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ing council of the association concluded 3 days of meetings, in the course of which the council approved my appearance here today. And I want to convey to you this morning the thanks of the council for your invitation to testify before the Congress on a subject which is of critical importance to the Nation.

Bill H.R. 16902 proposes the creation of a National Study Commission on Federal Records and Papers of Elected Officials to give careful study to the ownership, control, disposition, and preservation of records and documents produced by or on behalf of elected Federal officials and to develop appropriate legislation recommendations and other appropriate rules and procedures with respect to these matters. I am authorized by the council of the association to say that we support the general purpose of House bill 16902 because it clearly fosters the purposes of the association under its charter and constitution.

The question of ownership, preservation, and access to records and documents of elected Federal officials poses difficult problems with precedents and traditions lending weight to arguments on both sides. It has been convincingly argued that records prepared at public expense in the course of performance of official duties are public property. This position is supported by respected legal opinions that assert that no law permits public officials to transform official documents into private property or to transfer property that one does not own. Documents and records created by public officials for elected officials at Government expense are, according to this line of argument, public property. This position would seem to be supported by the decision of the U.S. court of appeals in the Rickover case-Public Affairs Associates v. Vice Admiral Hyman G. Rickover, 1960-which ruled that Admiral Rickover's speeches would have belonged to the Government had they been produced by Rickover "in the course of *** duties" at Government expense.

On the other hand, adherents to the view that elected Federal officials have title to their official papers cite the time-honored tradition of Presidents and other public officials who have taken their papers when they left office and disposed of them as they desired. The Federal Records Act of 1950 and the Presidential Libraries Act of 1955 authorize the General Services Administration to accept gifts of Presidential papers for deposit in the National Archives or in Presidential libraries. This legislation appears to give a statutory basis to the treatment of official papers as private property since the acts mention "donors" and papers "belonging" to a President and give statutory recognition to the right of a President to impose restrictions on the use of papers he has donated to a Presidential library.

Historians on both sides of the argument agree that the desired goal is that public officials create full documentation of their official activities, that this documentation be appropriately preserved and that scholars be allowed equal and full access to this record. Here the agreement ends. Proponents of the view that the records and documents of elected Federal officials should be treated as public records argue that in the absence of legislation to achieve this purpose, officials will be free to sell their records to the highest bidder, keep them secret, or destroy them. The September 6, 1974, agreement between Richard M. Nixon and General Services Administrator Authur Sampson which grants to Mr. Nixon the power to destroy the Presidential

tapes after September 1, 1979, has heightened fears that without appropriate legislation, the historical record will not be preserved.

Opponents of this view argue that legislation making such papers public will not have the desired effect, but rather that records may be destroyed before the National Archives or some other appropriate body gains control over them, or more likely, important records may never be created in the first place. Furthermore, separating public and private records, for example, the records that a President generates as head of his party-which are private-from those he generates as President of the United States-official-would create great difficulty. A determination that papers of elected officials were public property would create serious questions about the status of such papers that are currently held by libraries and archives or are in private hands. Any resolution of the question of ownership will also have to examine and propose guidlines for retention and accessibility of access.

The American Historical Association recognizes that there is no simple answer to these questions. A subject of such importance to scholars and the general public should not be hastily resolved, but requires a full and comprehensive study of the issues and the careful development of policies and procedures to implement policies relating to the records and documents of elected Federal officials. H.R. 16902 wisely seeks to give these matters the scrutiny they deserve. Of all the learned societies in the United States, the American Historical Association is the one most directly concerned with the issues this legislation addresses, and we are particularly pleased to support this bill which in its current draft provides for a representative of the AHA to serve on the National Study Commission.

With your permission, Congressman Brademas, I would like to respectfully request you to consider adding one or two other people. I realize that the size of the Commission could get out of control eventually, but I think there are two other constituencies of the United States that might well be represented here or at least you might well want to consider their inclusion.

One is the library community. I think the public and private library communities would have something of real value to contribute to a Commission of this kind.

Also, the Organization of American Historians. The membership of the American Historical Association includes historians studying all parts of the world. But the Organization of American Historians has in its membership persons whose primary interest is American history. That is an organization you might want to call on for assistance.

I would merely recommend that.

I have one or two final comments. When I first heard that your committee was going to hold hearings on this bill, I was very pleased because, as executive director of the American Historical Association, I have been active in precisely this type of activity.

Last Tuesday I was in New York making inquiries of foundations as to how we might get funds for a long-range study of this type. Recently there was a joint meeting of historical organizations and Herman Kahn, the assistant archivist of Yale University, has been asked to draft a statement which would lay down some guidelines for

a study of this whole question of the disposition of papers of federally elected officials.

I merely want to say that to emphasize the interest of historians and scholars throughout the country in the question your bill addresses itself to.

Thank you, Mr. Brademas.

Mr. BRADEMAS. Thank you very much indeed, Mr. Thompson. You indicated in the last sentence of your statement your pleasure at the fact that the bill, H.R. 16902, does provide for a representative of the American Historical Association to serve on the proposed Commission. In the event the bill is enacted, would the AHA be in a position to make the kind of commitment called for?

Mr. THOMPSON. In terms of personnel, yes.

I have discussed this with my council. We have, as you might expect, a process for producing candidates for a position of this type. We feel so strongly about this that I can guarantee you would get a prompt recommendation of a competent person.

Mr. BRADEMAS. You have indicated in your statement that you have just come from a meeting of the AHA. Given the circumstances that triggered the hearings we are having here today and actions of both the House and Senate, I wonder if the AHA has taken a position with respect to the agreement announced on September 8 by President Ford?

You will perhaps recall that Dr. Rhoads, at my request, read into the record the text of the resolution which, on the 20th of September, the National Historical Publications Commission adopted. Has any action in respect to that agreement been taken by the AHA?

Mr. THOMPSON. You are talking now about the disposition of the President's papers?

Mr. BRADEMAS. Of Mr. Nixon's papers.

Mr. THOMPSON. Our position is there should be a hold on the disposition of those papers until either legislation or court decision can make a more decent decision.

We feel very strongly on that question and we are prepared to join other learned societies in litigation which would result in a restraining order as to disposition of those papers. I am not talking about the private versus public ownership. That is another matter. but I can speak with confidence on the council's view on the issue of preservation.

Mr. BRADEMAS. I am pleased to hear you say that.

Mr. Jones.

Mr. JONES. Thank you. I have no questions. Thank you for appearing.

Mr. BRADEMAS. Mr. Koch?

Mr. KOCH. I have no questions. Thank you for appearing.

Mr. BRADEMAS. The Chair would like to state that the final witness we have scheduled, J. Frank Cook, has been delayed in arriving in Washington.

However, the Chair will insert into the record at this point Mr. Cook's statement and a paper he will deliver before the Society of American Archeologists on October 1, 1974. Mr. Cook's paper is entitled "Private Papers of Public Officials: an Analysis of the Archivist's dilemma."

[The documents follow:]

SUMMARY STATEMENT

J. Frank Cook, Director of University of Wisconsin Archives, Madison, Wisconsin 53706 Council Member, Society of American Archivists; Vice President, Midwest Archives Conference.

The fundamental issue before this committee is the right of ownership to the documents produced by public officials in the performance of their duties.

In the absence of any clear statutes on the subject, a haphazard system of public and private ownership of presidential records has developed.

Presidents since George Washington have treated their papers as private property. But Washington, himself, regarded his papers as a "species of Public property, sacred in my hands" and he retained control of their disposition because there was no appropriate public depository. Each president since Franklin Roosevelt has donated his papers to a presidential library. This system has made magnificent contributions to historical scholarship, but it has failed to resolve the fundamental question of ownership.

The recent disclosures about the disposition of ex-President Nixon's papers shows how critical the issue is. Unless the Government retains these papers and tape recordings, the judicial process will be violated and the public may never know all the facts about that Watergate-stained administration.

Prominent legal scholars including Gerhard Casper, professor of constitutional law at the University of Chicago Law School; Raoul Berger, Senior Fellow of American Legal History at Harvard Law School; and Alexander Bickel, professor of constitutional history at Yale Law School, have all questioned the traditional assumptions. In Casper's phrase, it is a "curious and dubious practice. Just because it's been done for 200 years doesn't make it legal.”

It is my conviction that all records produced by any public official for public purposes at public expense are clearly the property of the United States. Even in a monarchy, the crown jewels belong to the realm and not the ruler. Legislation clearly requiring public officials to turn over their papers to the National Archives and Records Service or some other publicly controlled archives would resolve the basic question in the public interest and avoid the prolonged litigation which might result if the issue were forced into the courts without clear legislative intent. To insure compliance, the legislation must include penalties such as a large fine and/or barring from future public office.

Even after the public's ownership is clearly established, problems will remain, particularly in the area of confidentiality of sensitive information or matters related to the genuine security of the nation. Archives preserve inactive records. Therefore papers need not be deposited until the official has left office. In addition, it is possible to restrict access to portions of the papers if necessary. The validity of a request for restriction should be determined by a qualified panel of archivists, scholars, and public officials rather than by the donor alone.

With the support of this proposed legislation, The Society of American Archivists and the archival profession could turn its efforts solely to the care and preservation of the nation's historical records. Archivists would no longer have to beg and bargain with potential donors of public papers who would sacrifice to their own purposes, the right of the public to be fully informed about the actions of their government. I urge you to act favorably on this legislation which is essential to guarantee to the American people the right to their own history.

[The attached paper will be delivered Wednesday, October 2, at the Annual Meeting of the Society of American Archivists in Toronto, Canada.]

"PRIVATE" PAPERS OF PUBLIC OFFICIALS: AN ANALYSIS OF THE ARCHIVIST'S DILEMMA

(By J. Frank Cook, Director of University of Wisconsin Archives, Madison, Wis.) The archival profession received more public attention in 1974 than in all the forty years that have passed since the establishment of the National Archives. This publicity resulted, of course, from the interest of the American people in the controversy surrounding President Nixon's transfer of his Vice-Presidential papers to the National Archives. What appeared at first to have been a routine operation became a major political issue, contributing to the pressures that led to Mr. Nixon's resignation. The resignation of President Nixon depended on larger and more important issues than the matter of the legality of a tax deduction for the donation of "personal" papers. But for the archival profession the implications of this one issue raise questions of paramount importance.

41-660-745

Other speakers at today's program will present a variety of points of view and to prevent any misunderstanding or confusion it is best that I frankly state my position: the papers of public officials belong to the people and any legislative acts, legal interpretations, administrative policies or hoary traditions to the contrary have not been in the public interest. F. Gerald Ham, Archivist of the State of Wisconsin and president of the Society of American Archivists, put it well in an interview for Time magazine last December: "I think it is a fiction that those are private papers. The very great bulk of these papers originate from one activity only-that of serving in a public capacity. I think they should be public papers."1 H. G. Jones made the same point even more bluntly in his book, Records of a Nation. After asserting that President Franklin D. Roosevelt clearly established the people's claim to ownership of their chief executive's files, Jones declared: "... the prerogative assumed by his predecessors in asserting private title was in fact only a lingering vestige of the attributes of monarchy, not an appropriate or compatible concept of archival policy for the head of a democratic state to adopt."

Unfortunately, there is an equivocating corollary: Even if the public nature of the records of public officials were conceded, the long established custom of allowing public officials to determine for themselves what is and is not public information may be almost impossible to change, and any attempt to enforce new laws forbidding private ownership of public files might lead to the illegal destruction of records by officials unwilling to sumbit their careers to complete public scrutiny. In short, I view the archivist as being in a dilemma which will require much careful consideration if a solution is to be found. I would like to examine with you today: (1) Nixon's donation of his Vice-Presidential papers, (2) the effect on manuscript donations of changes made in the tax laws in 1969, and (3) the potentially disastrous consequences of the National Archives and Records Service's position that a president owns his presidential files.

3

Just as it did in the case of the illegal entry into the Watergate headquarters of the Democratic Party, the Washington Post broke the story of Nixon's donations of his Vice-Presidential papers. Articles detailing the alleged irregularities and apparent violations of tax laws by the White House in making the donation appeared on the 10, 12, and 16th of June, 1973. Reporter Nick Kotz declared that the President and his advisors tried to beat the 1969 deadline on deductions for donating one's own papers and as a result used "markedly different procedures from previous presidential gifts." Little if any investigation of the issues raised by the Post accounts took place until the President revealed portions of his income tax records following his November 17 press conference. Provided now with some fiscal documentation, others began to investigate Nixon tax returns. Taxation With Representation, a Washington, D.C. based group who regard themselves as "Tax Experts Representing the Public Interest," prepared an exhaustive study entitled The President's Papers Deductions. In addition to reprinting the Post articles, the report contains seven commentaries by prominent tax lawyers-all of which criticized the President's deduction. The volume also reprinted an excellent legal analysis by Ira D. Tannebaum of Tax Analysts and Advocates, a public interest law firm in Washington, D.C., entitled "Income Tax Treatment of Donation of Nixon Pre-Presidential Papers."

The investigations concentrated on the issue of whether or not the President had met the legal requirements for a deduction. Questions focused on (1) the validity of the deed, (2) whether it had been signed by both the President and a representative of the National Archives before the deadline for such deductions, (3) the legality of a donor restricting access to a gift, (4) the possibility that the papers to be deeded as opposed those on deposit there had not been properly delivered in 1969, (5) the possibility of fraud, and (6) the efforts of the White House to lobby against the 1969 tax law which ended deductions for donating personal papers. A detailed examination of all these points is beyond the scope

1 Time, December 31, 1973, p. 12.

2 H. G. Jones, Records of a Nation (New York: Athenum, 1969), p. 155.

3 Washington Post, June 16, 1973. p. 1.

4 New York Times, December 18, 1973, p. 1.

5 Taxation with Representation, The President's Papers Deductions (Washington, D.C.), pp. 1-97.

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