NCC Advocacy Update

NCC Advocacy Update, May 1993

Page Putnam Miller, May 1993

Appropriations Hearings for the National Archives and NHPRC

On March 25, Representative Steny Hoyer, who chairs the House Appropriations Subcommittee on Treasury, Postal Service, and General Government, held a hearing for public witnesses. Three witnesses—Frank Burke, David Crosson, and myself—spoke on the FY'94 budget for the National Archives and the National Historical Publications and Records Commission. Frank Burke, who served for many years as the executive director of the NHPRC and is a former president of the Society of American Archivists, highlighted the ways in which the NHPRC grants program reflects many of the priorities of President Clinton's comprehensive economic plan. He explained how NHPRC makes significant investments in the nation's information infrastructure, in basic education, and in public-private partnerships. David Crosson, administrator of the State Historical Society of Iowa, pointed out that three other humanities-related federal agencies—the National Endowment for the Humanities, the Historic Preservation Fund, and the Institute of Museum Services—had budget increases last year while the NHPRC had a cut. Yet Crosson stressed that "historical documents are the bedrock upon which all other historical programs sit." Without the preservation of the written word, Crosson asserted, "scholars can't research, historic preservationists can't document, and curators can't verify." Both Burke and Crosson urged an $8 million appropriation in FY'94 for NHPRC, which is currently authorized at $10 million but funded at $5 million.

I spent most of my allotted time at the hearing on the National Archives, focusing specifically on two needs—funding required for the National Archives to operate Archives II successfully and the importance of adequate staffing for records appraisal.

Since Archives II, the new research facility in College Park, Maryland, is in Steny Hoyer's district, there is considerable interest in the new building. I requested $68 million in new money for the opening of the 1.8 million square foot state-of-the-art archival building. The request for $68 million included four categories of funding: $29 million for payment on the loan for the construction of Archives II; $13 million for the operation, maintenance, security and custodial staff, and utilities; $1 million for additional archivists to service the records; and $25 million for the cost of the move, furniture, equipment for the preservation laboratories, computers, and establishment of a comprehensive new computerized system that will include management and finding aid capabilities.

In the second part of my testimony, I discussed the National Archives' responsibility for working with agencies to determine which records merit preservation. The historical and archival communities have contended for some time that the National Archives has had inadequate funds to fulfill its core mission. Records appraisal efforts are even more crucial in the modern electronic record-keeping environment. Unless additional staff are added to enable the National Archives to work more closely with agencies, many believe that records which provide adequate and proper documentation of federal policies and activities will be lost. Currently only forty National Archives staff work with agencies to decide which records are of historical value and which should be destroyed. Because the National Archives is so understaffed in this area, many agencies have very old comprehensive records disposition and retention schedules, or none at all, to guide their record-keeping policies. A strategic planning process inside the National Archives, as well as outside evaluations of the National Archives' core mission, have highlighted many deficiencies. But few are as needy as records appraisal.

For almost three decades the National Archives has suffered from inadequate space, so the decision to build Archives II was long overdue. But, unfortunately, the timing for the opening of a new building coincides with major budget-cutting efforts. The Clinton Administration's budget request for the National Archives for FY'94 includes $4 million for NHPRC grants—a $l million cut—and only a $29 million increase for expenses related to Archives II. Unexpected construction savings and interest income on the loan for the new building may be able to provide the National Archives with $18 million in additional funds. Even with those additional funds, the administration's request would not provide enough money for additional archivists, for some of the new laboratory equipment, and for completion of the computerized finding aid. But with this bare bones budget, the National Archives will be able to open Archives II, which will be an accomplishment in this budget-cutting environment.

Nixon Seeks Further Delay in Access to Tapes

On April 2 lawyers for former President Richard M. Nixon filed a cross claim against the National Archives as part of the 1992 lawsuit known as Kutler and Public Citizen v. Wilson with Nixon as defendant intervenor. In this case, historian Stanley Kutler and Public Citizen charged Don Wilson, then Archivist of the United States, with unreasonably delaying access to 4,000 hours of Nixon tapes.

On March 10, 1993, the National Archives notified Nixon of plans to make available in April for public access White House tape recordings from May and June 1972 in accordance with agreed-upon regulations. In this cross claim, Nixon is challenging the National Archives' review of the tapes. Specifically, Nixon seeks orders declaring that the National Archives must transcribe all of the tapes before opening them for public access, must conduct a comprehensive re-review of the tapes, and must return to Nixon all material that is private or personal.

The issues of transcriptions, re-review, and segregation of private material are not new. From the beginning, the National Archives has contended that they would not make transcriptions for all the tapes because the quality of the recordings was so poor that it would be almost impossible to make accurate transcriptions and because it would be prohibitively expensive and time consuming. On the second issue, re-review, there has been lack of clarity within the National Archives as to what would be involved in a second review. Would it be a re-review of the portions of the tapes to which Nixon had objections or of all 4,000 hours of tapes? In 1987, when the National Archives completed its review of the tapes and prepared a 25,000-page finding aid, there were indications that the tapes would probably be opened in 1991. At that time, no comprehensive re-review was envisioned, and since then, no work on a comprehensive re-review has been undertaken. On the issue of the return of the private material, the sticking point has been the timing of the return. Nixon is seeking a return of all private material before any additional portions of the tapes are released.

A part of Nixon's argument for a comprehensive re-review is his allegation of impropriety on the part of the archivists involved in the Nixon tapes project. He cites the December 14, 1992, article in the New Yorker magazine by Seymour M. Hersh, "Nixon's Last Cover-Up: The Tapes He Wants the Archives to Suppress," and calls into question the integrity of the archivists. Nixon states that the article highlights alleged information purportedly derived from the tapes and leaked to Hersh by the archivists who had conducted the initial review of the tapes. The archivists involved in the Nixon tape review spoke about the procedures and policies involved in the project, but not the substance of the tapes, in depositions last summer as part of the Kutler case. Hersh drew on information from these depositions for his article. The archivists deny leaking any information from the tapes. In fact, one archivist involved in the Nixon tape project has documented in previously published books and articles all of the personal and private information about Nixon contained in the Hersh article.

This three-sided case comes almost eighteen years after Congress instructed the Archivist to open the materials and tapes to the public as soon as possible. After Nixon resigned as president in 1974, he negotiated with Arthur Sampson, the administrator of the General Services Administration who was then responsible for the National Archives, an agreement allowing him to retain title to the records and tapes with provisions for the eventual destruction of the tape recordings. Lawsuits opposing the Nixon-Sampson agreement led to the passage of the Presidential Recordings and Materials Preservation Act of 1974, which placed control of the material in the hands of the National Archives. This legislation, which included provisions for protection of privacy and for the development of regulations for the processing of the material, had as its key point "the need to provide the public with the full truth, at the earliest reasonable date, of the abuses of government power." For the past eighteen years Nixon has periodically challenged the constitutionality of this law and various aspects of its implementing regulations. This cross claim is a continuation of the tactic of using litigation to delay access.

Update on PROFS Case

As a part of his January 6 decision in the case of Armstrong v. Executive Office of the President, Federal District Judge Charles R. Richey stated that "the Defendants must err on the side of preservation" and ordered the Archivist to preserve the electronic records of the National Security Council. The case, originally filed in 1989, has led to the preservation of more than 5,000 Reagan and Bush administration computer backup tapes of the White House and National Security Council electronic mail systems.

On January 19 and 20, the National Archives transferred these records to a vault in the National Archives but initially took few additional steps to ensure their preservation. On March 25, almost two months later, Trudy Peterson, who became Acting Archivist on March 22, issued an internal memorandum in which she charged the National Archives' Center for Electronic Records to develop a preservation plan for the computer materials from the Reagan and Bush administrations. Peterson stated that the objectives of this preservation plan are to identify and take any preventive and corrective actions that may be needed, including actions to ensure the preservation, and, if necessary, the collection of adequate documentation of the computer materials, and to take those steps necessary to bring the information to a state that would permit the segregation of federal and presidential materials. The National Archives' Office of Electronic Records is to submit the preservation plan to Peterson by April 23.

The plaintiffs in the PROFS case, recognizing that many complex issues are involved in the preservation of these computer records, filed papers on April 1 in U.S. District Court charging that the National Security Council, the Executive Office of the President, and the National Archives violated Judge Richey's orders regarding the preservation of electronic federal records and asked the judge to require these government agencies to demonstrate why they should not be held in contempt of court. Michael Tankersley of Public Citizen filed the papers on behalf of the plaintiffs, who include Scott Armstrong, Eddie Becker, the National Security Archive, the American Library Association, and the American Historical Association. On April 6, the court granted the plaintiffs' request and set a hearing for April 19 at which the defendant agencies will be required to justify their inaction.

In recent depositions of employees of the National Security Council, the National Archives, and the Executive Office of the President, the plaintiffs learned that the agencies were not in full compliance with the court order to preserve the computer records. The plaintiffs are most concerned that for nine days following Judge Richey's January 6 opinion, the National Security Council took no steps to prevent staff from erasing or deleting information from the electronic communications systems used by the agency. The plaintiffs also learned of numerous decisions and actions of the National Archives that indicate lack of care in the preservation of the computer records. Of specific concern is the failure of the National Archives to take steps to verify the tapes' contents. Since the Archives does not currently have the capability to access and read the information on the computer tapes, there is concern about how the Archives' Center for Electronic Records will review and preserve the information on the transferred tapes.

Furthermore, the plaintiffs contend that the defendants, Archivist Wilson and President Bush, entered into an agreement on January 19 that imposes restrictions on the agency's control that contradict federal records laws and that will delay efforts to preserve the computer tapes. The plaintiffs note that when the National Archives entered into the Memorandum of Agreement, it knew that it did not have the equipment necessary to segregate the federal and presidential material and did not intend to segregate the material.

In the papers filed in the motion to show cause and enforce the injunction, the plaintiffs state: "Insofar as the Memorandum of Agreement between the defendants and former President Bush purports to displace, override, or in any way alter, modify, or infringe upon the obligations imposed by the orders of this Court, the Court declares that the Agreement is void, and cannot provide a basis for defendants refusing to, or delaying in, carrying out their obligations under the injunction and this order to take immediate steps to preserve the Federal records contained therein."

The plaintiffs have also cross appealed in the expedited appeal of this case that is pending before the U.S. Court of Appeals and requested that the previously established briefing schedule for the appeal include the cross-appeal. In January, the defendants appealed Judge Richey's January 6 decision and asked for expedited review. On March 3 the clerk of the U.S. Court of Appeals issued a briefing schedule with deadlines in April, May, and June for filing briefs and replies on the appeal.