NCC Advocacy Update

NCC Advocacy Update, May 1994

Page Putnam Miller, May 1994

Selection of U.S. Archivist

There is still no word from the Office of White House Personnel on the appointment of a U.S. archivist. However, Robert Hardesty, a consultant for the Lyndon Baines Johnson Foundation, who had sought the position of U.S. archivist for the past year, notified the White House on March 29 that he was withdrawing his name from consideration. Six historical and archival organizations had indicated that if Hardesty were nominated they would oppose his nomination on the grounds that he did not meet the legislative requirement of a nonpartisan professional. Additionally, both the Washington Post and the New York Times ran editorials in March expressing concern over the possible nomination of Hardesty, a person with strong political ties, to a position best served by someone with a background of less politics and more scholarship. Hardesty said he asked President Clinton to remove his name from consideration because he wished to avoid further controversy and did not want to be a problem for the administration.

Don W. Wilson stepped down in March 1993 as head of the National Archives. Since that time, Trudy Huskamp Peterson, former deputy archivist, has served as acting archivist.

Administration Circulates New Draft Order on Classification/Declassification

On March 17 the National Security Council and the Information Security Oversight Office sent to federal agencies a third draft of a new executive order that would significantly reform current policies on secrecy. Responding to President Clinton's April 1993 presidential directive to redraft Executive Order 12356, this draft would declassify large amounts of material over twenty-five years old.

The major breakthrough in this draft is the provision that "within four years from the date of the issuance of this Order, all classified information more than twenty-five years old shall be automatically declassified whether or not it has been reviewed." The enormous backlog of old material has accumulated because of a policy of page-by-page and line-by-line review of all records that have been classified. With this costly policy in effect and with dwindling resources for the systematic review of classified records, large amounts of post–World War II records remain classified. Consequently, scholars have not had access to many of the documents crucial to writing accurate and objective accounts of a large part of twentieth-century U.S. history.

The March 17 draft would give agencies a grace period of four years to identify records over twenty-five years old that would cause harm if released. Using seven specific criteria, an agency head may exempt specific information from automatic declassification by preparing a written justification explaining why this information must remain classified for a longer period of time. A copy of the justification would then go to an interagency security classifications appeals panel that "may direct the agency not to exempt the information or to designate the information for automatic declassification at an earlier date than recommended." There is within the historical profession a major concern that the language in this draft could be diluted during the thirty-day period in which agencies have an opportunity to comment on the draft.

A second concern focuses on how the order will be implemented. Most historians who have had an opportunity to examine this draft executive order applaud the apparent intent to make available the vast majority of records over twenty-five years old. Yet there is a lingering fear that the process as outlined in the draft could be diverted. If the exemptions for automatic declassification are too broadly interpreted, if the requirement for the justification of extensions results in boiler plate language that can be used on vast quantities of records, or if the interagency security classifications appeals panel fails to scrutinize the exceptions to declassification, then the old system will prevail and the promise of increased openness will not be realized. However, if a good-faith effort is made to follow this order and create a more open climate, after four years, presumably in 1998, all but the most sensitive records that were created during or before 1973 will be opened.

Reauthorization of NHPRC Grants

The five-year authorization for the funding of the National Historical Publications and Records Administration (NHPRC) grants program has expired and reauthorization legislation, needed prior to appropriations legislation, seems finally to be moving forward. Last September 13, the House passed H.R. 2139, which authorized annual appropriations for the NHPRC of "such sums as may be necessary" through fiscal year 1998. The Senate amended H.R. 2139 on March 17 by adopting language that authorizes the NHPRC to receive annual appropriations of up to $6 million in FY'94, $7 million in 1995, $8 million in 1996, and $10 million in 1997. The House is expected to act soon to accept the Senate amendments. The historical and archival organizations will then be focusing on securing current level funding, $5.25 million, for FY'95 instead of the $4 million proposed in the president's budget.

Administration Tries to Eliminate FOIA Access to NSC Documents

As part of ongoing litigation in the case of Armstrong vs. the Executive Office of the President, frequently referred to as the PROFS case, Clinton administration lawyers have recently claimed in federal court that all documents created by the National Security Council (NSC) are presidential records and not agency records. Agency records are subject immediately to the Freedom of Information Act (FOIA). Presidential records are not subject to FOIA requests until five years after a president leaves office. Past administrations and their NSC staffs have conceded that the NSC creates both presidential and agency records.

Armstrong originated in the last days of the Reagan administration when some researchers and public-interest groups filed suit to prevent Reagan's NSC staff from erasing its electronic mail. Hoping that his administration's position will prevail in the courts, President Clinton has already ordered the NSC to create its own, separate disclosure review process. However, from the plaintiffs' point of view, such a process would not provide the same legal avenues for enforcement of disclosure provided by FOIA. The administration's apparent intent to depart from the policy of previous administrations threatens to restrict public access to the records of the NSC.

In June the plaintiffs in Armstrong will be filing with the court a response to the Clinton administration's recent brief on the status of NSC records.

NCC Testifies at National Archives Budget Hearings

On March 23, I testified on behalf of the NCC member organizations before the Subcommittee on the Treasury, Postal Service, and General Government of the House's Appropriations Committee, which had called a hearing to give outside witnesses an opportunity to comment on the president's proposed FY'95 budget for those agencies and programs under the committee's jurisdiction. The Clinton administration's attempt to trim the budgets of all federal agencies comes at an unfortunate time for the National Archives and Records Administration (NARA). The president's $200.898 million funding request for NARA is $5 million above the agency's FY'94 level, but all of the additional funds are earmarked for payments on the construction loan for Archives II, the new archival facility in College Park, Maryland, which will be dedicated on May 12. The proposal actually reflects a $2.4 million reduction in personnel expenditures and a $1.7 million reduction in administrative expenditures.

The NCC requested that the FY'95 NARA budget include $5.25 million beyond the administration's proposal. Over the last decade NARA has been repeatedly asked by Congress to do more with less. The agency is reaching the point where service could be seriously impaired. The amount requested would include $1 million for additional reference staff at Archives II. With the opening of Archives II, NARA will double its research facilities. It is unrealistic to expect these records to be adequately serviced without an increase in reference staff. Just as serious is the need for additional records appraisal archivists. One of NARA's most important tasks is the appraisal of all federal records to determine which merit preservation and which should be destroyed. The NCC request of $3 million would allow the hiring of fifty-six new records appraisal staff to enable the archives to fulfill its legislative mandate to provide guidance and support to all federal agencies in the identification, scheduling, and transferring of historically valuable records. Finally, the NCC requested an additional $1.25 million for the NHPRC to maintain its grants program at the current level of $5.25 million. The president has recommended $4 million for NHPRC, a 23 percent cut.