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laration that elected officials' public documents are public property is important and would have a bearing on the court case.
Professor Arthur Miller of George Washington University has succinctly stated the case for placing title where it belongs in the Government. He points out that:
If the former President contested that, a judicial ruling could then determine the question of legal title. Even if the courts ruled for Nixon, the papers and tapes could still be taken by eminent domain-provided, of course, that the Constitutional requirement of "just compensation" was paid. It is highly doubtful that the courts would rule against an express congressional decision,
My colleague and a member of this committee, Mr. Koch, has authored similar legislation.
A legislative expression by the Congress that title lies with the American people would be a factor in any court decision that is rendered ultimately on the question.
The approach I have suggested would enable the Congress to overturn the Nixon-Sampson agreement which is so clearly contemptuous of the national interest, and to preserve the White House tapes and documents. It would also allow the Congress time to consider the recommendations of the Commission on Federal Documents. I urge your committee to take speedy action along these lines.
I would like to add one word of comment on the most interesting testimony by Dr. Rhoads. His testimony didn't seem to reflect any sense of concern or worry on the situation we have been in where documents of enormous importance for the clarification of the record and history are in danger of being destroyed or of being put under the control of one individual.
Mr. BRADEMAS. Thank you very much, Mr. Bingham, for a most thoughtful statement.
I might say, by the way, your bill has been referred to this subcommittee. Your bill, as I read it, would affect Members of the House and Senate as well as former Presidents, and your bill would allow former Presidents to designate libraries, as depositories for their papers.
What would be your reaction to allowing Members of Congress to designate certain depositories for their papers ?
Mr. BINGHAM. I think that would make eminently good sense. I very early came to the conclusion we couldn't put any more severe restrictions on the control of public papers on Presidents than we do on ourselves. I think they should be treated in the same manner.
Mr. BRADEMAS. Your bill affects only elected Federal officials. Would you think it wise to extend coverage to appointed officials of the Federal Government as well ?
Mr. BINGHAM. It is my understanding appointed officials are under much more stringent restrictions today. It is my impression the papers of the Secretary of Defense or Secretary of State produced while he is in office are not considered his property.
Mr. BRADEMAS. Nor do I pretend to any profound knowledge of that, but it is my understanding, in times past, that members of the White House staff have been permitted to make off in the night with their papers. Also, one reads outrageous tales of the vast sums of money that prominent people, like Mr. Kissinger, may be able to earn in subsequent years by publishing their memoirs and for other writings for
which they would have to rely on records which they had carried away. Apparently, that is an area of some ambiguity.
We will include in the hearing record the George Washington letter and also at an appropriate place Attorney General Saxbe's opinion, the Library of Congress studies prepared on this subject, and certain other news articles on the matter.
Just one other question, Mr. Bingham.
If we went in the direction you are suggesting, what do you say about the concern expressed by Dr. Rhoads regarding the danger of public officials simply destroying their papers so as to avoid their being made public?
Mr. BINGHAM. I think this is a very serious question. It is hard to know how to deal with it.
No public official can be compelled to take notes at a meeting. One can assume Presidents in the future will not make tapes of their conversations.
One aspect of the matter is that officials may have a pecuniary interest in retention and ultimate disposition of papers. So there might be some incentive there.
I think also the problem of privacy for those persons who communicate with Government officials is a matter of concern. I am sure there are constituents of mine who won't be too happy to have their correspondence made a matter of public record. But I think the overriding public interest would be that these letters be considered open for public inspection and subject to the control of the American people rather than an individual.
I think we simply have to face up to those difficulties in the overriding public interest.
Mr. BRADEMAS. Thank you very much.
Mr. Jones. I want to thank you very much, Mr. Bingham, for a splendid statement and the knowledge you have which pertains to this subject.
I have no questions, but I observe what you have to say.
Mr. KOCH. As always your comments are right on target. With respect to this question of destruction of materials, if it becomes the law that these materials are public property, then I believe it is also the law it is a violation, perhaps a felony, to destroy public property: Therefore, if your legislation were to be enacted, and a Member of Congress were to engage in purging of the files, he would be engaging in a felonious act. Would you agree?
Mr. BINGHAM. Perhaps, but you have to recognize the files might never be produced.
You can't force people to make notes; you can't force them to keep notes they make on a yellow pad. You have to be practical about that.
Mr. Koch. I am not for a moment suggesting we compel the people to put to a written record that which they choose not to or, if they choose not to, that becomes a violation of law. But when we are talking about the physical destruction of a record which might very well be a felony.
Mr. BINGHAM. I still have some difficulty with that because I imagine you have, and most of us in Congress have, from time to time, gone through our back files and destroyed certain records, which we no longer need to preserve.
It would be hard to draw a line between routine destruction of outof-date files and selective destruction. It is a problem which I think is not easily solved.
Mr. Koch. That is one of the things this legislation, when enacted, the Brademas bill, will have to look into.
Mr. BRADEMAS. Our next witness is our colleague, Congressman Thomas A. Luken.
STATEMENT OF HON. THOMAS A. LUKEN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OHIO
Mr. LUKEN. Thank you, Mr. Chairman.
If we honestly believe that the public offices of our Government are a public trust, then the documents evolving from those offices are a legacy of the position—a legacy which should not, by default, fall to the holder of the office, but must of necessity enter the public realm. We have expertise within the Government to determine which documents, for reasons of public policy and/or historic value, are to be preserved and made available for inspection by the citizens of the Nation.
In 1966 Congress gave statutory recognition to the people's right to know about the activities and operations of their Government through the requesting of documentary information. The Freedom of Information Act (5 U.S.C. 552) presumes all Government information belongs to the public. Allowance is made within the law for certain types of material to be exempt from disclosure, but such an action is subject to both administrative and judicial review. If public officials are allowed to carry away their documents, does this not undermine the purpose and spirit of the Freedom of Information Act diminished? What type of hyprocrisy is it that recognizes the Government is privately held by former officials, is not the underlying intention and practical effect of the Freedom of Information Act diminished? What type of hypocrisy is it that recognizes the public's right to Government information in one law, but fails to preserve and protect some of the most important official records of statesmen through creation of another instrument of law?
As a means of acting upon this situation, I have introduced H.R. 14939, the Public Documents Act of 1974. It is my sincere hope that it will serve as a device to generate the best possible legislation in this area. In its present form, the bill's provisions extend in coverage to the President, the Vice President, and Members of Congress, including Senators, Representatives, Resident Commissioners, and Delegates to the House, regardless of the length of their term of office or the manner of attaining their position.
The types of material governed by the measure include books, correspondence, documents, papers, pamphlets, models, pictures, photographs, plans, maps, films, motion pictures, sound recordings, and other objects or materials which are prepared for or originated by any elected official of the United States in connection with the trans
action of public business during any period when such official holds elective office.” All of these items would be subject to consideration under the provisions of the bill.
The procedures set forth in the legislation authorizes the Administrator of the Gerenal Services Administration to make a determination, within 180 days after an elected official ceases to hold his or her position, as to what objects or materials held by the former official fall within the jurisdiction and provisions of the Public Documents Act. After this is done, one of three courses of action may follow.
First, the former official may, within the 180-day period stipulated, designate an educational institution which he or she wishes to receive their public documents and materials. Providing the educational institution meets the act's understanding of that referral, the Administrator will follow this prescription. In addition to public or nonprofit private libraries, school, college, or university libraries might receive such public documents or materials. Presidential libraries, such as those now operated by the General Services Administration, are recognized here as “public libraries, the only difference in arrangements being that a former President would not sort or otherwise retain any materials such as is presently done.
In the absence of any specification of an educational institution to receive such documents and materials, the second course of action would automatically occur: the entire cache of items would be deposited at the National Archives. This does not, of course, preclude the possibility of a former President's materials being transferred at a later time to a Presidential library maintained by the General Services Administration.
A third course of action possible under the bill is the return of some items to the former official. There is no reason to believe that every item obtained under the provisions of the Public Documents Act by the Administrator must be preserved. The professional archivists and historians of the National Archives and Records Service are extremely skilled in determining the materials worthy of retention. Anything which falls outside of this standard might be returned to the former official who generated it. The important factor is that, unlike present practice, it is a professional archivist who reviews virtually all of a former official's documents and materials and determines what is to be retained.
There are details of administration which should be specified in the bill and not left to derivative regulations. The GSA may wish to have some statutory specification of the option to return material not worthy of retention to a former public official.
No specification is made with regard to the manner in which sensitive material is to be administered. Items under a security classification or other legally authorized access restriction would be dealt with in accordance with current provisions of relevant law. We have a classification and declassification program which is applicable in such cases, and there is sufficient guidance available with regard to similar types of protected information such as trade secrets or financial data.
A special problem may arise with regard to sensitive materials when a former official asks that certain papers be placed under a time seal to protect personal or professional reputations. At a time when we are particularly aware of privacy rights, it may be relevant and
necessary to consider a manner in which this type of plea might be addressed either in a legislative provision or a derivative regulation.
The urgency of this type of legislation is, of course, apparent each day as arrangements are made regarding the papers, tapes, and other materials of the Nixon Presidency. For the moment, the Nixon records remain under the joint control of the former Chief Executive and the General Services Administrator. I would urge that a version of H.R. 14939 quickly be enacted into law and applied to the materials of the Nixon era ; section 5 of the bill specifically includes that period of time.
The effects of the legislation would seem to be (1) no one other than archivists and specific Government personnel would engage in sorting or editing of this material, and (2) such a law would take precedence over the current agreement governing these items which allows the destruction of the famous tape recordings of White House conversations in 10 years. I do not share the opinion of the Attorney General that these materials are the personal property of Richard Nixon. It is my view that the destruction of these tapes would be the destruction of Government property. And it is my more specific view that any action to eliminate the tapes might well constitute a destruction of evidence on matters for which Richard Nixon has lately been given a Presidential pardon.
Arthur S. Miller, professor of law at George Washington University, wrote a detailed analysis of the problem of ownership of the Nixon documents and materials which appeared on the Washington Post editorial page on September 21, 1974. I would like to submit that editorial for the record at this time.
[The editorial follows:)
[From the Washington Post, Sept. 21, 1974)
(By Arthur S. Miller)
WHO OWNS THE NIXON TAPES AND PAPERS ? The question of who owns documents accumulated in the White House during a President's tenure has been thrown into sharp controversy by the "agreement" concluded between Richard Nixon and General Services Administrator Arthur Sampson. Two days before President Ford pardoned him, Mr. Nixon sent a letter to Mr. Sampson indicating that he desired "to donate to the United States at a future date, a substantial portion of my Presidential materials ..."
In the letter Mr. Nixon flatly stated the materials, including tape recordings, were his: "I retain all legal and equitable title to the Materials, including all literary property rights." Mr. Sampson agreed to the entire letter on Sept. 7, ceding to Nixon the power to destroy the tapes after Sept. 1, 1979. The letter purports to be a legal document, which binds both Mr. Nixon and Mr. Sampson (speaking for the government).
Presumably, Mr. Sampson relied on an Attorney General's opinion sent to President Ford on Sept. 6, in which William Saxbe concluded Mr. Nixon was the owner of the "papers and other historical materials retained by the White House Office" during the Nixon administration. As is the custom with the "Presi. dent's lawyers' lawyer," Mr. Saxbe found that a practice traceable to George Washington meant that the materials are "the property of former President Nixon."
That conclusion seems more the result of reaching a desired decision than of a process of reasoning that could get by any middling competent law student. There are no Supreme Court decisions on this point. Nor is there any statute that expressly states that Presidents have legal title to White House documents. Mr. Saxbe relied on the Presidential Libraries Act of 1955 as a congressional "acknowledgement" of ownership by Presidents. But Congress did not say so; nor