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Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Subject Files
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Presidential Records
(2 of 5)
Box: 39
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
August 28, 1980
MEMORANDUM TO: VERONICA PICKMAN
FROM:
MARIE ALLEN Mare
SUBJECT:
ISSUES REMAINING TO BE RESOLVED CONCERNING
PRESIDENTIAL RECORDS ACT IMPLEMENTATION
As you requested several days ago, I've put together a list of
those issues still requiring resolution. I do not include
in the decision items below those issues about which there is
general agreement. The two major lists of decision items from
which this summary is drawn come from the Final Report of the
Working Group, Presidential Papers Task Force (1/21/80), and
the Terman legal analysis report (7/21/80).
(1) Assignment of Policy Responsibility for Presidential
records.
Counsel
Chief of Staff
V
Assistant for Administration
Note: Michael Berman has suggested that the President's
Counsel and/or Chief of Staff might have the official
responsibility for Presidential records, signing the major
memoranda to the staff on the subject, while Hugh Carter
assumed the administrative responsibility for recommending
and implementing records decisions.
It is generally agreed that the Vice President's Counsel
and Administrative Officer will assume similar functions
for Vice Presidential records.
(2) Assignment of records management responsibility for
Presidential records.
W.H.O. Office of Records Management
Office of Administration
Note: The Working Group report recommended that the
White House Office of Records Management assume respon-
sibility for Presidential records wherever located in the
EOP and that OA assume responsibility for federal records
wherever located in the EOP.
(3) Division of EOP records into federal records and Presidential
records.
Council of Economic Advisors
federal records
Presidential records
Drug Abuse Policy section of Domestic Policy Staff
federal records
Presidential records
Note: There is general agreement that the following units
create Presidential records: White House Office, Intelligence
Oversight Board, National Security Council selected files,
Office of Science and Technology Policy selected files,
Office of Administration selected files, Council on Wage
and Price Stability--selected files, and Domestic Policy
Staff--except possibly for files of Drug Abuse Policy section.
(4) Decision concerning file break between records of
President Carter's/Vice President Mondale's first and second
terms.
File break for Presidential records
Yes
No
File break for Vice Presidential
records
Yes
No
(5) Coverage of domestic gifts received by President/Vice
President by Presidential Records Act.
Domestic gifts
are covered by Act
are not covered by Act
are partially covered by Act
Note: If options 1 or 3 are chosen, the Gift Unit will
need legal assistance in modifying current procedures.
(6) Determination as to which documents are official records.
Terman list approved
Terman list approved, with these
exceptions:
Decision delegated to records
management officials
(7) Disposal schedule for Presidential/Vice Presidential records
Working Group draft approved
Working Group draft disapproved
(8) Handbook for Presidential/Vice Presidential records
Official responsible for review
Official responsible for signature
(9) Training courses for Presidential staffers in Act and use
of Handbook.
Training courses
approved
disapproved
Responsibility for organization of training courses
assigned to
(10) Restriction statement to be signed by President and Vice
President claiming right to restrict documents in six
categories for 12 years after the end of the Administration.
Terman draft approved
Working Group draft approved: short version
long version
Other
(11) Guidelines for documents removed by departing staffers from
White House complex.
Addressed in immediate memo from Counsel to staff
Addressed in handbook for period after 1/20/80
Not addressed at this time
OFFICE OF THE VICE PRESIDENT
WASHINGTON
July 22, 1980
MEMORANDUM FOR HUGH CARTER
MIKE CARDOZO
MARY LAWTON
MARIE ALLEN
VERONICA PICKMAN
FROM:
MIKE BERMAN nur
SUBJECT:
PRESIDENTIAL PAPERS ACT OF 1978
The following are attached for your consideration:
- a memorandum from Jim Terman (an attorney working
in our office for a short period of time) to me on issues
raised by the Act and the Task Force Report.
- Marie Allen's comments on a draft of the memorandum
preceding the draft that you are receiving.
- Jim Terman's responses to Marie Allen's comments.
- a chart which I requested from Marie Allen relating
to the basis for restricting access to certain kinds of
papers under the Presidential Papers Act and FOIA.
After an opportunity to digest this material, I
believe we should have a meeting to discuss this memorandum
and the Task Force Report.
attachments
MSB/meg
CC: Frank matthews
THE WHITE HOUSE
WASHINGTON
August 27, 1980
MEMORANDUM FOR HUGH CARTER
MIKE CARDOZA
MIKE BERMAN
VERONICA PICKMAN
MARIE ALLEN
FROM:
MARY LAWTON
SUBJECT: Presidential Records Act
Labor Day approaches and there are some significant decisions
regarding the Presidential Records Act which must be made if
we are to have sufficient lead time to implement the Act by
January 20, 1981.
The issues requiring most immediate resolution are the
definition of Presidential and Vice Presidential Records and
the question of whether to establish a file break. If there
is to be a file break, the designation of an official in
charge of implementation will also be essential.
Definitions There are a number of sub-issues involved in
arriving at an agreed-upon definition of records covered by
the Act. True implementation cannot begin until we have
resolved these and reached a definition.
1. Elements of the EOP which produce Presidential Records
Jim Terman's memo to Mike Berman contains recommendations on
which elements and officials produce Presidential records and
which do not. Marie Allen's comments question the distinction
he makes between the Drug Abuse Policy Office and the rest
of the Domestic Policy Staff (i.e. Records of the former are
subject to FOIA and of the latter are Presidential.) I think
this is a close question. I also question whether CEA can
be considered outside FOIA. Otherwise I agree with Jim Terman's
analysis. This matter should be brought to conclusion soon.
MEMORANDUM
August 27, 1980
page two
2. Coverage of Vice Presidential Records in the Senate
Office
Jim Terman concludes that records in the Vice President's Senate
Office are not covered by the Act. I agree that all communications
to the Vice President as President of the Senate are outside
the scope of the Act. What remains to be determined is whether
there are records of the Vice President as a part of the
Administration which are also maintained at that office which
might arguably be subject to the Act. We should ascertain the
facts and resolve this issue.
3. Coverage of Gifts
Jim Terman concludes that domestic gifts are not subject to the
Act except possibly those of special historic significance.
I do not believe any of the gifts are subject to the Act although
the log recording the gifts is a documentary record and it
should be preserved under the Act. Whichever view prevails a
decision should be reached soon.
4. Official versus Personal Records
The sharpest differences between Jim Terman and Marie Allen
arise in the area of differentiating between official records
and personal records. This included decisions whether drafts,
"extra copies," diaries, datebooks, communications from DNC,
briefing materials for political trips and similar items are
records. This is undoubtedly the most difficult aspect of
defining records but it must be resolved before implementation
of the Act can proceed any further.
File Break There is no dispute, as a matter of law, that
Presidential records of the first term are personal property
and those of the second are government property. The issue
is whether, if there is already a decision to donate first
term records to the government, it is nevertheless desirable
to impose a file break.
The argument in favor of a file break is essentially the
desirability of clearly asserting legal ownership and preserving
flexibility and control over first term records by segregating
them from records covered by the Act.
MEMORANDUM
August 27, 1980
page three
The argument against a file break is essentially practical -
the enormous complexity of trying to separate records of two
continious terms of office. To illustrate
If first term records are carted up and shipped
to storage, they will be unavailable for reference
on matters of continuing interest.
If records are retained but distinguishable by
different file folders or some other visable mark,
they will inevitably be comingled -- copy of
first term memo attached to second term memo.
The value of memory typewriters is lost if all
memory must be erased at the beginning of the
second term.
The value of the Presidential handwriting computer
file is diminished if a new and separate computer
file must be initiated at noon, January 20.
Is a photo shot on the morning of January 20 but
developed in the afternoon a first or second
term record?
If there is to be file break one central official or office
will have to be designated to resolve these issues and many others
as yet unanticipated.
Recommendation I do not believe that a further exchange of paper
will bring us any closer to resolving these issues. I suggest
a meeting at which we can sit down and hammer them out. We can
then get on with the business of recommending a decision to the
President and Vice President and, based on that decision,
implementing the Act.
OFFICE OF THE VICE PRESIDENT
WASHINGTON
July 21, 1980
MEMORANDUM FOR MICHAEL BERMAN
FROM:
JIM TERMAN
RE:
LEGAL ANALYSIS OF REPORT OF THE WORKING
GROUP - PRESIDENTIAL, VICE PRESIDENTIAL
PAPERS TASK FORCE - PRESIDENTIAL PAPERS
ACT OF 1978
This memorandum is divided into four sections. The
first section proposes the major legal decision items that
will have to be considered in implementing this Act. The
second examines what government units are covered by the
Presidential Records Act of 1978 (hereinafter referred to
as the Act). The third section examines the legal definition
of a "Presidential record" and "personal record". The
final section proposes revisions in the draft and implementation
documents prepared by the working group task force.
DECISION ITEMS
(1) Does the documentary materials received or created
by the following government units generally constitute an
official Presidential record?
White House Office
Yes
No
Recommendation - Yes
Intelligence Oversight
Board
Yes
No
Recommendation - Yes
Office of Management
and Budget
Yes
No
Recommendation - No
Domestic Policy Staff
General Documents
Yes
No
Recommendation - Yes
Documents relating to
Coordination of Drug
Abuse Policy
Yes
No
Recommendation - No
-2-
National Security
Council
General Documents
Yes
No
Recommendation - No
Files of Brzezinski
Yes
No
Recommendaiton - Yes
Files of Deputy Asst.
Aaron
Yes
No
Recommendation - Yes
Situation Room
Yes
No
Recommendation - Yes
Council of Economic
Advisors
Yes
No
Recommendation - Yes
Office of Science and
Technological Policy
General Documents
Yes
No
Recommendation - No
Selected Files of
Director as Advisor
to the President
Yes
No
Recommendation - Yes
Council on Environmental
Quality
Yes
No
Recommendation - No
Office of the Special
Rep. for Trade Neg.
Yes
No
Recommendation - No
Office of Administration
Yes
No
Recommendation - No
Director of OA
Yes
No
Recommendaiton - Yes
Office of the V.P.
General Documents
Yes
No
Recommendation - Yes
Documents retained as
Pres. of Senate
Yes
No
Recommendation - No
Council on Wage and
Price Stability
Yes
No
Recommendation - No
Director's Files
Yes
No
Recommendation - Yes
(2) Are documentary materials created or received by
Presidential advisory boards and Presidential commissions
to be generally considered official Presidential documents?
Yes
No
Recommendation - No
(3) Do the following documentary materials constitute
official Presidential records?
Domestic gifts
Yes
No
Recommendation - No
All documentary materials
relating to "political"
trips of President and
Vice President
Yes
No
Recommendation --- Yes
All speech drafts or, in
All speech drafts
the alternative, only
Historical drafts only
speech drafts of historically
significant occasions (i.e.,
Recommendation - Historical
inaugural address, acceptance
drafts only
speech before Dem. Convention)
-3-
Draft Schedules
Yes
No
Recommendation - No
"Political" memos trad-
itionally prepared for
the President during
his travels
Yes
No
Recommendation - Yes
All documents received
from DNC
Yes
No
Recommendation - No
Datebooks utilized by
staff
Yes
No
Recommendation - Yes
Chronological files and
subject matter files Yes
No
Recommendation - Yes
Copies of Presidential
records received by
an agency outside
of EOP
Yes
No
Recommendation - No
(4) Approval of letter to archivist providing
notification of election to restrict access to Presidential
documents. (Appendix B)
Approved
Revise
WHAT GOVERNMENT UNITS ARE COVERED BY THE ACT
The government units that are covered by the Act is
stated in the Act's definition of a "Presidential record".
A Presidential record is defined as "documentary
materials, or any reasonably segregable portion thereof,
created or received by the President, his immediate staff,
or a unit or individual of the Executive Office of the
President whose function is to advise and assist the
President, in the course of conducting activities which
relate to or have an effect upon the carrying out of the
constitutional, statutory, or other official or ceremonial
duties of the President". 44 U.S.C. 2201. The Act
specifically excludes from the definition the official
records of the "agency" as defined in the Freedom of
Information Act. 44 U.S.C. 2201 (2bIi).
The Executive Office of the President is made up of
the following government units: The White House Office,
Office of the Vice President, Intelligence Oversight Board,
Office of Management and Budget, Domestic Policy Staff,
National Security Council, Council of Economic Advisors,
Office of Science and Technology Policy, Council on
Environmental Quality, Office of Administration, Council
on Wage and Price Stability, Office of the Special Rep-
resentative for Trade Negotiations.
The key issue involved is that the Act specifically
limits its application only to a unit or individual of the
EOP "whose function is to advise and assist the President"
and to those government units that do not constitute an
"agency" under the FOIA. In analyzing this criteria, one
should closely examine three key paragraphs in the House
Government Operations Committee Report dated August 14, 1978,
on H.R. 1350 - Presidential Records Act of 1978.
The report reads as follows:
Presidential records does not include agency records
subject to the Freedom of Information Act, stocks of
publications, extra copies of documents or personal
records.
The Act does not modify the applicability of the
Freedom of Information Act to White House and
Executive Office records of a particular Administration
during its tenure. That is, it does not redefine the
term agency to include entities not now covered by
the FOIA. The conference report for the 1974 FOIA
amendments stated that "with respect to the meaning
of the term "Executive Office of the President, the
-5-
conferees intend the result reached in Soucie V.
David, 448 Fed. 2nd 1067. The term is not interpreted
as including the President's immediate personal staff
or units in the Executive Office whose sole function
is to advise and assist the President". H. R. 93-
1380, 93rd Congress, 2nd Session 13.
The term "Presidential records" is intended, however,
to encompass all White House and Executive Office
records except those of a purely private or non-
public nature, which as a consequence of the conference
report language, fall outside the scope of the FOIA
because they are not agency records. In other words,
that which is now subject to the FOIA would remain so
and that which is not now subject to FOIA would be
subject to the Presidential Records Act (emphasis
added) including those provisions of the Act which in
specified circumstances specially apply the FOIA to
these non-agency records after a President leaves
office. H.R. 95-1487, 95th Congress, 2nd Session 11.
Therefore, based on the above paragraphs, one must
first determine whether a government unit within the EOP
falls under the FOIA. If it does then it's work product
does not become subject to the Presidential Records Act.
If it does not fall within the FOIA then it falls within
the ambit of the Presidential Records Act. (It should be
noted that the preceding statement is slightly misleading
in that eventually all Presidential records become subject
to the FOIA at some point subsequent to the President's
term of office. However, Presidential records are not sub-
ject to the FOIA while the President is in office.)
For purposes of the FOIA the term "agency" is "each
authority of the government of the United States whether
or not it is within or subject to review by another agency"
and includes any executive department, military department
or other establishment in the Executive Branch of
government (including the EOP) or any independent regulatory
agency. 5 U.S.C. 551(1); 5 U.S.C. 552(e) 1976. Congress
and the courts are excluded from coverage.
The Ibuse report on the FOIA defined the term
"established in the Executive Office of the President" as
meaning "such functional entities as the Office of Telecom-
munications Policy, the OMB, the CEA, NSC,
-6-
Federal Property Council, and other similar establishments which
have been or may in the future be created by Congress
through statute or Executive Order. H.R. 93-876, 93rd
Congress, 2nd Session 8 (1976).
The final conference report to the FOIA adjusted the
House bill language. The conference report did not reject
the House report's inclusion of Executive Office units
which would be subject to the Act. It did state that
"with respect to the meaning of the term EOP the conferees
intend the result of Soucie V. David, 448 Fed. 2nd 1067
(CADC 1971) The term is not to be interpreted as in-
cluding the President's immediate personal staff or units
in the Executive Office whose sole function is to advise
and assist the President. H.R. 93-1380, 93rd Congress,
2nd Session 13 (1974) (emphasis added)
Briefly, Soucie V. David involved a suit against the
Office of Science and Technology for release of documents
under the FOIA. OST contended that it was not an "agency"
under the FOIA, but rather a part of the Office of the
President. The court ruled that OST was in fact an "agency"
under the FOIA. It stated:
if the OST's sole function were to advise and assist
the President, that might be taken as an indication
that the OST is part of the President's staff and
not a separate agency. In addition to that function,
however, the OST inherited from the National Science
Foundation the function of evaluating federal programs
by virtue of its independent function of eval-
uating federal programs, the OST must be regarded
as an agency subject to the APA and the Freedom of
Information Act. 448 Fed. 2nd, Act 1075.
Therefore, based on the above analysis the test in
determining whether a government unit within the EOP falls
under the Presidential Records Act is whether that unit's
-7-
sole function is to advise and assist the President. If
the unit has additional independent functions, then it
falls under the purview of the FOIA and the Federal Records
Act and is not subject to the Presidential Records Act.
It should be noted that there are presently individuals
within units of the EOP that fall under the FOIA who presently
consider their work product to be "Presidential documents"
not subject to the FOIA. Assuming their work product is
"reasonably segregable" and meets the test as described
above, then it would appear that their actions would be in
conformance with the Presidential Records Act. These
selected individuals will be discussed in the following
paragraphs.
The following paragraphs examine the specific units
within the EOP to determine whether said unit falls under
the Presidential Records Act.
WHITE HOUSE OFFICE
According to the Task Force Report the White House
Office (WHO) presently considers their work product to
be Presidential papers. Based on the above analysis it
clearly appears that this office would be included under
the purview of the Presidential Records Act. In support
of this argument it should be noted that the court in
Nixon V. Sampson relied on the aforementioned FOIA conference
report to exclude the WHO from the FOIA stating that its
function is one of solely advising and assisting the
President. 349 Federal Supplement 147 (DDC-1975).
INTELLIGENCE OVERSIGHT. BOARD
According to the Task Force Report the IOB presently
considers its work product to be classified as Presidential
-8-
Papers. The IOB does not consider itself under the
purview of the FOIA. Based on the writer's present know-
ledge of the functions of the IOB, their actions would
appear to be in conformance with the Presidential Records
Act.
The IOB is a creature of Executive Order #11905 in
1976 and amended by Executive Order #12036 dated January 24, 1978
providing for the organization and control of United State
foreign intelligence activities. The IOB is to "function within
the White House" and is composed of three members appointed
by the President from outside the government. It's functions
include the review of the practices and procedures of the
Inspector General and general counsels with responsibilities
for intelligence agencies; review the internal guidelines
of each intelligence agency with respect to legality or
propriety of its activities; report at least quarterly to
the President on its findings; forward to the Attorney General
reports concerning intelligence activities of questionable
legality; and conduct such investigaitons of activities of
intelligence agencies deemed necessary to carry out its
functions. E.O. 12036 - 43 Fed. regs. 3674. (January 24, 1978)
According to a Congressional Research Service report on
the applicability of the FOIA to the Executive Office of
the President (undated):
it is not clear what, if any, independent authority
the IOB exercises. It possesses broad review
authority over a number of federal agencies, but
whether such review includes the authority to
evaluate and, on its own, recommend courses of action,
it is not known nor made clear from the functions as
described in the Executive Order. The Board is to
-9-
report its "findings" to the President and such
"findings" appear to relate to the products of its
various review activities. If that is its sole
function (and its placement within the WHO may so
indicate), it may not be an "agency" for the pur-
poses of the FOIA. However, if the Board, in ad-
dition to its Presidential advisory role, evaluates
and makes recommendations and decisions with respect
to the policies and procedures of other federal
agencies, it may, like the OST in Soucie be con-
sidered "an agency" under the FOIA.
Of course, if the IOB was considered an agency under
the FOIA its work product would therefore not classify
as Presidential records under the Presidential Records Act.
OFFICE OF MANAGEMENT AND BUDGET
The OMB presently considers itself under the purview
of the FOIA and Federal Records Act. None of its work
product are considered Presidential documents. This
policy would appear to be in conformance with the Presidential
Records Act.
The OMB was specifically cited as an example of a govern-
mental unit falling within the purview of the FOIA in
the aforementioned FOIA House report. It is a creature of
statute and in addition to advising the President, has
independent functions, among them overseeing the budgetary
activities of all federal agencies. It has published FOIA
regulations which not only apply to it but to all other
entities within the Executive Office of the President (to
the extent the FOIA is applicable) which do not have their
own regulations. 5 CFR 1303 (1977) ; 3 CFR 101.1 (1977)
-10-
DOMESTIC POLICY STAFF
According to the Task Force Report, the DPS categorizes
their work product as Presidential Papers and does not
consider itself under the purview of the FOIA. This would
appear to be in conformance with the Presidential Records
Act except for possibly those documents of the DPS relating
to the coordination of drug abuse policy which is discussed
below.
According to the Congressional Research Service study
heretofore referred to, under the reorganization plan of
1977 the Domestic Council was replaced by the DPS. The DPS
consists of "such staff personnel as are determined
necessary by the President for advice in economic and
domestic policy". H.R. 95-661, 95th Congress, 1st Session
15 (1977)
According to the CRS study, the DPS also is responsible
for the coordination of drug abuse policy and is to "provide
an oversight capability to focus on drug abuse policy in
the manner described in Public Law 237". GAO Report on
Reorganization of the Executive Office of the President
(B-191694, April 21, 1978) reprinted in hearings on
Treasury, Postal Service and General Government Appropriations
for Fiscal Year 1979 before a subcommittee of House
Committee on Appropriations, 95th Congress, 2nd Session,
339, 346 (1978). (1979 Appropriations Hearings).
Public Law 94-237, the Drug Abuse Treatment Act
of 1972 as amended, among other things directs the review
and appraisal of drug abuse policies of other federal
departments. This review and evaluation process is to be
performed by the Domestic Policy Staff under the direction
of the Special Assistant to the President for health issues.
-11-
According to Lee Dogoloff, DPS Assistant Director for
Drug Abuse Policy, his division performs a unique role
compared with other units within DPS. In addition to its
advisory duties, this division has oversight responsibility
over other federal agencies. Pursuant to a Congressional
mandate, Dogoloff must report to Congress on an annual basis.
Unlike other associate directors of DPS, Dogoloff testifies
before Congress on a regular basis. In addition, Dogoloff
meets monthly with various agency representatives coordinating
drug abuse policy.
Therefore, it could be argued that, with respect to
drug abuse policy, the DPS may be performing an "independent
function" of evaluating federal programs of other agencies
in the drug abuse area in addition to its functions as
advisor to the President on domestic issues. As such,
documents pertaining to this particular area, if "reasonably
segregable," may be subject ot the Presidential Records Act.
NATIONAL SECURITY COUNCIL
According to the Task Force Report, with the exception
of the files of the Assistant to the President, Zbigniew
Brzezinski, Deputy Assistant to the President David Aaron,
and the files in the Situation Room, the NSC considers
itself within the purview of the FOIA. Only the afore-
mentioned files are considered Presidential documents not
subject to the FOIA.
The NSC has promulgated FOIA regulations and has been
the subject of court cases under the FOIA. It should also
be noted that Mr. Brzezinski and Mr. Aaron and paid by and
considered members of the White House Office. The files in
the Situation Room, although in the custody of the NSC,
contain communications between foreign governments, our
embassies and the President. They have historically been
considered White House documents.
-12-
It is the writer's opinion that the NSC's present
categorization of documents is in conformance with the
Presidential Records Act.
COUNCIL OF ECONOMIC ADVISORS
The CEA has a very confusing history with respect to
the FOIA and Presidential Papers. According to
Ms. Marie Allen, author of the Task Force Report, up until
the Administration of President Ford, the CEA was not con-
sidered an "agency" under the FOIA and all appropriate
documents were considered Presidential documents and property
of the President. Under the Ford Administration, the CEA
documents were considered federal records and not
Presidential documents.
As of this date, the CEA does not consider it an
"agency" under the FOIA and is presently undecided as to
whether its documents are federal records or Presidential
records.
The basis for concluded that the CEA should be clas-
sified as an agency under the FOIA and therefore not falling
within the ambit of the Presidential Records Act, emanates
from the aforementioned CRS report.
The report notes that the House report on the bill
from which the final version of the definition of "agency"
was taken, specifically mentions the Council of Economic
Advisors as an "establishment in the Executive Office of
the President" to be covered by the FOIA. H.R. 93-876,
93rd Congress, 2nd Session 8 (1974). Furthermore, the
reorganizationplan which established the Office of Science
-13-
and Technology - held to be an agency in Soucie under
criteria subsequently adopted by the conferees in the
1974 redefinition of "agency" in the FOIA - described the
OST as an administrative unit, outside the White House,
but in the Executive Office of hte President on roughly
the same basis as the Budget Bureau, the Council of
Economic Advisors, (emphasis added), the National Security
Council and the Office of Emergency Planning". 448 Fed
,
2nd at 1074, quoting from House Report 1635, 87th Congress,
2nd Session 9 (1962).
Therefore, based on the above argument, the CEA
should be considered an "agency" under the FOIA. However,
as indicated above, the CEA holds a contrary view. This
is based on a legal opinion by Cecilia E. Wirtz, OMB
Associate General Counsel and Legal Advisor to the CEA.
This opinion is attached to this memorandum as Appendix Al.
The basic conclusion reached in this memorandum is
that the CEA serves strictly in an advisory role to the
President and therefore, does not fall within the ambit
of the FOIA. With respect to the issue raised above where-
by the FOIA House report cites the CEA as a specific example
of an agency falling under the ambit of the FOIA, Ms. Wirtz
submits that the subsequent conference report to the FOIA,
while not contradicting the substance of the House report,
dropped the House language quoted above which cited the
CEA and other agencies as examples of government units
falling under the FOIA. Conference Report 93-1200, 12 U.S.C.,
Congressional and Administrative News, pg. 6221.
This writer would concur with the opinion of the CEA
legal advisor and feels that documents received or created
by the CEA should fall under the ambit of the Presidential
Records Act.
-15-
by subject". As indicated above, this would appear to be in
conformance with the Presidential Records Act.
COUNCIL ON ENVIRONMENTAL QUALITY
The CEQ presently considers all of its documents federal
records subject ot the FOIA. The CEQ has promulgated FOIA
regulations. No documents are considered Presidential papers.
This would appear to be in conformance with the Presidential
Records Act.
The CEQ was established by statute (National Environmental
Policy Act of 1969, 83 Stat. 852, 42 U.S.C. 4321) to formulate
and recommend national policies to promote the improvement of
the quality of the environment. The Council consists of three
members appointed by the President by and with the consent of
the Senate. According to the Congressional Research Service
report heretofore referred to, the CEQ has statutorily defined
functions of appraising programs and policies of other federal
agencies independent of its Presidential advisory role. See
42 U.S.C. 4342, 4344.
It might be suggested that the files of the Director of
the CEQ by analyzed to determine whether they can and should be
segregated in order that those documents which relate to the
Chairman's role as advisor to the President should be classified
as Presidential records and handled pursuant to the provisions
of the Presidential Records Act. According to the EOP records
manual heretofore referred to, a separate subject matter file
does not presently exist.
COUNCIL ON WAGE AND PRICE STABILITY
The COWPS presently considers its documents federal
records subject to the FOIA except for the Director's files
-16-
who also serves as advisor to the President on Inflation and
is paid by the White House Office. The Director's files are
considered Presidential records. This would appear to be in
conformance with the Presidential Records Act.
The COWPS has significant independent duties including
working with private industry and government agencies to en-
courage price restraint, working with labor and management,
conducting public hearings, monitoring the economy, reviewing
and appraising federal agency programs, and intervening in
administrative proceedings. 12 U.S.C. 1904 (1976). It has
published FOIA regulations. 6 CFR 702 (1977).
According to the EOP Records Program manual the Chairman's
files are divided into two categories. The first is the
Chairman's subject files which "include correspondence,
internal memoranda and pertinent background material on
issues that are coordinated through the COWPS. The file is
arranged alphabetically by agency, subject and commodity.
"
The above file is considered a federal record and
forwarded to the Federal Records Center upon departure of
the Chairman.
The second file is the Chairman's alphabetical file.
This file "includes copies of correspondence and internal
memoranda that are included in the Chairman's subject files.
These files are related to the Chairman's role as advisor to
the President on inflation and are arranged alphabetically
by name and chronologically thereunder". This file is transferred
to the White House files upon departure of the Chairman.
As previously indicated, the above would appear to be
in conformance with the Presidential Records Act.
-17-
OFFICE OF THE SPECIAL REPRESENTATIVE FOR
TRADE NEGOTIATIONS
According to the Task Force Report the OSRTN has
traditionally considered its documents federal records and
not Presidential records. This would appear to be in con-
formance with the Presidential Records Act.
The OSRTN has promulgated its own FOIA regulations.
15 CFR 2004 (1977). It advises both the Congress and the
President and is responsible for the administration of internal
trade agreements. 19 U.S.C. 2171.
OFFICE OF ADMINISTRATION
According to the Task Force Report the OA presently
considers its documents federal documents subject to the FOIA
and not Presidential records; except for the Director's files
which are considered Presidential documents. This would appear
to be in conformance with the Presidential Records Act.
The Office of Administraiton "provides administrative
support services to all units within the EOP, except those
services which are in direct support of the President".
1979-80 Government Operations Manual 101.
The Director of the OA also serves as Special Assistant
to the President for Information Management as part of the
White House Office. According to the EOP Records Management
manual, the Director has one alphabetical file. "These files
are related to the Director's role as Special Assistant to the
President for Information Management and include correspondence
memoranda and background information related to information
management. These files are arranged alphabetically by subject.
These files are to be transferred to the White House files
upon departure of the Director".
-18-
As previously indicated, this would appear to be in
conformance with the Presidential Records Act.
OFFICE OF THE VICE PRESIDENT
According to the Act, Vice Presidential records are
to be treated in the same manner as Presidential records.
44 U.S.C. 2207. It therefore appears that any documents
created or received by the Office of the Vice President
would be classified as Vice Presidential documents (assuming
that it met the additional criteria discussed below).
The general exception to this rule are those documents
created or received by the Vice President in his capacity
as President of the Senate. There are many documents that
are received by the Office of the Senate President that re-
late solely to Senate functions. There is also a ledger kept
by the Senate President's staff indicating when these documents
have been received and to whom they have been forwarded.
In addition, the Office of the Senate President generates
correspondence by and between Senators, Congressmen and Senate
staffers.
The writer submits that all documents received or created
by the Vice President or members of his Senate staff in his
capacity as President of the Senate, remain Senate property
and are not intended to be considered Vice Presidential
documents.
A counter argument to this conclusion is that Vice
Presidential records are to include all documents received
or created in the course of conducting activities which re-
lates to the Vice Presidenti's constitutional, statutory or
other official duties. It can be argued that one constitutional
-19-
duty of the Vice President is to serve as President of the
Senate and, therefore, all documents created or received as
a result of performing this duty are to be considered
Vice Presidential documents.
However, the Office of the President of the Senate is
an independent constitutional office created under Article I
of the Constitution, separate and apart from the Office of
the Vice President created under Article II of the Constitution.
It can be argued that the offices have separate functions
and duties and, in fact, operate within two separate branches
of government. It is only that the Constitution mandates
that the same individual shall hold both offices. Therefore,
it is not intended that those documents created or received
by the Office of the Senate President shall be included as
official Vice Presidential documents.
PRESIDENTIAL ADIVSORY BOARDS AND PRESIDENTIAL COMMISSIONS
The Presidential Records Act does not specifically
address the question of whether records of Presidential
boards and commissions constitute "Presidential records"
under the Act. It is this writer's opinion that generally
Presidential commissions and boards do not fall within the
ambit of "Presidential records".
Traditionally, the work product of Presidential boards
and commissions have been considered federal records
subject to the Freedom of Information Act and have not
constituted Presidential records.
The Federal Advisory Committee Act makes Presidential
commissions and boards subject to the Freedom of Information
Act. Public Law 92-463, 86 Stat. 770 (Section 12).
Furthermore, the Advisory Act mandates that the Library of
-20-
Congress establish a depository for the reports and papers
of the commissions and boards. Ed. at Section 13.
Keeping in mind the overall general intent of
Congress in drafting the Act - that which is presently
subject to the FOIA should remain SO and that which is not
now subject to the FOIA should be subject to the Presidential
Records Act - it appears that these commissions and boards
should remain federal records.
There may be exceptions to this general rule whereby
under the test of Soucie V. David the commission was created
solely to advise and assist the President and has no other
independent function. A list of existing Presidential
advisory boards and commissions is attached to this memorandum
as Appendix A. These boards and commissions should probably
be examined on an individual basis to determine whether
they fall within the confines of the Act.
DOMESTIC GIFTS
The Task Force Report raised the issue of whether
domestic gifts received by the President are intended to
be "Presidential records" under the Act and therefore the
property of the U.S. Government. Presently only foreign
gifts over $100 under the Foreign Gifts and Decorations Act
are considered government property. There is nothing in
the legislative history of the Presidential Records Act
which specifically refers to domestic gifts.
The writer feels that domestic gifts generally should
not be considered "Presidential records" under the Act.
-21-
In analyzing this issue one should focus on the
intent of the legislation. Unlike the Foreign Gifts Act,
the legislation was created not to avoid possible conflicts
of interest and influence buying, but rather to promote the
creation of the fullest possible documentary record of the
Administration and to make it available to the public as
soon as reasonably possible.
As previously discussed, documentary materials are
defined as "all books, correspondence, memoranda, documents,
papers, pamphlets, works of art, models, pictures, photo-
graphs, plaques, maps, films and motion pictures".
44 U.S.C. 2201. It certainly can be argued that taken
literally, certain gifts could be classified as documentary
materials and therefore if received in the course of the
President's official duties could be classified as
Presidential records.
However, what about clearly personal gifts - such
as a fishing rod given to the Vice President? Also, should
not the intention of the donor be considered. Was it the
donor's intent for the President to personally retain the
gift? Was it Congress' intention to override basic common
law and override the donor's intent?
It is the writer's contention that generally, such
gifts are of little historic value and therefore were not
intended to fall within the purview of the Presidential
Records Act and as such no dot constitute a Presidential
record. This does not mean that there cannot be any
exceptions to this proposed general rule and that certain
domestic gifts may have such historical significance that
they should be considered a Presidential record.
DICTINCTIONS BETWEEN PRESIDENTIAL RECORDS
AND PERSONAL RECORDS
In the writer's opinion the first test in determining
whether a document constitutes a Presidential record is to
ask whether same was received or created by a member of the
President's immediate staff or individual of a unit within
the EOP that is not considered an "agency" under the FOIA.
Even if the individual falls within an agency as defined in
the FOIA one still must ask whether his work is reasonably
segregable with respect to that portion of his work which is
related to the sole function of advising and assisting the
President.
The next question is to determine whether the
documentary materials received or created by this individual
or government unit is specifically excluded from the Act.
(It should be emphasized that a Presidential Record is
not limited to only those documents created by the President's
staff. It includes those documents received by any member
of the staff, provided of course, it meets the criteria
hereinafter discussed.)
The Act defines documentary materials as "all books,
correspondence, memoranda, documents, papers, pamphlets,
works of art, models, pictures, photographs, plaques,
maps, films and motion pictures". 44 U.S.C. 2201.
The Act specifically includes documentary materials
relating to the political activities of the President if
such activities relate to or have a direct effect upon his
official duties.
The Act specifically excludes documentary materials
relating to personal records, stocks of publications and
stationery, extra copies of, documents, or official records of
an "agency" as defined in the Freedom of Information Act.
As indicated above, the definition of "documentary
materials" is very inclusive. The House Government
-23-
Operations report acknowledges that:
the definition is an expansion upon the traditional
notion of the form a government record may assume,
but still relies heavily on the definition of the
term "record" in 44 U.S.C., Section 301 and the
practice that has evolved in the administration of
chapter 29 of that title (Federal Records Act). To
the extent that certain categories of documentary
materials are not considered to be records under that
chapter, the same categories of materials generated
or received by the President and his aides would
generally fall outside the ambit of what constitutes
a record. (emphasis added). H.R. 95-1487, 95th
Congress, 2nd Session 10 (1978).
The Federal Property Management Regulations has
defined a term called "non-record" as "non-record material,
such as extra copies of documents preserved by convenience
of reference, stocks of processed documents, preliminary
work sheets, and similar papers that need not be made a
matter of record shall not be incorporated in the official
files of the agency". FPMR 101-11.401 - 3 (d).
The EOP Records Management Program manual describes
types of non-record material as follows:
(a) extra copies of record materials retained
solely for convenience of reference; (b) inform-
ation and reference copies of correspondence and
other papers or which no action is necessary;
(c) preliminary drafts of letters, memoranda,
reports, studies, preliminary worksheets and informal
notes that do not add significant data or sub-
stance to the preparation of an official record;
(d) shorthand notes, including stenographic note-
books and stenotype tapes that have been transcribed
(e) abstracts of correspondence, route slips and
letters of transmittal that do not contain significant
information; (f) stocks of publications and processed
documents maintained for distribution purposes;
(g) catalogues, trade journals and other publications
or printed material received from other government
agencies, commercial firms or private institutions
that require no action or supplement the official
record; (h) library and museum material made or re--
-24-
quired solely for reference or exhibition purposes.
EOP Records Manual, Chapter 2, pg. 7.
The writer submits that based on the House report
certain materials, as described above, received or created
by the President's staff of the EOP are not intended to
be official "Presidential records" and therefore the
permission of the archivist is not needed prior to their
disposal.
The basic question is whether we want to take the
position, which we clearly have the right to do, of de-
fining what is an official record and advising the archivist
of our determination or whether we want to work with the
archivist in determining what types of documents constitute
an official record.
Notwithstanding the above issue there are documentary
materials that are specifically excluded from being defined
official Presidential records under the Act. The basic
categories that a staff person will have to deal with on
a daily basis are as follows: (1) non-records: documents
as discussed above and/or documentary materials that are
considered "Presidential records" under the Act but have no
historic value and approval of the archivist is received in
advance of their disposal; (2) staff - personal documents:
the employee's own personal documents unrelated to his
official duties, i.e. personal diaries, personal insurance
records, personal bills, etc.; (3) the President's personal
documents: the President's insurance records, tax records,
blind trust documents, (these documents are probably
handled exclusively by the President's personal secretary
and personal attorney) ; (4) "personal political" documents:
political activities of the President that do not have a
direct effect on the carrying out of his official duties.
This specifically includes materials relating exclusively
to the President's own election and materials directly
-25-
relating to the election of a particular individual or
individuals to federal, state or local office.
The first category or non-record documents was
discussed above. The second and third categories, Presidential
personal and staff personal documents are pretty clearly
understood. The fourth category, what the writer has called
"personal political documents" present somewhat of a
problem.
The Act specifically includes documentary materials
relating to the political activities of the President that
have a direct effect upon the carrying out of his official
duties. It appears that Congress intended most documentary
materials relating to his political activities to fall
within the ambit of the Act.
The House report states:
almost all of the President's political
activities relate to or have a direct effect upon his
official duties and as such records reflecting these
activities would be included within the scope of what
constitutes a Presidential record
while
the need to protect the President's First Amendment
right of Freedom of Political Association is
clear, an examination of the nature of political
activities in which a President becomes involved
shows that few are truly private and unrelated
to the performance of his duties. For example,
political activities of a President might fall
into the following categories: public activities
as leader of his party; actions taken privately
as head of his political party involving the
exchange of advice and information affecting the
fortunes of his party, particular candidates for
office, or his legislative program; actions in-
volving how own campaign and related fund-raising
efforts seeking re-election as President; and
actions involving the exercise as a private citizen,
of his political preferences by voting or making
campaign contributions. Records pertaining to
activities in all but the last category would
-26-
appear generally to fall within the ambit of
Presidential records without presenting a serious
threat of infringement of the President's First
Amendment Right of Freedom of Association. House
Report 95-1487 at pg. 12.
It must be noted that subsequent to the publication
of this report the bill was amended, adding 44 U.S.C.
2201 (3C) which specifically excluded from Presidential
records "materials relating exclusively to the President's
own election to the Office of the Presidency and
materials relating to the election of a particular
individual or individuals to federal, state or local office. "
In introducing this amendment Congressman Brooks
stated:
the definition of what constitutes a personal record
has been modified to include those materials which
relate solely to the President's own election or
re-election. This change observes more closely
the court's view in the Nixon case that some of the
President's involvement in partisan politics may
be protected by the First Amendment in that compelled
disclosure through assertion of government interest
in certain papers could infringe on those protected
rights. The government's direct interest in
campaign records is best served through enactment
of special legislation dealing specifically with
campaign and election practices. Congressional
Record 10/5/78, pg. H. 11756-7.
Therefore, in the writer's opinion, few documents
the layman calls "political documents" would be excluded
from the Presidential Records Act. Political briefing
memos, traditionally given to the President and Vice President
prior or during his travels would fall within the ambit
of the Act. It appears that only the most sensitive inform-
ation relating to the President's re-election would be
excluded such as overall strategy memos, memos detailing over-
all re-election efforts of others on the President's behalf,
proposed campaign budgets, proposed long-term travel schedules,
etc.
-27-
SPECIFIC ITEMS: ARE THEY OFFICIAL PRESIDENTIAL RECORDS?
Below is a list of specific items that the writer
assumes will be the subject matter of questions by staff
members.
(1) Diaries - "Diaries, journals, or other personal notes
serving as the functional equivalent or a diary or journal
which are not prepared or utilized for or circulated or
communicated in the course of transacting government business"
is specifically cited as a personal document in the Act.
44 U.S.C. 2201 (3c).
(2) Datebooks - If used solely or in part for official
business, then it should qualify as an official record.
(3) Stocks of publications and stationery - specifically
exempted from the statute.
(4) Extra copies of documents - specifically exampted
from the statute.
(5) Chronological files and subject matter files - They
can be considered historically significant and therefore
should probably qualify as official documents.
(6) Memo relating to political strategy to obtain passage
of legislation - Since this relates to the President's
official duties it should be classified as an official
document.
(7) Final text of official or political speech - Both
of these documents should be considered Presidential records.
(8) Drafts of speeches - Generally these documents should
not be considered official records. There probably should
be some exceptions to this general rule with regards to
historically significant speeches (Inaugural Address -
acceptance speech before Democratic Convention). It should
be noted that the Task Force Report strongly dissents from
this view. Ms. Marie Allen, author of the Task Force Report,
feels that the use of a "historically significant" test
cannot be properly implemented by a layman.
Secondly, Ms. Allen feels that the speech-writing function
of the President's office plays a principal role in reflecting
the development of the President's views and policies and,
therefore, all drafts/are historically significant and were
intended to he/classified as Presidential documents under
the Act. Notwithstanding this view, it is the writer's
(which are forwarded by speechwriter to President and/or
other staff members)
-28-
opinion that rough drafts of speeches constitute "non-record"
items, and unless the President elected to do so, would
therefore not be required to retain same.
(9) Xeroxes of official Presidential documents - These can
be retained by staff personnel.
(10) "Political memoranda traditionally prepared for
President and Vice President during travels - As a general
rule, these documents should be considered official documents
as, "except for the campaign season" they have nothing
directly to do with the President's re-election campaign.
It could be argued that if these memos were specifically
constructed to contain political data only, excluded reference
to any substantive issues or other topics, that same could
be classified as personal documents. This argument would
rest on the strongest grounds during a re-election campaign.
(11) Briefing cards prepared by advance person reflecting
schedule and VIP's in attendance at each Presidential
and Vice Presidential event - These documents should
probably be considered official documents as they usually
reflect the latest and therefore most accurate information
on the President's schedule and whom was in attendance at a
particular event.
(12) Documents received from the DNC - It would appear that
most documents received from the DNC would be classified
as personal documents. Certainly all documents received
containing poll or election data in reference to the
President's re-election or the election of other federal,
state or local candidates would not be classified as official
documents.
IMPLEMENTATION OF ACT - ESTABLISHMENT OF RECORDS
MANAGEMENT CONTROLS
It should be noted that the Act mandates that the
President implement records management controls to assure
that his activities are adequately documented and maintained.
44 U.S.C. 2203.
It further mandates that "to the extent practicable"
documentary materials are categorized as Presidential records
or personal records upon their creation or receipt and be
filed separately. This essentially means that it is up to
the staff to determine what is a personal document and what
is an official document.
-29-
IMPLEMENTATION OF ACT - DISPOSAL OF DOCUMENTS
The Act requires that the approval of the archivist
must be obtained prior to the destruction of any documentary
material defined as Presidential records.
As indicated above, the term "Presidential record"
is very broadly described. However, as heretofore discussed,
there is legislative history which supports the argument
that the Act was written with the intent that it be admin-
istered in a similar manner to the Federal Records Act;
therefore, certain documents are intended to be "non-records"
and therefore not requiring the approval of the archivist
prior to its destruction.
The opposing argument to this approach is that to
avoid a dispute with the archivist and to avoid the
destruction of a documentary material thaty may later be
the subject matter of litigation and defined as a "Presidential
record", a list of all documentary materials that are in-
tended to be disposed of should be submitted to the
archivist for approval.
In any event, it should be noted taht the House
report specifically states that "it is anticipated that
the actual examination (by the archivist) will only involve
a sampling of those records about which there is a question.
There is no requirement nor is there an expectation that
the archivist will find it necessary to review each and
every document proposed for disposal." House Report pg. 13.
RESTRICTIONS ON ACCESS TO PRESIDENTIAL RECORDS
The Act allows the President to restrict the public's
access to certain categories of documents specified in
-30-
the Act for a period not to exceed 12 years. The basic
issue raised by the Task Force Report is whether it is
necessary for the President to specify the specific
restrictive language at the commencement of his second term,
or whether he need only claim the right to restrict all
categories of documents as defined in the statute for the
full 12-year period and subsequently define and liberalize
his restrictions.
The writer feels that the President clearly has the
right to intially claim the general right to restrict
these documents and can later liberalize his restrictions
at any time. A proposed statement to the archivist to
the effect is attached as Appendix B.
FILE BREAK ISSUE
This issue basically concerns the question of
whether it is necessary to implement a file break, or
separation of first term and second term documents.
The reasons behind such a move would be to separate
first term documents which are the President's personal
property and the second term Presidential records which are
the property of the U.S. Government. The writer agrees
with the Task Force Report that failure to initiate a file
break could jeopardize the President's ability to sub-
sequently separate and take possession of the first term
documents as there would then be a co-mingling of personal
documents (the first term documents) and the official
Presidential records of the second term.
From a practical perspective, in order to obtain a
separation, this project would have to be implemented at
the outset of the second term.
-31-
The issue basically is whether the President desires
to implement a file break in order that he may retain the
possession and not jeopardize his personal property rights
in his first term documents.
The argument that a failure to separate first term
and second term documents jeopardizes the President's sub-
sequent to claim title to first term documents, has its
basis in 44 U.S.C. 2203 (b) of the Presidential Records Act.
This section reads as follows:
Documentary materials produced or received by the
President, his staff or units or individuals in
the Executive Office of the President, the function
of which is to advise and assist the President,
shall, to the extent practicable, be categorized as
Presidential records or personal records upon their
creation or receipt and be filed separately.
Effective January 20, 1981, all first term documents
become "personal" documents and therefore, must be filed
separately from official Presidential documents. While the
Act does not specify any sanctions for violating this
provision of the Act, it would appear that failure to make
such a separation is a direct violation of the Act, and
as heretofore stated, could jeopardize the President's right
to subsequently claim title to his first term documents.
The practical ramifications of the issue really rest
with the President's and Vice President's interest in re--
taining their property rights to the first term documents.
If they have no interest in same, then the issue is moot.
( Ins. morez
APPENDIX N
is
March 23, 1977
MEMORANDUM FOR: ELIZABETH KAMINSKI
Council of Economic Advisors
FROM:
Cecelia B. Wirtz
SUBJECT: Status of the Council of Economic Advisers
as an Agency for Purposes of the Freedom
of Information Act.
You have requested our assistance in responding to an
appeal of the denial, in part, of a request for informa-
tion made to the Council of Economic Advisers (CEA)
pursuant to the Freedom of Information Act (FOIA)
(5 U.S.C. 552) We have reviewed your functions as
an entity in the Executive Office of the President (ZOP) ,
and it is our opinion that CEA is not an "agency" sub-
ject to the requirements of FOIA.
For purposes of FOIA, the term "agency" is defined as
"each authority of the Government", and includes "any
executive department, military department, Government
corporation, Government-controlled corporation, or
other establishment in the executive branch of the
Government (including the Executive Office of the
President)
(Section 552 (c) ) (Emphasis added).
Section 552 (e) was part of the 1974 amendments of FOIA.
Its purpose was to clarify, and expand, the definition
of the term "agency". In the Conference Report on the
1974 amendments, the expanded definition was explained
as follows:
"
with reference to the meaning of the term
'Executive Office of the President' the conferces
intend the result reached in Soucie V. David (448
F. 2d 1067 (D.C. 1971) ) The term is not to be
interpreted as including the President's immediate
personal staff or units in the Executive Office
whose sole function is to advise and assist the
2
President. (Imphasis added) (Conf. Rept. No. 93-1200,
12 U.S.C. Code Cong. and Admin. News at P. 6221)
At the the time of the Soucie case, the determining factor in
deciding whether an entity was an agency, as defined by
the Administrative Procedures Act (5 U.S.C. 551), was
whether it had the authority to make decisions. In Soucie
the Court held that the Office of Science and Technology
(OST) (which had been established in the EOP by a reorgan-
ization plan) had an independent function of evaluating
Federal scientific programs, and was, therefore, an agency
for purposes of FOIA. OST was an agency because it had the
authority to make decisions regarding this evaluation function.
In addition, OST had published notice in the Federal Register
describing information available under FOIA, and the pro--
cedures to be followed to obtain such material. The court
viewed this interpretation by OST of its charter as lending
support to the conclusion that it was a separate adminis-
trative entity (448 F. 2d at 1075).
The Soucie court did not, however, review the question of
an entity whose sole function is to advise and assist the
President. This issue was the focus of the 1974 amendment.
*
It should be noted that the Conference Report onitted
language which had appeared in the House Report which had
dofined EOP to mean "such functional entities as the Office
of Telocommunications Policy, the Office of Management
and Budget, the Council of Economic Advisers, the National
Security Council, and the Federal Property Council and
other similar establishments which have been or may in the
future be created by Congress". House Rept. No. 93-876
at P. 8, 93d Cong, 2d Sess.
** It is clear that not all offices within the EKOP are
subject to FOIA. In Nixon V. Sampson, 389 F. Supp. 107
(D.C.D.C. 1975) ; stay granted, 513 F. 2d 430 (D.C. C. 1976)
the Court held that, the term "agency" as defined in
Section 553 (e) did not include the White House Office.
Although theCourt stated in dicta that records of congres-
sionallv-created exacutive agencies which assist the President
in the formulation of policy and programs may be accessible,
that issue has not been raised directly.
3
And its resolution, as illustrated by the legislative
history, places an office such as CDA, which strictly
performs in an advisory capacity to the President, beyond
the application of the Act. *
This does not, however, resolve the problem of responding
to the FOIA appeal. A policy decision must still be made,
independent of FOIA, whether the information will be dis-
closed. If that decision is to withhold the material in
question, the letter attached could serve as an appropriate
response.
*For example, 15 U.S.C. 1023 (c) (3) provides that CEA
is required to appraise various programs and activities
of the Federal government and to make recommendations
to the President.
Attachment
CC: Official File - GC Records
General Counsel
OGC Chron
Ms. Wirtz
DO:OGC:CEWirtz:mjr:3/23/77
APPENDIX A.
PRESIDENTIAL ADVISORY COMMITTEES
Advisory Board on Child Abuse and Neglect (HEW) (N)
Advisory Committee on Federal Pay (ACFP)
Board of Visitors, U.S. Air Force Academy (DOD)
Board of Visitors, U.S. Military Academy (DOD)
Board of Visitors, U.S. Naval Academy (DOD)
Commission of Fine Arts (CFA)
Commission on the Review of the Federal Impact Aid Program (HEW) (N)
Committee for the Preservation of the White House (DOI)
Committee on the Selection of Federal Judicial Officers (DOJ)
Federal Council on the Aging (HEW)
General Advisory Committee on Arms Control and Disarmament (USACDA)
Judicial Nominating Commission for the District of Puerto Rico (DOJ) (N)
Minimum Wage Study Commission (DOL)
National Advisor / Committee for Juvenile Justice and Delinquency
Prevention (DOJ)
National Advisory Committee on Oceans and Atmosphere (DOC)
National Advisory Council on Adult Education (HEW)
National Advisory Council on Child Nutrition (USDA)
National Advisory Council on Economic Opportunity (CSA)
National Advisory Council on the Education of Disadvantaged Children (HEW)
National Advisory Council on Extension and Continuing Education (HEW)
National Advisory Council on Maternol, Infant and Fetal Nutrition (USDA) (N)
National Advisory Council on Vocational Education (HEW)
National Advisory Council on Women's Educational Programs (HEW)
National Alcohol Fuels Commission (NAFC) (N)
National Commission for Employment Policy (DOL) (N)
National Commission for Manpower Policy (DOL) (T)
National Commission for the Review of Antitrust Laws and Procedures (DOJ) (T)
National Commission on Employment and Unemployment Statistics (DOL)
National Commission on the International Year of the Child, 1979 (NCIYC)
National Commission on Neighborhoods (NCN) (T)
National Commission on Social Security (NCSS) (N)
National Commission on Unemployment Compensation (DOL)
(N) New this calendar year (includes first reporting of committees existing
prior to this calendar year, and committees reestablished within this
calendor year).
(T) Terminated during this calendar year (includes merged, abolished, or
expired).
Reprinted from Eighth Annual Report of the President to the Congress on the stat
of Federal Advisory Committees pursuant
to Federal Advisory Committee
Act. Report dated March 19, 1980
-2-
National Transportation Policy Study Commission (NTPSC) (T)
Peace Corps Advisory Council (PC) (N)
President's Advisory Committee for Women (Formerly National Advisory
Committee for Women) (DOL)
President's Cancer Panel (HEW)
President's Commission for a National Agenda for the Eighties (OMB) (N)
President's (Special) Commission for the Study of Ethical Problems in Medicine
and Biomedical and Behavioral Research (PCEMR) (N)
President's Commission on the Accident at Three Mile Island (PCATMI) (N) (T)
President's Commission on the Coal Industry (PCCI)
President's Commission on Foreign Language and International Studies (HEW) (T)
President's Commission OD the Holocaust (DOI) (T)
President's Commission on Pension Policy (PCPP)
President's Commission on White House Fellowships (OPM)
President's Committee on Mental Retardation (HEW)
President's Committee on the National Medal of Science (NSF)
President's Council on Physical Fitness and Sports (HEW)
President's Export Council (DOC)
Subcommittee on Export Administration
President's Management Improvement Council (OPM) (N)
Presidential Advisory Board on Ambassadoria! Appointments (DOS)
Presidential Commission on World Hunger (PCWH)
Select Commission on Immigration and Refugee Policy (SCIRP) (N)
Small Business Conference Commission (SBA)
United States Advisory Commission on Public Diplomacy (Formerly United
States Advisory Commission on International Communication, Cultural
and Educational Affairs) (ICA)
United States Circuit Judge Nominating Commission (DOJ)
United States Court of Military Appeals Nominating Commission (DOD) (N)
United States Tax Court Nominating Commission (TRES)
APPENDIX B
PROPOSED LETTER TO ARCHIVIST
Dear
:
Pursuant to 44 U.S.C. 2204 of the Presidential
Records Act of 1978, you are hereby notified that I
elect to restrict access to all Presidential records
in all categories 1-6 of 44 U.S.C. 2204 (1) for a
period of 12 years.
You are further advised that I reserve my right
to remove or shorten said restrictions at a later
date.
Very truly yours,
President Jimmy Carter
credime
OFFICE OF THE VICE PRESIDENT
WASHINGTON
July 18, 1980
MEMORANDUM FOR MICHAEL BERMAN
FROM:
JIM TERMAN
RE:
RESPONSE TO MARIE ALLEN'S COMMENTS ON
LEGAL ANALYSIS OF REPORT OF WORKING GROUP,
PRESIDENTIAL PAPERS TASK FORCE
Attached is Marie Allen's comments to the legal
analysis of the working group report. I've incorporated
certain suggestions into my revised memo. Other points
raised by Marie Allen I have not incorporated into the memo
but have discussed below for your edification.
Although Marie did not specifically request that I
present her comments to you, I feel that, at a minimum, her
point of view merits your attention notwithstanding the
fact that I may disagree with some of her views.
The points discussed below correspond to the numerical
items raised in Marie's memorandum:
(1) I have concurred with Marie's suggestion and added
the Situation Room and Director of the Office of Administration
to the list of decision items.
(2) I have followed Marie's suggestion and have contacted
the DPS Associate Director for Drug Abuse Policy and the
CEA. I have incorporated their response to my inquiries
into the body of the revised memo. Basically, I have re-
vised my opinion with respect to the CEA and stated in the
memo that same should fall within the ambit of the
Presidential Records Act. However, I still feel there is a
strong argument to exclude the DPS Associate Director for
Drug Abuse Policy and his subordinates from the Act. This
is discussed in detail in the body of the memorandum.
Marie also raises the question of whether the House
report on the Presidential Records Act, which states that
"that which is now subject to the FOIA would remain so and
that which is not now subject to the FOIA would be subject
to the Presidential Records Act" conflicts with my
proposition that the DPS Office of Drug Abuse Policy should
now fall under the FOIA.
My proposition is based on the fact that presently the
Office of Drug Abuse Policy of DPS is improperly excluded
from the FOIA. While the above captioned quotation
represents the general intent of Congress, it certainly is
not Congress' intent not to correct an impropriety in the
implementation of the FOIA.
(3) Marie is correct in her statement that the Presidential
Records Act does not apply to Cabinet officials. However,
I believe we do have a strong legal basis in allowing the
division of files within specific units of the EOP.
Presidential records are defined as "documentary
materials or any reasonably segregable portion thereof
created or received by the President, his immediate staff
or a unit or individual of the Executive Office of the
President whose function is to advise and assist the
President
Based on the above I believe it is clear that any
individual within the EOP who has a function of advising
and assisting the President may segregate those documents
relating solely to their function as advising and assisting
the President from other files within that government unit.
(4) Marie raises the same issue here as she did in point
number 2 above. From a legal perspective, I believe that
our initial answer is the correct one. From a practical
perspective of what administrative and policy ramifications
the application of the FOIA to the Drug Abuse division of
DPS would have, probably merits further examination.
(5) I have reexamined the question of the applicability of
the Act to those documents created or received by the
Vice President in his capacity as President of the Senate.
I have found that these documents should not be considered
Vice Presidential documents. The reasons are stated in the
revised memo.
(6) If, in fact, it is decided that only those gifts which
are historically significant would fall under the Act, I
believe that guidelines could be drawn up to that effect.
(7) This issue probably represents Marie's strongest
dissent with my memorandum. She has real problems in
considering rough drafts of speeches to be non-record items
as opposed to Presidential records. The first point raised
is a difficulty in establishing a test of considering only
those drafts of "historically significant" speeches to fall
under the ambit of the Act. Secondly, she feels that speech-
writing is a major function of both the President's and
Vice President's Office and essentially reflects the
thinking of the President and his policies. As such, they
should be considered Presidential documents.
I still believe that, from a legal perspective,
generally speaking, rough drafts of speeches are
"preliminary working documents" and as such, should be
considered non-record items. 1 If the President and or Vice
President elect to consider these documents as official
records, it is my position that that is their privilege,
but not their obligation.
(8) Marie raises a practical question of how one is going
to. determine whether or not their xerox is, in fact, an
extra copy of official or record or whether this xerox is,
in fact, the only copy of the record. This is a legitimate
practical question. Nevertheless, I believe it is clear
that extra copies of documents do not constitute official
Presidential records under the law.
(9) Marie raises the question of whether staff have the
right to xerox official Presidential documents. She does
raise a good point. Theoretically speaking, the official
documents are U.S. property, and not the property of the
staff. Certainly the President or his agent has the
authority to prevent the copying of government property.
In some situations this procedure may be necessary.
However, as a general rule it would obviously be foolish to
attempt to implement same.
(10) Marie raises the issue of whether her disposal
categories in the Task Force Report are sufficient. I
believe it is premature to examine the disposal schedule
until decisions are made with respect to the points raised
in the memorandum.
(11) I have attempted to examine the file break issue in
further detail and clarify my position in the body of the
memorandum.
(12) As you and I discussed, I will hold off on preparation
of a definition statement until we get a sign-off on our
memo.
COMMENTS ON JIM TERMAN'S LEGAL ANALYSIS OF REPORT OF WORKING GROUP,
PRESIDENTIAL PAPERS TASK FORCE
(1) List of Decision Items, pages 1 & 2
Add Situation Room records (a large quantity of important materials)
to NSC list. Add Director's files as Adviser to President to OA
decision items.
(2) Jim suggests, in the Decision Items and in the body of the report,
expanding the applicability of the Freedom of Information Act (FOIA)
to two units within the EOP to which it does not now apply: the
DPS office of Drug Abuse Policy and the CEA. Because of the large
administrative and policy consequences of this decision, wouldn't
it be advisable to include DPS and CEA officials in the decision
process?
How does such a change in determination of FOIA status relate to the
House Report concerning the Act (Presidential Records Act) quoted by
Jim on page 5 of his report:
BY
that which is now subject to the
FOIA would remain so and that which is not now subject to FOIA would
be subject to the Presidential Records Act"?
(3) In the first several pages of the report, Jim discusses- the-authorities
for determining whether units within the EOP are agencies or not, and
therefore subject or not subject to the FOIA. Do we have a strong
legal basis for separating specific files of the unit? This has
never been done, as far as I know, for Cabinet officials: their
files as advisers to the President are not separated from their
departmental files. Are we on strong legal ground doing such a
division as long as we stay within the EOP? This issue also bears
directly on the DPS office of Drug Abuse Policy, OSTP, OA, COWPS,
etc.
(4) On pages 11-12, Jim discusses whether or not the CEA should be considered
an agency. His decision to choose agency is based on references in
House reports at the time of the amending of the FOIA statute and to
1971 references in the Soucie V. David case. This is certainly a
reasonable position. Would it be in the President's or CEA's interest
to consider an alternative argument based on a comparison of CEA's
functions with those of OMB and OSTP? I have heard the argument made.
that CEA's functions are more clearly advisory than these other units.
The current policy of the National Archives is to consider CEA an agency.
(5) On page 18, Jim discusses the VP office briefly, but he does not mention
the Senatorial documents held by the VP that are separately mentioned
in the list of decision items. How strong a legal basis do we have
for considering the ledgers, nomination papers and other Senatorial
types of papers held by the VP as being Vice Presidential? I have
been informed by Senate staffers that they consider these materials
to be Senatorial and that they believe no other Vice President has
considered the materials to be Vice Presidential. I have no personal
opinion in this matter, I just wonder what the legal bases are for
a decision one way or the other.
2
(6) On page 20, Jim discusses the domestic gift issue. It would be very
useful to the Gift Unit if the arguments discussed on page 20 could
be translated into specific guidelines. How would Gift Unit
personnel separate "personal" gifts from "documentary materials
relating to the Presidency"?
(7) Jim raises first with regard to the domestic gift issue, and then
on page 26 with regard to drafts of speeches, the issue of whether
an item or paper is "historically significant." I am very troubled
by the application of this test. For one thing, the Presidential
Records Act does not apply this test at any point--the direction
of the Act is toward preserving the most complete documentary record that
is practicable, not just those aspects of the documentary record that
seem to a layman to be historically important. So, on the one hand,
I don't think this is an appropriate kind of test. Secondly, the
determination of what is "historically in portant" is an extremely
difficult, if not impossible, determination to make. Lincoln's Gettys-
burg Address was considered, at the time it was given, to be of very
little significance; only in retrospect, did it become an important
and historic address. Historians of the future will define
what is historically important by what they are interested in studying.
Historians may be much more interested in speeches on a particular
subject important to the Carter Administration than they will be in
speeches on more ceremonial or "historic" types of occasions, such
as the State of the Union address or the Inaugural address.
Historians and students in the future will come to the speech files
of the Carter Library and the Mondale Archives primarily looking for
major drafts of Carter and Mondale speeches: the final texts of the
speeches are usually available in published form. The major drafts of
these speeches (usually those circulated for review) are important
documentary evidence of the way in which the speechwriting function
was carried out, and will be of increasing value in the archival
depositories as the years go by. Any destruction of major speech
drafts would be a great loss to both the Carter and Mondale Archives.
(8) I am also troubled by the possible misunderstanding of the nonrecord
category "extra copies of documents." Who makes the determination
when a copy is an extra copy? If one office received a Xerox copy of
a memorandum for study, does that office assume that since the document
in question is a Xerox, it is therefore nonrecord? In fact, this
Xerox copy may be the only copy in the office or it may be the only
copy with special marginal notations from staffers. This should, I
think, be qualified to read "extra copies of identical documents within
the same file folder," with the provision that, when in doubt, documents
should be routed to Central Files for a determination concerning their
record status
3
(9) On page 26, Jim states that Xeroxes of official Presidential documents
can be retained by staff personnel. In the past, the President and
Vice President have frequently established guidelines concerning
what types of material could be copied by staffers. The Presidential
Records Act still gives the President/Vice President responsibility
for administering their official papers during thertenure in office.
Would the President and Vice President wish to give up their right
to establish guidelines for Xeroxing by staff members in favor of a
blanket approval policy?
(10) In Jim's discussion of disposal, he does not specifically refer to the
disposal categories in the proposed disposal schedule. Are these
appropriate? Sufficient? It was never intended that archivists
would examine each document destroyed: that is the purpose for a
disposal schedule that lists recurring categories of documents for
disposal with a one-time approval by the Archivist.
(11) On page 29, Jim brings up the file break issue raised in the Task
Force Report. It is not clear to me whether he recommends for
or against the break. Is it important enough from a legal point
of view to merit the trouble?
(12) One of the documents called for by the Act is a definitions statement,
which was prepared in draft form by the Working Group of the Task Force.
I don't see any specific comment by Jim concerning the legal
acceptability of this draft document. Should the draft definition be
expanded to also include a list of nonrecord items, as mentioned by
Jim on page 22 of his report?
mba
MARIE B. ALLEN
Director
Presidential Papers Staff
National Archives and Records Service
Maximum restriction periods for various types of restrictions applicable to Presidential
records created on or after January 20, 1981
Category
Time Period
Remarks
1985-1997
Post 1997
(1) Security classified
Pres/VP & FOIA restriction &
Procedures of EC 12005 apply
(2) Relating to appointments
to Federal office
Pres/VP mandatory restriction
(3) Specifically exempted
from disclosure by statute
Pres/VP & FOIA rest. category.
Also pertinent statutes Would
contain rest. criteria and perhaps
(4) Trade secrets & commercial
recommended time periods
of financial information
that is privileged or
confidential
Pres/VP & FOIA rest. category
(5) Confidential advice given
to President or between
Pres/VP rest. category only
advisers
(6) Personnel and medical
files, when disclosure
would be unwarranted
Pres/VP & FOIA rest. category
invasion of personal
privacy
(7) Investigatory records
FOIA rest. category
Make
13
allen
HESTRICTIONS THAT MAY APPLY TO PRESIDENTIAL/VICE PRESIDENTIAL RECORDS CREATED AFTER 1/20/81
=
empry
Presidential/VP Restriction Category
FOIA Restriction Category
Other
Security Class.
Act* Section 2204 (a) (1)
Title 5 U.S.C. 552
Most recent pertinent
unents (Top Secret,
11 (1) (A) specifically authorized under
Exemption category (b) (1)
E. O. is #12065, which
rst, Confidential)
criteria established by an Executive
"specifically authorized under
calls for automatio
Order to be kept secret in the interest.
criteria established by an
declass. of nost
of national defense or foreign policy
Executive Order to be kept
documents in 5 you! a
and (B) in fact properly classified
secret in the interest of
doc. to be reviewed
pursuant to such Executive Order"
national defense or foreign
for declass. in 20 you
policy and (B) are in fact
requesters may demand
Pres/VP may impose mandatory
properly classified pursuant
review of any doc.
restriction for up to 12 yrs
to such Executive order"
at least 10 yrs 024
Relating to appoint-
Act ($) 2204 (a) (2)
No comparable FOIA exemption
to Federal office
"relating to appointments to Federal
office"
Pres/VP may impose mandatory
restriction for up to 12 yrs.
Privacy Act does apply
Specifically exempted
Act § 2204 (a) (3)
Title 5 U.S.C. Section 552
There is no complete
disclosure by
"specifically exempted from disclosure
Exemption (b) (3):
of all possibly
tute
by statute (other than sections 552
"Specifically exempted from dis-
statues here. The House
and 552b of title 5, United States Code),
closure by statute (other than
Subcomm. on GovP. Enfo.
provided that such statute (A) requires
section 552b of this title), provided
& Indiv. Rights is
that the material be withheld from the
that such statute (A) requires that
compiling such a list.
public in such a manner as to leave no
the matters be withheld from the public
discretion on the issue, or (B) establishes
in such a manner as to leave no
Some examples:
particular criteria for withholding or
discretion on the issue, or (B)
Census info 5 USC 9
refers to particular types of material to
establishes particular criteria for
Statistical & com
be withheld;"
withholding or refers to particular
15 USC 176
types of matters to be withheld;
11
Pres/VP may impose mandatory restric-
Tax returns 25
U
tion for up to 12 years
& 7213
Patents 26 USC
Irade secrets &
Act § 2204 (a) (4);
Title 5 U.S.C. 552
ercial & financial
"trade secrets and commercial or
Exemption (b)(4);
There are two specif
that is privileged
financial information obtained
"trade secrets and commercial or
statutes which also
infidential
financial information obtained
ly: statistical and
from a person and privileged or
commercial informati.
confidential;"
from a person and priyileged or
confidential;"
restricted in 15
175; trade secrets
Pres/VP may impose mandatory
restricted in 18 U.S
restriction for up to 12 yrs
1905. . No time period
specified.
Confidential advice
Act § 2204 (a) (5) :
No comparable FOIA exemption
President or between
"confidential communications requesting
idvisers
or submitting advice, between the
Exemption 5 U.S.C. 552 (b) (5),
President and his advisers, or between
which might have covered similar
such advisors; "
documents, was specifically
excluded by Act
Pres/VP may impose mandatory
restriction for up to 12 yrs
Personnel and medical
Act § 2204 (a) (6) :
Title 5 U.S.C. 552
It is my understanding
"personnel and medical files and similar
Exemption (b)(6):
that the Privacy Act
files the disclosure of which would
"personnel and medical files and
does not apply to
constitute a clearly unwarranted
similar files the disclosure of
Presidential records
invasion of personal privacy. "
which would constitute a clearly
unwarranted invasion of personal
Pres/VP may impose mandatory
privacy;"
restriction for up to 12 yrs
Investigatory records
No Pres/VP mandatory restriction
Title 5 U.S.C. 552, exemption (b) (7)
"investigatory records compiled for
law enforcement purposes, but only to
the extent that the production of such
records would (A) interfere with
enforcement proceedings (B) deprive
a person of a right to a fair trial or
an impartial adjudication (C) consti-
tute an unwarranted invasion of personal
privacy 11
A file break is impractical if not impossible
here in Central Files as well as in the staff offices.
J
In our fiel rooms, the space is aready limited. To divide
it into two sections would be extremely difficult
not be impossible, but neverthelss
extremely difficult.
2) It would require upwards of 100,000 additional folders for
our files alone to say nothing of the staff offices'
requirements.
3)
The staff's needs for documents and correspondence from the
first term and the inevitable subsequent commingling of
those with the second term simply could not be prevented.
Nor in many cases should it be. Much of the first term
material is absolutely essential to ongoing projects in
second term. It should be commingled.
It seems to me that the President's interest in pursuing
the goals of his Administration should take precedence over
his personal legal interest in his first term papers.
A
I would recommend that he bite the bullet, risk forfeiture
of his rights to the first term papers, not worry about
this relatively minor loss, and get on with the bigger
battle of achieving his Administration's goals without
putting such unnecessary "file break" roadblocks in his
staff's path