executive Office of the President, have traditionally been considered Federal records. The proposed study commission may be able to recommend a consistent policy for distinguishing which records created within the Executive Office of the President should be considered to be the President's personal papers and which should be designated as Federal records. In short, there may be a way wherein the circle of personal Presidential activity can be more clearly defined, thus reducing the extent if not the significance of his claim for personal files if it be judged legitimate.
In the recent past, there has been inconsistency in the treatment of the papers of various Presidential staff members. The peculiar dilemma that the present system causes is one in which the records and papers generated by staff members are either the President's or their own; they are never regarded as Federal records. Thus it depends upon the degree of control asserted by the President over his staff members whether those staff members regard their materials as a part of his Presidential papers or whether they take them away as their own. I must add that the latter course is not a total loss; sometimes it is a boon to researchers since archivists in later years solicit the papers of the distinguished persons who served earlier Presidents and often wind up with lifelong collections of personal papers as collateral historica' evidence among the holdings of the Presidential library.
Perhaps the way of solving the dilemma of the public papers of elected officials is to arrange their files so that personal and truly political matters are separated from matters of official jurisdiction and public administration from the outset. Traditionalists have advised that this is impossible to do while still preserving an adequate record of our public and political life, and it may be that the study commission will stay with the traditionalist view. However, in light of nature's seeming law that things become ever more complicated, we must expect to meet increasing complexity in the filing schemes of elected officials papers. In short, perhaps the study commission will conclude that records managers must rewrite the book on files classification for Members of Congress and the President to assure that they keep separate their personal and political matters from their public responsibilities.
I wish to return for a moment to the issue of political freedom as it may be affected by the treatment of an elected official's files. If the public property claim is asserted over the political files of an elective officer, the study commission must examine whether his political freedom is diminished in the sense of freedom of action, freedom to associate, freedom to compromise, and the ability to defend against opponents. Pending bills before the Congress stipulate that a provision in existing legislation which requires the Administrator of General Services to respect the restrictions imposed in writing by the depositor of the materials would be applied in the event such personal papers would be declared public documents.
I believe that the study commission should examine with utmost care the philosophical bases for imposing restrictions upon the papers of elected officials, the necessity of restrictions versus the current need of the public to know, and the basis in law for protecting and enforcing such restrictions. For instance, if the only basis for enforcing restrictions is the policy of the Congress that restrictions are a good thing, then the Congress can reverse that policy in another day and mood. If the basis for restrictability is personal property, then the restrictions can be abrogated only by due process of law. If I may say it, this is the core of the constitutional issue that the study commission must face. Other correlary issues flow from that central one. For instance, if the public property claim is asserted, it becomes a question whether the files of Members of Congress must be subject to the rights of public inspection that so many citizens are availing themselves of today. And if those standards are applied, what becomes of the privacy of those who correspond with the President or with Members of Congress ?
In my view, the study commission will have a difficult mission. It will either have to make a hard choice between the private property right and the public accessibility right, or it will have to devise à compromise solution that will resolve this philosophical conflict in a way that meets the demands of our political system. And in devising a better way of insuring adequate documentation of our national life, the commission will have to improve upon a system that has both met those demands and preserved property and accessibility rights with considerable success.
Nonetheless, I am confident that the establishment of the study commission is the best way to achieve a better system. Study commissions have often overcome great difficulties in organizing governmental efforts in the past: the creation of a national archives system was brought about by the efforts of a number of study commissions; the Brownlow Committee of 1936–40 established the Executive Office of the President and improved the efficiency of the executive branch; and the Hoover Commissions of 1949 and 1955 overhauled the whole organization of the executive branch to make it more responsive to the demands of a changed society. I am confident that this study commission can meet with the same level of success in an area of equal complexity.
Should the Congress see fit to establish this study commission, I pledge to you that the National Archives and Records Service will do everything that we possibly can to assist the commission in reaching a just and equitable solution to the problem of insuring adequate documentation of the endeavors of the Nation.
Mr. Chairman, that concludes my prepared remarks. I would be happy to reply to questions from you and other members of the subcommittee. But, before we proceed to that, may I indicate in the process of clearing my prepared statement the Office of Management and Budget asked me to call to your attention some further amendments they would like to see included in a bill.
The first of them would be in section 3317, to renumber paragraph 7, make that paragraph 8, and insert a new paragraph 7 as follows:
The privacy interests of individuals whose communications with federal officeholders, task forces, commissions, and boards are a part of the papers and documents produced by such individuals and organizations.
It is further suggested that under section 3318 there be a new item G, which would read : “One member of the White House or Executive Office staff appointed by the President."
I submit those for your consideration. I would say they do seem to me to be constructive suggestions.
Mr. BRADEMAS. Thank you very much, Dr. Rhoads, for a most useful statement. It has delineated some of the major philosophical and substantive problems to which the proposed study commission would have to address itself.
In line with what you have just said and in light of the proposed amendments suggested by. OMB, do I take it those changes are an indication that the administration favors passage of the bill under consideration ?
Dr. Rhoads. I believe that inference could be drawn by reason of the text
of my prepared statement. Mr. BRADEMAS. I wonder if you could make any further comments with respect to the matter of the composition of the proposed commission ?
The bill provides :
(A) one member of the House of Representatives appointed by the Speaker of the House upon recommendation made by the majority leader of the House ;
(B) one Member of the House of Representatives appointed by the Speaker of the House upon recommendation made by the minority leader of the House ;
(C) one Member of the Senate appointed by the President of the Senate upon recommendation made by the majority leader of the Senate;
(D) one member of the Senate appointed by the President of the Senate upon recommendation made by the minority leader of the Senate;
(E) one Justice of the Supreme Court, appointed by the Chief Justice of the Supreme Court;
(F) three appointed by the President, by and with the advice and consent of the Senate, from persons who are not officers or employees of any government who are specially qualified to serve on the Commission by virtue of their education, training, or experience;
(G) one representative of the Department of State, appointed by the Secretary of State;
(H) one representative of the Department of Defense, appointed by the Secretary of Defense ;
(I) one representative of the Department of Justice appointed by the Attorney General;
(J) the Administrator of General Services (or his delegate);
(K) one member of the American Historical Association, appointed by the counsel of such Association; and
(L) one member of the Society of American Archivists, appointed by such Society.
Do you feel the proposed composition, together with the amendment you just cited, represents an appropriate spectrum of membership to carry out the proposed duties of the commission?
Dr. Rhoads. It certainly seems to me, Mr. Chairman, that this provides a very balanced membership and would include a proper spectrum of interests.
Mr. BRADEMAS. You are the nonvoting chairman of the National Historical Publications Commission. I wonder if you could briefly
indicate to us the functions of the National Historical Publications Commission?
Dr. RHOADS. It has as its responsibility to make plans and recommendations for the publication in letterpress or microform of documentary sources important to the study of American history. Under its aegis a substantial number of extremely valuable collections of documentation of national importance have been published. In recent years the NHPC has had at its disposal modest amounts of money for grant to assist in such publication efforts.
Mr. BRADEMAS. I am aware as a member of the National Historical Publications Commission of the meeting on September 20, 1974, at which the Commission unanimously adopted some resolutions directly related to the subject under consideration here today.
As I think these resolutions have not been made public, I would request that you read the text into the record today.
Dr. RHOADS. The first one reads:
The Commission urges the establishment by law of an independent national commission to make a careful and objective study of the disposition of the records and papers of elected and appointed officials of the Federal government and to make appropriate recommendations to the President and the Congress with respect to this subject.
The second resolution reads: The National Historical Publications Commission states and affirms its continuing position that the official records of the nation, the states, and other governmental units and the papers of present and former government officials having continuing value for research should be retained and maintained for the benefit of all who study the history of the United States.
The Commission holds that official records and papers include handwritten and typewritten documents, motion pictures, television tapes and recordings, magnetic tapes, automated data processing documentation in various forms, and other records that reveal the history of the nation.
In this regard, the Commission views with alarm the unprecedented provision contained in the agreement announced by the President on September 8, 1974, which requires the destruction of magnetic tapes or other materials of value for historical research, and calls for remedial action with respect to the aforementioned agreement.
Mr. BRADEMAS. Thank you very much, Dr. Rhoads. Let me ask you about the allusion to the agreement of the President with respect to former President Nixon's destruction of magnetic tapes and the stipulation in that agreement which requires the destruction of those tapes. May I ask you, as you are the Archivist of the United States, if you were consulted with respect to that agreement?
Dr. Rhoads. No, sir, I was not.
Mr. BRADEMAS. Was Mr. Sampson consulted, do you know, or was the GSA Administrator simply put in the position of being required to implement its agreement ?
Dr. Rhoads. It is my understanding he was consulted and did discuss the agreement before he signed it. It is my understanding he was not involved in negotiating the agreement with the former President.
Mr. BRADEMAS. Speaking for myself, I think it strange that the professional person in the Federal Government who is in charge of the preservation of papers and other materials essential for historical reasons, namely, the Archivist of the United States, was not consulted on a matter of that consequence. Although the matter of the disposition of the Nixon tapes is not immediately before this subcommittee, in view