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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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