Publication Date

January 1, 1997

IRS Response to Record-Keeping Deficiencies Disappointing

On November 12 Michael Dolan, the deputy commissioner of the Internal Revenue Service (IRS), responded in a one-paragraph letter to the petition filed last summer requesting that the IRS correct deficiencies in its record-keeping system. Dolan stated that work is under way on the issues identified in the petition. On July 18 Tax Analysts, publisher of Tax Notes and sponsor of the Tax History Project, was joined by the American Historical Association and the Organization of American Historians in petitioning the IRS to comply with the Federal Records Act and the regulations promulgated by the National Archives.

The petition's concluding section stated: “The evidence discussed in this petition demonstrates beyond doubt that the IRS's record keeping, records scheduling, and records retrieving systems are in crisis." The petition requested that the IRS take five specific steps. These steps included improving the conditions under which IRS records are stored, asking the National Archives for advice on records preservation matters, cataloging IRS records as required by the National Archives, permitting National Archives personnel to appraise IRS records for historical value, and abandoning the expansive interpretation of the tax-return privacy provisions of section 6103 of the Internal Revenue Code. The petition asked IRS commissioner Margaret Milner Richardson to respond within 30 days, which would have been August 18. In light of the failure of the IRS to respond in a substantive manner to the petition, there is now discussion under way about proceeding in the federal district court with a lawsuit.

Declassification of Secretary of Defense Records Faces Hurdles

When the Department of Defense Historical Records Declassification Advisory Panel met on November 15, members discussed the results of a pilot project on declassifying a portion of the records from the Office of the Secretary of Defense for the period 1951 to 1966. The advisory committee had indicated at an earlier meeting that the oldest and most high-level policy records should receive top priority for declassification. The pilot project was undertaken to test the degree of difficulty in declassifying a portion of these records. The project resulted in the opening of 15 percent of the material, with 66 percent of it being referred to other agencies for coordination. The project, which took over 200 hours to complete, required a high level of labor intensity to open relatively few records.

The professional declassifiers who worked on the project and the advisory committee differed on their responses to the pilot study. The declassifiers were not surprised at the results and recommended moving on to other records groups in which more material could be opened. However, members of the advisory committee stood by their conviction that the records in question are essential for understanding past policy decisions, and they expressed their desire to explore mechanisms for speeding up the process and for facilitating the interagency coordination process.

During the segment of the meeting that was open to the public, the advisory committee had a briefing from Warren Kimball, the chair of the Department of State's Advisory Committee on Historical Documentation. Kimball noted several differences between the State Department advisory committee and that of the Department of Defense, with the major difference being that the operation of the State Department's committee is governed by a law passed in 1991 that gives advisory committee members clearances and allows them to examine classified records. They also have a very .focused task with access to the top officials of the agency, with specific procedures for coordinating their work with other agencies, and with the mandate to prepare an annual report for the Secretary of State, which is made available to congressional oversight committees.

Historical Editions No Longer Top Priority for the NHPRC

On November 8 the National Historical Publications and Records Commission (NHPRC) met to consider policy issues and to approve specific grants. The commission adopted, in a divided vote, a revised strategic plan that will serve as the framework for guiding the commission in its allocation of grants. The plan is tentatively scheduled to go into effect in fiscal 1999.

The revised plan has only four categories of grant making. Two are considered top priority and two are considered second priority. The two top-priority categories are grants for states-including "regrants" to state historical records advisory boards-and grants for research and development projects, particularly those dealing with preservation of and access to electronic records. The second-priority categories are for documentary editions (all existing and future projects) and grants for preserving and making available document collections.

Historical editions have been a priority of the NHPRC since it was established. The degree to which the new plan shifts priorities in a marked way from the traditional balance and focus of the commission's work is a matter of concern to many historians. In the recent past, historical organizations have expressed concern about the large percentage of NHPRC money going into historical editions. Yet the revised plan makes historical editions a low priority instead of addressing the issue of the appropriate funding balance. There is also concern about the process used for adopting the revised plan. The revised plan overturned the recommendations of the commission's ad hoc working group, which had been meeting for a year to develop a strategic plan. While the constituent groups represented on the commission did have an opportunity to commit suggestions for the revised plan, the revised plan went far beyond anything they had contemplated.

Appeals Court Rules on Course-Pack Case

On November 8 the Sixth Circuit Court of Appeals handed down a decision in the "course-pack case"—Princeton University Press v. the Michigan Document Services, Inc. (Case No. 94-1778). The decision, in which 13 judges participated, stated that the for-profit Michigan Document Services had infringed on the “fair-use” provision (the copyright law in selling photocopies of course packs without receiving permission from authors or publishers. In February the appeals court, with three judges participating, ruled in favor of Michigan Document Services. But in April the appeals court effectively dissolved that decision and decided that the entire panel of judges would reconsider the case.

The court heard oral arguments' in Cincinnati on June 12, and a decision was expected in late summer. The strong division among the judges undoubtedly delayed the ruling. Eight judges sided with the majority, concluding that photo-copying of course packs without permission is an infringement of copyright, while five judges registered a minority opinion stating that Michigan Document Services had not infringed on the fair-use provision. There are indications that Michigan Document Services plans to seek review of this case by the Supreme Court.

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