Appeals Court Rules on Opening of Grand Jury Records

On December 15, 1997, the United States Court of Appeals for the Second Circuit in New York City ruled in the case of Bruce Craig v. United States of America (Case No. 96-6264). While the panel of Judges Kearse, Calabresi, and Munson denied Bruce Craig access to the specific records that he sought, the court made clear that historical interests are appropriate grounds for the release of grand jury material. The opinion states that "It is, therefore, entirely conceivable that in some situations historical or public interest alone could justify the release of grand jury information." The Appeals Court decided, however, that in this particular case disclosure "would involve some witnesses who are still alive" and that "the public interest and other factors involved in the petitioner's case did not justify disclosure."

Craig, a PhD student at American University, filed a petition in 1996 that was denied by the lower court. His petition called for the release of a historically significant 79-page transcript in the grand jury records pertaining to a McCarthy era espionage investigation of Harry Dexter White, a high-ranking Treasury Department official accused of being a Communist spy. The American Historical Association, the Organization of American Historians, the National Council on Public History, and the Society of American Archivists filed an amici brief in support of Craig's petition. The brief stressed the public's compelling interest in knowing its own history, in observing the operation of the criminal justice system, and in establishing a precedent in which the public's interest in historic grand jury records can justify the unsealing those records.

This opinion breaks new ground in firmly establishing historical interest as grounds for seeking access to grand jury records. It also establishes some guidance for determining the "special circumstances" under which sensitive grand jury records should be unsealed for historical reasons. The opinion outlines eight factors for courts to use in future deliberations. These include exploration of the following issues: identity of the party seeking disclosure; whether the defendant to the grand jury proceedings or the government opposes the disclosure; why the disclosure is being sought; the status of the principals in the grand jury proceedings and their families; the extent to which the desired material—either permissibly or impermissibly—has been previously made public; whether witnesses to the grand jury proceedings who might be affected by disclosure are still alive; and the additional need for maintaining secrecy in the particular case in question. In elaborating on this guidance, the opinion stated: "the passage of time erodes many of the justifications for continued secrecy."

Seven Federal Agencies Charged for Noncompliance with the Freedom of Information Act

Public Citizen, a nonprofit consumer advocacy organization with extensive experience in government information and Freedom of Information Act (FOIA) issues, filed papers on December 4, 1997, in the U.S. District Court for the District of Columbia charging that seven federal agencies have not complied with statutes requiring that they make available guides and indices to help the public obtain agency records. The seven agencies identified in the suit are the Office of Management and Budget (OMB), the Office of the Administration in the Executive Office of the President, the Office of the U.S. Trade Representative, the Department of Education, the Department of Energy, the Department of Justice, and the Department of State.

In the 1996 Electronic Freedom of Information Act Amendments, Congress directed agencies to make available a guide containing an index with a description of all major information and record locator systems, and a handbook describing how to obtain information from these systems under the FOJA and other statutes. Public Citizen notes that the OMB, as well as many other agencies, have ignored these mandates. This lawsuit stems from a FOIA requirement that agencies make their opinions, orders, policy statements, staff manuals and other records "that have been or are likely to become" the subject of public requests available for the asking in the agency's reading rooms. Additionally, on November 1, 1997, agencies were to make available online in "electronic reading rooms" those records created after November 1, 1996, that are available in the reading rooms. This would allow the public to obtain more recent information by modem.

Public Citizen points out that some agencies have taken seriously the mandate to make information available. Public Citizen has developed a web site that provides links to agency web sites that include agency finding aides. This site is accessible at http://www.citizen.org. Click on the litigation Group and then on the Freedom of Information Clearinghouse.

Increasing Support for Cultural Tourism

Two recent developments point to increased interest in and support of cultural tourism. Partners in Tourism, a coalition of eight national cultural service organizations and federal cultural agencies—including the NEH, the Federation of State Humanities Councils, and the American Association of Museums (AAM)—have released a report of the six regional cultural tourism leadership forums held to strengthen links between the cultural community and the tourism industry. The 40-page report, titled "Partners in Tourism: Culture and Commerce," presents nine elements needed for sustainable cultural tourism. The report can be purchased for $10 for partner organizations and $14 for others from the AAM. Visit the AAM bookstore online at http://www.aam-us.org to order the report.

The second development in cultural tourism is the announcement that the World Bank and the Getty Trust will form a partnership to sustain cultural heritage in developing countries. The agreement, which was signed in November 1997, seeks to support access to, conservation of, and education about cultural heritage. The partnership will identify specific operations and projects where the two organizations can collaborate to protect and sustain cultural heritage, and will jointly undertake pilot projects.

Federal Regulations Affecting Oral History

The November 10, 1997, Federal Register included a request for comments from the Office for Protection from Research Risks of the National Institutes of Health regarding possible revision to its expedited review list. Specifically the request is for "written comments relating to the proposed republication of the list that identifies certain research involving human subjects which may be reviewed by the Institutional Review Board through the expedited review procedure authorized in Sec. 46.110 of 45 CFR Part 46." Although some historians question whether there was ever an intention to include interviews for oral histories under this federal regulation, increasingly campus institutional review boards do apply these regulations to oral history. Thus this request for comments offers an opportunity to facilitate review of research using oral history. In responding to the request for comments, the Oral History Association has proposed the following language for inclusion in the final document: "Oral History interview projects that include an informed consent procedure in their design and will acquire signed legal release forms from all interviewees will be eligible for expedited review procedures." On January 8, 1998, the Council of the American Historical Association voted to respond to the request for comment by endorsing the language proposed by the Oral History Association.