DISAPPROVING THE REGULATIONS PROPOSED BY THE GENERAL SERVICES ADMINISTRATION IMPLEMENTING THE PRESIDENTIAL RECORDING AND MATERIALS PRESERVATION ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP10T01930R000500160013-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 52
• Document Creation Date: December 22, 2016
• Document Release Date: October 17, 2012
• Sequence Number: 13
• Publication Date: September 11, 1975
• Content Type: REPORT

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94TH CONGRESS
1st Session J
REPORT
No 94368
DISAPPROVING THE REGULATIONS PROPOSED BY
THE GENERAL SERVICES ADMINISTRATION
IMPLEMENTING THE PRESIDENTIAL
RECORDING AND MATERIALS
PRESERVATION. ACT.........
REPORT
OF TM
COMMITTEE ON.,GOVERNMENT OPERATIONS;`
UNITED STATES" SENATE
TO ACCOMPANY
S. Res: 244 .
DISAPPROVING'. THE` REGULATIONS PROPOSED BY THE
ADMINISTRATOR OF GENERAL SERVICES UNDER THE
PRESIDENTIAL RECORDINGS AND MATERIALS
PRESERVATION ACT
U.S. GOVERNMENT PRINTING OFFICE
56-497 WASHINGTON : 1975
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';;:r_, ;.; ,t. ', tt"
COMDIITTiE ON GO~ERNMENT`OPERXTIONS
JOHN L. McCLELLAN, Arkansas
HENRY M. JACKSON. Washington
EDMUND S. MUSKIE, Maine
LEE METCALF. Montana
JAMES B. ALLEN. Alabama
LAWTON CHILES. Florida
SAM NUNN. Georgia
CHARLES H. PERCY, Illinois
JACOB K. JAVITS, New York
WILLIAM V. ROTH. JR., Delaware
i Fi. ', BIB 3 CROCK, Tennessee
LOWELL P. WEICKER, JR., Connecticut
TORN-GLENN.1OhIo1 1-
,r I r.~
!. ~_ l< /:PULL LEVE"TH_kL:Conrisc)lx'. 1 !
ELI E. NOBLEMAN, counsel
D..AVID',Rf,SCHO)qEER, Counsel
MATTHEW SCHNEIDER, counsel
JOHN B. CHILDERS, Chief, Counsel, to the Minority
BRIAN CoNnoY, ;Special:Uou oset fo'the Minority
MARILYN A. HARRIS, Chief Clerk
T y;-! (,:''I ;Y'EI IeA"BSrH A. `PeEAST, 4ss stttaut:Cleief.Clerk : f. 'f d, r;:i ?" t < i l:.
:,W j" + Haiwin, C. A DERSON~ Staff EYtitor ,Y a' , Y;
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CONTENTS
Purpose----------------------------------------------------------
Page
1
Background-------------------------------------------------------
1
Hearings-------------------------
2
Committee action------------------
3
Provisions which should be revised-_
Conclusion--------------------------------------------------------
15
Roll call vote --------------------------------------=----------- = --
15
Appendix:
Resolution disapproving the regulations proposed by the Administra-
tor of General Services under the Presidential Recordings and
Materials Preservation Act ------------
Public Law 93-526-Presidential Recordings and Material's Preserva-
tion Act----------------------------
17
Part 105-63-Preservation and Protection of and Access to the Presi-
dential Historical Materials of the Nixon Administration. (From
the Federal Register, January 14, 1975.) ------------------------
25
Proposed regulations to implement title I, Public Law 93-526, Presi-
dential Recordings and Materials Preservation Act (March 1975.)--_
31
Memorandum: Authority of GSA to vest final Administrative Au-
thority for Public Access to Presidential Tapes and Materials in the
Presidential Materials Review Board. (Prepared at the request of
Senator Gaylord Nelson by the Library of Congress, Congressional
Research Service, by Vincent E. Treacy, Legislative Attorney,
American, Law Division, July 16, 1,975.) ------------------------
39
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=ten vvuu or.i~ATE
aa REPORT
1st Session j 1 No. 94-368
DISAPPROVING REGULATIONS PROPOSED BY THE GENERAL
SERVICES ADMINISTRATION IMPLEMENTING THE PRESIDEN-
TIAL RECORDINGS AND MATERIALS PRESERVATION ACT
SEPTEMBER 11, 1975.-Ordered to be printed
Mr. R.ibicoff, from the Committee.on Government
Operations, submitted the following
REPORT
The Committee on Government Operations reports ,in original
resolution (S.. Res. 244) disapproving the regulations proposed by the
Administrator of General Services under the Presidential Recordings
and Materials Preservation Act, and recommends that the resolution
be agreed to.
PURPOSE
The purpose of this resolution is . to disapprove the regulations
submitted by the Administrator of General Services pursuant to
title I of Public Law 93-526 which, in the judgment of the Com-
mittee, are not consistent with the basic objectives of the Act, and
do not conform to the specific criteria set forth therein.1 (Copies of
the resolution, the Act and the pertinent regulations are set forth
in the appendix to this report.)
The regulations here involved will become effective upon the
expiration of 90 legislative days 2 following their submission to the
Congress on March 19, 1975, unless disapproved by either House of
Congress by the adoption of a.simple resolution.
BACKGROUND
Title I of Public Law 93-526, the Presidential Recordings and
Materials Preservation Act, provides that the U.S. Government retain
custody of the Presidential materials of former President Richard M.
I It should be noted, however, that none of the regulations will actually become operative unti ]the basic
issues of constitutionality have been decided by the courts. Present indications are that such court action
is not likely to he concluded before some time next year.
s Tor the purposes of the Act, the term "legislative days" does not include any calendar day on which
both Houses of the Congress are not in session.
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Nixon and that the Administrator of General Services, who is made
responsible for their preservation and custody, propose regulations
governing public access to such materials, taking into account certain
criteria set forth in section 104 of the Act.
The Act further requires the Administrator, within 90 calendar
days following enactment, to submit to the Congress such proposed
regulations,' together with an explanatory report, and provides that
such regulations are to become effective upon the expiration of 90
legislative days following their submission, unless they are disapproved
by either House of the Congress by the adoption of a simple resolution.
Pursuant to these provisions, the GSA Administrator submitted
the proposed regulations to the Congress on March 19, 1975.
The basic objectives of the Act are (1) to protect and preserve the
tape recordings of conversations, and other materials, recorded or
prepared in the White House, the Executive Office Building, and cer-
tain other specified places, :between January 20, 1969 and. August 9,
1974; (2) to make them available to the Special Watergate Prosecution
Force; (3) to provide for appropriate public access to them; and (4)
to make them available to Richard M. Nixon, or his designees, for
copying or any other purpose consistent with the Act and with regula-
tions promulgated by the Administrator of General Services relative
to their security and preservation.
The specific criteria, which the Administrator is required to take
into: account in developing the regulations, are set forth in section
.1Q4 of the act, as follows:
(1) the heed to provide the public with the full truth, at the
earliest.reasonable date, of the abuses of governmental power pop-
ularly identified under the generic term "Watergate" ;
(2) the need to make such recordings and materials available
for use in judicial proceedings;
(3) the need to prevent general access, except in accordance
with appropriate procedures established for use in judicial pro-
ceedings, to information relating to the Nation's security;
(4) the need to protect every individual's right to a fair and
impartial trial;
(5) the need to protect any party's opportunity to assert
any legally or constitutionally based right or privilege which
would prevent or otherwise limit access to such recordings and
materials;.
(6) the need to provide public access to those materials which
have general historical significance, and which are not likely to
be related to the need described in paragraph (1) ; and
(7) the need to give to Richard M. Nixon, or his heirs, for his
sole custody and use, tape recordings and other materials which
are not likely to be related to the need described in paragraph (1)
and are not otherwise of general historical significance.
HEARINGS
A hearing on the, proposed regulations was held on May 13, 1975
in order to afford the Committee an opportunity to determine whether
the proposed regulations were in accord with the basic objectives of
the Act, and whether they conformed to the specific criteria set forth
in section 104 thereof.
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Appearing in support , of the proposed regulations were Arthur
F. Sampson, Administrator of General Services, accoinpanied l)y NIt?.
Ted Trimmer, General Counsel, Dr. James B. Rhoads,. the Archivist
of the United States, and other members of Mr. Sampson's staff.
Senator Gaylord Nelson, principal sponsor of the legislation, pre-
sented'comments.with respect to, the proposed regulations, with special
.reference to those. provisions which, in his judgment, appeared to be
ambiguous or inconsistent with the intent of the Act, and suggested
alternate language designed to eliminate inconsistencies and clarify
ambiguities..
In addition, the Committee received a joint submission from, the
American. Historical Association and the American. Political Science
Association, statements from. the Society.of American Archivists, the
Organization' of American Historians and the Watergate Special
Prosecution Force:
At the close of the hearings, the Chairman of the.Committee, and
,Senator Nelson, each submitted to. the Administrator a? list of. ques-
tions relative to various aspects of the proposed regulations. Mr.
Sampson's replies thereto have..been inserted in the hearing record'.
Thereafter, the American Historical*Association and the Aii erican
Political. Science Association submitted responses to souie'of the, legal
contentions contained in Mr. Sampson's replies which were also
inserted in the record. Senator Nelson also submitted two ' legal
memorandums prepared at his request by tlie,Ainerican Law Division
of the Congressional Research Service, Library,of Congress..
COMMITTEE ACTION
Following a complete review of the proposed regulations and the
hearing record, the Committee cone] uded'tha:t many of the regulations
con-iplied with the Act and were consistent with the intent of Congress.
The Committee found, however, that a significant number of provis-
ions were not consistent and should. be disapproved. Since the proposed
regulations cannot be revised or amended, except is provided for in the
Act, and GSA contends that it would be difficult for them to imple-
ment the remaining. regulations if only those provisions were dis-
approved,' the 'Committee concluded that it should' recommend dis-
approval of all of the 'regulations to prevent the unacceptable pro-
visions from becoming effective.
Although,,under the Act, the Administrator of General Services will
have 90 calendar days following the ad.optiozi by, the Senate of the
resolution of disapproval, to submit revised regulations, the Committee
expects the Administrator to submit revised regulations no later than
October 10, 1.975, in accordance with the directions of the Committee.
Thereafter, the amended regulations will become effective following
the expiration of 90 legislative days .from the date of submission,
unless disapproved by either House of Congress.
The major issues.which developed from the hearings and subsequent
discussions between members of the Committee staff and representa-
tives of the General Services Administration related to (1) the
validity .and propriety of restrictions on access involving national
security and personal embarrassment, and (2) whether final determi-
na.tions for the' purposes of judicial review should be Vestecl_solely
in the Administrator, a political appointee,: or whether they should be
vested in the Presidential Materials' Review Board., to be established
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by the regulations' an d..coinpo'sed of persons professioinall}= Ytrained
in archival' science, with respect' to (a)`~whether materials. are histor-
ically significant and are to be retained by- the - Government; ror are
of a purely personal nature, to be returned to Mr.` Nixon; and ; (b)
whether materials should be:withheld from p>.iblic'access.
The "Administrator of General Services bas 'contended; that he does
gatejudgmental responsibilities
not have authority irrevocably to dole
iiosed'-iipon-him by 'the Congress "pursuant to the Act, 'since the
does not authorize such delegation. Based 'upon its own studies,
supported by the legislative history, of the Act and a memorandum
from the American, Law Division' of the, Congressional ' 'Research
Service of'the Library of Congress, the Committee believes that the
Act grants the Administrator' authority only' to propose and explain
regulations and not, to control "and regulate 'access to the materials.
However,?if such authority had been delegated to the Administrator,
such it, subdelegation would have been authorized. (A copy of the
memorandum from the Library of Congress is set ' forth' iii ' the
appendix.)
Finally, the Committee believes that in order to carry out the' intent
of the Act, final judgment relative to public access should be lodged
in persons competent in. archival sciences such as the' members of the
proposed Presidential Materials Review Board. .
Set' forth below is an analysis.. of 10 provisions, of -the proposed
regulations which, in the judgment of the Committee; require amend-
ment. or modification. Accompanying each such. provision, is an
explanation and proposed " substitute language to -guide the Ad-
ministrator of General Services "in submitting amended regulations.'
Where. appropriate, the new submission. by the, GSA Administrator
should include, amended section headings , to. reflect, changes in
substance:
PROVISIO\S WINCH SHOULD BE REVISED,
1. Section 105-63.401-1. Rights and privileges,; .rights to a. f air trial.
Subsection (c).provides as 'follows:
(c) In his discretion, the Administrator may consider. claims
and petitions described in paragraphs .(a) and (b) of . this
subsection after the expiration of 90 calendar days from the
effective date'.
This provision. "must be 'read in. conjunction with the other pro-
visions to which it refers. Paragraph (a) allows an,, (i.e.
Mr.. Nixon. or.a .former. White -House aide) to-petition GSA, within
90 calendar days after the effective date of the regulations, to restrict
access to certain Presidential materials because of 'a.legal.'or consti-
tutional . rigght or privilege possessed by the petitioner (i.e. right to
privacy). 'Paragraph' (b). -allows a Federal, State`orlocalgovernment
attorney to petition t'he GSA, within 90 calendar days after the effec-
tive date of the regulations, to restrict access 'to Presidential'Inaterials
'whose public "disclosure would 'prejudice a particular individual's
right to a fair and impartial trial.
Paragraph (c) provides that a person will have no right to have a
petition considered after the 90 days have passed. While the Ad-
The Presidential Materials Review Board is'to be composed of the. Archivist of the ''.United States, the
Librarian of Congress and a' representative of the'Society of American Archivists.
- s The full text of the pertinent regulations is set forth in the appendix,,at pp. 25, 31.
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ministrator..may,.iu his discretion, consider petitions,. filed after that
date ,the,GSA:states that it will not consider any petition concerning.
materialalr-eadymade,public.
This,. provision raises a. very significant issue.. Since a concerned
individual is not.likely, to have any knowledge or reason. to: know. that
the materials. include, information about-?him, which can lawfully be
restricted,., he may not learn of the.existence of such information-until
the 90-day. period has expired. Likewise, a Government attorney may
not learn of. the inclusion of relevant, materials until the expiration of
such period..:
To provide adequate protection.of individual rights, GSA should be
required to consider a petition filed after 90 days,, even if the material
has already been made available to the public. Otherwise, a person
would be powerless to exercise his legal rights. meaningfully in situa-
tions in which he may suffer 'a violation of a constitutional or legal
right. (Although available, the materials might not,have been m-
spected by anyone before the late petition is filed; or if someone has
already inspected the relevant materials, he may not publish them to
the world.). '
Toremedy :these problems, it is recomm ended that this subsection
be amended'as follows:..,.
(c) The Administrator will' consider- claims and petitions
described in paragraphs (a) and (b) of this subsection, filed diter-
the expiration of '90 calendar days from the effective date, where
there'- is good cause for the failure to file the claim or - petition-
within such '90-day period, and the claim or petition is filed
within ' 90 calendar ' days after the claimant or- petitioner be-.
comes aware -of the ,release of such materials, or, has reasonable
cause to'file such.petition or claim, to prevent release of such ?
materials. [In his discretion, the] The Administrator may
consider other claims'and petitions-described in'paragraphs (a)
and (b) of this' subsection after the.expiration of 90 calendar
days from the effective date.
2. Section 105-68.401-2.-Segregation and review; Senior Archival
Panel; Presidential Materials Review Board.' .
Subsection (d) provides as follows :
(d) If, during the processing period described in ? 105-
63-401 (b), the archivists should discover any materials
which they determine reflect an apparent- violation of law
which has not been the subject of prior investigations, the
archivists shall bring the material to the attention of the
'Administrator for referral to the Department of Justice or
other appropriate action.
This subsection places an unnecessary qualification oii.the' archivists'
and Administrator's responsibilities.. Archivists may not be .familiar
with all "prior investigations;" and even if they' were, the prior
investigation may be ongoing or capable of being reopened. Therefore,
the archivists should refer all information bearing. on - potential
criminal activity to the Administrator. The Administrator, in turn,
should be required to forward all ,'such' material=however innocuous
in appearance-to the Justice Department. The Adiiiinist'r'.ator is in no
position 'to' evaluate the relevance' of any m.'aterial to any ongoing
investigation which -may or may not, be known' to him. Further, the
S.R. 368-2
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detei?mination.of \aha?t utformation-;may be xelevaut. to .an ongoing,
investigation is not an appropriate functioii'of the Administrator., :.
'(d)? If, 'during. the -processing 'period described iri ' ? !05-
63.401 (b), the. archivists should 'discover materials -,i hick
reflect an :C.ppareilt violation of -jaw; [`'N"hich' has, not been
the 'subject of prior'iizvestigati:oii,]'`the archivists sh.a,ll bring
the material to the attention of the Administrator for referral
to'the Department of-Justice [or other appropriate action:]
or un?1 other appropriate agency of the United States vwhich has'
the responsibility for investigating violations`of law.
'3. Section 105-63.401=2.--Same.
Subsection: (h) :provides as follows:
(h),When the matter'certifiecl'to the Board,1 by the Senior
Archival. Panel involves a determination required in para-'???
graphs (a) or (b) of this subsection, the Administrator, Will
publish, notice in the Federal?'Register of the. materials to be-
considered by the Board.. In order to protect the priva'cy'of
persons who mav?ha.ve such an interest in_ the materials,.the
notice s a.ll consist only of a generic description and listing.
of..tlie Materials'to be considered by the Board. Any person
coati ;teivelie. in the Board's ,consideration by.petitioning
the A'dministrator. in iv iting,witliin 30calendei .days of publi-
cation'of.notice:' The Board shall submit to the Administrator
its, written recommendation; together with, dissenting and.,
concurring. opinions, of the .proper. categorization and dispo-
sition of the`pertifieiit materials. The Administrator Will.m.ake
the final administrative determination. If the determination
of tlie,Admiilistrator is different from that recommended by
tlie?Board, he will state hi s reasons iii writing. The Adminis-
trator will notify the petitioner by certified, )nail, return
receipt regilested;`of the final?'administrati~e determination.
The Administrator will refrain' from traiisferring--any mate-
rials in accordance with ? 105'63.401`5(a), as a result of the
final administrative determination for at least.30 calendar
days froze the petitioner's receipt of such notice.
The prob'letn with'this' subsection is that it affords the Administra-
tor uiifettered-discretibi:to'lnake the final 'ddm nisti?atii,6 determina-
tion tis'to which materials sho ild'be retained for public'access.1 It is
ill-advised 'to provide the Administrator ,with ?sitch power' for at least
two reasons.
.First,; as the GSA report, states; decisions regarding the- reten-
tion: of. the Nixon: presidential -.materials should be made on a, non-
partisan basis and should; reflect the jud.gement,of those trained. in
archival science. The GS4. Administrator-a, political appointee who
serves at the pleasure of the President and iyho normally is not trained
.
followsc,.
~'o. remedy .this problem; .this..siibsection should
,'be.amended"as
r The Presidential Materials Review Board is to be composed of the Archivist of the United States, the
Librarian of Congress and a representative of the Society of American Archivists.
This regulation concerns only whether particular items are historically significant and therefore within
the legislative definition of "presidential historical materials." This regulation does 'not concern the restric-
tions on public access, such as national security limitations.
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1 ,. z ?~R.rP-~- His
in archival; science can add role, tq; l be `., ubstan"i e of nonpartisan,
archival' decisions The . 'iesicleiitra. 'Iatenal~ l ev,iew Board is;com-
posed of;tl ree individi;als tiained in ar6nval srien9es...
Second, granting the Administrator unchecked. power is likely to
inciease'tli"e`risk' ootli?ri're,ility-and in
alipeaiaiice`tlia,t'pnit`isan
political doneorns-~ ili govern d'ecisions:conce'rning t)he'reteiition of the
Nixon Presidential materials. This is not inteiidetl as-a cria.icis5li'cif 'tlie'
current Administrator: The Congress and the'A~ne'ricaii penple'sliouild
not have to be concerned writh..the?possibility.-that at some future time
under ~sonie feature ,cit'cunastances, ,.t)ie .Aclministra:tor -'glr t::succumb
to political temptations.
To ,eliulinate ?these_problems, this subsection-should be'amended as
follows:' {
(h.)-Tlren> the im a;tter certified to the Board by the Senior
Archic-al. Panel involves a deteimiiiatioi 'i?egtiired' in'para=
graphs'.H(a). oi? (b) of, this 'subsection; the Administrat6r?' i1
publish, notice in the Federal ll:egister of -the meTterlids' fso be
considered' by'th Board: In order. tnprotect: the-priva,dy of
persons Who rimay? have suc)' ~an'inteiest in
the ~ri7P'teria)s;
the notice?shall "consist only of;a generic description'aiid'list~
ing ofcthe'niat,eria`isto?be`conitidered by the Board':=Aii~-. pet
son n1a~r intervene=in the.Board':s consideration b~T'petit;itht
ing 'the Aclinia.stia'tor 'iii' wrrtrng ~nit.li'in 30! calendar clays `o?
publication of:.notice. Tli,e`BO?ard' shall-submit to:the? Adinin-'
istrator its written Erecommendation]' decisidni;"toaetkei
with. dEssenting ,and_ concurring, opinions,. of the, proper; cater
gorization and disposition of- the pert,irient.;materals, ? Ion.:,.
purposes of judicial review, the [Administraatoi] Board's. deci-
sion will (ma.kel be t'lie `fi.ir'a1''aidin`inistre tive il'ete miiia.tiou`.
[If the: determination of, the Administrator is. differsii't from
that:recomm.ended,by the Board; he- will state his reasons'in
writing.] The `Administrator- will notify the: petitioner :?b ~.
certified mail, return.receipt requested, of the final adminis-.,
trative determination, within 30 calendar days ,following
receiptof,such determination. The Administrator:will'refrain
from transferr-iit'any materials 'in aecordaaice Ri'th''`?lOb=
63.401-5(a) as--a- result"af the' final 'i~liniriistrati~ e'detei
urination for at least: 30 calendar days from the l3etitioner's:
(d) Upon;tconsid.eiation: of.''appeals.as described-in ,p.ar.a-.
graphs (a.), or (b) oX this. subsection,: the Board shall , ,'ibixdt
to the.. Administrator its w itten reco,zilimeiidation, together
with -dissenting and concurring opinioii.s, of th?e.:;prop,er
categorization and, disposition. of the pertinent materials The
Administrator will iilake the "fir sl adrrih%stiatii-e det^?m=na`
Subsection ('d')'pi`orides,as follO*t': '
receipt of. such notice.
A 1ngrQ /1)1
tioii: If tlie''deterhrinatioA of the,-Ad niinisti'aor:is.d ffererit
from that -i:ecol' amended by 'the Board, 'he will state) his
reasons in. writing. The Administrator, will notify the.'peti-
tioner by certified riiail', r'etuin`receiptnequested; of the final.
administrative determination. The Administrator will refrain
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from transferring any materials in accordance with ? 105-
63. 401-5(a) as a result of the final administrative determina-'
tion for at least 30 calendar days from the petitioner's
receipt of such notice.
This provision, like section 105-63.401-2(h), affords the Adminis-
trator unfettered discretion to dispose of petitions concerning the
retention. of certain materials.'
Therefore, this subsection should be amended as follows:
(d) Upon consideration of appeals as described in para-
graphs (a) or (b) of this subsection, the Board shall submit
to the Administrator its written [recommendation] decision,
together with dissenting and concurring opinions. of the
proper categorization and disposition of the pertinent mate-
rials. For the purposes of judicial review, the [Administrator]
Board's decision will [make] be the final administrative
determination. [If the determination of the Administrator
is different from that recommended by the Board, he will
state his reasons in writing.] The Administrator will notify
the petitioner by certified mail, return receipt requested,
of the final administrative determination within 30 calendar
days following receipt of such petition. The Administrator will
refrain from transferring any materials in accordance with
? 105-63.401-5(a) as a result of the final administrative
determination for at least 30 calendar days from the peti-
tioner's receipt of such notice.
5. Section 105-63.402-1.-Restrictions; materials related to abuses
of governmental power.
Subsection (a) provides, in pertinent part, as follows:
(a) The Administrator will restrict access to materials
determined during the processing period to relate to abuses
of governmental power, as defined in ?105-63.104(c), when :
(4) The release of the materials would disclose or com-
promise national security classified information. However,
the Administrator may waive restriction when:
(iv) The requester has signed a statement, satisfactory to
the Administrator and to the heads of agencies having
subject matter interest in the material, which declares that
the requester. will not publish, disclose, or otherwise com-
promise the classified material to be examined and that the
requester has been made aware of Federal criminal statutes
which prohibit the compromise or disclosure of this in-
formation.
There are two principal difficulties with this subsection.
First, it would restrict access to materials whose disclosure would
"compromise" national security classified information. This standard
1 This regulation concerns only the retention of the materials and not the restrictions to be imposed on
publie access.
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is far too -va.gue. Conceivably, it could be argued that disclosure of
virtually :.any Presidential,; material., would ."compromise" national
security, - information., Congress should therefore,. rely on existing
standards. Under present law, the Government.. can classify. any item
when its disclosure would reveal or compromise sensitive information.
(See 'Exec.` Order, 11652, secs. 1,` 6, 12). If. the Goven ment has not
'classified the item, -there should be no ftirtlier national' seciuity ie-
striction on access to it.
Second, if a researcher is otherwise authorized. to review classified
material and has signed a sworn statement. that. he will not disclose
the sensitive material, that. should be sufficient to allow him access.
The sworn statement should not,. in addition, have to be "satisfactory"
'to the Administrator or. any- Federal agency: No staridards'are offered
to determine when a- statement would be deemed "satisfactory."
Use of the term, consequently, would allow government officials
arbitrarily to deny access to otherwise authorized persons.
To correct these problems,. this subsection should be amended as
follows:
(a)' -The Administrator 'will 'restrict access to materials
determined during the processing period to relate to abuses
of governmental power, as defined in, ? 105-63.104.(c), when :
a s, a s t a s
(4), [The release of the materials would disclose or com-
promise . national security, classified information'.] The
materials are authorized under criteria. established by-Executive
Order to be kept secret in the interest of national defense or foreign
policy drd are in fact properly classified pursuant to any execic-
e However the Administrator may waive this re-
striction. when:
(iv) The requester. has signed a statement [, satisfactory
to the Administrator and 'to the heads of agencies having
subject matter interest in' the material,] which declares that
the requester will not publish, disclose, 'or otherwise coin-
promise the classified material to be'-examined and that the
requester has been made aware of Federal criminal statutes.
which prohibit the. compromise ? or disclosure of this
information.
6. Section 105-68.402-1.-Same.
Subsection (b) provides as follows:
(b) The Administrator mnay restrict access to, portions' of
materials determined to relate to abuses of governmental
power when the release of those' portions would tend to eni-
barrass, damage, or harass living persons, and the deletion of
those portions will not distort, and their retention is not
essential to an understanding of, the substantive content of
the materials. .
The intent of this restriction is understandable. and acceptable:* to
I!i protect the reputations of living persons from unnecessary embar'rass-
ment. To the extent that such concern is legitimate, this regulation
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,seems largely superfluous. Any purely personal .items would auto-
7iintrcally be eXempt r~?tirn disclosure, and. peiliaps even retention b~,
,GSA- (See sections' 1.05 63x.04(}) , 105-63.401-5.)
'Even if it were not superfluous, the -provision would still be' objet-
`tionable. Almost by definition, the Watergate affairs are embarrassing
?to'tbose who were associated with them. Therefore, virtually all of the
~~atergate materials; could, conceivably; be subject to this restriction.
`1`146additional qualification does not-remedy the'situa.tion. It states
only that embarrassing.materials-will not be withheld if their deletion
mill not "distort" `the Watergate history and- if their reteutioii is not
`"essenitial` to an undo' rstanidinig of. that history. But Congress did not
direct' that only' the "essentials" of the 'Watergate affairs 'be 'made
public "' Congress directed that `"the full truth .be made` public.
ThisprOiision mould 'U'ndermine'that congres`sional'-purpose.
Auothrei problem with the proN`ision is that the-'Administrator has
total;`-iinfettered discre'tion' to determine wliether personal matter
included within'. the -W rteigate materials should be withheld. If the
inater'ial is personal aril' `n'ot heces'sary to understand an `abuse, the
Administrator should be required to restrict access.
To.::remiiedy this: problem,. this! subsection: should be :amended as
follows.:. it
(b) Thd Administrator '[may] will iestrict' access to 'any por-
tions of materials determined to relate to [abuses of governmental
power when .tile release ofAhose portions would tend 'to embarass,
damage'or harass living persons, and the deletion of those .portions
swill-not distort, and their .retention is riot -essential to an under-
standing' of the sub'stan'tive. content of the materials] an-indi-
-vidual's personal- affairs-,-, such '.as personnel and medical files, if
-after being given a reasonable opportunity.to review the materials, the
individual involved expresses, in writing, a desire. to withhold such
portions from public access: Provided, That if material relating to
an .abuse of governmental power refers to, involves or incorporates
such personal. information, the Administrator -will make available
such personal information, or. portions thereof, if such personal
information, or portion thereof, is essential to an understanding of
the abuse of governmental power.
7. Section 105-63.402-2.-Materials of general historical significance
unrelated to abuses of governmental power.
Subsection (b) provides as follows: ..
(b) The Administrator may. restrict access t6-materials of
general historical significance, but not related to' abuses of
governmental power, when the release of the materials would:
(1)Disclose or compromise trade secrets or commercial
information obtained,from a person and privileged or
confidential: or `
(2)' Constitute a cleanly unwarranted . invasion of
_personalpriva.cy; or ,
(3) Disclose or compromise investigatory materials
compiled for law enforcement purposes; or
(4) Tend to embarrass, damage, - or' harass living
'persons.
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GSA states in'its report tliat, with 'the zceptio i of pa.ra,graph (4),
these rest- ictioi s Were derived from the Freedoth of Information Act.
The problem is that GSA's restrictions are writteii in terms much
more ~ vague than the Freedom of Information Act provisions. If
archivists and administrators are to apply these regulations in a
manner consistent with the Act; the restrictions should be clear and
specific.
In addition, subparagraph (4), like subsection (b) of section 1005-
63. 402-1 (item 7, above), is too 'vague: It is not at all clear how this
exemption is -to be applied. (GSA's report contains virtually no
information to communicate a.n' uanderstan.diino of how similar terns
were in fact applied by custodians of other Presidential papers.) In any
event, this regulation seems superfluous. Any investigative or purely
personal.information-whicli'are?-presumably the materials GSA.has
ini?mind-are already withheld from disclosure under other exemptions.
To remedy these problems, this subsection should be amended 4s
follows:
(b) The Administrator `[llla\r] aiUl restrict access to ina
terials of general historical .significance, but: not related to
abuses of governmental power, when., the release of. these
materials would:
(1) Disclose [or con-{promise] trade secrets and con-
m'ercial or'financial inform.atioii obtained from a person
and privileged or confidential; Or
(2) Disclose personal and medical files and similar
files or information when ' their disclosure would con-
stitute a clearly unwarranted invasion of personal
privacy; or
(3) Disclose [or compromise] investigatory materials
compiled for law enforcement' purposes, bat only when
the disclosure of such records would -
(i) interfere with enforcement proceedings,
(ii) constitute an un.warran ed invasion of per-
sonal privacy,
(iii) disclose the identify of a confidential source and,
in the case of a record compiled by a criminal law enforce-
meet authority in the course of a criminal investiga-
tion, or by an agency conducting a lawful national
security intelligence investigation, confidential in-
formation furnished only by the confidential source,
(iv) disclose investigative techniques and proce-
dures, or
(y) endanger the life or physical .safety of law en-
forcement personnel.
[(4) Tend to embarrass, damage, or harass living
persons.]
S. Section 105-63.402-4.-Appeal of restrictions.
This section provides as follows : ' -
Upon the petition of any researcher who claims in writing
to the Administrator that the restriction of specified ma-
terials is inappropriate and should be removed, the archivists
shall submit the pertinent materials, or representative ex-
amples of them, to the Presidential Materials Review Board
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described in ? 105-63.401-2(g). The Board shall review the
restricted materials, consult with interested Federal agencies
as necessary, and make a written recommendation to the Ad-
ministrator, including dissenting and concurring opinions, as
to the-continued restriction of all or part of the pertinent ma-
terials. When the determination of the Administrator is dif.-
ferent from that recommended by the Board, he will state his
reasons in writing. The Administrator will notify the peti-
tioner of the final administrative decision.
This provision is unclear in that it does not state explicitly that the
Administrator has the authority to make the' final administrative de-
termination. However, it is known that it was the: Administrator's
intention to vest that authority in the' Administrator, and the pro-
vision is likely to be so interpreted. Since, as in subsection (h) of
section 10543.401-2- (item 4; above), this would vest in the Adminis-
Arator unfettered discretion to make such final determination (here
with respect to the limits of public access), it is unacceptable. The
Administrator is a political appointee serving at the pleasure of the
President. If he` has unfettered discretion to make the final decision
concerning the availability of materials, there is a risk that, in reality
or appearance, his decision will be influenced-consciously or sub-
consciously-by partisan political considerations.
There is no heed to' assume that risk. Application of the restrictions
only requires' a decision as to whether' or not. a particular item falls
within. one or more specified 'categories. This is precisely the kind of
judgment which archivists are trained to make. Therefore, the final
administrative determination should ' be made by the Presidential
-Materials Review Board after consultation with appropriate federal
follows :
Upon the petition of any researcher who claims in writing
to the Administrator that the restriction of specified materials
is inappropriate and should be removed, the archivists shall
submit the pertinent materials, or representative examples
of them, to the Presidential Materials `Review Board de-
-scribed in ? 105-63.401-2(g). The Board' shall review the
restricted materials, 'consult with interested Federal agencies
as necessary, and [make a written recommendation] submit
to the Administrator its written decision, including dissenting
and concurring opinions, as, to the continued restriction of
all or part of the pertinent materials. [When the determina-
tion of the Administrator is different from that recommended
by the Board, he will state his reasons in wrihin .]' For
purposes of judicial review, the Board's decision will be the
pal administrative decision. The Administrator will V notify
the petitioner of the final administrative decision within 60
calendar days following receipt of the petition.
To remedy the problem, this' section should be' amended as
9. Section 105-63.404.-Reproduction of ' tape recordings of
presidential .conversations.
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Subsection (c) provides as follows:
(c) No researcher may reproduce or have reproduced
sound recordings of the reference copies of the tape record-
ings described in paragraph (a) of this section.
GSA states that this regulation to prohibit reproduction of the
tape recordings "is to prevent unwarranted commercial exploitation
of the tape recordings."
This provision is, at best, unnecessary, and at worst, inconsistent
with the spirit if not the letter of the act.
To begin with, the regulations and existing judicial procedures
already protect every person's constitutional and legal rights. If Mr.
Nixon, or any other person, believes he has a constitutional or legal
right to prevent reproduction of the recordings, he can petition the
GSA under section 105-63.401-1(a) or assert the right in court.'
In evaluating this regulation, it is also necessary to consider the
basic intent of the Act. This legislation was designed, within certain
limitations, to provide as much public access to the materials as is
physically possible as quickly as possible. To that end, GSA recognizes
that legitimate research requires the reproduction of printed materials;
reproduction is no less necessary when the material is a tape recording.
Indeed, the legitimate research need for the reproduction of tape
recordings is particularly acute for two reasons: (1) the recordings
provide especially invaluable and new raw data concerning the history
of the Nixon Presidency; and (2) it may take many, many hours of
listening to identify and understand the nuances of voices.
This subsection should be deleted:
[(c) No researcher may reproduce or have reproduced
sound recordings of the reference copies of the tape recordings
described in paragraph (a) of this section.]
10. Section 105-63.405.-Reproduction and authentication of other
materials.
Subsection (a) provides as follows:
(a) The copying for researchers of materials other than
tape recordings described in ? 105-63.404 normally will be
done by personnel of the General Services Administration
using government equipment. With the permission of the
Administrator or his designated agent, a reseacher may use
his own copying equipment. Permission shall be based on the
determination that such use will not harm the materials
or disrupt reference activities. Equipment shall be used
under the supervision of GSA personnel.
In item 10, the Committee proposes the deletion of subsection (c)
of section 105-63.404 which forbids reproduction of the reference
copies of the tape recordings described in subsection (a) thereof.
Section 105-63.405 provides procedures for the reproduction of
materials other than the tapes for use by researchers. Since the
prohibition against reproduction of the tape recordings will be deleted,
1 It should be noted here that the U.S. District Court in Washington, D.C. rejected a petition by the tele-
vision networks to release to the public the recordings used in evidence. The court was primarily concerned
that release of the recordings would result in commercial exploitation and that this, in turn, might prejudice
an individual's right to a fair trial (especially since some of the Watergate defendants might have to be
retried). The court implicitly recognized that, at some point in the future after all the trials have been
completed, the recordings might be available for reproduction. United States v. Mitchell, Misc. No. 74-128
(D.D.C. April 4, 1975).
S.R. 36S-3
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it will be necessary to provide a procedure for their, reproduction.
Accordingly, subsection (a) of section 105-63.404 should be amended
to include reference copies of the tape recordings, as follows.:
(a) The copying for researchers of materials, [other than]
including .reference.. copies of the tape recordings described in
? 105-63.404, normally will be done by personnel of the
General Services Administration using government equip-
ment. With the permission of the Administrator or his
designated agent, a researcher may ' use his own copying
equipment.. Permission shall be based on the determination
that such use will _not harm the materials or disrupt reference
activities. Equipment shall be used under the supervision of
GSA personnel.
' '.Inaddition to the above provisions, which the Committee has found
to.be 'unacceptable, attention is called to a provision in the so-called
"safety regulations"-section 105-63.206(d)-which appears to' 'allow.
the Counsel to -the 'President to limit.access or restrict materials for
so-called "national security" reasons, even though, the material
itself is not classified and no such authority has been delegated to the
Counsel to the President. The Committee believes that this provision
should be revised, as indicated below.'
Section 105-63.206.-Access Procedures.
Subsection (d) provides as follows:.
(d). Prior to each access which may result in the exaLmina-
tion of Presidential historical materials that relate to matters
of national security, the Administrator of General Services
or his designated agent shall notify the Counsel. to the
President who shall be given the opportunity to examine
these materials and raise any objections, defenses, or -priv-
ileges to prevent or limit the proposed access.
Subsection (d) is troublesome in at least two respects: first, it ap-
pears to recognize a right in the. Counsel to the President originally
to classify national security materials, even though no' such authority
has been delegated to him, either by' existing law or Executive
Order (see Executive Order 11652, Mar. 8, 1972, as amended by
Executive Order 1.1714, April 24, 1973) ; second, the resolution appears
to allow the Counsel to' limit access to materials even though they
have not been,' and cannot be, classified under existing law.
It would appear more appropriate to refer such requests to the
National Security Council which does have such authority. It would
also appear more appropriate to rely on language already approved
by the Congress in the Freedom of Information Act. :
-To remedy these problems, the Committee recommends that this
subsection be amended, as follows:
"(d) Prior to each access which may result in the exami-
nation of Presidential historical materials [that relate to
matters of national security,] which are required to be kept
secret in the interest of the national defense of foreign policy, the
Administrator. of General Services or his designated agent
shall notify the [Counsel to the President] National Security
Council [who] which shall be given the opportunity to exam-
ine these materials and raise any objections, defenses, or privi-
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leges to prevent or limit the proposed access. In asserting any
such objections, defense or privilege, the National Security
Council shall state in writing why the materials involved are to
be kept secret, under existing law or executive order: Provided,
That this provision shall not be construed to allow the restriction
of public access to material which is not and cannot be properly
withheld from the public under existing law or executive order.
CONCLUSION
Following a careful analysis of the proposed regulations and the,
hearing record; theCommittee has concluded that, with'the exception
of the 11 provisions discussed above, the Administrator of General.
Services has performed creditably in drafting regulations to implement
the Presidential Recordings and Materials. Preservation Act.
However, the Committee believes that. the provisions discussed'-
above must be modified in order"fully' to carry out the basic objective"
of the Act which is to provide the public with the "full truth," at
the earliest reasonable date, of the abuses of governmental power
popularly identified under the generic term "Watergate", and to
provide public access to those materials which have general historical
significance and are not otherwise related to Watergate matters.
Accordingly, the Committee has identified those provisions of
the proposed regulations which, in its judgment, unduly delay or
restrict public access, or are otherwise likely to thwart the expressed
intention of the Congress. In this connection, care has been taken
to. preserve. or strengthen those provisions which are designed to
protect individual constitutional and legal rights; including the right
to privacy.
Adoption of this resolution of disapproval will permit the balance
of the proposed Iegulations to become effective now, and will provide
the GSA .Administrator with an additional 90 calendar days, under
the terms of Public Law 93-526, to submit amended regulations with
respect to the provisions covered by this report.
In view of the foregoing, the Committee urges favorable action by
the Senate on this ,resolution.
ROLLCALL VOTE IN COMMITTEE
In compliance with section 133 of the Legislative Reorganization
Act of 1946, as amended, the rollcall vote taken during committee
consideration of this legislation is as follows:.
Final Passage: Ordered Reported: 9 yeas-0 nays.
Yeas: Nays :
Metcalf. None.
Allen.
Chiles.
Glenn.
Percy.
Javits.
Brock.
Weicker.
Ribicoff.
(Proxy).
Muskie.
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IN THE SENATE ,OF THEE UNITED STATES
Mr. RIEICOrF, from the Committee on Government Operations, reported .the
following .resolution; which was .ordered to be placed. on the calendar
Disapproving. [lie regulations proposed by the Administrator
of 'General Services under section 104 of the .Presidential
Recordings: and Materials` Preservation Act.
'1 Resolved, That pursuant to 'the provisions of
section'
2 104 (b) of the -Presidential' Recordings -and Materials Pres=
3 ervation Act (Public Law 93-5-26), -the Senate hereby
I disapproves the 'regulations proposed by the Administrator
of'General Services in his' report to- the S nate'submitted on
6 March 19, ?1975.
.SEPTEMBER 1'0, 19 5..
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APPENDIX
Public Law 93-526
9.3rd Congress, S. 4016
December 19, 1974
gn 3Ct
To protect and preserve tape recordings of conversations involving former
President Richard At. Nixon and made daring his tenure as President, and
for other purposes.
Be it enacted by the ,1'ei!ote nivl House of Pepre.sevtotives of the
United ,States of I nnee'ica in Co'ngr'ess ax.senr.bled, That this Act may be
cited as the "Presidential Recordings and Materials Preservation Act".
TITLE I-PRESERVATION OF PRESII)F.N'I'IAL
RECORDINGS AND 'MATERIALS
Presidential
Recordings and
Materials Pre-
servation Acts,
44 USC 2107
note.
Sec. 101. (a) Notwithstanding any other law or any agreement or 44 USC 2107
understanding made pursuant to section 2107 of title. 44. United States note.
Code, any Federal employee in possession shall deliver, and the Admin-
istrator of General Services (hereinafter in this title referred to as the
"Administrator") shall receive, obtain, or retain, complete possession
and control of all original tape recordings of conversations which were
recorded or caused to be recorded by any officer or employee of the
Federal Government and which-
(1) involve former President Richard 'M. Nixon or other indi-
viduals who, at the time of the. conversation, were employed by
the Federal Government ;
(2) were. recorded in the White house or in the, office. of the
President in the Executive Office Buildings located in Washing-
ton, I)istrict of Columbia : Camp David, Maryland; Key Biscayne,
Florida: or San ('I entente, California: and
(8) were recorded during the period beginning January 20,
19(19, and ending August 9, 1974.
(b) (1) Notwitlstanding any other law or any agreement. or under-
standing made pursuant to section 2107 of title 44, Thtited States
Code, the Administrator shall receive, retain, or make reasonable
efforts to obtain. complete possession and control of all papers, docu-
ments, memorandttns, transcripts, and other objects and materials
which constitute the Presidential historical materials of Richard M.
Nixon, C01-Cring the period beginning January 20, 19(19, and ending
August 9, 1974.
(2) For purposes of this subsection. the term "historical materials"
has the meaning given it. by section 2101 of title 44. United States
Code.
Sac. 102. (a) Done of the tape recordings or other materials referred
to in section 101 shall be destroyed, except as hereafter may be provided
by law.
(h) Notwithstanding any other provision of this title, any other
law, or any agreement or understanding made pursuant to section 2107
of title 44. United States Code, the tape recordings and other materials
referred to in section 101 shall, immediately upon the date of enact-
ment of this title, be made available, subject to any rights, defenses, or
privileges which the Federal Government or any person may invoke,
for use in any judicial proceeding or otherwise subject to court sub-
pena or other legal process. Any request by the Office of Watergate
"Historical.
materials."
88 STAT. 1695
88 STAT. 1696
44 USC 2107
note.
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18
Pub. Law 93-526 2 - December 19, 1974
Special Prosecution Force, whether by court subpena or other lawful
process, for access to such recordings' or materials shall at all times
have priority over any other request for such recordings or materials.
(c) Richard M. Nixon, or any person whom he may designate in
writing, shall at all times have access to the tape recording's and other
materials referred to in section 101 for any purpose which is consistent
with the provisions of this title, subsequent and subject to the regula-
tions which the Administrator shall issue pursuant to section 103.
(d) Any agency or department in the executive branch of the Fed-
eral Government shall at all times have access to the tape recordings
and other materials referred to in section 101 for lawful Government
use, subject to the regulations which the Administrator shall issue
pursuant to section 103.
REGULATIONS TO PROTECT CERTAIN TAPE RI:CURni NGS AN' D O'i'71 P;R
.IIA'rI3RIALS
44 USC 2107 SEC. 103. The Administrator shall issue at the earliest possible (late
note; such regulations as may be necessary to assure the protection of the
Report to
Congress.
44 USC 2107
note.
88 STAT. 1696
88 STAT. 1697
tape recordings and other materials referred to in section 101 from loss
or destruction, and to prevent access to such recordings and materials
by unauthorized persons. Custody of such recordings and materials
.shall be ]maintained in Washington. District of Columbia, or its mc_tro-
politan area, except as may otherwise be recess rv to carry out the
provisions of this title.
REGULATIONS RELATING To PUBLIC Al'l'r:SS
Sxc. 104. (a) The Administrator shad, within ninety days after the
date of enactment of this title, submit to each House of the Congress
a report proposing and explaining regulations that would provide
public access to the tape recordings and other materials referred to in
section 101. Such regulations shall take into account the following
factors :
(1) the need to provide the public with the full truth, at the
earliest reasonable date, of the abuses of governmental power
popularly identified under the generic term "Watergate";
(2) the need to make such recordings and materials available
for use in judicial proceedings;
(3) the need to prevent general access, except in accordance
with appropriate procedures established for use in judicial pro-
ceedings, to information relating to the Nation's security;
(4) the need to protect every individual's right to a fair and
impartial trial;
(5) the need to protect any party's opportunity to assert any
legally or constitutionally based right or privilege which would
prevent or otherwise limit access to such recordings and materials;
6) tie need to provide public access to those materials which
have general historical significance, and which are not likely to be
related to the need described in paragraph (1); and
(7) the need to give to Richard M. Nixon, or his heirs, for his
sole custody and use, tape recordings and other materials which
are not likely to be related to the need described in paragraph (1)
and are not otherwise of general historical significance.
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19
3December 19, 1974 = 3 - Pub. Law 93-526
(b) (1) The regulations proposed by the Administrator in the report
"required by subsection (a) shall take effect upon the expiration of
ninety legislative days after the submission of such report, unless such
regulations are disapproved by it resolution adopted by either House
of the Congress during such period.
(2) The Administrator may not issue any regulation or make any
change in a regulation if such regulation or change is disapproved by
either House of the Congress under this subsection.
(3) The provisions of this subsection shall apply to any change in
the regulations proposed by the Administrator in the report required
by subsection (a). Any proposed change shall take into account the
factors described in paragraph (1) through paragraph (7) of sub-
section (a), and such proposed change shall be submitted by the
Administrator in the sauce manner as the report required by subsec-
tion (a).
(4) Paragraph (5) is enacted by the. Congress-
(A) as an exercise of the, rulemaking power of the Senate and
the House of Representatives, respectively, and as such it shall be
considered as part of the rules of each IIouse, respectively, and
such rules shall supersede other rules only to the extent that they
are inconsistent therewith: and
(I3) with fill] recognition of the constitutional right of either
House to change such rules (as far as relating to the procedures
of that House) at any time. in the same manner, and to the same
extent as in the case of any other rule of that IIouse.
(5) (A) Any resolution introduced under paragraph (1) shall be
referred to a committee by the Speaker of the House or by the Presi-
dent of the Senate. as the case may be.
(13) If the committee to which anv such resolution is referred has
not reported any resolution relating to any regulation or change pro-
posed by the Administrator under this section before the expiration of
sixty calendar days after the submission of any such proposed regu-
lation or change, it. shall then be in order to move to discharge the
committee from further consideration of such resolution.
(C) Such motion may be made only by a person favoring the reso-
lution, and.such motion shall be privileged. An amendment to such
motion is not, in order, and it is not in order to move to reconsider the
vote by which such motion is agreed to or disagreed to.
(D) If the motion to discharge is agreed to or disagreed to, such
motion may not be renewed.
(E) When the committee has reported, or has been discharged from.
further consideration of, a resolution introduced under paragraph
(1), it shall at any time thereafter be in order (even though a previous
motion to the same effect, has been disagreed to) to move to proceed to
the consideration of such resolution. Such motion shall be privileged.
An amendment to such motion is not in order, and it is not in order
to move to reconsider the vote by which such motion is agreed to or
disagreed to.
(6) For purposes of this subsection. the term "legislative days" "Legislative
does not include. any calendar day on which both Houses of the Con- days."
gress are not in session. 88 STAT. 1697
(c) The provisions of this title shall not apply, on and after the date 88 STAT. 1698
upon which regulations proposed by the Administrator take effect
under subsection (b), to any tape recordings or other materials given
to Richard M. Nixon, or his heirs, pursuant to subsection (a) (7).
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Pub. Law.93-526 - 4- Decern'ber 19, 1,974
(d) The provisions of this title shall not in any way affect the rights,
limitations or exemptions applicable under the Freedoiii of 1nfor-
mation Act, 5 U.S.C. ?.:x52 et seq.
JUDICIAL REVIEW 44 USC 2107 SEC. 105. (a) The United States District Court for the District of
note. Columbia shall have exclusive jurisdiction to hear challenges to the
legal or constitutional validity of this title or of any regulation issued
under the authority granted by this title, and any action or proceeding
involving the question of title, ownership, custody, possession, or con-
trol of any tape recording or material referred to in section 1.01 or
involving payment of any just compensation which may be due in
connection therewith. Any such challenge shall be treated by the court
as a matter requiring immediate consideration and resolution, and
such challenge shall have priority on the docket of such court over
other cases.
Separability. (b) If. under the procedures established by subsection (a), a judi-
cial decision is rendered that a. particular provision of this title, or
a particular regulation issued under the authority granted by this
title, is unconstitutional or otherwise invalid, such decision shall not
affect in any way the validity or enforcement of any other provision
of this title or any regulation issued tinder the authority granted by
this title.
Compensation. (c) If a final decision of such court holds that any provision of
this title has deprived an individual of private property without just
compensation, then there shall be paid out of the general fund of the
Treasury of the United States such amount or amounts as may be
adjudged just by that court.
SEC. 106. There is authorized to be appropriated such sums as may
be necessary to carry out the provisions of this title.
Public Docu- TITLE II-PU13LIC DOCUMENTS COMMISSION
ments Act.
SHORT TITLE
44 USC 3315 SEC. 201. This title may be cited as the "Public I)ocurnents Act".
note.
SEC. 202. Chapter 33 of title 44, United States Code, is amended by
adding at the end thereof the following new sections :
44 USC 3315. 13315. Definitions
Post pp. 1699, "For purposes of this section a.nd section 3316 through section 332$
P0 - of this title-
"(1) the term `Federal official' means any individual holding
the office of President or Vice President of the United States, or
Senator or Representative in, or Delegate or Resident Commis-
sioner to, the Congress of the United States, or any officer of the
executive, judicial, or legislative branch of the Federal
82 STAT 1696 Government;
8s STAT. 1699 "(2) the terns 'Coin tit ission' means the National Study Coin-
mission on Records and Documents of Federal Officials; and
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December 19, 1974 - 5 - Pub. Law 93-526
"(3) the term `records and documents' shall include hand-
written 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. -
"? 3316. Establishment of Commission 44 use 3316.
"There is established a commission to be known as the National National study
Study Commission on Records and Documents of Federal Officials. Commission on
3317. Duties of Commission Records and
Documents of
"It shall be the duty of the Commission to study problems and Federal Of-
questions with respect to the control, disposition, and preservation of ficials.
records and documents produced by or on behalf of Federal officials, 44 use 3317.
with a view toward the development of appropriate legislative recom-
mendations and other recommendations regarding appropriate rules
and procedures with respect to such control, disposition, and preserva-
tion. Such study shall include consideration of-
"(1) whether the historical practice regarding the records and
documents produced by or on behalf of Presidents of the United
States should be rejected'or accepted and whether such practice
should be made applicable with respect to all Federal officials;
"(2) the relationship of the findings of the Commission to the
provisions of chapter 19 of this title, section 2101 through section 44 use 190.1.
2108 of this title, and other Federal laws relating to the control, 44 USC 2101,
disposition, and preservation of records and documents of Federal 2108.
officials;
"(3) whether the findings of the Commission should affect the
control, disposition, and preservation of records and documents
of agencies within the Executive Office of the President created
for short-term purposes by the President;
"(4) the recordkeeping procedures of the White House Office,
with a view toward establishing means to determine which records
and documents are produced by or on behalf of the President;
"(5) the nature of rules and procedures which should apply
to the control, disposition, and preservation of records and docu-
ments produced by Presidential task forces, commissions, and
boards;
"(6) criteria which may be used generally in determining the
scope of materials which should be considered to be the, records
andrlocuments of Members of the Congress;
"(7) the privacy interests of individuals whose communica-
tions with Federal officials, and with task forces, commissions,
and boards, area part of the records and documents produced by
such officials, task forces, commissions, and boards; and
"(8) any other problems, questions, or issues which the Con-
mission considers relevant to carrying out its duties under sec-
tion 3315 through'section 3324 of this title.
3318. Membership 44 Use 3318.
"(a) (1) The Commission shall be composed of seventeen members
as follows:
"(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
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Pub. Law 93-526 - 6 -. December 19, 1974
88 STAT. 1700
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 pro
tempore of the Senate upon recommendation made by the major-
ity leader of the Senate;
"(D) one Member of the Senate appoipted by the President
pro tempore 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 United States;
"(F) one person employed by the Executive Office of the Presi-
dent or the White House Office, appointed by the President;
"(G) 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 and who are specially qualified to
serve on the Commission by virtue of their education, training, or
experience;
"(H) one representative of the Department of State, appointed
by the Secretary of State;
"(I) one representative of tine Department of Defense,
appointed by the Secretary of Defense;
"(J) one representative of the Department of Justice,
appointed by the Attorney General
"(P) the Administrator of General Services (or his delegate)
"(L) the Librarian of Congress;
"(M) one member of the American Historical Association,
appointed by the counsel of such Association ;
"(N) one member of the Society of American Archivists,
appointed by such Society ; and
(0) one member of the Organization of American Historians,
appointed by such Organization.
"(2) No more than two members appointed under paragraph (1)
(G) may be of the same political party. -
Vacancies. "(b) A vacancy in the Commission shall be filled in the manner in
which the original appointment was made.
"(c) If any member of the Commission who was appointed to the
Commission as a Member of the Congress leave such office, or if any
member of the Commission who was appointed from persons who
are not officers o? employees of any government becomes a n officer
or employee of a government, he may continue as a member of the
Commission for no longer than the sixty-day period beginning on
the date lie leaves such office or becomes such an officer or employee,
as the case may be.
"(d) Members shall be appointed for the life of the Commission.
Compensation. "(e) (1) Membersof the Commission shall serve without pay.
(2) While away from their homes or regular places of business in
the performance of services for the Commission., members of the Coln-
mision shall be allowed travel expenses in the same manner as persons
employed intermittently in the service of the Federal Government are
allowed expenses under section 5703(b) of title 5, United States Code,
except that per diem in lieu of subsistence shall be paid only to those
members of the Commission who are not full-time officers or employees
of the United States or Members of the Congress.
"(f) The Chairman of the Commission shall be designated by the
President from among members appointed under subsection (a) (1)
(G).
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December 19, 1974 - 7 - Pub. Law 93-526
"(g) The Commission shall meet at the call of the Chairman or a
majority of its members.
3319. Director and staff ;experts and consultants. 44 use 3319.
"(a) The Commision shall appoint a Director who shall be paid at it
rate not to exceed the rate of basic pay in effect for level V of the
Executive Schedule (5 U.S.C. 5316).
"(1)) The Commission may appoint and fix the pay of such addi-
tional personnel as it deems necessary.
" (c) (1) The Commission may procure temporary and intermittent
services to the same extent as is authorized by section 3109(b) of title
5, United States Code, but at rates for individuals not to exceed the
daily equivalent of the annual rate of basic pay in erect for grade
(IS-.15 of the General Schedule. (5 U.S.C. 5332).
"(2) In procuring services under this subsection, the Commission
shall seek to obtain the advice and assistance of constitutional scholars
and members of the historical. archival, and journalistic professions.
"(d) Upon request of the Commission, the head of any Federal
agency is authorized to detail, on a reimbursable basis, any of the per-
sonnel of such agency to tha Commission to assist it in carrying out
its duties under sections 3315 through 3334 of this title.
". 3320. Powers of Commission 44 USC 3320.
"(a) The Commission may, for the purpose of carrying out its duties
under sections 331;1 through 332:1: of this title, hold such hearings, sit
and act at such times and, places, take such testimony, and receive such
evidence, as the Commission may deem desirable.
"(b) When so authorized by the Commission, any member or agent
of the Commission may tale any action whiCh,n the Commission is
authorized to take by this'section.
"(c) The Commission retry secure directly from any department or
agency of the United States information necessary to enable the Com-
mission to carry out its duties under section 3315 through section 3324
of this title.. Upon request of the. Chairman of the Commission, the
head of such department or agency shall furnish such information to
the Commission.
"? 3321. Support services - 44 USG 3321.
"(a) The Administrator of General Services shall provide to the
Commission on a reimbursable basis such administrative support
services and assistance as the Commission may request.
"(b) The Archivist of the United States shall provide to the Com-
mission on it reimbursable basis such technical and expert advice, con-
sultation, and support -assistance as the Commission may request.
3322. Report
"The Commission shall transmit to the. President. and to each 1-louse
of the Congress a report not later than March 31, 1976. Such report
shall contain a detailed statement of the findings and conclusions of
the Commission, together'with its recommendations for such legisla-
tion, administrative actions, and other actions, as it deems appropriate.
"?3323. Termination
"The Commission shall cease to exist sixty days after transmitting
its report under section 3322 of this title.
"? 3324. Authorization of appropriations
"There is authorized to be appropriated such sums as may be neces-
sary to carry out section 3315 through section 3324 of this title.".
44 USC 3322.
Report to
President and
C,ongre ss.
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SEC. 203. The table of sections for chapter 33 of title 44, United
States Code, is amended by adding at the end thereof the following
new. items :
2"3315. Definitions.
"3316. Establishment of Commission.
"3317. Duties of Commission.
"3318. Membership.
"3319. Director and staff ; experts and consultants.
"3320. Powers of Commission.
:3321. Support services.
"3322. Report.
3323. Termination..
"3324. Authorization of appropriations.".
Approved December 19, 1974.
LEGISLATIVE HISTORY:
HOUSE REPORT No. 93-1507 (Comm. or. House Administration).
SENATE REPORTS: No. 93-1181 (Comm. on Government Operations) and
No. 93-1182 accompanying S.J. Res. 240 (Comm. on Gov-
ernment Operations).
CONGRESSIONAL RECORD, Vol. 120 (1974):
Oct. 3, 4, considered and passed Senate.
Dec. 3, considered. and passed House, amended.
Dec. 9, Senate concurred in House amendment with amendments;
-House concurred in Senate amendments.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 1.0, No. 51:
Dec. 19, Presidential statement.
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[From the Federal Register, Tuesday, January 14, 1975, Washington, D.C., Vol. 40, No. 9,
Part IV, pp. 2670-2671]
RULES AND REGULATIONS
CHAPTER 105-GENERAL SERVICES ADMINISTRATION
PART 105-63-PRESERVATION AND PROTECTIO.N OF AND ACCESS TO THE
PRESIDENTIAL HISTORICAL MATERIALS OF THE NIXON ADMINISTRA-
TION
These regulations are issued pursuant to and in anticipation of
the implementation by the Administrator of General Services of
Title I of the Presidential Recordings and Materials Preservation
Act. Under the Act, the Administrator assumes custody and control
of the Presidential historical materials of the Nixon Administration
for the purposes of (1) ensuring their physical protection and preserva-
tion and (2) providing for Federal and public access. Because out-
standing Federal court orders prevent the immediate implementation
of the Act, and the effective date of these regulations is postponed
accordingly, the General, Services Administration invites comments
and suggestions. These comments and suggestions should be addressed
to. the General Services Administration (A), Attention of: Executive
Assistant to the Administrator, Washington, D.C. 20405. Regulations
pertaining to public access, which are required under the Act to be
submitted for congressional approval, will be published at a later date.
Chapter 105. is amended by the addition of new Part 105-63, as
follows :
Sec.
105-63.000 Scope of part.
105-63.101 Purpose.
1.05-63.102 Application.
105-63.103 Legal custody.
105-63.104. Definitions. [Reserved]
105-63.1.05 Requests or demands for access.
SUBPART 105-63.2-PRESERVATION AND PROTECTION
105-63.201 Responsibility.
105-63.202 Security.
105-63.203 Security areas.
105-63.204 Work areas.
_1.05-63.205 Archival processing.
105-63.206 Access procedures.
105-63.207 Extraordinary authority during emergencies.
(25)
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SUBPART 105-63.3-ACCESS TO MATERIALS BY FORMER PRESIDENT NIXON, FEDERAL
AGENCIES,. AND FOR USE IN ANY JUDICIAL PROCEEDING
105-63.301 Access by former President Nixon.
105-63.302 Access by Federal agencies.
105-63.302-1 Access by the Special Prosecutor.
105-63.303 Acess ~ or use in judicial proceedings.
SUBPART 105-63.4-ACCESS BY THE PUBLIC [RESERVEDl
? 105-63.000 Scope of part.
This part sets forth policies and procedures concerning the preserva-
tion and protection of and access to the tape recordings, papers;
documents, memorandums, transcripts, and other objects and mate-
rials which constitute the Presidential historical materials of Richard
M. Nixon, covering the period beginning January 20, 1969, and ending
August 9, 1974.
SUBPART 105-63.1-GENERAL PROVISIONS
? 105-63.101 Purpose
This Part 105-63 implements the provisions of Title I of the Pres-
idential Recordings and Materials Preservation Act ' (Public Law
93-'526; 88 Stat.). It prescribes policies and procedures by which the
General Services Administration will preserve, protect, and provide
access to the Presidential historical materials of the Nixon Adminis-
tration.
? 105-63.102 Application
This Part 105-63 applies to all of the Presidential historical materials
of the Nixon Administration in the custody of the Administrator of
General Services pursuant to the .provisions of Title I of the Presi-
dential Recordings and Materials Preservation Act (Public Law
93-526; 88 Stat. 1695).
? 105_68.103 Legal custody
The Administrator of General Services has exclusive legal custody
and control of all Presidential historical materials of the Nixon Admin-
istration held pursuant to the provisions of the Presidential Record-
ings and Materials Preservation' Act (Public Law 93-526; 88 Stat. .
1695).
? 105-63.104
Definitions [Reserved]
? 105-63.105
Requests or demands for access
Except as provided in ? 105-63.302-1, each agency which receives
a request or legal demand for access to Presidential historical materials
of the Nixon Administration shall immediately forward the request
or' demand to the Administrator of General Services.
SUBPART 105-63.2-PRESERVATION AND PROTECTION
? 105-63.201 Responsibility
The Administrator of General Services or his designated agent is
responsible for the preservation and protection of the Presidential
historical materials. He may arrange with other Federal agencies,
acting pursuant to appropriate Federal authority, for assist,-' 7
`.heir preservation and protection.
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? 105-63.202 Security
The Administrator of General Services or his designated agent will
control, access to all areas designated as security areas. That control
will include:
(a) Physical possession of all keys that control access to the security
areas (A copy of each key will be deposited in locations designated by
current fire and/or national security regulations with instructions that
these keys may be used only in instances in which the Presidential
1 historical materials or their environs are subject to damage or loss. All
such emergency use shall. be reported to the Administrator of General
Services or his designated agent as soon as possible.) ; and
(b) Exclusive knowledge of all lock combinations that control access
to the security areas. Copies of the combinations will be placed in such
locations as are required by current fire and/or national security regu-
lations and with the GSA Security Division (BIS), Office of Adminis-
tration, in sealed envelopes with instructions that the envelopes may
be opened. only in instances in which the Presidential historical
materials or their environs are subject to damage or loss. All such
IIx emergency use shall be reported to the Administrator of General
Services or his designated agent as soon as possible.
? 105-63.203 Security areas
All Presidential historical materials currently stored in areas
secured by Executive Protection Service controlled alarm systems
shall continue to be stored in these or equally secure areas unless they
are specifically exempted in writing from such security by the Ad-.
ministrator of General Services or his designated agent.
? 105-63.204 Work areas
The Administrator of General Services or his designated agent
will provide appropriate locations within the Metropololitan Area of
the District of Columbia as work areas to be used for the purpose of
inventorying, indexing, reviewing and/or copying Presidential his-
torical materials in -accordance with appropriate authorizations.
When such work areas are in use, security shall be equivalent to that
in effect in the storage area from which the Presidential historical
materials are removed unless the Administrator of General Services
or his designated agent waives such equivalent security in writing.
? 105-63.205 Archival processing
When authorized by 'the Administrator of General Services or his
designated agent, archivists may enter the security and work areas
for the purposes of performing necessary archival processes on the
Presidential historical materials. Access for achival processing shall
follow the procedures of paragraphs (a), (b), (c), (g), (h), and (i)
of ? 105-63.206.
? 105-63.206 Access procedures
(a) The Administrator of General Services or his designated agent
will receive and/or prepare appropriate documentary authorization
before each access authorized under this Part 105-63.
(b) The Administrator of General Services or his designated agent
shall determine that each access is thoroughly documented. Each
documentation shall include:
(1) Reasons for the access;
(2) Time of the access;
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(3) Individuals involved in the access including each individual's
degree of security clearance;
(4) Record of all activities during the access;
(5) Record of all Presidential historical materials removed, if
any; and
(6) Time of the completion of the access.
(c) The Administrator of General Services or his designated agent
will determine that each individual having access to the Presidential
historical materials has a security clearance equivalent to the highest
degree of national security classification that may be applicable to
any of the materials examined.
(d) Prior to each access which may result in the examination of
Presidential historical materials that relate to matters of national
security, the Administrator of General Services or his designated
agent shall notify the Counsel to the President who shall be given the
opportunity to examine these materials and raise any objections,
defenses, or privileges to prevent or limit the proposed access.
(e) The Administrator of General Services or his designated agent
will provide former President Nixon or his designated attorney or
agent prior notice of, and allow him to be present during, each au-
thorized access.
(f) Each access to the security areas shall occur only in the presence
of the Administrator of General Services or his designated agent. At
least two persons shall be present at all times that the security areas
are occupied. ,
(g) All security areas which currently require the presence of the
U.S. Secret Service during access and such other security areas as are
designated by the Administrator of General Services or his designated
agent shall continue to require the presence of one or more representa-
tives of the U.S. Secret Service or such other Federal security agency
as is designated by the Administrator of General Services or his
designated agent.
(h) If any of the materials now located in security areas requiring
the presence. of U.S. Secret Service during access are moved to other
locations, access to such new locations shall also require the presence
of security agents as provided in paragraph (g) of this section, unless
their presence is specifically exempted in writing by the Administrator
of General Services or his designated agent.
(i) Whenever possible, a copy, which shall be certified upon request.
instead of the original documentary Presidential historical material
shall be provided to comply with a subpoena or other lawful process or
request. Whenever the original documentary material is removed, a
certified copy of the material shall be inserted in the proper file until
the return of the original.
? 105-65.207 Extraordinary authority during emergencies
In the event of an emergency that threatens the physical preserva-
tion of the Presidential historical materials or their environs, the
Administrator of General Services or his designated agent will take
such steps as may be, necessary, including removal of the materials
to temporary locations outside the Metropolitan Area of the District
of Columbia, to preserve and protect the materials..
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.SUBPART 1Q, 5-63.3=ACCESS.TO' i'IATERIALSBI .FORMER PRES3DENT NIXON,
?. FEDERAL -AGENCIESi AND :FOE. USE' IN ?AN JUDICIAL PROCEEDING
? 105-68:301 . Access by former President Nixon,
In accordance with the provisions of Subpart 1.05-53.2, .former
President Richard M. Nixon or his designated agent shall at all
times have access to the Presidential historical materials in the custody
and control of the Administrator of General Services:
1105=68.3002 Access by Federal agencies
In accordance with the provisions of Subpart 105-63.2 any Federal
agency or department in the executive branch shall at all times have
access for lawful Government use to the Presidential historical ma-
terials in the custody and control of the Administrator of General
Services.
? 105-63-302-1 Acceess by the Special Prosecutor
Pursuant to ? 105"63.302, the Special Prosecutor or his designated
agent shall at all times have priority access to the Presidential histor-
ical materials relevant- and important to ongoing criminal investi-
gations and prosecutions within his jurisdiction in accordance with
the agreement of November 9; 1974, among the Special Prosecutor,
the Counsel to the President, the Director of the Secret Service, and
the Administrator General. Services. The Administrator of General
Services shall provide access pursuant to this subsection after the
Counsel to the President has determined that the access is in accord=
ance with the agreeineiit of November 9, 1974, and has transmitted
the Special Prosecutor's request for access to the Administrator of
General Ser'vice's for his determination that the access is authorized
under this part. The agreement reads as follows:
Whereas, Gerald R. Ford, President of the United States; has
determined and informed his Counsel that the due administration of
justice ahd the public interest require that the Special Prosecutor
have prompt and effective use of those Piesideiitial materials of the
Nixon Administration now located in the White H_ ouse complex that
are relevant and important to ongoing criminal investigations and
prosecutions within the Special Prosecutor's jurisdiction; and
Whereas,, this Agreement, if implemented, would accommodate the
needs of the Special Prosecutor with respect to such materials;
Now, therefore, the undersigned have agreed as follows:
1. Upon-letters from the Special Prosecutor to Counsel to the
President specifying those materials that he has reason to believe are
relevant to 'specified criminal investigations or prosecutions within
the Special. Prosecutor's jurisdiction and explaining why access to
such nia,terials is important to a full and fair resolution of those
investigations and prosecutions. the Special Prosecutor or his des-
ignees shall. be afforded access to the materials under the following
procedures:
a., Documents, 1. Where files are organized ' by .subject matter,
only 'those files inay 1be" examined which, because of their titles;
may contain documents relevant to these specified investigations
and: prosecutions: '
Where files are orgaiuzed chiionologically, only that portion of
the, fif es covCririg. the time period relev=ant` to the request may be
examined..
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3. Where no chronological or subject label is- oli*,a'file, the file
may be examined to determine whether the file `contains relevant
materials. .. - .
4. In order to' assist in these searches; the S ecial Prosecutor
may request the assistance of members of the- archival staff
assigned to the White House in making a list of file titles or other
index.
b. Tape Recordings. Only the tape recordings of conversations
specified by letters according to the above procedures may be
listened to.
2. The Special Prosecutor shall be allowed to make copies of only
'those tapes of conversations and documents that he determines are
relevant to criminal investigations or prosecutions within his jurisdic-
tion. Prior to the Special Prosecutor receiving such copies, Counsel tp
the President may review the copies to determine whether they-'may
not be disclosed for reasons of national s'eburity. The originals of any.
tapes and documents, copies of which are, provided to the Special
.Prosecutor, shall be retained and, if necessary for a criminal. pro-
.ceeding, will be given to the Special Prosecutor for such proceeding
in-exchange for the copies. 7 '7
3:, Richard M. Nixon or.his attorney or designated agent shall be
given notice of, and may be present during, searches pursuant to: this
Agreement. Also, ,1\71r. Nixon or his attorney or designated agent, shall
be afforded ,access to and'%or;copies. of those tapes of conversation and
documents for which' the. Special. Prosecutor is: allowed: copies. 'The
Counsel to the President also may designate individuals to be present
during these searches.
f, .4.No Presidential materials shall be removed to locations in Wash-
ington, D.C. other than the White House complex without the. ap-
proval of the Special Prosecutor and no portions of such materials shall
be removed to. locations .outside of the . District. of Columbia without
an indication from the Special Prosecutor that he has no further need
for such portions, except upon court order'..
.
5. The parties,to this Agreement shall move. jointly to modify, :if
necessary; the temporary. restraining order as now outstanding in.
Civil Action No. 74-1518 and in consolidated cases in'the United States
District Court, for the District of Columbia to permit implementation
of this Agreement.
. PHILIP W. -BUCHEN,
Counsel to the President.
ARTHUR P. SAMPSON,
Administrator of General Services.
H: STUART KNIGHT,
,Director,. U.S.. Secret Service.
HENRY S. , RUTH, Jr. Special Prosecutor, Watergate Special Prosecution Force.;
? 105-68.803 Access foruse in2udicialproceedings
In accordance with the pro isions "of Subpart'105 63:2, and subject
to any rights;'defenses, or`privileges which ` the Federal Government or
any persori'may invoke, the Presrd`ehtiat historical.' .m'ater`ials in the
custody and control of the. Administrator of General :Services' will :
be made available for use in any judical'preding, and-are subject
to subpoena: or other lawful" process.*, R6qWeSts by the Special- Prose-
cutor for access to the Presidential historical materials,' whether by
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.court subpoena or other lawful process, ,including access pursuibit to
? 105-63.302-1 shall at all times, have priority over any other request
for them aterials.
SUBPART 105-63.4-ACCESS BY ..THE - PUBLIC [RESERVED]
' lective date. This Part 105-63 is- effective upon the- vacation of
Federal court orders preventing the implementation-of Title :1 of the
Presidential Recordings and Materials Preservation Act.
Dated: January 13, 1975.
ARTHUR F. SAMPSON,
Administrator of General. Services.
[FR Doc. 75-1440.; Filed 1-13-75; 12:55 pm]
PROPOSED REGULATIONS TO IMPLEMENT TITLE I, [ExCERPT]
PRESIDENTIAL RECORDINGS AND MATERIALS PRESERVATION ACT
PUBLIC LAW 93-526
(General Services Administration)
? 105-63.104 'Definitions
For the purposes of this Part 105-63; the following terms have the
meaning ascribed to them in this ? 105-63.104.
(a) Presidential historical Materials.-The term "Presidential his-
torical materials" (also referred to 'as "historical materials" and
`.`materials") shall mean. all papers, correspondence, documents,
pamphlets, .books, 'photographs, films, motion pictures, sound and
video recordings, machine-readable media; plats, maps, models, pic-
tures, works of art, and other objects, or materials made or received
by former President, Richard M. Nixon or by members of his staff
in connection with his constitutional or statutory duties or political
activities as President and retained or appropriate for retention as
evidence of or information about these duties and activities. Excluded
from this definition are documentary materials of any type that are
determined to be the official records of an agency of. the Government;
private of personal materials; stocks of publications, processed docu-
ments, and stationery; and extra copies of documents produced only
for convenience of reference, when they are clearly so identified.
(b) Private or personal materials.-The term "private or personal
materials" shall mean those papers and other documentary or com-
memorative materials in any physical form relating solely to a person's
family or other nonpublic activities and having no connection with
his constitutional or statutory' duties or political activities as Presi-
dent or as a member of the President's staff.
(c) Abuses 'of. governmental power popularly identified under the
generic term "Watergate."-The term "abuses. of governmental power
popularly identified under the generic term `Watergate' " (also re-
ferred .to as "abuses of governmental power'!), .shall mean those al-
leged acts, whether or not corroborated by judicial, administrative or
legislative proceedings, which allegedly were conducted, directed or
approved by Richard M. Nixon, his staff or-p' rsons associated with
him in his constitutional,,statutory or pplitical,functions as President
and (1) are or were within the purview -of the charters ''of the, Senate
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,Select. Committee on, Presidential Campaign Activities or the Water-
gate Special Prosecution Force; or .(2) are circumscribed in the Articles
of Impeachment adopted by the House Committee on':blle Judiciary
and reported to the House of Representatives for consideration in
House Deport- No:,93-1305...: .
(d) General historical significance.-The term "general historical
significance" shall rriean? having :administrative, legal, -research or
other historical value as evidence' of or information about- the coristi;.
tutional or statutory duties' or political activities of the President,
which an archivist has determined is of a quality sufficient to warrant
the retention by the United States of materials so designated.
(e) Archivist.-The term "archivist" shall mean an employee of the
General Services Administration who, by education or experience, is
specially trained in archival science.
(f) Agency.-The term "agency" shall mean an executive depart-
ment, military department, independent regulatory or nonregulatory
agency Government corporation Government-controlled corpora-
tion, or other establishment in the executive branch of the Govern-
ment, including the Executive Office of the President. For purposes
of ? 105-63.302 only, the term "agency" shall also include the White
House Office.
(g) Administrator.-The term "Administrator" shall mean the
Administrator of General Services or his delegate as provided herein
or by separate instrument.
(Ii) Initial archival processing.-The term "initial archival pro-
essing" shall mean the following generic acts performed by archi-
vists with respect to the Presidential historical materials: shelving
boxes of documents in chronological, alphabetical, numerical' or other
sequence; surveying and developing a location register and cross-
index of the boxes; arranging materials; reboxing the documents and
affixing labels; producing finding aids such as folder title lists, cross=
indexes; and subject lists; reproducing and transcribing tape record-
ings; reviewhig the materials to identify items that appear subject to
restriction; identifying items in poor physical condition and assuring
their preservation; and identifying materials requiring further
processing.
(i) Sta.=The term "staff" shall. mean those persons whose'salaries
were paid fully or partially from appropriations to the White House
Office or Domestic Council, or who Were detailed on a nonreiniburs=
able -basis 'to the White House Office or Domestic Council from aaiy
other Federal activity; or those persons who' were otherwise designated
as assistair:ts to the President, in connection with their service ' in
that capacity; or any other persons whose files were sent to -the White
House Central Files Unit, or Special Files Unit, for purposes of those.
files.
(j) National security classified inifoiination.-Th'e . term "national'
security classified information" shall mean` any 'matter which is
security classified under existing law, and has been 'or, in the case of'
tape recordings, should be designated'as such.
5i1BPART 105-63:4-x--ACCESS "BY THE PUBLIC
? 1O5-63:400 Scope of subpart
This ?s'ubpart sets forth .policies and procedures concerning g public
access~to the'Presidential historical'materials of Richard M. Nixon.
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?105--68:401 Processircg.period.
-(a) For,30 calendar davs'following-the effective date ?of tho regula
Lions in this subpart or the vacation of court orders preventing their
im;.-lennentation, whichever is later(hereinafter, the "effective date"),
the Administrator will refrain from archival processing of any of the
Presidential historical materials in the Administrator's custody and
control to permit any person to take such action as he deems appro-
priate to protect his legal rights. During this 30-day period, the Ad-
ministrator will limit activity involving the materials. to authorized
accesses under Subpart 105-63.3 of this part.
(b) At the end of the 30-day period described in paragraph (a)
of this section the Administrator will commence the initial archival
processing of the materials. As soon thereafter as is poss'ib'le, the
Administrator will open for public access all 'of the materials in the
Administrator's custody and control which are neither restricted pur-
suant to ? 105-63.402 nor subject to outstanding claims or petitions
seeking such restriction. The Administrator will open for public access
each integral file segment of the materials upon completion of initial
archival processing on that segment. Insofar as practicable -the Ad-
ministrator will give priority in such initial ?archival processing to
materials relating to abuses of governmental power as defined in
? 105-63.104(e).
? 105-63.401-1 Rights and privileges; right to a fair trial
(a) Within 90 calendar days from -the effective date, any person
claiming the need to protect an opportunity to assert a legal ,or con-
stitutional right or privilege which would prevent or limit public access
to any of the materials shall notify the Administrator in writing-of the
claimed -right or privilege and the specific materials to which it relates.
After consultation with appropriate Federal agencies, the Administra-
tor will notify the-claimant by certified mail, return receipt requested,
of .his decision regarding public access to the pertinent ,materials. If
that decision is adverse to the claimant, the Administrator will refrain .
from providing-public.access to the pertinent materials for:at least 30,
calendar days from receipt by the claimant of -such notice..
(b) Within 90 calendar days from the-effeetive?date, officers of any
Federal, State, or local. court and other persons who believe that. public
access to any of the materials may jeopardize an individual's right to
a fair and -impartial trial -should petition sthe .Administrator, setting
forth the relevant circumstances .that warrant withholding specified
materials. After consultation with appropriate Federal agencies; the
Administrator will notify the petitioner by certified mail, -return
receipt requested, of his decision regarding public access ?to the perti-
nent -materials. If that decision is adverse to the petitioner, the Ad-
ministrator will refrain from providing public-access to the pertinent
materials -for at least 30 ,calendar days from receipt .by the petitioner
of such notice.
(c) In: his discretion, the Administrator, nnay: consider claims and
petitions described in paragraphs (a) and (b) of this subsection after
the expiration of -90 calendar days,from the effective 'date.
? 105-63.401-2 Segregation - and review; 'Senior. Archival Panel; Presi-
d'entuil Materials Review. Board.
(a) During the processing period described in ? 105-63.401(b), the
Administrator will assign archivists to segregate private or personal
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materials, as defined ii i'? 105-63.104 (b)`. The archivists shall have sole;
responsibility for the initial review and. determination of private, or
personal materials.
(b) During the processing period -described in, ? 105-63.401(b), the_
Administrator will assign archivists to segregate materials neither-,
relating to abuses of governmental power, as defined in ? 1.05-63.104-
(c), nor otherwise;liaving, general historical -significance, as. defined in,
? 105-63.104(d). -The archivists: shall have sole responsibility for the,
initial, review and determination of -those materials which are not,
related to abuses of 'governmental power and, do not otherwise have,
general .historical ;signficance.
(c) During the processing .period" described in' ? 105-63.401(b), the,
Administrator will assign. archivists, to segregate materials subject to:
restriction,, prescribed in 5.105-63.402. The. archivists shall have:
sole responsibility for the initial review and determination of materials.
that should be restricted. The archivists shall insert a notification of.
withdrawal at the front of the file folder. or container, affected by the,
removal of. restricted material. The notification shall include a brief
description of the restricted material and the. basis for the restriction
as prescribed in ? 105-63.402. .
'(d) If, during the processing period described in. ? 105-63.401(b),
the archivists should. discover any materials which they . determine
reflect an apparent violation.of law which has not been the subject of
prior investigation, the archivists shall bring the material' to the
attention of the Administrator for 'referral to the Department of
Justice 'or other appro riate action.
(e) If the archivists are unable to make a determination required
in paragraphs (a), (b), or (c) of this subsection,. or if the archivists
conclude 'that the required determination raises significant issues
involving interpretation of these regulations or will have far-reaching
precedential value, the archivists shall submit the pertinent materials,
or. representative examples of them, to it panel of senior archivists'
selected by the Archivist of the United States. The panel shall 'then'
have -the sole' responsibility for the initial determination 'required 'in
paragraphs (a)'; (b'),, or (c) of this subsection.
(f) If the Senior Archival Panel is unable to make ' a' determination
required in. paragraph (e)"of'this'subsection- or if the panel concludes,
that the required, determnination raises sigmficant issues involving'
interpretation. of 'these regulations or will, have far-reaching preceden-
tial~value, `the -panel shall certify the matter and submit' the pertinent'
materials,. or, representative examples 'of them,' -to the Presidential'
Materials Review Board.
(g) The, Presidential Materials Review Board ("Board") shall
consist of the following, members, appointed by the Administrator:.
(1) The Archivist of the United States or, on those occasions,
when.he is unable to be present, his delegate, who shall serve as
chairman;
(2) The Librarian of Congress or, on those occasions when he
he is unable to be present, his delegate; and
(3) A person, distinguished in archival science, history or-
-political science,, who' shall not be a Federal employee- or official,
nominated by the Council of the. Society of American Archivists.
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The Board shall meet at the call of the Chairman.' The Board may
consult with officials of interested Federal agencies in formulating its
recommendations.
(h) When the matter certified to the Board by the Senior Archival
Panel involves a determination required in paragraphs (a) or (b)
of this subsection, the Administrator will publish notice in the Federal
Register of the materials to be considered by the Board. In order to
protect the privacy of persons who may have such an interest in the
materials, the notice shall consist only of a generic description and
listing of the materials to be considered by the Board. Any person
may intervene in the Board's consideration by petitioning the Ad-
ministrator in writing within 30 calendar days of publication of notice.
The Board shall submit to the Administrator its written recommenda-
tion, together with dissenting and concurring opinions, of the proper
categorization and disposition of the pertinent materials. The Ad-
ministrator will make the final administrative determination. If the
determination of the Administrator is different from that recommended
by the Board, he will state his reasons in writing. The Administrator
will notify the petitioner by certified mail, return receipt requested,
of the final administrative, determination. The Administrator will
refrain from transferring any materials in accordance with ? 105-63.
401-5(a) as a result of the final administrative determination for at
least 30 calendar days from the petitioner's receipt of such notice.
(i) When the matter certified to the Board by the Senior Archival
Panel involves a determination required in paragraph (c) of this
subsection, the Board shall recommend an initial determination to
the Senior Archival Panel, which shall retain the sole responsibility
for the initial determination.
? 105-63.401-3 Notice of determinations
The Administrator will publish in the Federal Register notice of the
initial archival determinations described in paragraphs (a) and (b) of
? 105-63.401-2 and of the final administrative determinations de-
scribed in paragraph (h) of ? 10.5-63.401-2 and paragraph (d) of
? 105-63.401-4. In order to protect the privacy of persons who may
have such an interest in the segregated materials, the notice shall
consist only. of ?a. generic description and listing of the materials that
the Administrator proposes to transfer as provided in ? 105-63.401-5.
? 105-63.401-4 Appeals
(a) Within 30, calendar days of publication of the notice prescribed
in ? 105-63.401-3, any person may petition the Administrator on the
grounds that an initial archival determination described in ? 105-
63.401-2 (a) or (b) is in error.
(b) Richard M. Nixon, or his designated agent or heirs, may petition
the Administrator at any time on the grounds that an initial archival
determination described in ? 105-63.401-2 (a) or (b) is in error.
(c) Upon receipt by the Administrator of a petition described in
paragraphs (a) or (b) of this subsection, the archivists shall submit the
pertinent materials, or representative examples of them, to the Presi-
dential Materials Review Board.
(d) Upon consideration of appeals as described in paragraphs (a) or
(b) of this subsection, the Board shall submit to the Administrator
its written recommendation, together with dissenting and concurring
opinions, of the proper categorization and disposition of the pertinent
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materials. * The Administrator I will make , the final '~ adm nist ative
determination. If the determination of the Administrator is different.
from that recommended by the Board, he will state his reasons in
writing. The Administrator will notify the petitioner by certified
mail, return receipt' requested, of the final administrative determina-
tion. The Administrator will refrain from transferring any materials
in accordance with ? 105-63.401-5(a) as a result of the final adminis-
trative determination for at least 30 calendar days from the petitioner's
receipt of such notice.
? 105-63.401-5 Transfer of materials
(a) No sooner than 30 calendar days from the publication of notice
prescribed in ? 105-63.401-3, or, in the event of .a certified determina-
tion,or an appeal described in ? 105-63.401-2(h) or ? 1,05-63.401-4,
respectively, no sooner than 30 calendar days from the petitioner's
receipt of notice.of the final administrative determination, the Admin-
istrator will transfer sole custody and use of. those materials deter-
mined, in whole, to be private or personal, or to be neither related to
abuses of governmental power nor otherwise of general historical
significance, to former President Nixon or his heirs or, when appro-
priate and after notifying Mr. Nixon or his designated agent, to the
former staff member having primary proprietary or commemorative
interest in the materials.
(b) Materials determined to be neither related to abuses of govern-
mental power nor otherwise of general historical significance, and
transferred pursuant to paragraph (a) of this subsection, shall upon
such transfer no longer be deemed Presidential historical materials as
defined in ? 105-63.104(a).
(c) When it has been determined that only a segment or portion of
a document, recording, or other material is private or personal, or is
neither related to abuses of governmental power nor.otherwise of general
historical significance, the Administrator will retain custody of the
whole recording, document, or other material, but will restrict access
to the identified segment or portion. Copies of the pertinent materials
will be transferred to former President Nixon or his heirs or, when
appropriate and after notifying Mr. Nixon or his designated agent, to
the former staff member having primary .proprietary or commemora-
tive interest in .the materials.
?105-63.4.02 Restrictions
?105-68.402-1 Materials related to abuses of governmental power
(a) The Administrator will restrict access to materials determined
during the processing period to relate to abuses of -governmental power,
as defined in ?105-63.104(c), when:
(1) The Administrator, in accordance with ?105-63.401-1, is in
the process of reviewing or has determined the validity of a claim
,by-any person of the need to protect an opportunity to assert a
legal or constitutional right or privilege; or
(2) The Administrator, in accordance with ?105-63.401-1, is
in the process of reviewing or has determined the validity of a
petition by any person of the-need to protect an individual's right
to a fair and impartial trial; or.
(3) The release .of the,materials would violate ,a Federal statute;
or
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(4.) The release of the materials would disclose or compromise
national security classified information. However, the Adminis-
trator may waive this-restriction when:
(i) (A) The requester is engaged in a historical research
project; or (B) the requester is a former Federal official who
had been appointed by the President to a policymaking
position and who seeks access only to those classified materials
which he originated, reviewed, signed, or received while in
public office; and
(ii) The requester has a security clearance equivalent to
the highest. degree of national security classification that
may be applicable to any of the materials to,be examined;
and
(iii) The Administrator has determined that. the heads of
agencies having subject matter interest in the material do
not object to the granting of access to the materials; and
(iv) The requester has signed a statement, satisfactory to
the Administrator and to the heads of agencies having sub-
ject matter, interest in the material, which declares that the
requester will not publish, disclose, or otherwise compromise
the classified material to be examined and, that the requester
has been made aware of Federal criminal statutes which
prohibit the compromise or disclosure of this information.
(b) The Administrator may restrict access to portions of materials
determined to relate to abuses of governmental power when the
release of those portions would tend to embarrass, damage, or harass
living persons, and the deletion of those portions will not distort,. and
their retention is not essential to an understanding of the substantive
content of the materials.
? 105-6.3402-2 Materials of general historical significance unrelated
to abuses of governmental power
(a) The Administrator will restrict access to materials determined
during the processing period to be of general historical significance,
but not related to abuses of governmental power, under one or more
of the circumstances specified in ? 105-63.402-1 (a).
(b) The Administrator may restrict access to materials of general
historical significance, but not related to abuses of governmental
power, when the release of these materials would:
(1) Disclose or compromise trade secrets or commercial or
financial information obtained from a person and privileged or confi-
dential; or
(2) Constitute a clearly unwarranted invasion of personal
privacy ; or
(3) Disclose or compromise investigatory materials compiled
for law enforcement purposes; or
(4) Tend to embarrass, damage, or harass living persons.
? 105-63.402-3 Periodic review of restrictions
The Administrator periodically will assign archivists to review
materials placed under restriction by ? 105-63.402 and to make
available for public access those materials which, with the passage
of time or other circumstances, no longer require restriction. If the
archivists are unable to determine whether certain materials should
remain restricted, the archivists shall submit the pertinent materials,
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or representrative examples of, them, to the Senior Archival Pane
described in ?, 1.05-63;402-2(e).;., which shall then hiaye the i:esponsi-
bility for determining if the materials should remain restricted:. The
Senior Archival Panel may seek the recommendation.`of the Presi-
dential Materials Review Board, in the manner prescribed in para-
graphs (f) and (i) of ? 105-63.402-1, in making its determiiia.tion.
? 105-68.402-4 Appeal of restrictions
Upon. the petition of any researcher who claims in writing to the
Administrator that the restriction of specified. materials is inappro-
priate and should be removed, the archivists shall submit the pertinent
materials, or representative examples of them, to- the Presidential
:Ma.terials Review. Board described' in ? 105-63.401-2(g).- The Board
shall review the restricted materials, consult -%writh interested Federal
agencies as necessary, and -make a wwritten'reconi'menndation to the
Administrator, including dissenting and concurring opinions, as to the
continued restriction of all, or part 'of the pertinent materials. When
the determination-of the Administrator is different .from that recom-
'mended.by the Board, he will state his reasons in ~n>ritiug. The Ad-
ministra.tor, will notify the petitioner of the 'ffiiial . administrative
decision. . .?
? 105-63.402-5 Deletion of restricted portions
The Administrator will provide a requester any reaso'nab'y, segre-
gable portions of otherwise'.rest:ricted Materials after, the deletion of the
.portions which are restricted under this ? 1:05-63.402. .
? 105-63. x.02-6 Requests for declassification'
Challenges to the classification-and requests for the declassification
of national security classified materials shall be governed by the
provisions of ? 105-61.104, as that may be amended from tinge to tine.
? 105-63.403 Reference room locations, hours, and rules
The Administrator shall, from time to time separately prescribe the
precise location or locations where the material shall be available for
public reference, and the hours of operation and 'rules governing the
conduct of researchers using such facilities. This information may be
obtained by writing to: Office of Presidential Libraries (NL), The
National Archives, Washington, DC 20408.
? 105-63.404 Reproduction of tape recordings of Presidential
conversations .
(a) To ensure the preservation of original tape recordings of con-
versations which were recorded or caused to be recorded by. an officer
or employee of the Federal Government and which
(1) involve former President Richard M. Nixon or other
individuals who, at the time of the conversation, were employed
by the Federal. Government; and
(2) were recorded in the White House or in the office of the
President in the Executive Office Buildings located .iii Washing-
ton, District of Columbia;. Campp David, Maryland; Key Bis-
ca.yne, Florida; or San Clemente, California.; and J
(3)- were recorded during the period beginning January 20, 1969,
and ending August 9, X1974;
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the Administrator will produce.duplicate copies of such tape recordings
in his custody for public and 'official' 'reference use. The original tape
recordings shall-not be available for public access.
(b) ' Since the original tape recordings may contain information
which is subject to restriction in.. accordance with ? 105-.63.402, the
archivists shall review the tapes and delete restricted portions from
copies f r public and official reference.use.
(c) No researcher may reproduce or have reproduced sound record-
ings of the reference copies of the tape recordings described. in para-
graph (a) of this-section.
705-63.4O5 Reproclucti.ori and authentication of other i a'terials
(a). The copying for researchers '.of .materials other ' than' tape re-
-cordings described iii ? 105-63.404 nornialhr will be done-by-personnel
of the General Services Adiliinisti'a,tion using government equipment.
With the permission of the'Administra?tor or phis designated 'agent,
a researcher may use'-'his own col5j ing `e'quipineiit. _Perii:iissidn shall
'be'based on the determinatioiinthat sucli usewill not'harni the iilaterials
or disrupt reference. activities. Equipmeiit shall be :use l uiider the
Supervisionof GSA personnel.
(b) The Administrator niay'' authenticate and'a.tt6st copies' of ma-
?terials when necessary for the purpose of the research::
(c) The, fees 'for reproduction and' authentication ? of iaterials
under this section shall 'be those prescribed in the. schedule set forth
in Subpart '105-61.52, or pertinent successor regulation;' ' as' that
schedule is amended from time`to time.
? 105-63.406 Amendment of regulations
The Administrator may amend 'the regulations of, this:.Subpa.rt
105-63.4 only after the proposed amendments -have been placed
before the Congress for '90 legislative days. Proposed amendments
shall become effective upon the expiration of this period,. unless the
proposed amendments are disapproved by a resolution adopted by
either House of Congress during such period.
AUTHORITY OF GSA TO VEST FINAL ADMINISTRATIVE AUTHORITY
FOR PUBLIC ACCESS TO PRESIDENTIAL TAPES AND MATERIALS IN
THE PRESIDENTIAL MATERIALS REVIEW BOARD
(By Vincent E. Treacy, Legislative Attorney, American Law Division,
July 16, 1975)
The question addressed ' by. this memoranduiil is whether the
Administrator of General Services may promulgate regulations-under
the Presidential Recordings and, Materials Preservation Act which
vest the final administrative authority for decisions with espect to
public.access to the tapes and materials in the Presidential Materials
Review Board, a body consisting of the Archivist of the ,'.United
States, the Librarian of Congress, and a representative.of the:Society
of American Archivists.
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INTRODUCTION
The" Presid.enti'a.l' Recordings and -Materials Pres'erva'tion 'Act,
Public' Law 43-526," (hei'eiiiafter referred to, as '""Act") 'directed the
Administrator of >. General .'Services'' ("Administr?atoi ") to' submit a
report to." Congress 'proposing and explaining r'egul'ations that would
provide ;public: access to the tape' recordings' Land other iiiiiterials of
former:.President`Nixon. The Administrator'siibmitted the Report to
Congress'on Title l in'March 4075. Under the'regulatiotis,`the initial
archival pt6cessing - would' be performed by archivists employed by
the General Services' Administration' ("GSA"). Section 105-63.401.-
2(a-d). (All section cititations are to the, proposed re'ggul.ations, which
would add a. new Part '105-6:3 to Title 41 of` the Code of Federal
Regulations)'.' These.'archivists would, in-turn, refer materials which
raised significant -issues or had-far-reaching precedential value to a
panel: of "senior archivists appointed by the Archivist of the United
States (`?`A'r6bivist'?'). Section 105-63.401-2(e). This Senior Archival
Panel =would then refer, significant or far-reaching matters to. the
Presidential Materials 'Review 'Board ("Bo'ard" ), whose members
.would include' the Archivist or his delegate, the Libra'rian of Congress
of his delegate, and a person distinguished in archival' science, history,
or political science. to' be nominated by -the Council of the Society
of American Archivists. Section 105.63.401-2'(f) and, (g). The Board
would.'--submit to the Administrator its written recommendation of
the proper, ,categorization and disposition of the materials referred
to it; the Administrator would. then make the final administrative
determination. Section 105-63.402(ii).
The provision in the Regulations granting the Administrator the
authority to. make. the'final administrative determination: conoeining
the public release-of -Presidential materials has been criticized. It'has
been recolainended that Alhe decisions should instead be made, to the
extent possible, by- a non-partisan-group, based. on general principles
of archival science. To satisfy this standard, it bas, been recommended
that the final determinations be made by the Presidential Materials
Review Board, instead of. the Administrator. .
The. objections. to vesting final administrative authority in the Ad-
niinistratorhave been summarized.as follows:
The ' problem is that the Administrator is a political
appointee serving at the grace 'of the President. Having
such "apolitical appointee decide how the materials shoula
be categorized (and thus' which.ma,terials will be retained
by'the governm. ent) exposes the process, to, serious risks:
'1'o begin with, there is the'"-risk that the Administrator's
judgment will , be influenced, either consciously or un-
'consciously by partisan concerns. This observation is not
intende'd' as it criticism of the current Administrator. These
'regulations are to' be applied not only by the current-Admin-
istrator but by succeeding Administrators as 'well. Congress
should not have to hope that at some future time, in some
future circumstance, 'a future' Administrator will apply the
regulations without any regard to partisan 'concerns. .
Even assuming that every Administrator,' present and
future, would apply the regulations in a non-partisan
manner, there is another risk in. allowing the Administrator
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to make the final - administrative determination: to the
public it may appear that access?,is being; governed.by parr?
tisan considerations. This is, a significant risk, The public
II~ should have confidence that the regulations are being -applied in fl, non-partisan.manner. And it may be virtually impossible
to secure this. confidence if the Administrator is allowed to.
make the final decisions.. The public must have confidence.
that the regulations are being applied with strict objectivity.
A large number of difficult and;controversial decisions' will
have to be.:made respecting. the classification `of .a- massive ? .
.amount of material. There will be close judgmental decisions.
which will he .challenged -by. interested parties. There will be
iniblic discussion and debate over various classifications. So
far as possible, those .responsible for,.the,decihion making..
should. be insulated from.question,:, doubt, or criticism ;on, ;
political. or partisan grounds. It would. be,virtually impossible.
to secure, this confidence if any Administrator, now or in the,,,
future, were given authority to 'make: final, decisions. (Corn-..
ments of Senator Gaylord'Nelson on GSA Regulations to
Implement P.L. .93-526, before. the Committee on Govern-
ment Operations, United.States Senate, May 13, 1975.)
In? order to evaluate this position, we mint first- review the leaisla-
GSA :., ;4~FM
f.ivn historir of the Anf.,'fhe
ost ion t k
:b r'th
mo-
p
en
e
e
ra.ndum of Law,,and the applicable'legal principles and authorities.
LEGISLATIVE HISTORY
The Presidential Recordings and Materials-Preservation Act origi-
nated as Senate. Bill S. 4016, introduced by Senators Nelson, Ervin,
and Javits, and referred to the Committee on'Government.Operations.
The bill was reported favorably on September 26, 1974. Sen. Rep. No.
93-1181, 93d Congress, 2d Sess. (1974). It was debated on the Senate
floor on October 3d and 4th, 1974, and was passed by a 56 to 7 vote on
October 4th. 120 Cong. Rec. S. 18230-263 (daily ed.; Oct. 3, 1974) ;
120 Cong. Rec. S. 18318-336 (daily ed.., Oct. 4, 1974). The Committee
on House Administration reported the bill favorably to the House of
Representatives on November 26, 1974. H.R. Rep. No.. 93-1507,
93d Cong., 2d Sess. (1974). The bill was passed. by the House on
December 3, 1974, under Suspension of. the Rules, by unanimous
voice vote. 120 Cond. Rec. H. 1.1204 (daily.ed., Dec..3, 1974). There
was no Conference Committee. Report on the differences between the
House and Senate versions of the bill; instead; on December 9,'1974,
the Senate concurred in the House amendment, after adding,amend-
ments of its own, and the House concurred in, the Senate amendments
to the House bill. 120. Cong. Rec..S. 20809, H. 11445 (daily ed., Dec.
9, 1974). The bill was signed into law by, the President on December
19, 1974. 88 Stat. 1695...
THE GSA MEMORANDUM OF LAW
In a memorandum issued by the General Services Administration on
June 2, 1975, it was concluded that?the Administrator does not have
the authority irrevocably to subdelegate judgmental responsibilities
imposed on him by Congress pursuant to the Presidential Recordings
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?,t ii% rr, r?:,Inl, ri - . , "1+.' I,. - i: . f,.wr t
and ~ atei_ials, re e"rra.Lion Act: Altliougli'the;Administiato'r?actin.g
as the'ageritiof.'.Congressma,y siibcle}elate liii`s
retain'iit least`i?evieW a.utho ?ity`dvei decisionsi?bquiring'the exercise of
discret oii;f{Sl ll, 'and lu~lgiiient "' In support of'this, conclusion, the
meinoraiiduin tatedrth',t the Act "nowhet e` autlio'ri es a sub'delega'tion
b y theAdziii iistra.'toi to'aaiotliei"party of therespoi sibilit~- to take complete
possession iiid'conti;olof the Nixon Presidential historical materials or
to provid epublic acce'ss to`these inatei?ials." Ina :subsequent discussion
of the'question,'the'Memoranduin ielied'on at'least two "e'stablished
principles` of `a.gencyl'iwv, t`o`tie'effect that a).absentspecifio siatutory
authority; an'agent is barred from subdelegating responslblllty fir