Publication Date

October 1, 1996

NSC Not Subject to Federal Records Act

On August 2, by a vote of two to one, the United States Court of Appeals for the District of Columbia ruled in case number 95-5057 that the National Security Council (NSC) is not an agency and is not subject to the Federal Records Act but to the Presidential Records Act. In doing so, the appeals court reversed a lower court ruling and sided with the government. This case is one segment of Armstrong v. Executive Office of the President, which is frequently called the PROFS case. The PROFS case began in 1989 when historians and librarians joined journalists and public-interest groups in seeking a temporary injunction to prohibit the destruction of the NSC’s electronic mail.

Writing for the majority, Judge Douglas H. Ginsburg stated for himself and Chief Judge Harry T. Edwards that the NSC's past behavior has been inconsistent, with some records treated as agency records and some as presidential. Ginsburg stressed the close proximity of the NSC's operation to the office of 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 disagreed in a lengthy dissent that noted significant ways in which the NSC has acted like an agency and 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 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 request judicial review of an agency's record-keeping practices. There is no provision for judicial review of the record-keeping practices of presidential records. Thus citizens do not have the right of judicial review to prevent the destruction of presidential records. On the issue of access to records, individuals do not have to wait for any specified period of time to file Freedom of Information Act (FOIA) requests to view agency records. 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.

Historians are concerned about the effect this ruling will have on the NSC's ability to destroy records. If this decision had been in place in 1989, there would have been no legal way for citizens to seek the preservation of the NSC's electronic mail. These records played a crucial role in holding NSC employees accountable in the events surrounding the Iran-Contra affair.

The immediate concern is for current records. The Reagan and Bush records in question at the beginning of the case have been preserved at the National Archives; a number of these records have already been obtained through FOIA requests. However, under the August 2 appeals court ruling, the NSC no longer has to follow the guidance issued by the National Archives to all federal agencies on the preservation of electronic records, and the NSC is not legally required to comply with the FOIA. On this last point, the Clinton administration has indicated that it has directed the NSC to maintain its previous practice of allowing voluntary disclosures of appropriate NSC records. The plaintiffs are considering various options-from going forward with the litigation to seeking a legislative solution-for responding to the August 2 ruling.

National Archives Releases Final Version of Strategic Plan

On July 2, U.S. archivist John Carlin released a draft strategic, 10-year plan for the National Archives. On August 7, after obtaining comments from staff and following two days of dialogue with external constituents, he released the final, revised plan, including a new section titled "What Will We Do First?" The new section lays out the first steps toward implementing the plan; however, it is only one page long and provides no specific details. The first step will be the reorganization of the "office structure" to facilitate the plan's implementation. In addressing the National Archives staff on August 7, Carlin stated that he does not at this time know which programs will be cut.

While the final version of the strategic plan is very similar to the draft, there have been some significant additions that respond to questions and comments raised at the dialogue sessions. The final version has a new emphasis on partnerships with other agencies and with users, and there is a marked addition of words such as "collaboration" and "consult." There is also language that seeks to clarify such terms as "essential evidence" and that emphasizes the National Archives' role in federal declassification policy. Also, there are reassurances that the focus on electronic records in no way indicates an intention "of neglecting 'old' paper records currently in our custody."

The leadership of the Society of American Archivists, the Organization or American Historians, and the AHA have written a joint letter to Carlin requesting a mechanism that would allow users to have input on the implementation of the plan. The letter stated that while the strategic plan sets forth some bold and ambitious goals, the difficult choices lie ahead as the strategic vision is converted into a tactical plan and that users would like to be a part of that process. Carlin responded by indicating that the National Archives is working on ways to facilitate dialogue with its constituent groups and that he looks forward to working cooperatively with the professional associations.

Senate Urges Strong Deputy for the Library of Congress

In the July 29 floor debate in the Senate on H.R. 3754, the Legislative Branch Appropriations Bill, Senators Connie Mack (R-Fla.), Mark Hatfield (R-Ore.) and John Warner (R-Va.) joined in supporting report language calling for the appointment of a strong deputy librarian for the Library of Congress. In reviewing the troubling management issues at the library, they concluded that the single most important action that was needed was the appointment of a deputy who could take care of the day-to-day administration. The senators stressed their respect for Librarian James Billington but strongly stated that Billington should turn over the administrative responsibilities of the library to a deputy and focus his attention on developing a vision for the library for the 21st century.

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