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City Council Testimony:
Robert C. Morris, Director, National Archives & Records Administration - Northeast Region

I want to thank the City Council for inviting me to speak today. As director of the New York office of the National Archives and Records Administration, I have worked closely with the Department of Records and Information Services and the New York State Archives for nearly fifteen years. These mutually beneficial partnerships show how government archives can cooperate to provide better services and thereby add value to the City's importance as a political, economic, and cultural center. NARA's funding arm - the National Historical Publications and Records Commission - and New York State's Local Government Records Management Improvement Fund have both provided support to DORIS. Our New York office has joined in programs ranging from a combined list of court records to teaching with documents. All three are involved with the World Trade Center Documentation Task Force. And NARA even blurs governmental lines by making microfilm and microfiche from the State Archives available at 201 Varick Street. The result is a system that better serves the public and researchers by providing ready access to essential evidence and adding to our understanding of the nation's history. Under Archivist of the United States John W. Carlin, the National Archives and Records Administration is eager to continue such partnerships that enhance the value of federal, state, and local archives programs.

Because of this commitment, I was pleased to accept when committee chairman Bill Perkins asked me to testify. I obviously do not have the knowledge or expertise to talk about mayoral records, but I might be able to shed some light on how the Federal Government handles the papers of its chief executive. Before Mayor Rudolph W. Giuliani left office, in fact, Steven Goulden of the New York City Law Department telephoned me about the National Archives and Records Administration's Presidential Libraries. Although I referred the call to our Office of Presidential Libraries in Washington, let me give you a brief overview of the system.

Throughout the eighteenth, nineteenth, and well into the twentieth century, no one questioned the President's ownership of his papers. Many were accidentally or purposely destroyed. Biographers of George Washington snipped out pages of his diaries. Chester A. Arthur burned his papers. Large collections of presidential papers found their way into the Library of Congress.

Franklin D. Roosevelt changed all of that in the early 1940s when he proposed creating a presidential library that would be part of an institution whose growth he had shepherded - the National Archives. Roosevelt suggested a novel and innovative approach - he would donate the land and build the library with private funding and then give the library and his papers to the National Archives. On June 30, 1941, he dedicated his library at Hyde Park.

Truman followed suit, and Dwight D. Eisenhower's clear support for the development of a library at the site of the already established Eisenhower Museum in Abilene, Kansas prompted Congress to pass the Presidential Libraries Act of 1955, which provided continuing legal authority for the government to accept the gift of a Presidential Library.

President Hoover had originally given his papers to Stanford but disagreed with the university on how his papers were being treated. A citizens committee from his hometown lobbied for the development of a library in West Branch, Iowa. Hoover quickly agreed and his became the third library in the system. The Eisenhower Library opened in 1962, and a pattern was established.

Over time the location for a Presidential Library shifted from the President's hometown to larger metropolitan areas or a university campus. This often meant three- or even four-way partnerships, as the library foundation, the university, and the local community came together to build a presidential center.

One very powerful reason the National Archives wanted libraries built and given to the National Archives is that this donation meant we would also be given the papers as well. In its time this system of donation worked very well. While nothing in the legislation required presidents to systematically preserve their official papers, it assured a president who donated materials that the integrity of the files would be preserved. The papers would be cared for by a professional archival staff and made available to all as historical records.

Watergate precipitated a major change. Shortly after Richard Nixon resigned the presidency, Congress passed the Presidential Recordings and Preservation Act to insure that no evidence related to the investigations would be destroyed. The act did not completely abrogate Nixon's personal ownership of the materials but did enjoin him from destroying any official presidential materials by preemptively taking control of them.

Historians, journalists, and Congress now raised serious questions about the ownership of Presidential materials. The Presidential papers and materials maintained under NARA's control at the Presidential Libraries of former Presidents Hoover, Roosevelt, Truman, Eisenhower, Kennedy, Johnson, Ford, and Carter were and still are controlled by deeds of gift by which they donated their records to the National Archives. Each of the deeds has provisions outlining categories of records that should withheld from public access for some period of time. Because the materials at these Libraries were donated to the United States, they were not subject to request under the Freedom of Information Act or any other public access statute. A special commission set up by the Presidential Recordings and Preservation Act made two recommendations in March 1977:

All documentary materials received or made by Federal Officials in discharge of their official duties should be considered the property of the United States.

Federal Officials should be given the prerogative to control access to their materials up to 15 years after the end of their federal service.

In 1978 Congress acted on the report and passed the Presidential Records Act creating a new category of government records - Presidential Records - and established the terms of access. The major provisions of the act were:

The ownership of presidential records is with the United States. After the conclusion of a president's tenure, the custody of presidential records is transferred to the Archivist of the United States.

As far as practicable, documentary materials should be categorized into presidential or personal records as they are produced or received in the White House.

The president may dispose of presidential records that he considers having no administrative, historical, informational, or evidentiary value, but must obtain the view of the Archivist before taking action.

The Archivist may deposit presidential records under his control in a Presidential Library and must consult with the President regarding who is to administer the Library. Prior to leaving office, a president may impose certain restrictions up to twelve years on the public availability of certain types of information.

The determination whether access to a Presidential record shall be restricted shall be made by the Archivist of the United States, in his discretion, after consultation with the former President.

Five years after leaving office, any of the president's records not open by the Archives may be made available through Freedom of Information Act requests.

Under certain conditions, access to presidential records not yet open is granted to the incumbent president, to the courts, and to Congress.

The former president or the incumbent president can claim executive privilege.

The vice president has the same authority and responsibility with respect to his records as the president.

An executive order issued by Ronald Reagan in 1989 established the procedures for providing notice to the former and incumbent Presidents prior to public or special access disclosures during the period when the presidential restrictions are in place. After these restrictions lapsed, President George W. Bush issued Executive Order 13233 outlining the process whereby the former or incumbent President can assert a constitutionally based privilege over the disclosure of Presidential records in response to a special access request. NARA has begun to implement all access requests for presidential records under the new executive order.

Although not perfect, the National Archives system has been remarkably successful in administering presidential papers. Even before the passage of the Presidential Records Act, library directors were given the independent authority and discretion to process and open the papers, with very limited involvement by the former president or his representative. Where a review board was established - such as for Presidents Roosevelt and Kennedy because they died in office, as well as for Truman and Eisenhower - they exercised extremely limited control over the decisions made by the libraries, and their principal concern was with respect to the president's personal and family matters.

The Presidential Records Act represented an effort to legislate what one Congressman described as a "careful balance between the public's right to know, with its vast implications to historians and other academic interests, and the rights of privacy and confidentiality of certain sensitive records generated by the President and his staff during the course of their White House activities." Whether dealing with donated historical materials or presidential records, however, the mission of the government staff in each library is the same - to preserve and process the holdings and provide access as fully and promptly as the law or deed and resources permit. For the Federal government at least, I submit that NARA's sixty-year-old Presidential Libraries system has worked.


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