NCC Advocacy Update, October 1993
Page Putnam Miller, October 1993
White House Plans to Destroy Electronic Mail Records Ruled Unlawful
The United States Circuit Court of Appeals for the District Court of Columbia ruled on August 13 that the record-keeping practices of the Executive Office of the President and the National Security Council are unlawful because they permit the destruction of historically valuable electronic mail information. This decision affirms a January 1993 decision by U.S. District Judge Charles Richey, who ordered preservation of nearly six thousand magnetic tapes and hard disks made at the White House in the Reagan and Bush administrations.
This case, frequently called PROFS because the electronic mail system used by the National Security Council was IBM's Professional Office System (PROFS), originated in 1989 when a group of plaintiffs, including the American Historical Association, charged the Reagan administration with destroying historically significant computer records. Throughout the case the government argued that historically significant records had been printed out and preserved in the paper files. However, in the forty-three-page decision, the appeals court found that the government's practice of retaining "only the amputated paper printouts is flatly inconsistent with Congress's evident concern with preserving a complete record of government activity for historical and other uses." Using strong language, the appeals court stated that "the government's basic position is flawed because the hard-copy printouts that the agencies preserve may omit fundamental pieces of information which are an integral part of the original electronic records, such as the identity of the sender and/or recipient and the time of receipt." Although the government had argued that agency heads have primary authority in records retention decisions, with the U.S. Archivist having only limited authority, the appeals panel stated, "we reject the appellants' argument, on brief, that agency heads have sweeping discretion to decide which documents are 'appropriate for preservation.'" Michael Tankersley, an attorney with Public Citizen Litigation Group and the lead counsel for the plaintiffs, hailed the ruling as a landmark victory in which "the Court of Appeals has made clear that the government cannot use new technologies like electronic mail to evade the responsibility of the Archives and federal agencies to preserve valuable government records."
In another significant aspect of this ruling, the appeals court rejected the White House's argument that courts cannot review its decisions concerning what materials are so-called presidential records and, therefore, not subject to the Freedom of Information Act (FOIA). The portions of the case dealing with whether materials classified as presidential records by the White House during the Reagan, Bush, and Clinton administrations should be available to the public has been returned to the district court for a decision. The Court of Appeals did reverse the district court's May 21, 1993, ruling that the Archivist and the White House were in contempt for failing to issue new guidelines. However, the Court of Appeals returned to the district court to consider whether the defendants should still be held in contempt for failing to take proper steps to preserve the backup tapes on which the electronic mail records are stored.
On August 4, prior to the appeals court decision, the PROFS case took another twist when former Secretary of Defense Caspar Weinberger filed a motion with the U.S. District Court to intervene in the case. While the appeals court has been dealing with the portions of this case that involve an interpretation of the Federal Records Act, another aspect of the PROFS case which involves Freedom of Information Act requests is now before the district court. Weinberger has requested that the district court hear his arguments to preclude any processing under the Freedom of Information Act of National Security Council PROFS computer records that were printed in paper format in response to his attorney's subpoenas in gathering background material for his criminal case. Although the district court had denied access to PROFS records in computer form, they had indicated that they would process records in paper format. With this motion Weinberger, in effect, made claim to control access to these government records.
On September 3, Judge Richey ruled on Weinberger's motion and made clear that the material preserved at the National Archives for historical purposes is the property of the United States government. This district court order compels the government by October 8 to provide to the plaintiffs all Weinberger material that is releaseable under the FOIA and to produce for the material being withheld a Vaughn index, a summary with brief descriptions of the documents. A Vaughn index provides a road map to classified information and is a valuable tool to researchers in making FOIA requests.
On September 8, the lawyers in the PROFS case for the plaintiffs and the defense appeared before Judge Richey to review the status of the case. Judge Richey began by stating that he did not like having a 1989 case on his docket, and called upon both parties to use their collective wisdom to do what they could to resolve this case. While Richey was eager to set deadlines for moving the case forward, both sides felt that an appropriate course of action could not be determined until a decision had been made by the Clinton administration as to whether it will let the August 13 appeals court decision stand, petition the appeals court for a rehearing, or appeal the case to the Supreme Court. The deadline for the Clinton administration to appeal the case is September 27. Judge Richey has scheduled a meeting for September 29 with the PROFS case lawyers to work out a schedule for, as he put it, "getting to the end of this case."
Judge Rules in Favor of Nixon and Further Delays Access to Tapes
On August 10, U.S. District Judge Royce Lamberth ruled that the National Archives could not release on August 13 and 26, as scheduled, four hours of White House conversations taped in 1972 during the period of the Watergate break-in. Following announcements last spring by the National Archives of plans to begin releasing portions of the tapes, lawyers for former President Nixon filed a cross claim against the National Archives as part of the 1992 lawsuit brought by historian Stanley Kutler, which charged the National Archives with unreasonably delaying access to the tapes. Nixon's attorney, Stan Mortenson, focused much of his argument around a 1979 agreement between the National Archives and Nixon in which the archives agreed to return to Nixon all personal taped material and to release the tapes as an "integral file segment." The National Archives has returned no personal material to Nixon. And while the National Archives has in its processing treated the four thousand hours of tapes as an "integral file segment," they never intended to release the tapes as a whole. In making his case, Mortenson used an internal National Archives memo prepared by Acting Archivist Trudy Peterson that raised questions about provisions in the 1979 agreement and that had been leaked to him.
Pamela Goldman, an attorney with Public Citizen who represented Kutler, focused on the provision in the Presidential Recordings and Materials Preservation Act that specified the need to provide the public with the full truth at the earliest reasonable date of the abuses of power associated with Watergate. She argued that to wait to release all the tapes at once would further delay the release of Watergate material and would violate the law calling for the earliest reasonable release. Although she did not consider the 1979 agreement binding, she pointed out that the National Archives had completed a review of the tapes in 1987 and had segregated from the four thousand hours of tapes all personal conversations and prepared a composite copy of this material but had not given it to Nixon. Arguing that the release of the tapes has already been delayed too many years, depriving the public of access to the full record of this chapter of our history, she urged the judge to deny Nixon's request to block the August 13 opening of some tapes.
The Justice Department lawyer, Judry Subar, offered only limited responses to the issues raised by Mortenson and Judge Lamberth. Absent from Subar's arguments were in-depth explanations of the National Archives' understanding of the 1979 agreement with Nixon and of the decisions leading up to the announcement of the August release of the tapes.
In his ruling, Judge Lamberth noted that both Nixon and the public had been served poorly by the archives' failure to implement the law and the 1979 agreement; however, he found the arguments concerning the violation of Nixon's rights most convincing and granted Nixon's motion. This decision marks a major setback for researchers who may have to wait several more years before gaining access to the Nixon tapes.
Partial Release of JFK Assassination Records
On August 23, the National Archives made public almost one million pages of previously closed federal documents on the assassination of President Kennedy. The material included ninety thousand pages from the CIA files, numerous presidential papers, audio tapes, photographs, and State Department documents, as well as records from a number of other federal agencies. However, portions of the documents made public by the National Archives in August had been blacked out by the federal offices that had custody of the records, and large amounts of FBI records have yet to be transferred to the National Archives.
The most sensitive records have not yet been released. However, the 1992 legislation that required the opening of this material provided for a five-person review board to oversee compliance with the law and ensure the greatest possible disclosure. The law called for the president to appoint the review board by January 25. When President Bush chose not to make the appointments, President Clinton assumed that responsibility but has been slow to move on these nominations. In selecting review-board members, the law specified that the president "shall make nominations to the Review Board after considering persons recommended by the American Historical Association, the Organization of American Historians, the Society of American Archivists, and the American Bar Association."
On September 3, the White House announced four nominees for the review board. They are Princeton University librarian William L. Joyce, University of Tulsa Dean Kermit L. Hall, American University history professor Anna Kasten Nelson, and Minnesota Chief Deputy Attorney General John R. Tunhein. The president selected the nominees from names recommended by the professional organizations identified in the law. There is still no indication of when the fifth name will be announced. The law calls for the Senate Committee on Governmental Affairs to "hold confirmation hearings within 30 days in which the Senate is in session after the nomination of 3 Review Board members."
The major work of the review board will not begin until after its initial meeting and their selection of an executive director. In addition to having the authority to direct government offices to transmit records to the Archivist and to create identification aids, the review board can investigate the facts surrounding additional information or records and may "subpoena private persons to compel testimony, records, and other information relevant to its responsibilities under this act."
Page Putnam Miller is director of the National Coordinating Committee for the Promotion of History