with respect to the treatment of such materials until they can be collected and disposed of according to the ex-President's wishes. We are advised that the materials previously deposited with the Administrator of General Services were likewise transmitted and received with the understanding of continuing Presidential ownership.

I must, however, exclude one category of documents from the scope of this opinion concerning ownership and advise you that their status cannot be definitively determined on the basis of presently available information. Although the fact is not recorded in the published materials we have examined, our inquiry indicates that at least in recent memory certain "permanent files" have been retained by the Chief Executive Clerk of the White House from administration to administration. These include White House budget and personnel material, and records or copies of some Presidential actions useful to the Clerk's office for such purposes as keeping track of the terms of Presidential appointments and providing models or precedents for future Presidential action. Retention of these materials by the Chief Executive Clerk is of course not necessarily inconsistent with initial Presidential ownership. In light of the otherwise uniform practice with respect to much more important official documents, relinquishment of these materials may reasonably be regarded as a voluntary act of courtesy on the part of the outgoing Chief Executive. I cannot, however, make an adequately informed judgment concerning these files without more extensive factual and historical inquiry, which your need for this opinion does not permit. Of course, even if such inquiry should show that these particular documents have been regarded as Government property, that conclusion would not support a generalization of Government ownership with respect to the much more extensive other material covered by this opinion, as to which the Presidential practice and congressional acquiescence are clear.

As to the obligations of the Government with respect to subpoenas and court orders directed to the United States or its officials pertaining to the subject materials; Even though the Government is merely the custodian and not the owner, it can properly be subjected to court directives relating to the materials. The Federal Rules of Criminal Procedure authorize the courts, upon motion of a defendant, to order the Government to permit access to papers and other objects "which are within the possession, custody or control of the government. . . ." Fed. R. Crim. P. 16(b). A. similar provision is applicable with regard to discovery in civil cases involving material within the "possesson, custody or control" of a party (including the Government). Fed. R. Civ. P. 34(a). In addition, in both criminal and civil cases, a subpoena may be issued directing a person to produce documents or objects which are within his possession, but which belong to another person. Fed. R. Crim. P. 17 (c); Fed. R. Civ. P. 45(b). See, e.g., Couch v. United States, 409 U.S. 322 (1973); Schwimmer v. United States, 232 F.2d 855, 860 (8th Cir., 1956), cert. denied, 352 U.S. 833: United States v. Re, 313 F Supp. 442, 449 (S.D.N.Y. 1970). I advise you, therefore, that items included within the subject materials properly subpoenaed from the Government or its officials must be produced; and that none of the materials can be moved or otherwise disposed of contrary to the provisions of any duly issued court order against the Government or its officials pertaining to them. Of course both the former President and the Government can seek modification of such subpoenas and orders, and can challenge their validity on Constitutional or other grounds.

Respectfully,

S/WILLIAM B. SAXBE,
Attorney General.

Mr. BINGHAM. Enactment of legislation such as I have proposed would not reverse any prior legislative action, thereby perhaps taking title from a present owner, but instead would establish by statute public title to documents whose ownership has never been definitively decided before.

In the months since I introduced this legislation, I have considered its ramifications in some detail and have concluded that further study and refinement may well be necessary. There are serious and complex questions involved which are not easily answered. How should access to these materials be allowed and who should establish such rules as are deemed necessary?

What protection should be allowed for personal, political or national security matters? Would this legislation impede elected officials in their duties since they might fear early disclosure of embarrassing or confidential information?

I think that Dr. Rhoads in his statement has pointed out in a very comprehensive way the difficulties and complexities of this matter. Like almost everything we run into in Government, something which seems simple at the outset turns complicated as one looks into it.

Other questions that must be faced are: What if officials surreptitiously make efforts to purge their files while still in office? What if the Supreme Court should ultimately decide that former Presidents do have a property right to their papers? Should not a method of compensation then be provided?

Because of these complexities, I support the establishment of a National Study Commission on Federal Records and Documents of Federal Officials, as you proposed, Mr. Chairman, on September 26. Hopefully such a Commission could study these questions and others and recommend to the Congress detailed legislation to deal with them. However, as you also pointed out, Mr. Chairman, there remains an urgent need for action to prevent the implementation of the pending agreement concerning materials generated in the White House during Richard Nixon's 512 years in office. That agreement has not been implemented because of objections raised by the Special Prosecutor, and perhaps because the reaction to that agreement in Congress has been devastating. Both House and Senate Appropriations Committees have refused to approve President Ford's request for $110,000 to implement that agreement by building and maintaining a storage facility in California for the documents. But delay in congressional action to block the transfer of these presidential tapes and papers must be avoided.

If immediate action is not taken on legislation establishing the Government's proprietary right to these materials, then I urge you to incorporate provisions in the bill you report asserting the Federal Government's rights to the Nixon tapes and documents and requiring that they remain in the custody of the Government in Washington, D.C. While you have indicated you don't have jurisdiction over that, this puzzles me, because my bill, which asserts that property right, has been referred to the Committee on House Administration.

As you know, the Senate Government Operations Committee last week reported legislation to block the papers agreement by directing the Administrator of General Services, notwithstanding any agreement with the former President, to obtain complete possession and control of all tapes and documents as a kind of protective custody for critically important public business. The committee relies heavily on the Truman precedent, cited by Attorney General Saxbe, under which certain of the Roosevelt papers relating to the prosecution of World War II were retained by President Truman for a limited period of time.

However, the Senate committee did not take a position on the question of property rights, merely providing for just compensation if a U.S. court of competent jurisdiction should rule that Mr. Nixon was deprived of his rights to the materials involved. Such a court test is probably inevitable and necessary, but a positive congressional dec

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.

Thank you.

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.

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. BRADEMAS. Thank you.

Mr. Koch?

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