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STATEMENT OF DR. JAMES B. RHOADS, ARCHIVIST OF THE UNITED STATES

Dr. RHOADS. I wish to thank the chairman for inviting me to give testimony on H.R. 16902, a bill to establish a national study commission on Federal records and papers of elected officials.

We all know by now that the Nation's preoccupation of recent months has been especially related to documents and other forms of historical materials and particularly to those relating to the Presidency. Today the people of our Nation are still not sure that the record of the last few years has been or is being preserved adequately for historical interpretation. Consequently, bills have been introduced in the Congress and surely there will be more such bills-that are designed to change the status of papers of elected officials from that of private property to something described as public documents. The demand for such a change can be heard not only in the halls of Congress and in the journalism fraternity, but also within the professional societies of archivists and historians.

We in the national archival system are troubled by these efforts to change suddenly a 200-year-old tradition. I suppose this is partly because we are responsible for administering the present system, and because we have tried so hard to make it work that we believe in its essential soundness. But beyond that, we think that the changes now being proposed have evidentiary and constitutional implications that may bring results in the future which the authors of the pending bills do not anticipate and would not wish. Nonetheless, we archivists recognize the need for a thorough review of the traditional arrangements for the preservation of the records and other documentary sources of our national life.

During the last 60 years, we have experienced a paperwork explosion much larger than anything that could have been predicted by the Taft Commission of 1912; that Commission tried, among other things, to solve problems in paperwork caused by the invention of the typewriter. Today's explosion is hastened and complicated by the nearly infinite capacity of Xerox and other reproduction machines to multiply copies, to disseminate information, and to glut files. Furthermore, the tragic or at least hard-learned events of recent years have reminded us that we must respect the critical nature of documents as evidence of men's actions. Surely the traditional concepts for preserving and servicing archives cannot be expected to serve the expanded needs of the present and the future unless they are reviewed and updated from time to time.

Therefore, while we are disturbed by the clamor for a quick change in the nature of the personal papers of elected officials, we strongly support the call for a study commission to examine the foundations of historical evidence and the presumptions about what should be kept and how best to preserve it to serve the needs of the future. Our archival problems are both philosophical and procedural; a study commission can be a good approach to solving them, provided that the commission is well staffed, and provided also that it has a clear charter and a wellset agenda.

I think it is important to begin by expressing the two general principles which infuse and guide a national archival system and which

should also guide any study commission that is formed to review its conceptual problems. First, whatever arrangements we make must assure the maximum preservation of useful historical material; and, second, those arrangements must aim at the earliest practicable public accessibility of that historical material for researchers to use and interpret. There is a natural tension existing between these two principles; pressing the one discourages the other. We are interested in preserving the best evidence. Yet, if we pursue the public accessibility of that evidence with too much vigor or too much haste, we may discourage the creators of records from leaving adequate documentation for archivists to keep and historians to sift. We must therefore always seek a balance between these two general principles. We believe that when they are kept in balance they form the two parts of an axiom; mankind is entitled to its history, and history requires evidence.

Keeping these principles in mind, we think that the commission should examine the nature of public records as an adequate documentation of the affairs of Government, test our traditional definitions and practices regarding public records, examine the role of elected officers as they generate and retain files reflecting both politics and public administration, and seek to find the best and most equitable means for documenting their role in public affairs. In addition, the commission should not overlook the question of the nature and disposition of the records created by appointed officials such as Cabinet officers, White House and congressional staff, and Federal court justices.

From our experiences as archivists, we can suggest where many of the problems lie for this study commission, but I must point out that the solution to them is essentially a political one. The traditional view from the beginning of our Republic has been that elective offices are constitutional and that the public actions of the incumbents of elective office are effectively reflected in such public documents as the acts of Congress, proclamations, diplomatic letters, and so on. The traditional view holds that the files of an elective officer are informal, not required to be kept, and not subject to statutes controlling Federal recordsall because the elected official has a right and a need to protect the confidences that he allows to become a part of his files.

Let me examine for a moment the meaning of the personal property claim as it applies to the papers of elected officials. The claim arose at the end of George Washington's Presidency. Washington-relying on the British tradition that the sovereign's working papers were the sovereign's personal property-claimed that the files of his office. which supported the official record of Government action were his personal files and thus his personal property. The files which he claimed consisted of correspondence, notes, drafts, and working papers-not official records of action. He felt that these supporting files were peculiar to himself and to his occupancy of the Presidency and that they should not rightfully pass to his successor. His distinction between personal papers and official records has remained to this day as the traditionalist view because we have found no better alternative for the protection of the political liberty of those who run for public office. When a man chooses to run for elective office and-more than that to spend a lifetime in seeking, holding, and defending his elective office, he engages in a highly competitive and even an incendiary occupation. He is always in the public eye and pursued by a relentless

press; his decisions are scrutinized by his opponents for some misjudgment; 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?

CONCLUSION

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 a 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.

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