NCC Advocacy Update, September 1993
Hackney Confirmed as Chair of the National Endowment for the Humanities
On August 3 the Senate voted 76 for and 23 against the nomination of Sheldon Hackney, a prize-winning historian and President of the University of Pennsylvania, for Chair of NEH. Although the Senate had allotted five and a half hours on August 2 for debate on the nomination, the Senators used only three and a half hours with Jesse Helms(R-NC) leading the opposition and Harris Wofford (D-PA) the defense. Other Senators participating in the debate included Larry Craig (R-Idaho), Slade Gorton (R-WA), and Joseph Lieberman (D-CT), all speaking against the nomination, with Nancy Kassebaum (R-KS) supporting Hackney. Senators Edward Kennedy (D-MA) and Clairborne Pell (D-RI), both who were out of town, had prepared strong statements of support that were entered into the record. The opposition's arguments revolved around Hackney's role in two nationally publicized free speech incidences involving students at the University of Pennsylvania. Supporters stressed that Hackney was a distinguished historian, a successful administrator in higher education, and a longtime champion of both scholarly research and the public presentation of the humanities.
In July the Senate Committee on Labor and Human Resources unanimously voted to support the nomination of Hackney. Although several Senators had expressed reservations about the Hackney nomination, following the June 25 confirmation hearing, two senior Republicans on the Committee—Senators Orrin Hatch (R-UT) and Nancy Kassebaum (R-KS)—indicated that they would vote for his confirmation.
Hackney was sworn into office on August 4 and has assumed his duties at NEH.
National Historical Publications and Records Commission
On June 23 the House Subcommittee on Government Information, Justice, Transportation, and Agriculture, of the Government Operations Committee, chaired by Gary Condit (D-CA), held a hearing on H.R. 2139, a bill to reauthorize the National Historical Publications and Records Commission's (NHPRC) grants program for another five years at the level of "such sums as may be necessary." Besides Condit four other subcommittee members attended the hearing: Karen Thurman (D-FL); Craig Thomas (R-WY); Stephen Horn (R-CA); and Ileana Ros-Lehtinen (R-FL). Rep. Philip Sharp (D-IN), the representative of the House to the NHPRC Commission, Trudy Peterson, the Acting Archivist, and Gerald George, the Executive Director of the NHPRC, were the only witnesses. The Government Operations Committee has endorsed this bill. Following preparation of a committee report, the bill will go to the floor for a vote.
The Senate bill, which provides for a two year reauthorization at a ceiling of $10 million, has also been recommended by the full committee and is awaiting a vote by the full Senate. A Conference Committee will have to work out compromise language between the House and Senate bills.
Appropriations for NHPRC is also a pressing issue at this time. The House has passed the Treasury, Postal Service, and General Government Appropriations bill that includes only $4 million for NHPRC, a 20% cut. The House bill provides funding for the National Archives and NHPRC at the level recommended by the President, which is $193 million for the National Archives with $4 million earmarked for NHPRC grants. On July 20 the Senate Subcommittee for the Treasury, Postal Service, and General Government, chaired by Senator Dennis DeConcini (D-AZ) voted to increase the FY'94 budget of the National Archives to provide for a $6 million appropriate for NHPRC grants in FY'94.
Reform of Declassification Policy
On April 26 the President directed the Information Security Oversight Office (ISOO) to head a task force to revise the Executive Order on classification and declassification. The task force headed by Steven Garfinkel, the Director of ISOO, held open hearings during June to receive comments from the public and the NCC made presentations before four of the six subcommittees of the task force. The NCC stressed the need to return to a "balancing test." The current system puts primary emphasis on the risk of disclosure of information. Now with the end of the Cold War, it is time to develop a sound policy that balances protection of sensitive information with a commitment to greater openness and accountability in government. During the past decade the government has been overly cautious about the harm resulting for openness and has failed to appreciate the damage that secrecy inflicts on democratic government. The NCC urged adoption of strict guidelines and precise language for exemptions that would allow material to be held beyond twenty years.
The President's Directive calls for the task force to complete its work no later than November 30, at which time a draft executive order superseding E.O. 12356—President Reagan's executive order on classification/declassification—should be submitted for formal coordination.
General Accounting Office Issues Report on Declassification Problems
At the request of Representatives John Conyers (D-MI) and Lee Hamilton (D-IN) the General Accounting Office prepared a report titled, "Classified Information: Volume Could Be Reduced by Changing Retention Policy." The report was completed in May and publicly release in June. The first copy of this GAO report is available free by writing: U.S. General Accounting Office, P.O. Box 6015, Gaithersburg, MD 20884-6015 or calling (202) 512- 6000. The Number for this May, 1993 report is GAO/NSIAD-93-127.
Update on PROFS Case
A three-judge panel of the U.S. Appeals Court heard arguments on June 15 in the case of Armstrong v. Office of the President, frequently called the PROFS case for IBM's Professional Office System used by the National Security Council for its electronic mail. One of the most disappointing aspects of the one and half hours of oral arguments was that the Justice Department under the Clinton Administration retained so many of the positions of the Bush Administration regarding the preservation of the electronic mail system of the National Security Council. Although the transcript of the oral arguments is not available, the most memorable part of the hearing, from my point of view, occurred during an exchange between Judge Patricia Wald and the attorney for the government. Judge Wald asked the attorney to consider not just the adequacy of the National Archives' guidance to agencies about electronic records in 1989 or in January of 1993 but to consider what steps in the future had to happen for the National Archives to provide guidance to agencies on developing systems for archiving computer records. The government attorney responded, something to the effect, that technology was pushing the government toward great use of computer records and that she was sure that such archival computer systems would eventually emerge but perhaps not during this administration. The plaintiffs in the room exchanged looks of disbelief. Soon after this portion of the argument, there was a recess. When the attorney for the government again took the stand—about twenty minutes later—she began by stating that she wanted to clarify an earlier point. This administration could, within 6 to 8 months, she thought, provide the guidance to agencies needed for the development of systems for archiving electronic information. The U.S. Appeals Court will probably release its final rulings in this case in the fall.
On June 15 the U.S. Appeals Court temporarily stayed a contempt citation—involving high fines slated to begin on June 21—against the White House and the National Archives that resulted for a May decision by U.S. District Court Judge Charles Richey regarding inadequate preservation of the PROFS tapes. In a June 18 statement the U.S. Court of Appeals "Ordered that this Court's stay of the district court's order of May 21, 1993 should not be construed to relieve the appellants of their obligation to take all steps necessary, as expeditiously as possible, to assure that the electronic records are preserved."
On August 4 the PROF case took another twist when former Secretary of Defense Casper 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 PROF case which involves Freedom of Information Act requests is now before the U.S. District Court. Weinberger has requested that the U.S. 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 U.S. 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 is, in effect, making a claim to control access to these government records.
Bill on Access to Electronic Information through the Government Printing Office Passes the Senate
On June 8 the President signed Public Law 103-40, the Government Printing Office Electronic Information Access Enhancement Act of 1993. This law with strong bipartisan support establishes a means of enhancing electronic public access to a wide range of federal electronic information in the Government Printing Office. The law provides online access to the Congressional Record, the Federal Register, and other appropriate publications distributed by the Superintendent of Documents. It also calls for the establishment of an electronic directory of federal public information stored electronically. Fees for access to the directory and the system are to approximate the incremental costs of dissemination of the information. Additionally the new law specifies that depository libraries are to receive the information free of charge. Senator Wendell Ford (D-KY), one of the cosponsors of this legislation stated that this law will go "a long way toward ensuring that taxpayers have affordable and timely access to the federal information which they have paid to generate."
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