From the NCC Advocacy column in the March 1997 Perspectives

NCC Advocacy Update, March 1997

Page Putnam Miller, March 1997

Historians and Archivists Seek Public Interest Standard for Unsealing Grand Jury Records

On February 3, the American Historical Association, the Organization of American Historians, the National Council on Public History, and the Society of American Archivists filed an amici brief in the U.S. Court of Appeals for the Second Circuit to seek public interest consideration for unsealing 48-year-old grand jury records. The amici brief supports Public Citizen’s appeal on behalf of Bruce Craig, a historian and doctoral candidate at the American University, in the case Bruce Craig v. United States of America (no. 96-6264).

In 1996 Craig filed a petition for an order to release historically significant grand jury records pertaining to a McCarthy era espionage investigation of Harry Dexter White, a high-ranking Treasury Department official accused of being a Communist spy. In March 1948, White appeared before a special grand jury to answer these allegations, and the sealed court records include a 79-page transcript of his testimony. Five months after his grand jury appearance, White appeared before the House Un-American Activities Committee and denied the charges. He died two days later. Craig has reviewed all available sources of information on the case and seeks the transcript of White’s testimony because it is the only remaining record that may shed light on this case. Craig’s petition showed that there is an overwhelming public interest, rooted in access for genuine historical research, in disclosure of the transcript and little interest in maintaining its secrecy.

On August 4, 1996, the district court denied Craig’s petition, finding that the public interest in this nearly 50-year-old record is not sufficiently compelling to justify its unsealing. The district court recognized that the law permits a court to order disclosure in certain circumstances, but the court did not balance the public interest in disclosure against any interest in continued secrecy.

The amici brief focuses on the public’s compelling interest in knowing its own history, in observing the operation of the criminal justice system, and in establishing a precedent in which the public’s interest in historic grand jury records can justify unsealing those records. In challenging the district court’s decision, the amici brief states that “the district court’s error in this case was not necessarily in refusing to disclose the requested grand jury testimony, but instead in refusing to give weight to the public interest in that disclosure.” The brief further emphasizes that whether a grand jury record may have historical significance does not create an automatic right to inspect that record. “Rather, the filing of a petition for access,” the brief states, “simply triggers an individualized determination as to whether the document may be kept from the public view and requires the court to weigh carefully the competing interests in light of the relevant circumstances and the standards announced by the Supreme Court.”

Roger Kennedy Resigns as Director of the National Park Service

On January 13, Roger Kennedy announced his resignation as director of the National Park Service (NPS). Kennedy has served in this position since 1993 and led the NPS through its first comprehensive restructuring since World War II. He also gave heightened emphasis to public education as a primary function of the NPS. During his tenure Kennedy strongly supported the NPS’s role in the preservation and interpretation of history.

Kennedy’s resignation will not take effect until a successor has been confirmed by the Senate. Legislation passed in the last Congress established professional qualifications for the director of the National Park Service and requires Senate confirmation. The law states, “The Director shall have substantial experience and demonstrated competence in land management and natural or cultural resource conservation.” In the past the Secretary of Interior has appointed the director of the National Park Service. Indications are that Kennedy’s replacement will be from within the National Park Service.

National Archives Brings in Outside Specialist to Manage Electronic Records

On January 6 Michael Miller, who had been the Records Officer for the Environmental Protection Agency (EPA), became the head of the National Archives Records Management Program, which among other responsibilities oversees the archiving of electronic records. In his six years at the EPA, Miller revitalized the records management program and completely incorporated the management of electronic records into the agency’s operation. In addition, he built an effective communication network throughout the agency and with the National Archives for identifying, preserving, and making available the agency’s historically significant records of the agency.

Before joining the EPA, Miller worked for 14 years at the National Archives in the offices of textual processing, reference, records appraisal, and electronic records. Miller has noted that the National Archives’ newly adopted strategic plan has eliminated much of the fragmentation of responsibilities that had made it difficult to address electronic records issues. He believes a structure is now in place for effectively rethinking how to manage electronic records.

Department of Energy Requests Comments on Proposed Regulations on Declassification

On January 15, at her final press conference, Secretary of Energy Hazel O’Leary announced among other initiatives the publication in the Federal Register of proposed rule changes on policies for the classification and declassification of information relating to nuclear weapons that is covered under the Atomic Energy Act. Although these proposed rule changes do not call for a major shift in existing policy, they do streamline some new procedures, formalize the systematic review process for restricted data, and provide a mandate for public participation in the development of classification policy. The draft of the proposed regulation may be found in the Federal Register for January 15, 1997, on page 2,252 or at the Department of Energy’s Web site at http:// www.doe.gov (go to OpenNet).

Supreme Court Asked to Review Ruling on National Security Council Records

On February 4, Public Citizen, joined by the American Historical Association, the American Library Association, and the National Security Archive, petitioned the Supreme Court to review the Appeals Court ruling that the National Security Council (NSC) is not an agency. On August 2, 1996, by a vote of 2 to 1, the United States Court of Appeals for the District of Columbia (case no. 95-5057) reversed the lower court’s ruling and sided with the government, stating that the NSC is not an agency subject to the Federal Records Act. The court ruled that NSC records are presidential records subject to the Presidential Records Act.

The distinction between federal and presidential records has important implications for preservation and access to records. Under the Federal Records Act, which applies to agency records, individuals may take an agency to court and seek judicial review of an agency’s recordkeeping practices to prevent the destruction of records. There is no provision for judicial review of the recordkeeping of presidential records. There are no time limitations on the age of a record for an Freedom of Information Act (FOIA) request for an agency record. However, the Presidential Records Act states that an FOIA request may not be filed for a presidential record until five years after the president has left office.

In the August 1996 appeals court decision, Judge Douglas H. Ginsburg, writing for the majority, stated that the NSC’s past behavior has been inconsistent, with some records treated as agency and some as presidential. He stressed the close proximity of the NSC’s operation to the president and concluded that NSC staff “is more like ‘the President’s immediate personal staff’ than like an agency exercising authority, independent of the President.” Judge David S. Tatel, writing for the minority, disagreed in a lengthy dissent that noted that there were significant ways in which the NSC acted like an agency and that there has been a 20-year policy of treating the NSC as an agency. Tatel supported Judge Charles Richey’s February 14, 1995, conclusion that the NSC “must maintain and preserve its records in accordance with the Federal Records Act, except when high level officials of the National Security Council are acting solely in their capacity to advise and assist the President.”

The Supreme Court will consider the case if at least four of the nine justices consider it of sufficient importance to warrant Supreme Court review. If the Supreme Court grants review, the case will probably be heard sometime in late 1997 and decided in 1998.

Page Putnam Miller is director of the National Coordinating Committee for the Promotion of History. In addition to NCC Advocacy Update, Miller writes Washington Update, which is maintained by H-Net on the World Wide Web. To see Washington Update, go to http://h-net.msu.edu/~ncc/.