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470760872
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[NSC: Reagan-Bush Transition Background Materials - Volume III - January 1989] [3]
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470760872
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document
title
[NSC: Reagan-Bush Transition Background Materials - Volume III - January 1989] [3]
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99016-009
collections
Records of the National Security Council (George H. W. Bush Administration)
National Security Council (NSC) Institutional Files (IF) Transition Files
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470760872
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1989-01-31
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1989
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1989-01-01
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Originally Processed With FOIA(s):
FOIA Number:
2019-1493-S
2019-1493-S
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the George Bush Presidential
Library Staff.
Record Group/Collection: George H.W. Bush Presidential Records
Collection/Office of Origin: National Security Council
Series:
H-Files
Subseries:
IF Transition Files
OA/ID Number:
99016
Folder ID Number:
99016-009
Folder Title:
[NSC: Reagan-Bush Transition Background Materials - Volume III - January 1989] [3]
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Shelf:
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O
KWithans
UNCLASSIFIED
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CLASSIFICATION
CIRCLE ONE BELOW
MODE
PAGES 7
IMMEDIATE
SECURE FAX #
DTG 1717102
PRIORITY
ADMIN FAX # 218
RELEASER
ROUTINE
FROM/LOCATION 1. MONA Butler
TO/LOCATION/TIME OF RECEIPT
1. Steve Radema ker
2.
TOR 1717.58
3.
4.
5.
M
6.
7.
C
INFORMATION ADDEES/LOCATION/TIME OF RECEIPT
1.
2.
TION ROOM
MAR17 Pl 27
SE
SPECIAL INSTRUCTIONS/REMARKS:
UNCLASSIFIED
CLASSIFICATION
RECEIVITY
OF
JUSTICE.
1989 MAR 17 AM 11:
u.s. DEPARTMENT or JUSTICE WASH DC 20530
TELECOMMUNICATIONS SERVICE CENTER
(FTS OR COMMERCIAL) I
202-633-4371/4372
VERIF:
RECEIPT STAMP
MACHINES ARE XEROX 495 AUTOMATICS
FACSIMILE OUTGOING TRANSMISSION RECORD
FROM:
Mona Butler
Civil
NAME (PRINT)
DIVISION OR SECTION
Mma Butter
3-17-89
11:45 a.m.
SIGNATURE
DATE AND TIME
TO:
Steve Rademaker - NSC - DC. Phone 395-5026
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NUMBER OF PAGES
6
(EXCLUDE THIS COVER SHEET)
DESTINATION'S FAX NUMBER 395-5221
DESTINATION'S VOICE VERIFICATION NUMBER 395-6313
PRECEDENCE
(PLEASE CIRCLE ONE)
ROUTINE, PRIORITY, INCEDIATE
TRANSMITTED COPIES TO BE RETURNED?
1
YES
NO
IF YES, TELEPHONE:
IF NO, SIGNATURE:
Mona Buttle
SPACE BELOW FOR USE BY TELECOMM
CHARGE CODE
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TSVC OPR INITIALS
DESTINATION CALLED
FOR PICK-UP
DATE AND TIME
TSVC OPR INITIAL
COMMENTS:
TRANSMISSION STAMP
(TIME STAMP WHEN SENT)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SCOTT ARMSTRONG, et al.,
)
)
Plaintiffs,
)
)
V.
)
Civil Action No.
)
GEORGE H.W. BUSH, et al.,
89-0142 (JCR)
)
)
Defendants.
)
)
DESCRIPTION OF THE PROFS SYSTEM
"PROFS" is the term used to refer to an IBM computer system
available for use on mainframe computers. Two independent PROFS
systems are utilized by components of the Executive Office of the
President (EOP) one by the staff of the National Security
Council (NSC) and the other by other EOP components. Declaration
of George Van Eron, filed Feb. 6,° 1989, (Van Eron Decl.) 9 3;
Declaration of Dennis Keating, filed Feb. 6, 1989, (Keating
Decl.) 9 3.
The NSC system became fully operational in approximately
April 1985. Van Eron Decl. 9 3. It is maintained by the White
House Communications Agency, a joint services Department of
Defense activity. Id. 1 1. As of January 19, 1989,
were active
approximately 92 PROFS USERIDs1 had-been issued to members of the
NSC staff
Defendants' Responses to Plaintiffs' Interrogatories
to Defendants Bush and the National Security Council (Def.
Interr.) No. 5 (a) (1).
1 define USERID.
3
The other EOP components share a PROFS system managed by the
Information Resource Management Division (IRMD) of the Office of
Administration (EOP system). Keating Decl. 93. The EOP system
became operational in November 1986. Id. As of December 30,
1988, the following numbers of USERIDs had been issued to EOP
components:
Unassigned, available to systems users - 472
Office of Administration - 154
White House Office - 70
Office of the Vice President - 13
Office of Science and Technology Policy - 10
Office of Management and Budget - 3
Office of Policy Development - 4
United States Trade Representative - 4
Council on Environmental Quality - 1
Others - 1
Def. Interr. No. 5 (b) (11).
[Describe in more detail than we already have how PROFS
functions from a technical standpoint, but in as simple terms as
possible. For example, aside from the backup, is current data
maintained on some type of disk or tape? DO all users have
computer terminals and keyboards? Is PROFS a software package, a
total hardware and software system, or what? Can the PROFS
terminal (PC?) be used for things other than PROFS (e.g. word
processing) ? How is a note or other data entered into the system
and sent? Is the recipient alerted by some type of "beep" or
does a note just show up in some type of "inbox." Some of these
points may fit into the following paragraphs.) Include: 58% of
the space on the EOP PROFS system is allocated for system space.
2 explain this category: Systems users are IRMD personnel
who are responsible for maintaining the system?
- 2 -
SENT or
DEPT OF JUSTICE-2023855221
4
[what is system space?]. 41% if the space on the EOP PROFS
system is allocated as user disk space [define user (disk)
space]. For the NSC system, 25% of the space is available for
"programming" and 75% of the space is available for "user
information." [can we use the same terms for EOP and NSC?] The
NSC PROFS system is cleared to handle classified information.
Van Eron Decl. 1 5.
The primary function of the PROFS systems for all EOP
components is to serve as a means of informal electronic
communication among the various individuals who have access to
the system. Van Eron Decl. 9 5 and Ex. 2: Riggle Decl. 9 6;
Keating Decl. " 8, 9. The creation and transmittal of
"electronic mail" usually called "notes" is the mostly commonly
used function on the EOP and NSC PROFS systems. Notes are a
means of sending short messages to another user. The average
note is three paragraphs long, Backer Decl. 1 6, [some of this 1
is from Eddie Becker and his exhibits -- can we agree ?] and will
23
appear on one page when printed in hard copy? When a user sends
&
met
a note, PROFS keeps ordinarily a copy automatically in the sender's "note
am
log." Becker Decl. Ex. 1 at 2. The note is transmitted to the
not
<<
1
herp
recipient's electronic "incoming mail." Id. The recipient can
do several things with a note, including reply to it, file it in
his own electronic "note log," erase it, and/or print a hard
copy. Id. When printed, the hard copy of a note will contain
the USERID and name of the sender, the date and time of
transmittal, the USERID [and name?] of [all?] recipients, and the
- 3 -
text of the note [anything else to add?]. Keating Decl. 1 10.
If the sender has used the nickname or distribution list
functions, 3 the USERID, rather than the nickname or distribution
list code would appear on a hard copy of the note. Def. Interr.
No. 13 (a)-(d).
The EOP PROFS system has a "Document Transfer" function that
permits a user to transmit a "document" from his own personal
computer or word processor through the PROFS system to other
users. Documents are usually longer and more formal than notes.
The EOP PROFS system is not used to create or edit documents.
Creation and revision of the document is done on the personal
computer or word processor of the sender and recipient. .0005%
of the space on the EOP PROFS system is allocated for documents.
The NSC PROFS system has the capacity for users to create,
as well as transmit, documents. The document function is little
used because the process is "clumsy, slow, and not user
friendly." Van Eron Decl. 1 5, Becker Decl. 1 6. Document
the storage NSC PROFS on the Nsc PROFS system constitutes (021% of the space on
that system is available for document storage purpose.
The calendar function is used by some individuals for
scheduling purposes. Individual users can authorize other users
to have access to all, or parts of, their personal calendar. For
3 The nickname function is a user aid by which a user can
assign a "nickname" to another user for convenience as an
abbreviation as an easier identifier to remember than the
name [USERID]. The distribution list is a user-created file user of
a group of individuals to whom the user frequently sends notes.
Inter. No. 13 (a)-(d).
- 4 -
the EOP system, .0005% of the user space is allocated for the
calendar function. For the NSC system
?
% of user space is
allocated for the calendar function. [Anything to add?] All
notes, documents, and calendars created and transmitted on the
PROFS system can be printed out on paper or "hard copy." Keating
Decl. 9 14.
The EOP components, the NSC, and individual staff members
have used different functions of the PROFS system with varying
frequency. Def. Interr. Nos. 7(a)-(c), 29. It is impossible to
quantify the frequency of usage for particular functions and the
frequency with which users printed in hard copy data entered into
the system without polling each user and/or reviewing each entry
item by item. Id.
Both the EOP and NSC PROFS systems have "backup procedures,"
in which "snapshots" of the system are taken at a given point in
time. Van Eron Decl. 1 6 and Ex. 2; Keating Decl. 9 17. If the
system fails mechanically, causing current data to be lost, the
backup tape can be used to retrieve data that had been recorded
on the tape. Similarly, if a user inadvertently deletes informa-
tion, the information can be retrieved if it was captured on a
backup tape. Def. Interr. No. 21. The backup tapes have no
functional purpose for the NSC and the EOP other than to guard
against loss of data through mechanical failure or inadvertent
deletion.
A backup tape of the NSC PROFS system is made on a daily
basis. These backup tapes are written over or recycled after
- 5 -
seven days, except Saturday's tapes, which are retained for two
weeks before they are recycled. Van Eron Decl. Ex. 2. A backup
tape of the EOP system is made nightly at midnight. Keating
Decl. 1 17. The nightly back-up tapes are retained for four to
six weeks before the tapes are recycled. Id. T 18. PROFS notes
created and deleted by both the sender and recipient between the
hours when backup tapes are made would not be included on any
backup tape. Keating Decl. 9 17; Van Eron Decl. Ex. 2.
31 tapes for the EOP System, made between December 31, 1988
and January 20, 1989, have been preserved as a result of this
lawsuit. At a minimum, there are approximately 2 million pages
of information on the 31 tapes. Approximately 144 tapes for the
NSC System made between January 1, 1989 and January 20, 1989 have
been preserved. 4 Data reflected on these tapes could date back
to when the respective PROFS systems became operational, if that
data had not been deleted by individual users.
Respectfully submitted,
JOHN R. BOLTON
Assistant Attorney General
JAY B. STEPHENS
United States Attorney
DAVID J. ANDERSON
ELIZABETH A. PUGH
preserved November 15, 22, and 29, 1986 and February 1987, have made been
4 In addition (how many?] NSC PROFS backup tapes
as a result of Iran-Contra inquiries. ,
- 6 -
0376
NATIONAL SECURITY COUNCIL
WASHINGTON, D.C. 20506
January 20, 1989
MEMORANDUM FOR MICHAEL DONLEY
FROM:
PAUL SCHOTT STEVENS
PM
SUBJECT:
Compliance with Temporary Restraining Order
On January 19, 1989, the United States District Court for the
District of Columbia enjoined us "from destroying, erasing,
recycling, or in any way altering what is commonly known as the
PROFS computer tapes for the National Security Council and the
Executive Office of the President or in any way deleting or
destroying the information contained in the back-up files of the
PROFS Computer System." (Tab A) Out of an excess of caution and
to demonstrate maximum good faith, I ask that you take the
following steps.
-- I hereby confirm George Van Eron's oral instructions to you
at approximately 6:23 p.m. on January 19, 1989, to stop all
deletions, if any in progress, from the WHSSS system.
-- I hereby direct that WHSSS continue making a full-system
back-up tape of all existing NSC data from the main frame
computer disk, as requested by Nicholas Rostow last night.
-- All existing back-up tapes as of the time of the court order
(6:10 p.m., January 19, 1989) and all back-up tapes created
subsequently pursuant to this directive must be preserved intact
in a secure manner.
-- WHSSS should make a complete, contemporaneous record of all
steps taken, including noting all participants in the process, in
carrying out this action.
-- When the full-system back-up is complete such that all
existing NSC data is preserved in a retrievable form, WHSSS shall
prepare an affidavit for signature by someone having knowledge of
the technical actions required and taken and who can certify that
all existing NSC data has been preserved as required by the court
order and by these instructions. The affidavit shall set forth
all steps taken as well as the certification with respect to the
preservation of all existing NSC data. As soon as the back-up
tape has been created, the affidavit should be prepared and
submitted to the Office of NSC Legal Adviser.
-- When all existing NSC data has been preserved in the manner
set forth above, WHSSS should prepare the main frame computer
disk for use by the Bush Administration.
Attachment
Tab A - Restraining Order
FILED
UNITED STATES DISTRICT COURT
JAN 19 1989
FOR THE DISTRICT OF COLUMBIA
JAMES F. DAVEY, Clerk
R. SCOTT ARMSTRONG, et al.
)
)
Plaintiffs,
)
)
V.
)
Civil Action No. 89-0142
)
(J. Charles Richey)
PRESIDENT OF THE UNITED STATES
)
OF AMERICA, et al.
)
)
Defendants.
)
)
TEMPORARY RESTRAINING ORDER
Plaintiffs' Motion for Temporary Restraining Order was heard
in open court on January 19, 1989. Upon consideration of said
motion, the Complaint filed therewith, the Memorandum of Points
and Authorities attached thereto, the Affidavit of plaintiff R.
Scott Armstrong, and oral argument of counsel for the parties,
the Court finds that plaintiffs have made a threshold showing
that they are likely to suffer immediate and irreparable harm
affecting a vital public interest unless a restraining order is
entered against the defendants and they have also made a showing
of probable success on the merits.
IT IS THEREFORE ORDERED by the Court that the defendants,
the President, Vice-President, Executive Secretary of the
National Security Council, and the agents, servants, employees,
attorneys of the Council, and all persons in active concert of
participation with them are hereby enjoined from destroying,
erasing, recycling, or in any way altering what is commonly known
as the PROFS computer tapes for the National Security Council and
the Executive Office of the President or in any way deleting or
destroying the information contained in the back-up files of the
PROFS Computer System.
Plaintiffs shall not be required to post security because
defendants will not suffer costs or damage even if it is
determined that they were wrongfully restrained pursuant to Civil
Rule 65 (c).
IT IS FURTHER ORDERED that this Order shall expire within
ten (10) days after entry unless extended for good cause shown by
the Court; and
IT IS FURTHER ORDERED that counsel shall appear before Judge
Charles Richey no later than January 25, 1989 for further
scheduling and plaintiffs shall file a Motion for Preliminary
Injunction on January 24, 1989.
ISSUED at 6:10 o!clock p.m. on January 19, 1989.
Barrington D. Parker
United States District Judge
United States District Court
for the District of Columbia
A TRUE COPY
JAMES F.. DAVEY CLERK.
By Galricia
Deputy Clerk
0376
NATIONAL SECURITY COUNCIL
WASHINGTON, D.C. 20506
January 20, 1989
MEMORANDUM FOR PAUL SCHOTT STEVENS
FROM:
NICHOLAS ROSTOW
SUBJECT:
Directive to WHSSS in Connection -with TRO
As you are aware, the National Security Archive and other
plaintiffs obtained a temporary restraining order enjoining us
"from destroying, erasing, recycling, or in any way altering what
is commonly known as the PROFS computer tapes for the National
Security Council and the Executive Office of the President or in
any way deleting or destroying the information contained in the
back-up files of the PROFS Computer System." (Tab II)
WHSSS assures us that all existing NSC data on the system hard
disk may be copied onto back-up tapes without destroying,
altering, or otherwise losing data. It is the unanimous view of
Assistant Attorney General Bolton, Deputy Counsel to the
President Brady and myself that this copying should be undertaken
out of an excess of caution and to demonstrate maximum good
faith.
We therefore recommend that you sign the attached memorandum (Tab
I) to Michael Donley directing WHSSS to preserve on back-up
computer tapes all existing NSC data, to maintain a
contemporaneous record of all actions taken in this regard, and
to make an affidavit that all existing NSC data has been
preserved in a usable form. Once these steps have been
completed, and in reliance on WHSSS representation that all
existing NSC data has been preserved, your memorandum authorizes
WHSSS, as a final step, to prepare the system for use by the Bush
Administration.
RECOMMENDATION
That you sign the memorandum attached at Tab I.
George Van Eron concurs.
Attachments
Approve Discussed pm 1/20/89 w/ CLP 7AM
Disapprove
Tab I - Memorandum to Michael Donley
Tab II - Order and Pleadings
0376
NATIONAL SECURITY COUNCIL
WASHINGTON, D.C. 20506
January 20, 1989
MEMORANDUM FOR PAUL SCHOTT STEVENS
FROM:
NICHOLAS ROSTOW
SUBJECT:
Directive to WHSSS in Connection with TRO
As you are aware, the National Security Archive and other
plaintiffs obtained a temporary restraining order enjoining us
"from destroying, erasing, recycling, or in any way altering what
is commonly known as the PROFS computer tapes for the National
Security Council and the Executive Office of the President or in
any way deleting or destroying the information contained in the
back-up files of the PROFS Computer System." (Tab II)
WHSSS assures us that all existing NSC data on the system hard
disk may be copied onto back-up tapes without destroying,
altering, or otherwise losing data. It is the unanimous view of
Assistant Attorney General Bolton, Deputy Counsel to the
President Brady and myself that this copying should be undertaken
out of an excess of caution and to demonstrate maximum good
faith.
We therefore recommend that you sign the attached memorandum (Tab
I) to Michael Donley directing WHSSS to preserve on back-up
computer tapes all existing NSC data, to maintain a
contemporaneous record of all actions taken in this regard, and
to make an affidavit that all existing NSC data has been
preserved in a usable form. Once these steps have been
completed, and in reliance on WHSSS representation that all
existing NSC data has been preserved, your memorandum authorizes
WHSSS, as a final step, to prepare the system for use by the Bush
Administration.
RECOMMENDATION
That you sign the memorandum attached at Tab I.
98
George Van Eron concurs.
Approve Pm
Attachments
Discussed 1/20/89 w/ CLP -Pm 7AM
Disapprove
Tab I - Memorandum to Michael Donley
Tab II - Order and Pleadings
FILED
UNITED STATES DISTRICT COURT
JAN 19 1989
FOR THE DISTRICT OF COLUMBIA
JAMES F. DAVEY, Clerk
R. SCOTT ARMSTRONG, et al.
)
)
Plaintiffs,
)
)
V.
)
Civil Action No. 89-0142
)
(J. Charles Richey)
PRESIDENT OF THE UNITED STATES
)
OF AMERICA, et al.
)
)
Defendants.
)
)
TEMPORARY RESTRAINING ORDER
Plaintiffs' Motion for Temporary Restraining Order was heard
in open court on January 19, 1989. Upon consideration of said
motion, the Complaint filed therewith, the Memorandum of Points
and Authorities attached thereto, the Affidavit of plaintiff R.
Scott Armstrong, and oral argument of counsel for the parties,
the Court finds that plaintiffs have made a threshold showing
that they are likely to suffer immediate and irreparable harm
affecting a vital public interest unless a restraining order is
entered against the defendants and they have also made a showing
of probable success on the merits.
IT IS THEREFORE ORDERED by the Court that the defendants,
the President, Vice-President, Executive Secretary of the
National Security Council, and the agents, servants, employees,
attorneys of the Council, and all persons in active concert of
participation with them are hereby enjoined from destroying,
erasing, recycling, or in any way altering what is commonly known
as the PROFS computer tapes for the National Security Council and
the Executive Office of the President or in any way deleting or
destroying the information contained in the back-up files of the
PROFS Computer System.
Plaintiffs shall not be required to post security because
defendants will not suffer costs or damage even if it is
determined that they were wrongfully restrained pursuant to Civil
Rule 65 (c).
IT IS FURTHER ORDERED that this Order shall expire within
ten (10) days after entry unless extended for good cause shown by
the Court; and
IT IS FURTHER ORDERED that counsel shall appear before Judge
Charles Richey no later than January 25, 1989 for further
scheduling and plaintiffs shall file a Motion for Preliminary
Injunction on January 24, 1989.
ISSUED at 6:10 o!clock p.m. on January 19, 1989.
Barrington D. Parker Paske
United States District Judge
United States District Court
for the District of Columbia
A TRUE COPY
DAVEY CLERK,
By
Deputy
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
SCOTT ARMSTRONG
)
2620 Quebec Street, NW
)
Washington, DC 20008,
)
)
SENATOR GAYLORD NELSON
)
3611 Calvend Lane
)
Kensington, MD 20895,
)
)
GARY M. STERN,
)
4000 Harrison Street, NW
)
Washington, D.C. 20015,
)
)
EDDIE BECKER
)
1844 Mintwood Place, NW
)
Washington, DC 20009,
)
)
NATIONAL SECURITY ARCHIVE
)
1755 Massachusetts Ave., N.W.
)
Suite 500
)
Washington, D.C. 20036,
)
)
CENTER FOR NATIONAL SECURITY STUDIES
)
122 Maryland Avenue, NE
)
Washington, DC 20002,
)
)
Plaintiffs,
)
)
V.
)
)
RONALD W. REAGAN, President
)
C.A. No.
1600 Pennsylvania Ave., N.W.
)
Washington, D.C.,
)
)
GEORGE M. BUSH, Vice-President and
)
President Elect
)
Old Executive Office Building
)
Pennsylvania Ave. & 17th st., N.W.
)
Washington, D.C.,
)
)
THE NATIONAL SECURITY COUNCIL
)
Old Executive Office Building
)
Pennsylvania Ave. & 17th st., N.W.
)
Washington, D.C.,
)
)
DON WILSON, ARCHIVIST OF THE
)
UNITED STATES
)
7th & Pennsylvania Ave., N.W.
)
Room 111
)
Washington, D.C. 20408,
)
Defendants.
)
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Nature of Action
1. This is an action under the Presidential Records Act, 44
U.S.C. § 2201, et. seq.; the Disposal of Records Act, 44 U.S.C. §
3301, et. seq.; and the Administrative Procedures Act, 5 U.S.C. §
551, et. seq. Plaintiffs seek: (1) a declaration that certain
White House computer records stored in what is commonly known as
the "PROFS" computer system are covered by the laws governing the
National Archives and Records Administration 44 U.S.C. chapters
21-33; and (2) injunctive relief to prevent the President, the
National Security Council, and their agents, servants, employees,
attorneys, and all persons in active concert or participation
with them from destroying these computer records without
complying with the prescribed statutory procedures for
destruction of Presidential and agency records and to order the
President, the National Security Council and the Archivist to
comply with the laws governing the National Archives and Records
Administration.
Jurisdiction and Venue
2. This Court has subject matter jurisdiction over this
action pursuant to 5 U.S.C. § 552 (a) (4) (B) and pursuant to 28
U.S.C. §§ 1331, 1346 and 28 U.S.C. § 2201(a). Venue lies in this
district under 28 U.S.C. § 1391(b) and (e).
The Parties
3. Plaintiff Scott Armstrong is a journalist, author, and
foreign policy researcher, and founder and executive director of
the non-profit research institute the National Security Archive.
4. Plaintiff Gaylord Nelson is a former United States
Senator and was co-author with Senator Sam Ervin of the
Presidential Records and Materials Preservation Act.
5. Plaintiff National Security Archive (hereinafter, the
"Archive") is a nonprofit public interest scholarly research
institute and library in Washington, D.C. It is organized and
operated as a division of The Fund for Peace, Inc., a New York
nonprofit corporation. The Archive makes extensive use of the
Freedom of Information Act ("FOIA") to obtain government
documents concerning national security issues for its own
research purposes and to make such documents available to
scholars, journalists and other interested persons.
6. Plaintiff Center for National Security Studies
(hereinafter, the "Center") is a nonprofit public interest
scholarly research institute in Washington, D.C. It is organized
and operated as a division of the American Civil Liberties Union
Foundation and The Fund for Peace, Inc., a New York nonprofit
corporation. The Center makes extensive use of the FOIA to
obtain government documents concerning national security issues
for its own research purposes and to make such documents
available to scholars, journalists and other interested persons
as part of its program of public education.
7. Plaintiff Gary Stern is a research associate at the
Center for National Security Studies and has written articles,
3
reports, and comments on national security issues for a variety
of publications.
8. Plaintiff Eddie Becker is a professional researcher
specializing in documentary reconstruction of historical events.
Mr. Becker is employed by documentary filmmakers, scholars, and
journalist, and is a consultant at the National Security Archive.
9. Defendant Ronald W. Reagan is the President of the
United States and has ultimate control over all records and
information in the Executive Office of the President and the
National Security Council ("NSC").
10. Defendant George M. Bush is Vice-President and
President-Elect of the United States and on January 20, 1989,
will have ultimate control over all records and information in
the Executive Office of the President and the National Security
Council ("NSC").
11. Defendant National Security Council is an "agency" of
the United States and makes use of the PROFS computer system.
12. Defendant Don Wilson is the Archivist of the United
States and is responsible for preserving presidential records and
agency records in accordance with the laws governing the National
Archives and Records Administration (NARA).
The Computer Records in the PROFS System
13. The President, his staff, and the National Security
Council use what is commonly known as the PROFS computer system
(hereinafter "PROFS system") to create, store, and retrieve
information in the course of performing their governmental
4
functions. The PROFS system combines various routine office
functions including the ability to send electronic mail and
documents to others on the system.
14. The PROFS system is a central computer system of the
White House and the National Security Council. It contains
substantive information that does not exist anywhere in a paper
copy but only in electronic form.
15. The PROFS system contains information that constitutes
presidential records, as defined in the Presidential Records Act,
44 U.S.C. § 2201, et. seq., and agency records, as defined in the
Disposal of Records Act, 44 U.S.C. § 3301, et. seq., and the
Freedom of Information Act, 5 U.S.C. § 552 et. seq..
16. Based on information and belief, President Reagan and
the National Security Council intend to destroy the records
stored on the PROFS system beginning on Thursday, January 19,
1989, in violation of these statutes and specifically without
having complied with the procedures for obtaining a determination
by the Archivist of the United States, that the computer records
may properly be preserved.
COUNT 1
17. Plaintiffs incorporate by reference as if fully stated
herein all the statements contained in paragraphs 1 through 16
above.
18. By their aforementioned acts, defendants have or intend
to violate the Presidential Records Act, 44 U.S.C. § 2201, et
seq.
5
COUNT 2
19. Plaintiffs incorporate by reference as if fully stated
herein all the statements contained in paragraphs 1 through 16
above.
20. Defendants have or intend to violate of the Disposal of
Records Act, 44 U.S.C. § 3301, et seq.
COUNT 3
[
21. Defendants are in violation of the Administrative
Procedures Act, 5 U.S.C. § 553, et seq.
WHEREFORE, plaintiffs pray that this Court:
1. Declare that the electronic tapes and information stored
in the PROFS computer system used in the White House and the
National Security Council are records governed by the provisions
of the laws governing the National Archives and Records
Administration (NARA), 44 U.S.C. chapters 21-33.
2. Enjoin defendants Ronald Reagan, George M. Bush, and the
National Security Council and their agents, servants, employees,
attorneys, and all persons in active concert or participation
with them from destroying, erasing, recycling, or in any way
altering what is commonly known as the PROFS tapes that exist in
the National Security Council and the Executive Office of the
President and the contents therein without complying with the
provisions of the laws governing the National Archives and
Records Administration (NARA), 44 U.S.C. chapters 21-33 and
specifically not until they receive an advance determination by
6
the Archivist of the United States, as to whether the computer
records may properly be destroyed.
3. Order defendant Don Wilson to comply with the provisions
of the laws governing the National Archives and Records
Administration (NARA), 44 U.S.C. chapters 21-33, with regard to
the electronic tapes and information contained in the PROFS
computer system and specifically to follow the prescribed
procedures regarding destruction of Presidential and agency
records.
4. Award plaintiffs their costs and reasonable attorneys
fees in this action; and
5. Grant such other and further relief as the Court may
deem just and proper.
January 19, 1989
Fate Marit
Kate Martin
American Civil Liberties Union
Foundation
122 Maryland Avenue, NE
Washington, DC 20002
544-5388
Attorney for Plaintiffs
7
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
R. SCOTT ARMSTRONG,
)
et al.,
)
Plaintiffs,
)
)
V.
)
)
RONALD W. REAGAN,
)
C.A. No.
et al.,
)
)
Defendants.
)
)
PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER
Plaintiffs R. Scott Armstrong, Eddie Becker, Gary M. Stern,
National Security Archives, and Center for National Security
Studies respectfully move this Court, pursuant to Federal Rule of
Civil Procedure 65 (b) to issue a Temporary Restraining Order
against defendants President Ronald Reagan, Vice-President George
Bush, and the National Security Council (NSC) and their agents,
servants, employees, attorneys, and all persons in active concert
or participation with them.
The relief requested by the motion is to enjoin the
President and the NSC from destroying certain computer records
commonly known as the PROFS system. The narrow issue raised by
this motion is whether the President and the NSC can be
temporarily enjoined from destroying government computer records
in advance of a judicial determination as to whether destruction
of the records is in violation of the law and whether they should
be preserved in accordance with the laws governing the National
Archives and Records Administration (NARA), 44 U.S.C. chapters
21-33.
As grounds for the Motion, plaintiffs assert that a
Temporary Restraining Order is necessary to prevent the President
and the NSC from causing plaintiffs irreparable harm by
unilaterally and permanently destroying government records and to
safeguard plaintiffs' right of access to the information. In
support of this Motion, plaintiffs rely upon the Verified
Complaint filed herewith, the Memorandum of Points and
Authorities attached hereto, the proposed Temporary Restraining
Order, the Affidavit of plaintiff R. Scott Armstrong, and such
other matters as the Court may consider upon a hearing of this
Motion.
Respectfully submitted,
Cate plant
Kate Martin
American Civil Liberties Union
Foundation
122 Maryland Avenue, NE
Washington, DC 20002
544-5388
Attorney for Plaintiffs
January 19, 1989
2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
R. SCOTT ARMSTRONG,
)
et al.,
)
Plaintiffs,
)
)
V.
)
)
RONALD W. REAGAN,
)
C.A. No.
et al.,
)
)
Defendants.
)
have made a a
)
TEMPORARY RESTRAINING ORDER
that they are e Willy
So suffer
Plaintiffs' Motion for Temporary Restraining Order came on
for hearing in open court on January 19, 1989. Upon
consideration of said Motion, the Complaint filed therewith, the
Memorandum of Points and Authorities attached thereto, the
Affidavit of plaintiff R. Scott Armstrong, and oral argument of
counsel for the parties, the Court finds that plaintiffs will
suffer immediate and irreparable harm affecting a vital public
interest unless a restraining order is entered against the
defendants.
IT IS THEREFORE ORDERED by the Court that defendants,
President Ronald Reagan, Vice-President George Bush, and the
National Security Council and their agents, servants, employees,
attorneys, and all persons in active concert or participation
with them are hereby enjoined from destroying, erasing,
recycling, or in any way altering what is commonly known as the
PROFS computer tapes for the National Security Council and the
Executive Office of the President or in any way deleting or
destroying the information contained in the back-up files of the
PROFS Computer System.
Plaintiffs shall not be required to post security because
defendants will not suffer costs or damages even if it is
determined that they were wrongfully restrained pursuant to Civil
Rule 65 (c)
IT IS FURTHER ORDERED that this Order shall expire within
ten (10) days after entry unless extended for good cause or by
consent of the defendants; and
IT IS FURTHER ORDERED that plaintiffs shall be given until
the
day of
, 1989, to file a Motion for
Preliminary Injunction and that said Motion will be heard on the
day of
, 1989, at
o'clock
.m.
ISSUED at
o'clock
.m., January
, 1989.
UNITED STATES DISTRICT JUDGE
2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
R. SCOTT ARMSTRONG,
)
et al.,
)
Plaintiffs,
)
)
V.
)
)
RONALD W. REAGAN,
)
C.A. No.
et al.,
)
)
Defendants.
)
)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER
Plaintiffs seek a temporary restraining order enjoining
defendants Ronald Reagan, George Bush, and the National Security
Council from destroying any electronic computer tapes or other
materials that contain information concerning the functioning of
the White House, contrary to the requirements of the Presidential
Records Act, the Disposal of Records Act, and the Freedom of
Information Act as administered by the Archivist of the United
States and the National Archives and Records Administration. See
American Friends Service Committee V. Webster, 485 F. Supp. 222
(D.D.C. 1980) aff'd 720 F.2d 29 (D.C. Cir. 1983).
Defendants apparently intend to destroy these electronic
tapes, which are the only existing record of many important
communications within the White House and specifically within the
National Security Council at the close of the Reagan
Administration on January 19, 1989. Doing so will destroy an
invaluable historical and political record that is available
nowhere else and which Congress has on several occasion mandated
be available to members of the public.
STATEMENT OF FACTS
The Executive Office of the President (the White House) and
the National Security Council (NSC) utilize what is commonly
known as the PROFS computer system ("PROFS system"). The PROFS
systems allows users of the system to communicate via electronic
mail, that is to send memoranda and other information to other
users directly through the computer. It is used to create,
maintain, and retrieve information pertaining to official
government activities.
This information is maintained on an electronic storage
medium, most likely magnetic tapes. These tapes have recorded
all correspondence and information that has been sent or created
using the PROFS system. In many instances no hard or paper copy
of the information exists, the electronic tapes are the only
record of the information.
The PROFS system is used by White House and NSC officials to
carry out government policy. It contains presidential and agency
records and any particular electronic tape may contain both
Presidential records and agency records of the NSC.
The information in the PROFS system, which exists only on an
electronic medium and not in any paper record can be extremely
important. For example, records contained in the PROFS system
1/ This Statement of Facts is based on the Affidavit of
R. Scott Armstrong, Attachment B hereto.
2
were utilized extensively by the President's Special Review Board
(the Tower Commission) and the Congressional Iran-Contra
Committees investigating the Iran-Contra Affair. See Report of
the President's Special Review Board, at III-1 (February 26,
1987) ; Report of the Congressional Committees Investigating the
Iran-Contra Affair, 100th Cong., 1st Sess., S. Rep. No. 100-216,
H. Rep. No. 100-433, at 689-90. Independent Counsel Lawrence
Walsh continues to rely on records from the PROFS system in
support of criminal investigation and prosecution of government
officials involved in the Iran-Contra Affair.
On January 19, 1989, plaintiffs Armstrong, the National
Security Archive, and the Center for National Security Studies
filed a request under the Freedom of Information Act, 5 U.S.C. §
552, for records contained in the PROFS system.
Plaintiffs Armstrong, Becker, and National Security Archive
have asked for assurances that defendants do not intend to
destroy the records contained in the PROFS system as part of the
changeover of Administrations on January 19, 1989. Defendants
have refused to give them any such assurances. Although the
White House has delivered some electronic computer tapes from
other computer systems to the Archivist for preservation and
safekeeping, it has not delivered any tapes from the PROFS system
to the Archivist.
ARGUMENT
To obtain a temporary restraining order (TRO), a plaintiff
must demonstrate (1) a substantial likelihood of success on the
3
merits; (2) irreparable harm; (3) that more harm will result to
plaintiff if the TRO is denied than will result to defendant if
it is granted; and (4) in appropriate cases, how the public
interest will be affected. Virginia Petroleum Jobbers Ass'n. V.
F.P.C., 104 U.S. App. D.C. 106, 110, 259 F.2d 921 (1958).
Plaintiff's application for a TRO satisfies each of the
foregoing tests.
A. Plaintiffs are Likely to Succeed on the Merits.
Plaintiffs are guaranteed a right of access to these
government records under at least three separate statutes: The
Freedom of Information Act, 5 U.S.C. § 552, et. seq.; the
Presidential Records Act, 44 U.S.C. 2201, et. seq.; and the
Disposal of Records Act, 44 U.S.C. 3301, et. seq. If any of
these statutes applies to the requested electronic recordings,
then defendants may not destroy them. See, American Friends
Service Committee V. Webster, supra. The statutes create a
public right of access to "agency records," in the case of the
FOIA and the Disposal of Records Act, and to "Presidential
records,' in the case of the Presidential Records Act.3/
2/ The Disposal of Records Act authorizes the Archivist of
the United States to establish procedures for the disposal of
only those documents "that do not appear to have sufficient
administrative, legal, research, or other value to warrant their
further preservation by the Government." 44 U.S.C. § 3303.
3/ "Upon the conclusion of the President's
last term,
the Archivist of the United States shall assume responsibility ...
for the custody, control, and preservation of, and access to, the
Presidential Records of that President. The Archivist shall have
an affirmative duty to make such records available to the public
as rapidly and completely as possible consistent with the
provisions of this Act." 44 U.S.C. § 2203 (f) (1).
4
Defendants do not assert any general right to destroy
Presidential or agency records at the close of an administration,
which would thereby frustrate this public right of access.
Rather defendants argue that these electronic computer records
are not like other Presidential or agency records, are not
covered by the statutes, and therefore may be destroyed. But
there is no authority for their position that because information
is stored electronically rather than in written form, it is not
covered by the statutes.
The Presidential Records Act provides that the United States
"shall
retain complete ownership, possession, and control
of Presidential records.' " 44 U.S.C. § 2202. It provides specific
procedures that must be followed by the President and the
Archivist before disposing of records during the term of his
office; the statute allows only records "that no longer have
administrative, historical, informational, or evidentiary value"
to be disposed of. 44 U.S.C. § 2203 (c).
Upon the conclusion of the President's term of Office, the
Act directs the Archivist of the United States to assume
responsibility for the records. "The Archivist shall have an
affirmative duty to make such records available to the public as
rapidly and completely as possible consistent with the provisions
of this Act. " 44 U.S.C. § 2203 (f) (2). Here, neither the
President nor the Archivist have complied with the provisions of
this act and, to the contrary, apparently intend to violate it by
destroying the records.
5
But the Act applies to all "Presidential records," which
"means documentary materials
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." The definition of "documentary material"
covered by the Act explicitly covers materials such as the
electronic tapes requested here: "The term 'documentary
material' means all books
including but not limited to,
audio, audio-visual, or other electronic or mechanical
recordation." 44 U.S.C. § 2201(1) (emphasis added).
Similarly the Disposal of Records Act allows agency records
to be destroyed only after the Archivist has made the required
review and followed the required procedures for doing SO. 44
U.S.C. §§ 3302-03 The Act applies to all "records," which
"includes all books, papers, maps, photographs, machine
readable materials, or other documentary materials,
regardless of physical form or characteristics, made or
received by an agency of the United States Government under
Federal law or in connection with the transaction of public
business and preserved or appropriate for preservation by
that agency or its legitimate successor as evidence of the
organization, functions, policies, decision, procedures,
operations, or other activities of the Government or because
of the informational valued of data in them.'
44 U.S.C. § 3301.
The agency's own interpretation confirms that such
electronic tapes are governed by the provisions of the Act. See
National Archives and Records Administration Bulletin, No. 89-2,
November 14, 1988, Attachment B hereto.
The Freedom of Information Act provides: "[E]ach agency,
upon any request for records which (A) reasonably describes such
6
records and (B) is made in accordance with published rules
shall make the records promptly available to any person." 5
U.S.C. 552 (a) (3). While the statute does not define the term
agency, the National Security Council is clearly an "agency" for
purposes of FOIA requests. See, e.g., Kissinger V. Reporters
Committee for Freedom of the Press, 445 U.S. 136, 156 (1980)
("National Security Counsel records [are] therefore subject to
the [Freedom of Information] Act") ; Halperin V. NSC, 452 F. Supp.
47 (D.D.C. 1978) aff'd without opinion, 612 F.2d 586 (D.C. Cir.
1980).
Thus, whether the electronic tapes belong to the Executive
Office of the President or the National Security Council or both,
they are in all events "Presidential" records or "agency"
records. As such, they are subject to the requirements of the
statutes and may not be summarily destroyed.
B. Plaintiffs will Suffer Irreparable Injury Unless a
Temporary Restraining Order is Granted.
If the electronic tapes are destroyed, plaintiffs will
suffer irreparable harm. As far as plaintiffs can determine,
these electronic tapes contain information that appears nowhere
else. Thus if defendants destroy them, the information will be
irretrievably lost to plaintiffs, as well as to history. There
is no doubt that such injury will be irreparable harm.
C. The Equities Favor A Temporary Restraining Order.
7
Weighing of the equities favors injunctive relief in this
case. As shown above, in the absence of an injunction,
plaintiffs will suffer irreparable harm. An injunction will
restore and preserve plaintiffs' rights without detriment to
defendants. Defendants will suffer absolutely no detriment from
entry of an order preventing destruction of the electronic tapes
pending a judicial determination of the applicability of the
Presidential Records Act, the Disposal of Records Act, and the
Archivist's responsibilities in connection with the tapes.
D. A preliminary Injunction will Serve the Public Interest.
Public policy could not be clearer that Presidential records
belong to the public and should be preserved for review by the
public pursuant to the laws, rules, and policies that have been
established. Thus the public as well as the specific plaintiffs
herein have an interest in the requested information. As the
Iran-Contra affair demonstrates, the requested electronic tapes
may contain information of the greatest importance to the process
of democratic policy-making. Technological innovations have
enabled the government to operate more efficiently, they should
not be used as a shield to allow it to operate in secret hidden
from public accountability.
In this case, implementation of this fundamental public
policy depends on judicial intervention.
Conclusion
The Court should grant a temporary restraining order
8
enjoining defendants from destroying any electronic or other
records pertaining to the PROFS system without first complying
with the requirements of the Presidential Records Act and the
Disposal of Records Act including review and determination by the
Archivist of the historical value of maintaining the specific
items of information and notice, where required to Congress or in
the Federal Register of the Archivist's intentions with regard to
them.
Respectfully submitted,
Cute plant
Kate Martin
American Civil Liberties Union
Foundation
122 Maryland Avenue, NE
Washington, DC 20002
544-5388
Attorney for Plaintiffs
January 19, 1989
9
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
R. SCOTT ARMSTRONG,
)
et al.,
)
Plaintiffs,
)
)
V.
)
)
RONALD W. REAGAN,
)
C.A. No.
et al.,
)
)
Defendants.
)
)
AFFIDAVIT OF R. SCOTT ARMSTRONG
I, R. Scott Armstrong, declare:
1. I am a plaintiff in the above-captioned lawsuit and make this
affidavit in support of plaintiffs' motion for a Temporary
Restraining Order.
2. I am a journalist, book author, foreign policy researcher,
founder and Executive Director of the National Security Archive,
a non-profit research institute and library of government
documentation. On behalf of the National Security Archive and
the Center for National Security Studies, I have filed, on
January 19, 1989, three Freedom of Information Act requests for
specific materials currently held by the Executive Office of the
President and the National Security Council. Copies of those
requests are attached as exhibits 1-3 hereto.
3. In conjunction with my work at the National Security Archive
and my research on national security and foreign policy issues
and on the functioning of the White House and the National
Security Council, I have developed an extensive knowledge on the
White House records system including the computer communications
system commonly known as the PROFS computer system ("PROFS
system").
4.
The requested materials are contained in the PROFS system
computer backup tapes and consequently the only existing master
file of one of the central filing systems of the National
Security Council and the Executive Office of the President.
5. The Executive Office of the President and the National
Security Council utilize the PROFS system to create, maintain,
and retrieve information pertaining to official government
activities. This information is maintained on an electronic
storage medium, most likely magnetic tapes. In many
circumstances, the information exists only in the computer memory
stored on the PROFS system and no hard or paper copy has been
made, or if made, has been retained. These PROFS system tapes
have recorded all correspondence and messages that have been
created, saved, or transmitted through the PROFS system. The
same tape may contain information that could be either
Presidential records or agency records.
6. The PROFS system combines various routine office functions
including a word processing program, personal calendar, automatic
reminders, and the ability to send electronic notes, messages and
documents to others on the system.
7. The PROFS system is used by White House and NSC officials to
implement government policy, and as such contains both
presidential and agency records. For example, records contained
2
in the PROFS system were utilized extensively by the President's
Special Review Board (the Tower Commission) and the Congressional
Iran-Contra Committees investigating the Iran-Contra Affair. See
Report of the President's Special Review Board, at III-1
(February 26, 1987) ; Report of the Congressional Committees
Investigating the Iran-Contra Affair, 100th Cong., 1st Sess., S.
Rep. No. 100-216, H. Rep. No. 100-433, at 689-90. To the best of
my information and knowledge, Independent Counsel Lawrence Walsh
continues to rely on information from the PROFS system in support
of criminal investigation and prosecution of government officials
involved in the Iran-Contra Affair.
8. Beginning in 1985, the PROFS system was were used by the
members of the National Security Council and their staff. In
1986, the PROFS network expanded to "satisfy the growing
requirement in the White House for internal electronic mail and
document transfer between the West Wing, Old Executive Office
Building and the Cabinet agencies." Solicitation for Computer
Operation/Facilities Management, Executive Office of the
President, March 27, 1987, p. 50.
9. The system helps to avoid an avalanche of paperwork by
handling much of the information electronically without paper
copies. Key to document handling are the sophisticated search
and retrieval functions. "Every document in PROFS is assigned a
number so that it can be located using a variety of search
techniques. Information such as who wrote the document the date,
the subject, and to whom the document was sent can also be used
3
in the search. The advantage of letting PROFS do this for you is
quite obvious. You don't have to go through all your filing
cabinets looking for documents that may be filed under multiple
subject headings or under a filing system you know nothing about.
PROFS takes care of all that for you. " IBM, "Introducing the
Professional Office System," November 1985, p. 10-11.
10. The Iran-Contra Affair illustrated the importance of
information stored in the PROFS system. Despite repeated
attempts by NSC staff to shred the paper record and delete the
computer record, the PROFS backup system on magnetic tape allowed
investigators to reconstruct much of the Iran-Contra-related
activity. A sampling of these PROFS notes is attached as Exhibit
4 hereto. The Iran-Contra PROFS records demonstrate that in
effect, the capabilities of the PROFS system for transmitting,
indexing, filing, and retrieving contemporaneous records created
a new and powerful central filing system which recorded the daily
business of the White House and National Security Council at the
highest levels -- but only in electronic and not in paper form.
11. The Tower Commission stated that these PROFS messages
"provide a first-hand, contemporaneous account of events."
Report of the President's Special Review Board, February 26,
1987, p. III-1. As examples of the central role of the PROFS
system in the NSC staff's decisionmaking process, copies of three
PROFS messages declassified during the Iran-Contra investigations
are attached.
4
12. Despite the clear historical significance of and public
interest in the information captured by the PROFS system, I have
been told by representatives of the National Archives and Records
Administration (NARA) that those PROFS system tapes other than
those used by the Iran-Contra Committees and the Independent
Counsel have not been and will not be preserved as a "permanent
record" of the Reagan Administration.
13. The head of the Office of Presidential Libraries of NARA,
John Fawcett, told me on January 18, 1989, that the only PROFS
messages that are retained as "presidential records" are those
printed out by White House and NSC staff and maintained in paper
form. According to Fawcett, NARA considers all PROFS system
tapes other than those provided for the Iran-Contra Committees
and the Independent Counsel not to be "Presidential records" or
"agency records."
14. This practice has been implemented by specific guidelines
issued to White House and NSC staff by the National Archives,
despite current rulemaking-in-progress that indicates the
Archives' intention to explore methods of retention and
preservation of electronic records. Notice of Proposed
Rulemaking, NARA, November 8, 1988.
15. Even if White House and NSC staff are diligent above and
beyond the call of duty in printing out copies of any PROFS
message they considered historically or administratively
significant -- a practice which the Iran-Contra Affair
demonstrates has not been the norm, and which, on knowledge and
5
belief, I believe is still not the norm -- the resulting paper
file is by definition not a complete record of White House and
National Security Council business, certainly when compared to
the value of the complete backup file maintained electronically.
16. Additionally, according to Mr. Fawcett, the backup tapes,
which represent the master file of PROFS messages, are not
ordinarily preserved -- since they are not considered
"presidential records" under the Archive's guidance or the White
House and NSC practice -- and indeed may be re-used on the
mainframe computer and thus overwritten by subsequent PROFS
messages. Any overwritten sections of the magnetic tapes are
then lost to subsequent retrieval, much as a recording on a
cassette tape gets erased when something new is recorded over it.
Many or even most of these magnetic tapes may already have been
overwritten and thus destroyed.
17. However, at least one set of magnetic tapes -- the one in
use as of January 19, 1989, and those from the immediate prior
period -- does exist and contains current PROFS messages which
have not been overwritten. Since the mainframe computer
presumably employs multiple magnetic tapes for storage, a number
of additional magnetic tapes containing PROFS messages may also
still exist in retrievable form.
18. According to Mr. Fawcett, January 19, 1989 represents the
"breaking point" for the preservation of Reagan Administration
records, and the beginning of a new system for preservation of
the next administration's records. My counsel has asked for and
6
not received assurance that the PROFS tapes will not be
destroyed. I have been informed by NARA counsel that the White
House has delivered some computer tapes from other computer
systems to the National Archives, but has not delivered any PROFS
tapes. Therefore, I believe that January 19, 1989, may be the
last opportunity to preserve the magnetic tapes which comprise
the PROFS system's master backup file, and thus the only complete
record of a vital central filing system in the White House and
National Security Council.
19. In an attempt to preserve these records, I have made the
aforementioned overlapping Freedom of Information Act requests to
the Executive Office of the President, the National Security
Council and the National Archives and Records Administration. In
and of themselves, however, these FOIA requests may not guarantee
the preservation of these vital records.
I declare under penalty of perjury that the foregoing
statements are true and correct.
R. Scott Armstrong
DATE: January 19,1989
7
Exhibit 1
THE NATIONAL SECURITY ARCHIVE
SUITE 500 1755 MASSACHUSETTS AVENUE, N.W. WASHINGTON, D.C. 20036 (202) 797-0882
IN ALL CORRESPONDENCE PLEASE REFER
TO ARCHIVE FILE NO. 890035NAR001
January 18, 1989
Ms. Trudy Peterson
Assistant Archivist of the United States
National Archives and Records Administration
Washington, DC 20408
RE: Freedom of Information Act Request
Dear Ms. Peterson,
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. Section 552, et
seq. (as amended), I hereby request disclosure of the materials and documents
described on the attachment to this letter for inspection and possible copying. I
note for your information that we are making this FOIA request to preserve the
materials in question which we understand might otherwise be improperly
destroyed. In this vein, I have made possibly overlapping requests to the Executive
Office of the President, the National Security Council and the National Archives
and Records Administration. Once we have received assurances that the
information will be properly preserved, we are willing to dramatically narrow the
scope of the request for materials to be actually copied and provided.
If you regard any of these materials as non-records under the FOIA, I request
that you retain copies of all such materials until we have had an opportunity to
clarify your interpretation through litigation or congressional action. Similarly, if
you regard any of these materials as exempt from the FOIA's disclosure
requirements, I request that you nonetheless exercise your discretion to disclose
them. In this connection I note that you are required under the FOIA to release
any reasonably segregable nonexempt portions of documents containing
information you regard as exempt. Section 552(b). To permit an intelligent,
informed decision whether or not to file an administrative appeal of any denial
and explain the logical and factual basis for exemption claims. See Mead Data
decision, you are also requested to describe withheld records (or portions thereof)
Central, Inc. V. Department of the Air Force, 566 F.2d 242, 251 (D.C. Cir., 1977).
public interest research institute and library located in Washington, D.C. and the
This request is made on behalf of the National Security Archive, a nonprofit
located in Washington, D.C. The Archive and the Center are both organized and
Center for National Security Studies, a nonprofit public interest research facility
operated as a division of The Fund for Peace, Inc., a nonprofit corporation that is
exempt from federal income tax under section 501(c)(3) of the Internal Revenue
Code, and has been acknowledged by the Internal Revenue Service since November
19, 1962 to be "organized and operated exclusively for educational purposes."
The fee waiver provisions under section 552(a)(4)(A) of the FOIA
recently amended by the Freedom of Information Reform Act. The Reform were
to fee provisions became effective on April 25, 1987 and rewrote section 552(a)(4)(A) Act's
create categories of requesters entitled to fee waivers. Pub.L. 99-570, Sec. 1803,
1804. One category consists of "educational or noncommercial scientific
institution[s] whose purpose is scholarly or scientific research" and another consists
of representatives of the "news media." 5 U.S.C. 552 (a)(4)(A)(ii)(II). Requesters in
these groups receive an automatic waiver of all search and review fees, irrespective
of the nature or contents of the documents requested. They can be charged
standard duplication costs (in excess of the first one hundred copied pages), but
these charges may also be waived in certain circumstances.
On May 11, 1987 the Archive submitted a comprehensive memorandum to your
agency providing documentation under penalty of perjury which establishes that
the Archive is entitled to fee waivers under the categories of educational or
noncommercial scientific institutions and representatives of the news media within
the meaning of the Reform Act. To summarize, the Archive's purpose is to enrich
public policy debate by making available records pertaining to important, mostly
contemporary issues of major public concern in the areas of foreign, defense,
intelligence, and international economic policy.
Documents obtained by the Archive, including the records requested in this
letter, are carefully analyzed, indexed and organized into document sets in the
Archive's collection. Document sets are available for inspection and copying by
scholars, journalists, Members of Congress and Congressional staffs, present and
former public of ficials, other public interest organizations, and the general public
at the Archive's Washington office. In addition, information in the documents will
be disseminated across the country through distribution of comprehensive
document indices to university and other research libraries and through the
Archive's publications.
As the executive director of the Archive, I regularly use records such as those
sought in this request in research on foreign and national security matters. In
addition, the Archive and the Center both make all records available to a broad
range of scholars, journalists, public interest organizations, members and the staff
of Congress, and members of the general public.
I therefore request that you waive all search and reproduction fees pursuant to
section 552(a)(4)(A), as amended. If you determine that the Archive does not fall
within one of the two categories of requesters described above, this request would
also qualify for favored treatment under the "all other requesters" category because
disclosure of the information in the requested documents is in the public interest
because it is likely to contribute significantly to public understanding of the
operations or activities of the government and is not primarily in the commercial
interest of the Archive within the meaning of the Reform Act. See 5 U.S.C.
552(a)(4)(A)(iii). Should you decline to waive all fees, however, we are prepared to
pay you normal search fees (and reproduction fees, if I decide to copy the records
produced). Our willingness to pay fees is subject to our rights to appeal and litigate
the fee waiver question, and payment would be deferred until exhaustion of such
rights. I further ask that if you decline to waive fees that you set forth your
reasons for doing so in writing and that you obtain our authorization before
incurring search costs in excess of $100.
In order to expedite the release of the listed documents, I request that you
disclose them as they become available to you, without waiting until all the
documents have been assembled. If you have any questions that I might be able to
answer regarding the identity of the records, their location, or the scope of the
request, please call me. I look forward to receiving your response within the
statutory time period.
Yours very truly,
Scott Armstrong
Executive Director
890035NAR001
01/18/1989
3668
Copies of all tapes, discs, and/or other storage formats for the PROFS
System serving the Executive Office of the President and/or the National
Security Council, and all information contained therein, as well as all
records in whatever format derived from the PROFS System, from the date of
the installation of said system to the end of the Reagan Administration.
(The requester is prepared to narrow the scope of this request upon
consultation.) ).
Exhibit 2
THE NATIONAL SECURITY ARCHIVE
SUITE 500 1755 MASSACHUSETTS AVENUE, N.W. WASHINGTON, D.C. 20036 (202) 797-0882
IN ALL CORRESPONDENCE PLEASE REFER
TO ARCHIVE FILE NO. 890034EOP001
January 18, 1989
Ms. Nell Doering
Chief, Records & Publications
Executive Office of the President
2200 New Executive Office Bldg.
Washington, DC 20503
RE: Freedom of Information Act Request
Dear Ms. Doering:
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. Section 552, et
seq. (as amended), I hereby request disclosure of the materials and documents
described on the attachment to this letter for inspection and possible copying. I
note for your information that we are making this FOIA request to preserve the
materials in question which we understand might otherwise be improperly
destroyed. In this vein, I have made possibly overlapping requests to the Executive
Office of the President, the National Security Council and the National Archives
and Records Administration. Once we have received assurances that the
information will be properly preserved, we are willing to dramatically narrow the
scope of the request for materials to be actually copied and provided.
If you regard any of these materials as non-records under the FOIA, I request
that you retain copies of all such materials until we have had an opportunity to
clarify your interpretation through litigation or congressional action. Similarly, if
you regard any of these materials as exempt from the FOIA's disclosure
requirements, I request that you nonetheless exercise your discretion to disclose
them. In this connection I note that you are required under the FOIA to release
any reasonably segregable nonexempt portions of documents containing
information you regard as exempt. Section 552(b). To permit an intelligent,
informed decision whether or not to file an administrative appeal of any denial
decision, you are also requested to describe withheld records (or portions thereof)
and explain the logical and factual basis for exemption claims. See Mead Data
Central, Inc. V. Department of the Air Force, 566 F.2d 242, 251 (D.C. Cir., 1977).
This request is made on behalf of the National Security Archive, a nonprofit
public interest research institute and library located in Washington, D.C. and the
Center for National Security Studies, a nonprofit public interest research facility
located in Washington, D.C. The Archive and the Center are both organized and
operated as a division of The Fund for Peace, Inc., a nonprofit corporation that is
exempt from federal income tax under section 501(c)(3) of the Internal Revenue
Code, and has been acknowledged by the Internal Revenue Service since November
19, 1962 to be "organized and operated exclusively for educational purposes."
The fee waiver provisions under section 552(a)(4)(A) of the FOIA were
recently amended by the Freedom of Information Reform Act. The Reform Act's
fee provisions became effective on April 25, 1987 and rewrote section 552(a)(4)(A)
to create categories of requesters entitled to fee waivers. Pub.L. 99-570, Sec. 1803,
1804. One category consists of "educational or noncommercial scientific
institution[s] whose purpose is scholarly or scientific research" and another consists
of representatives of the "news media." 5 U.S.C. 552 (a)(4)(A)(ii)(II). Requesters in
these groups receive an automatic waiver of all search and review fees, irrespective
of the nature or contents of the documents requested. They can be charged
standard duplication costs (in excess of the first one hundred copied pages), but
these charges may also be waived in certain circumstances.
On May 11, 1987 the Archive submitted a comprehensive memorandum to your
agency providing documentation under penalty of perjury which establishes that
the Archive is entitled to fee waivers under the categories of educational or
noncommercial scientific institutions and representatives of the news media within
the meaning of the Reform Act. To summarize, the Archive's purpose is to enrich
public policy debate by making available records pertaining to important, mostly
contemporary issues of major public concern in the areas of foreign, defense,
intelligence, and international economic policy.
Documents obtained by the Archive, including the records requested in this
letter, are carefully analyzed, indexed and organized into document sets in the
Archive's collection. Document sets are available for inspection and copying by
scholars, journalists, Members of Congress and Congressional staffs, present and
former public officials, other public interest organizations, and the general public
at the Archive's Washington office. In addition, information in the documents will
be disseminated across the country through distribution of comprehensive
document indices to university and other research libraries and through the
Archive's publications.
As the executive director of the Archive, I regularly use records such as those
sought in this request in research on foreign and national security matters. In
addition, the Archive and the Center both make all records available to a broad
range of scholars, journalists, public interest organizations, members and the staff
of Congress, and members of the general public.
I therefore request that you waive all search and reproduction fees pursuant to
section 552(a)(4)(A), as amended. If you determine that the Archive does not fall
within one of the two categories of requesters described above, this request would
also qualify for favored treatment under the "all other requesters" category because
disclosure of the information in the requested documents is in the public interest
because it is likely to contribute significantly to public understanding of the
operations or activities of the government and is not primarily in the commercial
interest of the Archive within the meaning of the Reform Act. See 5 U.S.C.
552(a)(4)(A)(iii). Should you decline to waive all fees, however, we are prepared to
pay you normal search fees (and reproduction fees, if I decide to copy the records
produced). Our willingness to pay fees is subject to our rights to appeal and litigate
the fee waiver question, and payment would be deferred until exhaustion of such
rights. I further ask that if you decline to waive fees that you set forth your
reasons for doing so in writing and that you obtain our authorization before
incurring search costs in excess of $100.
In order to expedite the release of the listed documents, I request that you
disclose them as they become available to you, without waiting until all the
documents have been assembled. If you have any questions that I might be able to
answer regarding the identity of the records, their location, or the scope of the
request, please call me. I look forward to receiving your response within the
statutory time period.
Yours very truly,
Scott Scoulda Armstrong 6
Executive Director
890034EOP001
01/18/1989
3667
Copies of all tapes, discs, and/or other storage formats for the PROF.S.
System serving the Executive Office of the President and/or the National
Security Council, and all information contained therein, as well as all
records in whatever format derived from the PROFS System, from the date of
the installation of said system to the end of the Reagan administration.
consultation.) (The requester is prepared to narrow the scope of this request upon
Exhibit 3
THE NATIONAL SECURITY ARCHIVE
SUITE 500 1755 MASSACHUSETTS AVENUE, N.W. WASHINGTON, D.C. 20036 (202) 797-0882
IN ALL CORRESPONDENCE PLEASE REFER
TO ARCHIVE FILE NO. 890033NSC001
January 18, 1989
Ms. Nancy V. Menan
Director, FOI Office
National Security Council
375 Old Executive Office Building
Washington, DC 20506
RE: Freedom of Information Act Request
Dear Ms. Reger,
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. Section 552, et
seq. (as amended), I hereby request disclosure of the materials and documents
described on the attachment to this letter for inspection and possible copying. I
note for your information that we are making this FOIA request to preserve the
materials in question which we understand might otherwise be improperly
destroyed. In this vein, I have made possibly overlapping requests to the Executive
Office of the President, the National Security Council and the National Archives
and Records Administration. Once we have received assurances that the
information will be properly preserved, we are willing to dramatically narrow the
scope of the request for materials to be actually copied and provided.
If you regard any of these materials as non-records under the FOIA, I request
that you retain copies of all such materials until we have had an opportunity to
clarify your interpretation through litigation or congressional action. Similarly, if
you regard any of these materials as exempt from the FOIA's disclosure
requirements, I request that you nonetheless exercise your discretion to disclose
them. In this connection I note that you are required under the FOIA to release
any reasonably segregable nonexempt portions of documents containing
information you regard as exempt. Section 552(b). To permit an intelligent,
informed decision whether or not to file an administrative appeal of any denial
decision, you are also requested to describe withheld records (or portions thereof)
and explain the logical and factual basis for exemption claims. See Mead Data
Central, Inc. V. Department of the Air Force, 566 F.2d 242, 251 (D.C. Cir., 1977).
This request is made on behalf of the National Security Archive, a nonprofit
public interest research institute and library located in Washington, D.C. and the
Center for National Security Studies, a nonprofit public interest research facility
located in Washington, D.C. The Archive and the Center are both organized and
operated as a division of The Fund for Peace, Inc., a nonprofit corporation that is
exempt from federal income tax under section 501(c)(3) of the Internal Revenue
Code, and has been acknowledged by the Internal Revenue Service since November
19, 1962 to be "organized and operated exclusively for educational purposes."
The fee waiver provisions under section 552(a)(4)(A) of the FOIA were
recently amended by the Freedom of Information Reform Act. The Reform Act's
fee provisions became effective on April 25, 1987 and rewrote section 552(a)(4)(A)
to create categories of requesters entitled to fee waivers. Pub.L. 99-570, Sec. 1803,
1804. One category consists of "educational or noncommercial scientific
institution[s] whose purpose is scholarly or scientific research" and another consists
of representatives of the "news media." 5 U.S.C. 552 (a)(4)(A)(ii)(II). Requesters in
these groups receive an automatic waiver of all search and review fees, irrespective
of the nature or contents of the documents requested. They can be charged
standard duplication costs (in excess of the first one hundred copied pages), but
these charges may also be waived in certain circumstances.
On May 11, 1987 the Archive submitted a comprehensive memorandum to your
agency providing documentation under penalty of perjury which establishes that
the Archive is entitled to fee waivers under the categories of educational or
noncommercial scientific institutions and representatives of the news media within
the meaning of the Reform Act. To summarize, the Archive's purpose is to enrich
public policy debate by making available records pertaining to important, mostly
contemporary issues of major public concern in the areas of foreign, defense,
intelligence, and international economic policy.
Documents obtained by the Archive, including the records requested in this
letter, are carefully analyzed, indexed and organized into document sets in the
Archive's collection. Document sets are available for inspection and copying by
scholars, journalists, Members of Congress and Congressional staffs, present and
former public officials, other public interest organizations, and the general public
at the Archive's Washington office. In addition, information in the documents will
be disseminated across the country through distribution of comprehensive
document indices to university and other research libraries and through the
Archive's publications.
As the executive director of the Archive, I regularly use records such as those
sought in this request in research on foreign and national security matters. In
addition, the Archive and the Center both make all records available to a broad
range of scholars, journalists, public interest organizations, members and the staff
of Congress, and members of the general public.
I therefore request that you waive all search and reproduction fees pursuant to
section 552(a)(4)(A), as amended. If you determine that the Archive does not fall
within one of the two categories of requesters described above, this request would
also qualify for favored treatment under the "all other requesters" category because
disclosure of the information in the requested documents is in the public interest
because it is likely to contribute significantly to public understanding of the
operations or activities of the government and is not primarily in the commercial
interest of the Archive within the meaning of the Reform Act. See 5 U.S.C.
552(a)(4)(A)(iii). Should you decline to waive all fees, however, we are prepared to
pay you normal search fees (and reproduction fees, if I decide to copy the records
produced). Our willingness to pay fees is subject to our rights to appeal and litigate
the fee waiver question, and payment would be deferred until exhaustion of such
rights. I further ask that if you decline to waive fees that you set forth your
reasons for doing so in writing and that you obtain our authorization before
incurring search costs in excess of $100.
In order to expedite the release of the listed documents, I request that you
disclose them as they become available to you, without waiting until all the
documents have been assembled. If you have any questions that I might be able to
answer regarding the identity of the records, their location, or the scope of the
request, please call me. I look forward to receiving your response within the
statutory time period.
Yours very truly,
Scott Armstrong
Executive Director
100JSNE20068
01/18/1989
3666
Copies of all tapes, discs, and/or other storage formats for the PROFS
System serving the Executive Office of the President and/or the National
Security Council, and all information contained therein, as well as all
records in whatever format derived from the PROFS System, from the date of
the installation of said system to the end of the Reagan administration.
consultation.) (The requester is prepared to narrow the scope of this request upon
ICOUN Congress, 1St session
S. Rept. No. 100-216
H. Rept. No. 100-433
Exhibit 4
Report of the Congressional Committees Investigating the
Iran-Contra Affair
Appendix A: Volume 1
Source Documents
Daniel K. Inouye, Chairman,
Senate Select Committee
Lee H. Hamilton, Chairman,
House Select Committee
U.S. Senate Select Committee
U.S. House of Representatives
On Secret Military Assistance to Iran
Select Committee to Investigate
And the Nicaraguan Opposition
Covert Arms Transactions with Iran
November 13, 1987.-Committed to the Committee of the Whole House
on the State of the Union and ordered to be printed.
November 17, 1987. - Ordered to be printed.
Washington : 1988
898
Chapter 6 Formote 76
From: NSRCM --CPUA
Date and time
09/03/83 21:34:09
To: NSOLN --CPUA
UNCLASSIFIED
JOHN M. POINDENTER
NOTE FROM: ROBERT MCFARLANE
N 3265
SUBJECT: Reply to Kamilton on Ollie's Activities
I have sent you both separately a draft letter I have composed to answer Lee
Hamilton's letter on Ollie's activities. One or two 1:0
appropriate. The reference : =:" refers :: pursgraph = of page :wo
5: your stain coide Insert =- resers :- the second paragraph o: PJ6C :-0.
Please do not share either this note or the separate draftswith anyone. Wil
will prepare a smooth version of it for me Wednesday morning. Please bring BE
any edits you have. Ollie. don't send me any PROFS notes about it. Many
thanks.
6-76
500 X 4
E.J. 0.7.
wer
Far.
1
.j S- Reger, Security
UNCLASSIFIED
4265
Guard
lefe
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02/27/06 16:02:23
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on
5/6/87
... haply to sate of 02/21/06 00:54
12355
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Subject: B.O are things?
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moblance or integrior and guaptico to 09 volicp, they coold Bake you
Secretary of State. DOI they can't Inco ... wold complete If lary did--auch
is 130 alate of desocracy is the late 2016 contury. Bet the alsoles ...
forribly proolning. as you how 1 do not hold Cerbeniter 10 siva requed and -
1178
.. particulatis flad 10 bere of
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I bere just volten e sate tree John soking sbother of not I could - .... time
sest voeh cod that the President 10 .. beard. 1 agreed. so hunner dove and you
.... seul; let this werd cooe to you 10 choosele, bet pack your bays to be
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free nike to analet 10 gottlog visastes Corbonidat to cose 10 Spitseriend
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gurely If abog have only real bone fides they too 1008 1800 is Tebras
free the golam cabaney or also. 1 so not intend 10 toll site any of
this sex info. Receivend agalnol gost doing 20.
trave Bole.
you are things?
12-60
60
UNCLASSIFI
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Chapter 12, Footnote 60 PAGE oan
UNITS nouss ORRUBECATIONS AGREET
PILP: SOFF
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UNCLASSIFIE
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02/27/86 16:02:23
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1178
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subject: NOV are thinys?
12120
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Chapter 12
rether thee continue the process " obics " doal through internation like
the seeting BUTTON to caphasise the a... for direct cosatact will these scople
11bert mahio, so INCIT vis rung the operation for our Dicassyses
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Footnote 61
realatance support activity
slong vis of provide " ... ective" account.
becomponsed se Ibel 1 " have .......
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throughout the novales, Corbaulfahr Intentionally disterted ouch of the
translation sed bad " be corrected by ... @@@ on occasions so ........ that
" readbed so follows:
finalty bed slbays transfate both vaya. ---------- at sty 4 agreement
natters of great loport. ---- 18.0 not beve 10 check back " Tobras
bee outherity 10 sake bio ... decisions on
decisions tabe. -the govt. of Ices is terrified of . ... Seriet 00
sty doutages ... be released during " during the cost cooting. -thep --011 sest
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advice is 1800/1889 ... thee 00 originally belleved. --Phop weet are tocknical less
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agendo other then to Hotes to each other 10 release the bestayes cod .....
relationship " . shole. Be need only to " to this seetley obich box ..
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drapita the process. Dave briefed both JUP sed Casey -- seitber ..., authorizatic
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1179
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02/21/06 20:09:59
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"OTE PPOR1 OLIVER CORTS
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12356
Subject: Exchanges
and Taace the clasive of this worsing, set " Cases, JRP.
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has aysin that obce have
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the ... .. be Pice crewd you ... ⑉1111 God willing "
12-61
UNCLASSIE
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good Loss ... 0 Ifitie were bard ooth .. .... 0011 0000 bate five ONCITS bose the
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your for lives.
volue ... friendable and confidence very alvany ... $10 not .... 10
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I ... sely lefereing tbat I bed ⑉ 1010 bio anything of " se .. ... .... to
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walk easy corposed to bis. 1 only bed to deal vith ... # bes to doal
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02/27/04 20:22:32
... Deply to note of 02/27/06 16:03
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From NSRCM --CPUA
Chapier 12 Footnote 62
To: NSOLN --CPUA
Date and time 02/27/86 21:37:48
404
--- Reply to note of 02/27/86 20:11
1363
NOTE FROM: ROBERT MCFARLANE
UNSERSSIFIED" N 41077
Subject: Exchanges
No sweat GI. I just sent a separate note about not shar9ing with John because
I had forgotten to put it in the other note. And I fully understand the
path he is trying to walk. between those who want to go balls out for the narrow wrong
play reasons (Regan) and those who don't want to do it at 'all (GPS and Cap). So
it any way you must. As for my commitments don't worry about them; set it up
any way you wish that it works for them. I only sentioned it to John to ask
to do--with some grace.
that he try to give ae a heads up soon so that I can cancel-which I am glad
UNCLASSIFIED
12-62
1205
under 22June1987 En. 12356
by B.
% Count
UNDEROOM
AKW026704
OLNOOR 4/2/87 4/2
1192
UNCLASSIFIED
Chapter 12, Tootnote 83
From: NSRCM
--CPCA
Date and time
To: NSOLN --CPUA
03/10/86 22:14:24
Reply to note of 03/10/86 21:10
N 41078
1364
NOTE FROM: ROBERT MCFARLANE
Subject: How's It Going?
Roger Ollie. I guess I'm a little puzzled about the Iranian wiring diagram.
From whom are we getting the word concerning & seeting in the Gulf? Is Gorba
involved in that dialogue or is that info coming through the Israelis? It
strikes se that it is probably OK to keep Gorba in the dark--to the extent
that is possible to do so if there is another channel. Gorba is basically 4
self-serving mischief maker. Of course the trouble is that as far as we know,
so is the entire lot of those we are dealing with. The Soviet threat 13 the
strategic menace and I would guess that they would like to avoid having
Russians in Iran. But it is going to take some time to get a feel for just who
the players are on the contemporary scene in Teheran. So the sooner we get
started the better.
I would be glad to seet to talk about he Marine Corps. I will be having lunch
with Paul Nitze this Friday. How about right after that at about 2:00pm in
your office?
Frank y. I would expect the heat from the Hill to become immense on you by
summer. Consequently it strikes se as wise that you leave the White House. At
the same time, there will be no one to do all (or even 4 small part of what)
you have done. And if it isn't done, virtually all of the investment of the
past five
years will go do wn the drain.
How's this for & self-serving scenario: 1. North leaves the White House in May
and takes 30 days leave. 2. July 1st North is assigned 33 a fellow at the CSIS
and (lo and behold) is assigned to McFarlane's office 3. McFarlane/North
continue to work the Iran account as well as to begin to build other
clandestine capabilities so such in demand here and there. Just a knee jerk
musing.
12-83
8Jdy87
the
E.C. 12006
Marily
Credit
1969
OLNOOR Box34-6 4/2/87
AWW026705
2D9
UNCLASSIFIED
83
1364
11181
UNITE NOUSE CUANUMICATIONS AGROCT
UNCLASSIFIED
"
vicelly, 00 a ... subject: of very such like to have . .......... "/ you is
Chapter 12
the sest for daya 11 " all tennible. I have been advised by BORC that they
have cet orders for as to " to 24 MARRIV this sunser. This is a situation
Footner 34
(like so mony others) trought " opportunity and rish. 1, quite trankly don't
1000 what to do about the situation, but will have to take **** bied et action
is the nest too make. H very such oppreciate ye good coussel .. the
mocite/lisbilities of sech .. andigneent and advice .. bow to proceed. Uses
regards and sear thanks 10 both you and Jossey for the beautiful flovers.
12-84
novie " Cology
0
R$8 PROR: PSACE --CPUB
TO: SSOLE
1843mm
03/10/06 09:04:40
To: 89018 --CPOA
... noply to note of 03/10/06 00:50
DOTE paon, ROBERT OCFABLAND
Subject: New's " scings
Dogor: Dang thanks.
. lev's " Coloy?
a
use FROM: BOLD
18dd
TO: sence
1003-
02/11/06 07:23:34
TO: usace -CPUA
... noply to note of 03/10/06 22:19
NOTE PROR: OLIVER DOBTE
Subject: Nev's 11 solegi
" get response on " sconncio " Section personal situation is that I like
14. There 10's question as to box to nake 11 all bappen, bet 11 od be yood 10
disc.v/ you 01400 vehday. Have blocked .... " " achoo. Looking forward to
1193
it. Is to the corbs probs Be la coate of the Siab st, and is basically
carrying our valor on the aty since be is still the sely access be have to the
Ireales political leadership. It od be useful, I believe, for you to telh w/
Goorge Case, lie igency's Item expect. Ge abares 065 COMBOES that " Day be
dealing sely " these who have as interest 10 area sales and their our
personal financial valo and believes the ***ssises ... cosing" approach is
about the only say to broader the perspective. " of do well to explore other
contacts " they ... be opened
Coorye in going to ... what .. have .. this .. that
- cas access chother or not 11 od be required is make soch .. approach. as
advises that " TO vote able to got to
"
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islo manage " night be able to sake done headway. will advise. If you od
like to neet " cookyn, pla let - have and I will accange. Here cagards.
Borth oT
NOV'S It Coingi
a
ase FROM USACA
-CPOA
TO: BSOLD --CPUA
03/10/06 22:10:24
Po: 99018 --CPUA
... septy 10 note of 03/10/06 21190
DOTE race: BOENT OCPABLASS
Subject: 11 Coing?
Boyoc 01116. your I's a little possied about the Iremian vising diaycas.
UNCLASSIFIED
1211
Chapter 12, Footnole 127
26
12-127
UNCLASSIFIED
From: NSJMP --CPUA
Date and time
04/16/86 19:02:42
To: NSOLN --CPUA
N 9212
*** Reply to note of 04/16/86 16:40
SECRET --
NOTE FROM: JOHN POINDENTER
Subject: PRIVATE BLANK CHECK
You may 80 ahead and go. but I want several points made clear to them. There
are not to be any parts delivered until all the hostages are free in
accordance with the plan that you laved out for me before. None of this half
shipment before any are released crap. It 13 either all or nothing. Also you
may tell them that the President 13 getting very annoyed at their continual
stalling. He will not agree to any more changes in the plan. Either they agree
finally on the arrangements that have been discussed or we are going to
permanently cut off all contact. If they really want to save their asses from
the Soviets, they should get on board. I am beginning to suspect that
doesn't have such authority.
CC: NSPBT
-CPUA
PAUL THOMPSON
, 5/6/87
10. 12.03
"
UNCLASSIF
426
INFORMATION SYSTEMS UNIT
WHITE HOUSE COMMUNICATIONS AGENCY
BUILDING 94, WASHINGTON NAVY YARD, ANACOSTIA
WASHINGTON, D.C. 20374-0940
20 January 1989
MEMORANDUM FOR RECORD
SUBJECT: Temporary Restraining Order -- 19 January 1989
1. At approximately 1110 on 20 January 1989 CPT Bob Risney and MSG
Kelly Williams met with Mr. Nicholas Rostow, Legal Adviser to the
NSC, and represented to him that, to the best of their knowledge
and belief, the sets of backup tapes that are in existence provide
a full and complete capability for restoring all data on the NSC
PROFS computer system existing as of approximately 1817, 19 January
1989, and subject to the Temporary Restraining Order entered at
1810 on 19 January 1989. Additionally, all sets of backup tapes
in existence as of 19 January 1989 for the NSC PROFS system will
be retained. All existing NSC data thus is preserved unaltered.
2. All such referenced tapes have been physically isolated and
secured. No access will be permitted without Mr. Rostow's written
permission.
3. Based on the representation set forth in paragraph 1 hereof,
Mr. Rostow authorized WHCA to take all actions necessary to prepare
the NSC PROFS computer system for the Bush Administration. These
include purging user accounts on the NSC PROFS system and the
continuation of archival processing.
Nicholas Rontru
Nicholas Rostow, NSC Legal Adviser
Kelly Will
Kelly Owilliams, WHCA
Robert G. Risney, WHCA
0375
NATIONAL SECURITY COUNCIL
WASHINGTON, D.C. 20506
January 20, 1989
MEMORANDUM FOR KENNETH NICKEL
FROM:
PAUL SCHOTT STEVENS
PM
SUBJECT:
Compliance with Temporary Restraining Order
On January 19, 1989, the United States District Court for the
District of Columbia enjoined us "from destroying, erasing,
recycling, or in any way altering what is commonly known as the
PROFS computer tapes for the National Security Council and the
Executive Office of the President or in any way deleting or
destroying the information contained in the back-up files of the
PROFS Computer System." (Tab A) Based on conversations among
Nicholas Rostow, Legal Adviser to the National Security Council,
Major William Hilton (WHCA), Kelly Williams (WHCA), and David
Anderson, Department of Justice, I understand that WHCA can
preserve all existing NSC data in a retrievable form by a full
system back-up and that WHCA has the capacity to restore this
data. We shall rely on this representation in court.
To comply fully with all terms in the court order, I hereby
confirm previously issued instructions and request that WHCA
undertake the following actions:
-- I hereby confirm George Van Eron's oral instructions to Major
Hilton at 6:23 p.m. on January 19, 1989, to stop all deletions,
if any in progress, from the PROFS system.
-- I hereby direct that WHCA continue making a full-system back-
up tape of all existing NSC data from the main frame computer
disk, as requested by George Van Eron last night.
-- All existing back-up tapes and "dumps" as of the time of the
court order (6:10 p.m., January 19, 1989) and all back-up tapes
and dumps created subsequently pursuant to this directive must be
preserved intact in a secure manner.
-- WHCA should make a complete, contemporaneous record of all
steps taken, including noting all participants in the process, in
carrying out this action.
2
-- When the full-system back-up is complete such that all
existing NSC data is preserved in a retrievable form, WHCA shall
prepare an affidavit for signature by someone having knowledge of
the technical actions required and taken and who can certify that
all existing NSC data has been preserved as required by the court
order and by these instructions. The affidavit shall set forth
all steps taken as well as the certification with respect to the
preservation of all existing NSC data. As soon as the back-up
tape has been created, the affidavit should be prepared and
submitted to the Office of NSC Legal Adviser.
-- When all existing NSC data has been preserved in the manner
set forth above, WHCA should purge the main frame computer disk
in order to prepare it for use by the Bush Administration.
Attachment
Tab A - Restraining Order
0375
NATIONAL SECURITY COUNCIL
WASHINGTON, D.C. 20506
January 20, 1989
MEMORANDUM FOR PAUL SCHOTT STEVENS
FROM:
NICHOLAS ROSTOW
SUBJECT:
Directive to WHCA in Connection with TRO
As you are aware, the National Security Archive and other
plaintiffs obtained a temporary restraining order enjoining us
"from destroying, erasing, recycling, or in any way altering what
is commonly known as the PROFS computer tapes for the National
Security Council and the Executive Office of the President or in
any way deleting or destroying the information contained in the
back-up files of the PROFS Computer System." (Tab II)
WHCA assures us that all existing NSC data on the system hard
disk may be copied onto back-up tapes without destroying,
altering, or otherwise losing data. It is the unanimous view of
Assistant Attorney General Bolton, Deputy Counsel to the
President Brady and myself that this copying will comply with all
the terms of the court order.
We therefore recommend that you sign the attached memorandum (Tab
I) to the White House Communications Agency directing it to
preserve on back-up computer tapes all existing NSC data, to
maintain a contemporaneous record of all actions taken in this
regard, and to make an affidavit that all existing NSC data has
been preserved in a usable form. Once these steps have been
completed, and in reliance on WHCA's representation that all
existing NSC data has been preserved, your memorandum authorizes
WHCA, as a final step, to purge the hard disks and prepare them
for use by the Bush Administration.
RECOMMENDATION
That your sign the memorandum attached at Tab I.
George Van Eron concurs.
Approve
pm
Disapprove
Attachments
Discussed CLD 1.20.89
Tab I - Memorandum to WHCA
@7m PM
Tab II - Order and Pleadings
FILED
UNITED STATES DISTRICT COURT
JAN 19 1989
FOR THE DISTRICT OF COLUMBIA
JAMES F. DAVEY, Clerk
R. SCOTT ARMSTRONG, et al.
)
)
Plaintiffs,
)
)
V.
)
Civil Action No. 89-0142
)
(J. Charles Richey)
PRESIDENT OF THE UNITED STATES
)
OF AMERICA, et al.
)
)
Defendants.
)
)
TEMPORARY RESTRAINING ORDER
Plaintiffs' Motion for Temporary Restraining Order was heard
in open court on January 19, 1989. Upon consideration of said
motion, the Complaint filed therewith, the Memorandum of Points
and Authorities attached thereto, the Affidavit of plaintiff R.
Scott Armstrong, and oral argument of counsel for the parties,
the Court finds that plaintiffs have made a threshold showing
that they are likely to suffer immediate and irreparable harm
:
affecting a vital public interest unless a restraining order is
entered against the defendants and they have also made a showing
of probable success on the merits.
IT IS THEREFORE ORDERED by the Court that the defendants,
the President, Vice-President, Executive Secretary of the
National Security Council, and the agents, servants, employees,
attorneys of the Council, and all persons in active concert of
participation with them are hereby enjoined from destroying,
erasing, recycling, or in any way altering what is commonly known
as the PROFS computer tapes for the National Security Council and
the Executive Office of the President or in any way deleting or
destroying the information contained in the back-up files of the
PROFS Computer System.
Plaintiffs shall not be required to post security because
defendants will not suffer costs or damage even if it is
determined that they were wrongfully restrained pursuant to Civil
Rule 65 (c).
IT IS FURTHER ORDERED that this Order shall expire within
ten (10) days after entry unless extended for good cause shown by
the Court; and
IT IS FURTHER ORDERED that counsel shall appear before Judge
Charles Richey no later than January 25, 1989 for further
scheduling and plaintiffs shall file a Motion for Preliminary
Injunction on January 24, 1989.
ISSUED at 6:10 o!clock p.m. on January 19, 1989.
Barritan Barrington D. Parker Paske
United States District Judge
United States District Court
for the District of Columbia
1 TRUE COPY
JAMES F.. DAVEY CLERK,
By
Deputy Clerk
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
SCOTT ARMSTRONG
)
2620 Quebec Street, NW
)
Washington, DC 20008,
)
)
SENATOR GAYLORD NELSON
)
3611 Calvend Lane
)
Kensington, MD 20895,
)
)
GARY M. STERN,
)
4000 Harrison Street, NW
)
Washington, D.C. 20015,
)
)
EDDIE BECKER
)
1844 Mintwood Place, NW
)
Washington, DC 20009,
)
)
NATIONAL SECURITY ARCHIVE
)
1755 Massachusetts Ave., N.W.
)
Suite 500
)
Washington, D.C. 20036,
)
)
CENTER FOR NATIONAL SECURITY STUDIES
)
122 Maryland Avenue, NE
)
Washington, DC 20002,
)
)
Plaintiffs,
)
)
V.
)
)
RONALD W. REAGAN, President
)
C.A. No.
1600 Pennsylvania Ave., N.W.
)
Washington, D.C.,
)
)
GEORGE M. BUSH, Vice-President and
)
President Elect
)
Old Executive Office Building
)
Pennsylvania Ave. & 17th st., N.W.
)
Washington, D.C.,
)
)
THE NATIONAL SECURITY COUNCIL
)
Old Executive Office Building
)
Pennsylvania Ave. & 17th st., N.W.
)
Washington, D.C.,
)
)
DON WILSON, ARCHIVIST OF THE
)
UNITED STATES
)
7th & Pennsylvania Ave., N.W.
)
Room 111
)
Washington, D.C. 20408,
)
Defendants.
)
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Nature of Action
1. This is an action under the Presidential Records Act, 44
U.S.C. § 2201, et. seq.; the Disposal of Records Act, 44 U.S.C. §
3301, et. sea.; and the Administrative Procedures Act, 5 U.S.C. §
551, et. seq. Plaintiffs seek: (1) a declaration that certain
White House computer records stored in what is commonly known as
the "PROFS" computer system are covered by the laws governing the
National Archives and Records Administration 44 U.S.C. chapters
21-33; and (2) injunctive relief to prevent the President, the
National Security Council, and their agents, servants, employees,
attorneys, and all persons in active concert or participation
with them from destroying these computer records without
complying with the prescribed statutory procedures for
destruction of Presidential and agency records and to order the
President, the National Security Council and the Archivist to
comply with the laws governing the National Archives and Records
Administration.
Jurisdiction and Venue
2. This Court has subject matter jurisdiction over this
action pursuant to 5 U.S.C. $ 552 (a) (4) (B) and pursuant to 28
U.S.C. §§ 1331, 1346 and 28 U.S.C. $ 2201(a). Venue lies in this
district under 28 U.S.C. § 1391(b) and (e).
The Parties
3. Plaintiff Scott Armstrong is a journalist, author, and
foreign policy researcher, and founder and executive director of
the non-profit research institute the National Security Archive.
4. Plaintiff Gaylord Nelson is a former United States
Senator and was co-author with Senator Sam Ervin of the
Presidential Records and Materials Preservation Act.
5. Plaintiff National Security Archive (hereinafter, the
"Archive") is a nonprofit public interest scholarly research
institute and library in Washington, D.C. It is organized and
operated as a division of The Fund for Peace, Inc., a New York
nonprofit corporation. The Archive makes extensive use of the
Freedom of Information Act ("FOIA") to obtain government
documents concerning national security issues for its own
research purposes and to make such documents available to
scholars, journalists and other interested persons.
6. Plaintiff Center for National Security Studies
(hereinafter, the "Center") is a nonprofit public interest
scholarly research institute in Washington, D.C. It is organized
and operated as a division of the American Civil Liberties Union
Foundation and The Fund for Peace, Inc., a New York nonprofit
corporation. The Center makes extensive use of the FOIA to
obtain government documents concerning national security issues
for its own research purposes and to make such documents
available to scholars, journalists and other interested persons
as part of its program of public education.
7. Plaintiff Gary Stern is a research associate at the
Center for National Security Studies and has written articles,
3
reports, and comments on national security issues for a variety
of publications.
8. Plaintiff Eddie Becker is a professional researcher
specializing in documentary reconstruction of historical events.
Mr. Becker is employed by documentary filmmakers, scholars, and
journalist, and is a consultant at the National Security Archive.
9. Defendant Ronald W. Reagan is the President of the
United States and has ultimate control over all records and
information in the Executive Office of the President and the
National Security Council ("NSC").
10. Defendant George M. Bush is Vice-President and
President-Elect of the United States and on January 20, 1989,
will have ultimate control over all records and information in
the Executive Office of the President and the National Security
Council ("NSC").
11. Defendant National Security Council is an "agency" of
the United States and makes use of the PROFS computer system.
12. Defendant Don Wilson is the Archivist of the United
States and is responsible for preserving presidential records and
agency records in accordance with the laws governing the National
Archives and Records Administration (NARA).
The Computer Records in the PROFS System
13. The President, his staff, and the National Security
Council use what is commonly known as the PROFS computer system
(hereinafter "PROFS system") to create, store, and retrieve
information in the course of performing their governmental
4
functions. The PROFS system combines various routine office
functions including the ability to send electronic mail and
documents to others on the system.
14. The PROFS system is a central computer system of the
White House and the National Security Council. It contains
substantive information that does not exist anywhere in a paper
copy but only in electronic form.
15. The PROFS system contains information that constitutes
presidential records, as defined in the Presidential Records Act,
44 U.S.C. § 2201, et. seq., and agency records, as defined in the
Disposal of Records Act, 44 U.S.C. § 3301, et. seq., and the
Freedom of Information Act, 5 U.S.C. § 552 et. seq..
16. Based on information and belief, President Reagan and
the National Security Council intend to destroy the records
stored on the PROFS system beginning on Thursday, January 19,
1989, in violation of these statutes and specifically without
having complied with the procedures for obtaining a determination
by the Archivist of the United States, that the computer records
may properly be preserved.
COUNT 1
17. Plaintiffs incorporate by reference as if fully stated
herein all the statements contained in paragraphs 1 through 16
above.
18. By their aforementioned acts, defendants have or intend
to violate the Presidential Records Act, 44 U.S.C. $ 2201, et
seq.
5
COUNT 2
19. Plaintiffs incorporate by reference as if fully stated
herein all the statements contained in paragraphs 1 through 16
above.
20. Defendants have or intend to violate of the Disposal of
Records Act, 44 U.S.C. § 3301, et seq.
COUNT 3
21. Defendants are in violation of the Administrative
Procedures Act, 5 U.S.C. § 553, et seq.
WHEREFORE, plaintiffs pray that this Court:
1. Declare that the electronic tapes and information stored
in the PROFS computer system used in the White House and the
National Security Council are records governed by the provisions
of the laws governing the National Archives and Records
Administration (NARA), 44 U.S.C. chapters 21-33.
2. Enjoin defendants Ronald Reagan, George M. Bush, and the
National Security Council and their agents, servants, employees,
attorneys, and all persons in active concert or participation
with them from destroying, erasing, recycling, or in any way
altering what is commonly known as the PROFS tapes that exist in
the National Security Council and the Executive Office of the
President and the contents therein without complying with the
provisions of the laws governing the National Archives and
Records Administration (NARA), 44 U.S.C. chapters 21-33 and
specifically not until they receive an advance determination by
6
the Archivist of the United States, as to whether the computer
records may properly be destroyed.
3. Order defendant Don Wilson to comply with the provisions
of the laws governing the National Archives and Records
Administration (NARA), 44 U.S.C. chapters 21-33, with regard to
the electronic tapes and information contained in the PROFS
computer system and specifically to follow the prescribed
procedures regarding destruction of Presidential and agency
records.
4. Award plaintiffs their costs and reasonable attorneys
fees in this action; and
5. Grant such other and further relief as the Court may
deem just and proper.
January 19, 1989
Fate Mart
Kate Martin
American Civil Liberties Union
Foundation
122 Maryland Avenue, NE
Washington, DC 20002
544-5388
Attorney for Plaintiffs
7
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
R. SCOTT ARMSTRONG,
)
et al.,
)
Plaintiffs,
)
)
V.
)
)
RONALD W. REAGAN,
)
C.A. No.
et al.
)
)
Defendants.
)
)
PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER
Plaintiffs R. Scott Armstrong, Eddie Becker, Gary M. Stern,
National Security Archives, and Center for National Security
Studies respectfully move this Court, pursuant to Federal Rule of
Civil Procedure 65 (b) to issue a Temporary Restraining Order
against defendants President Ronald Reagan, Vice-President George
Bush, and the National Security Council (NSC) and their agents,
servants, employees, attorneys, and all persons in active concert
or participation with them.
The relief requested by the motion is to enjoin the
President and the NSC from destroying certain computer records
commonly known as the PROFS system. The narrow issue raised by
this motion is whether the President and the NSC can be
temporarily enjoined from destroying government computer records
in advance of a judicial determination as to whether destruction
of the records is in violation of the law and whether they should
be preserved in accordance with the laws governing the National
Archives and Records Administration (NARA), 44 U.S.C. chapters
21-33.
As grounds for the Motion, plaintiffs assert that a
Temporary Restraining Order is necessary to prevent the President
and the NSC from causing plaintiffs irreparable harm by
unilaterally and permanently destroying government records and to
safeguard plaintiffs' right of access to the information. In
support of this Motion, plaintiffs rely upon the Verified
Complaint filed herewith, the Memorandum of Points and
Authorities attached hereto, the proposed Temporary Restraining
Order, the Affidavit of plaintiff R. Scott Armstrong, and such
other matters as the Court may consider upon a hearing of this
Motion.
Respectfully submitted,
Cate plant
Kate Martin
American Civil Liberties Union
Foundation
122 Maryland Avenue, NE
Washington, DC 20002
544-5388
Attorney for Plaintiffs
January 19, 1989
2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
R. SCOTT ARMSTRONG,
)
et al.,
)
Plaintiffs,
)
)
V.
)
)
RONALD W. REAGAN,
)
C.A. No.
et al.,
)
)
Defendants.
)
have madea
)
thresboldshourg
that are
TEMPORARY RESTRAINING ORDER
to suffer
Plaintiffs' Motion for Temporary Restraining Order came on
for hearing in open court on January 19, 1989. Upon
consideration of said Motion, the Complaint filed therewith, the
Memorandum of Points and Authorities attached thereto, the
Affidavit of plaintiff R. Scott Armstrong, and oral argument of
counsel for the parties, the Court finds that plaintiffs will
suffer immediate and irreparable harm affecting a vital public
interest unless a restraining order is entered against the
defendants.
IT IS THEREFORE ORDERED by the Court that defendants,
President Ronald Reagan, Vice-President George Bush, and the
National Security Council and their agents, servants, employees,
attorneys, and all persons in active concert or participation
with them are hereby enjoined from destroying, erasing,
recycling, or in any way altering what is commonly known as the
PROFS computer tapes for the National Security Council. and the
Executive Office of the President or in any way deleting or
destroying the information contained in the back-up files of the
PROFS Computer System.
Plaintiffs shall not be required to post security because
defendants will not suffer costs or damages even if it is
determined that they were wrongfully restrained pursuant to Civil
Rule 65 (c).
IT IS FURTHER ORDERED that this Order shall expire within
ten (10) days after entry unless extended for good cause or by
consent of the defendants; and
IT IS FURTHER ORDERED that plaintiffs shall be given until
the
day of
, 1989, to file a Motion for
Preliminary Injunction and that said Motion will be heard on the
day of
, 1989, at
o'clock
.m.
ISSUED at
o'clock
.m., January
, 1989.
UNITED STATES DISTRICT JUDGE
2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
R. SCOTT ARMSTRONG,
)
et al.,
)
Plaintiffs,
)
)
V.
)
)
RONALD W. REAGAN,
)
C.A. No.
et al.,
)
)
Defendants.
)
)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER
Plaintiffs seek a temporary restraining order enjoining
defendants Ronald Reagan, George Bush, and the National Security
Council from destroying any electronic computer tapes or other
materials that contain information concerning the functioning of
the White House, contrary to the requirements of the Presidential
Records Act, the Disposal of Records Act, and the Freedom of
Information Act as administered by the Archivist of the United
States and the National Archives and Records Administration. See
American Friends Service Committee V. Webster, 485 F. Supp. 222
(D.D.C. 1980) aff'd 720 F.2d 29 (D.C. Cir. 1983).
Defendants apparently intend to destroy these electronic
tapes, which are the only existing record of many important
communications within the White House and specifically within the
National Security Council at the close of the Reagan
Administration on January 19, 1989. Doing so will destroy an
invaluable historical and political record that is available
nowhere else and which Congress has on several occasion mandated
be available to members of the public.
STATEMENT OF FACTS
The Executive Office of the President (the White House) and
the National Security Council (NSC) utilize what is commonly
known as the PROFS computer system ("PROFS system"). The PROFS
systems allows users of the system to communicate via electronic
mail, that is to send memoranda and other information to other
users directly through the computer. It is used to create,
maintain, and retrieve information pertaining to official
government activities.
This information is maintained on an electronic storage
medium, most likely magnetic tapes. These tapes have recorded
all correspondence and information that has been sent or created
using the PROFS system. In many instances no hard or paper copy
of the information exists, the electronic tapes are the only
record of the information.
The PROFS system is used by White House and NSC officials to
carry out government policy. It contains presidential and agency
records and any particular electronic tape may contain both
Presidential records and agency records of the NSC.
The information in the PROFS system, which exists only on an
electronic medium and not in any paper record can be extremely
important. For example, records contained in the PROFS system
1/ This Statement of Facts is based on the Affidavit of
R. Scott Armstrong, Attachment B hereto.
2
were utilized extensively by the President's Special Review Board
(the Tower Commission) and the Congressional Iran-Contra
Committees investigating the Iran-Contra Affair. See Report of
the President's Special Review Board, at III-1 (February 26,
1987) ; Report of the Congressional Committees Investigating the
Iran-Contra Affair, 100th Cong., 1st Sess., S. Rep. No. 100-216,
H. Rep. No. 100-433, at 689-90. Independent Counsel Lawrence
Walsh continues to rely on records from the PROFS system in
support of criminal investigation and prosecution of government
officials involved in the Iran-Contra Affair.
On January 19, 1989, plaintiffs Armstrong, the National
Security Archive, and the Center for National Security Studies
filed a request under the Freedom of Information Act, 5 U.S.C. §
552, for records contained in the PROFS system.
Plaintiffs Armstrong, Becker, and National Security Archive
have asked for assurances that defendants do not intend to
destroy the records contained in the PROFS system as part of the
changeover of Administrations on January 19, 1989. Defendants
have refused to give them any such assurances. Although the
White House has delivered some electronic computer tapes from
other computer systems to the Archivist for preservation and
safekeeping, it has not delivered any tapes from the PROFS system
to the Archivist.
ARGUMENT
To obtain a temporary restraining order (TRO), a plaintiff
must demonstrate (1) a substantial likelihood of success on the
3
merits; (2) irreparable harm; (3) that more harm will result to
plaintiff if the TRO is denied than will result to defendant if
it is granted; and (4) in appropriate cases, how the public
interest will be affected. Virginia Petroleum Jobbers Ass'n. V.
F.P.C., 104 U.S. App. D.C. 106, 110, 259 F.2d 921 (1958).
Plaintiff's application for a TRO satisfies each of the
foregoing tests.
A. Plaintiffs are Likely to Succeed on the Merits.
Plaintiffs are guaranteed a right of access to these
government records under at least three separate statutes: The
Freedom of Information Act, 5 U.S.C. § 552, et. seq.; the
Presidential Records Act, 44 U.S.C. 2201, et. seq.; and the
Disposal of Records Act, 44 U.S.C. 3301, et. seq. If any of
these statutes applies to the requested electronic recordings,
then defendants may not destroy them. See, American Friends
Service Committee v. Webster, supra. The statutes create a
public right of access to "agency records," in the case of the
FOIA and the Disposal of Records Act,2/ and to "Presidential
records," in the case of the Presidential Records Act.3/
2/ The Disposal of Records Act authorizes the Archivist of
the United States to establish procedures for the disposal of
only those documents "that do not appear to have sufficient
administrative, legal, research, or other value to warrant their
further preservation by the Government." 44 U.S.C. $ 3303.
3/ "Upon the conclusion of the President's
the Archivist of the United States shall assume responsibility ...
last term,
for the custody, control, and preservation of, and access to, the
Presidential Records of that President. The Archivist shall have
an affirmative duty to make such records available to the public
as rapidly and completely as possible consistent with the
provisions of this Act. 44 U.S.C. $ 2203 (f) (1).
4
Defendants do not assert any general right to destroy
Presidential or agency records at the close of an administration,
which would thereby frustrate this public right of access.
Rather defendants argue that these electronic computer records
are not like other Presidential or agency records, are not
covered by the statutes, and therefore may be destroyed. But
there is no authority for their position that because information
is stored electronically rather than in written form, it is not
covered by the statutes.
The Presidential Records Act provides that the United States
"shall
retain complete ownership, possession, and control
of Presidential records." 44 U.S.C. § 2202. It provides specific
procedures that must be followed by the President and the
Archivist before disposing of records during the term of his
office; the statute allows only records "that no longer have
administrative, historical, informational, or evidentiary value"
to be disposed of. 44 U.S.C. § 2203 (c).
Upon the conclusion of the President's term of Office, the
Act directs the Archivist of the United States to assume
responsibility for the records. "The Archivist shall have an
affirmative duty to make such records available to the public as
rapidly and completely as possible consistent with the provisions
of this Act." 44 U.S.C. § 2203 (f) (2). Here, neither the
President nor the Archivist have complied with the provisions of
this act and, to the contrary, apparently intend to violate it by
destroying the records.
5
But the Act applies to all "Presidential records," which
"means documentary materials
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." The definition of "documentary material"
covered by the Act explicitly covers materials such as the
electronic tapes requested here: "The term 'documentary
material' means all books
...
including but not limited to,
audio, audio-visual, or other electronic or mechanical
recordation." 44 U.S.C. § 2201(1) (emphasis added).
Similarly the Disposal of Records Act allows agency records
to be destroyed only after the Archivist has made the required
review and followed the required procedures for doing SO. 44
U.S.C. §§ 3302-03 The Act applies to all "records, H which
"includes all books, papers, maps, photographs, machine
readable materials, or other documentary materials,
regardless of physical form or characteristics, made or
received by an agency of the United States Government under
Federal law or in connection with the transaction of public
business and preserved or appropriate for preservation by
that agency or its legitimate successor as evidence of the
organization, functions, policies, decision, procedures,
operations, or other activities of the Government or because
of the informational valued of data in them."
44 U.S.C. § 3301.
The agency's own interpretation confirms that such
electronic tapes are governed by the provisions of the Act. See
National Archives and Records Administration Bulletin, No. 89-2,
November 14, 1988, Attachment B hereto.
The Freedom of Information Act provides: "[E]ach agency,
upon any request for records which (A) reasonably describes such
6
records and (B) is made in accordance with published rules
...
shall make the records promptly available to any person." 5
U.S.C. 552 (a) (3). While the statute does not define the term
agency, the National Security Council is clearly an "agency" for
purposes of FOIA requests. See, e.g., Kissinger V. Reporters
Committee for Freedom of the Press, 445 U.S. 136, 156 (1980)
("National Security Counsel records [are] therefore subject to
the [Freedom of Information] Act") ; Halperin V. NSC, 452 F. Supp.
47 (D.D.C. 1978) aff'd without opinion, 612 F.2d 586 (D.C. Cir.
1980).
Thus, whether the electronic tapes belong to the Executive
Office of the President or the National Security Council or both,
they are in all events "Presidential" records or "agency"
records. As such, they are subject to the requirements of the
statutes and may not be summarily destroyed.
B. Plaintiffs Will Suffer Irreparable Injury Unless a
Temporary Restraining Order is Granted.
If the electronic tapes are destroyed, plaintiffs will
suffer irreparable harm. As far as plaintiffs can determine,
these electronic tapes contain information that appears nowhere
else. Thus if defendants destroy them, the information will be
irretrievably lost to plaintiffs, as well as to history. There
is no doubt that such injury will be irreparable harm.
C. The Equities Favor A Temporary Restraining Order.
7
Weighing of the equities favors injunctive relief in this
case. As shown above, in the absence of an injunction,
plaintiffs will suffer irreparable harm. An injunction will
restore and preserve plaintiffs' rights without detriment to
defendants. Defendants will suffer absolutely no detriment from
entry of an order preventing destruction of the electronic tapes
pending a judicial determination of the applicability of the
Presidential Records Act, the Disposal of Records Act, and the
Archivist's responsibilities in connection with the tapes.
D. A preliminary Injunction will Serve the Public Interest.
Public policy could not be clearer that Presidential records
belong to the public and should be preserved for review by the
public pursuant to the laws, rules, and policies that have been
established. Thus the public as well as the specific plaintiffs
herein have an interest in the requested information. As the
Iran-Contra affair demonstrates, the requested electronic tapes
may contain information of the greatest importance to the process
of democratic policy-making. Technological innovations have
enabled the government to operate more efficiently, they should
not be used as a shield to allow it to operate in secret hidden
from public accountability.
In this case, implementation of this fundamental public
policy depends on judicial intervention.
Conclusion
The Court should grant a temporary restraining order
8
enjoining defendants from destroying any electronic or other
records pertaining to the PROFS system without first complying
with the requirements of the Presidential Records Act and the
Disposal of Records Act including review and determination by the
Archivist of the historical value of maintaining the specific
items of information and notice, where required to Congress or in
the Federal Register of the Archivist's intentions with regard to
them.
Respectfully submitted,
Cute plant
Kate Martin
American Civil Liberties Union
Foundation
122 Maryland Avenue, NE
Washington, DC 20002
544-5388
Attorney for Plaintiffs
January 19, 1989
9
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
R. SCOTT ARMSTRONG,
)
et al.,
)
Plaintiffs,
)
)
V.
)
)
RONALD W. REAGAN,
)
C.A. No.
et al.,
)
)
Defendants.
)
)
AFFIDAVIT OF R. SCOTT ARMSTRONG
I, R. Scott Armstrong, declare:
1. I am a plaintiff in the above-captioned lawsuit and make this
affidavit in support of plaintiffs' motion for a Temporary
Restraining Order.
2. I am a journalist, book author, foreign policy researcher,
founder and Executive Director of the National Security Archive,
a non-profit research institute and library of government
documentation. On behalf of the National Security Archive and
the Center for National Security Studies, I have filed, on
January 19, 1989, three Freedom of Information Act requests for
specific materials currently held by the Executive Office of the
President and the National Security Council. Copies of those
requests are attached as exhibits 1-3 hereto.
3. In conjunction with my work at the National Security Archive
and my research on national security and foreign policy issues
and on the functioning of the White House and the National
Security Council, I have developed an extensive knowledge on the
White House records system including the computer communications
system commonly known as the PROFS computer system ("PROFS
system").
4. The requested materials are contained in the PROFS system
computer backup tapes and consequently the only existing master
file of one of the central filing systems of the National
Security Council and the Executive Office of the President.
5. The Executive Office of the President and the National
Security Council utilize the PROFS system to create, maintain,
and retrieve information pertaining to official government
activities. This information is maintained on an electronic
storage medium, most likely magnetic tapes. In many
circumstances, the information exists only in the computer memory
stored on the PROFS system and no hard or paper copy has been
made, or if made, has been retained. These PROFS system tapes
have recorded all correspondence and messages that have been
created, saved, or transmitted through the PROFS system. The
same tape may contain information that could be either
Presidential records or agency records.
6. The PROFS system combines various routine office functions
including a word processing program, personal calendar, automatic
reminders, and the ability to send electronic notes, messages and
documents to others on the system.
7. The PROFS system is used by White House and NSC officials to
implement government policy, and as such contains both
presidential and agency records. For example, records contained
2
in the PROFS system were utilized extensively by the President's
Special Review Board (the Tower Commission) and the Congressional
Iran-Contra Committees investigating the Iran-Contra Affair. See
Report of the President's Special Review Board, at III-1
(February 26, 1987) ; Report of the Congressional Committees
Investigating the Iran-Contra Affair, 100th Cong., 1st Sess., S.
Rep. No. 100-216, H. Rep. No. 100-433, at 689-90. To the best of
my information and knowledge, Independent Counsel Lawrence Walsh
continues to rely on information from the PROFS system in support
of criminal investigation and prosecution of government officials
involved in the Iran-Contra Affair.
8. Beginning in 1985, the PROFS system was were used by the
members of the National Security Council and their staff. In
1986, the PROFS network expanded to "satisfy the growing
requirement in the White House for internal electronic mail and
document transfer between the West Wing, old Executive Office
Building and the Cabinet agencies." Solicitation for Computer
Operation/Facilities Management, Executive Office of the
President, March 27, 1987, p. 50.
9. The system helps to avoid an avalanche of paperwork by
handling much of the information electronically without paper
copies. Key to document handling are the sophisticated search
and retrieval functions. "Every document in PROFS is assigned a
number so that it can be located using a variety of search
techniques. Information such as who wrote the document the date,
the subject, and to whom the document was sent can also be used
3
in the search. The advantage of letting PROFS do this for you is
quite obvious. You don't have to go through all your filing
cabinets looking for documents that may be filed under multiple
subject headings or under a filing system you know nothing about.
PROFS takes care of all that for you. " IBM, "Introducing the
Professional Office System," November 1985, p. 10-11.
10. The Iran-Contra Affair illustrated the importance of
information stored in the PROFS system. Despite repeated
attempts by NSC staff to shred the paper record and delete the
computer record, the PROFS backup system on magnetic tape allowed
investigators to reconstruct much of the Iran-Contra-related
activity. A sampling of these PROFS notes is attached as Exhibit
4 hereto. The Iran-Contra PROFS records demonstrate that in
effect, the capabilities of the PROFS system for transmitting,
indexing, filing, and retrieving contemporaneous records created
a new and powerful central filing system which recorded the daily
business of the White House and National Security Council at the
highest levels -- but only in electronic and not in paper form.
11. The Tower Commission stated that these PROFS messages
"provide a first-hand, contemporaneous account of events."
Report of the President's Special Review Board, February 26,
1987, p. III-1. As examples of the central role of the PROFS
system in the NSC staff's decisionmaking process, copies of three
PROFS messages declassified during the Iran-Contra investigations
are attached.
4
12. Despite the clear historical significance of and public
interest in the information captured by the PROFS system, I have
been told by representatives of the National Archives and Records
Administration (NARA) that those PROFS system tapes other than
those used by the Iran-Contra Committees and the Independent
Counsel have not been and will not be preserved as a "permanent
record" of the Reagan Administration.
13. The head of the Office of Presidential Libraries of NARA,
John Fawcett, told me on January 18, 1989, that the only PROFS
messages that are retained as "presidential records" are those
printed out by White House and NSC staff and maintained in paper
form. According to Fawcett, NARA considers all PROFS system
tapes other than those provided for the Iran-Contra Committees
and the Independent Counsel not to be "Presidential records" or
"agency records."
14. This practice has been implemented by specific guidelines
issued to White House and NSC staff by the National Archives,
despite current rulemaking-in-progress that indicates the
Archives' intention to explore methods of retention and
preservation of electronic records. Notice of Proposed
Rulemaking, NARA, November 8, 1988.
15. Even if White House and NSC staff are diligent above and
beyond the call of duty in printing out copies of any PROFS
message they considered historically or administratively
significant -- a practice which the Iran-Contra Affair
demonstrates has not been the norm, and which, on knowledge and
5
belief, I believe is still not the norm -- the resulting paper
file is by definition not a complete record of White House and
National Security Council business, certainly when compared to
the value of the complete backup file maintained electronically.
16. Additionally, according to Mr. Fawcett, the backup tapes,
which represent the master file of PROFS messages, are not
ordinarily preserved -- since they are not considered
"presidential records" under the Archive's guidance or the White
House and NSC practice -- and indeed may be re-used on the
mainframe computer and thus overwritten by subsequent PROFS
messages. Any overwritten sections of the magnetic tapes are
then lost to subsequent retrieval, much as a recording on a
cassette tape gets erased when something new is recorded over it.
Many or even most of these magnetic tapes may already have been
overwritten and thus destroyed.
17. However, at least one set of magnetic tapes -- the one in
use as of January 19, 1989, and those from the immediate prior
period -- does exist and contains current PROFS messages which
have not been overwritten. Since the mainframe computer
presumably employs multiple magnetic tapes for storage, a number
of additional magnetic tapes containing PROFS messages may also
still exist in retrievable form.
18. According to Mr. Fawcett, January 19, 1989 represents the
"breaking point" for the preservation of Reagan Administration
records, and the beginning of a new system for preservation of
the next administration's records. My counsel has asked for and
6
not received assurance that the PROFS tapes will not be
destroyed. I have been informed by NARA counsel that the White
House has delivered some computer tapes from other computer
systems to the National Archives, but has not delivered any PROFS
tapes. Therefore, I believe that January 19, 1989, may be the
last opportunity to preserve the magnetic tages which comprise
the PROFS system's master backup file, and thus the only complete
record of a vital central filing system in the White House and
National Security Council.
19. In an attempt to preserve these records, I have made the
aforementioned overlapping Freedom of Information Act requests to
the Executive Office of the President, the National Security
Council and the National Archives and Records Administration. In
and of themselves, however, these FOIA requests may not guarantee
the preservation of these vital records.
I declare under penalty of perjury that the foregoing
statements are true and correct.
R. Scott Armstrong
DATE: January 19,1989
7
Exhibit 1
THE NATIONAL SECURITY ARCHIVE
SUITE 500 1755 MASSACHUSETTS AVENUE, N.W. WASHINGTON, D.C. 20036 (202) 797-0882
IN ALL CORRESPONDENCE PLEASE REFER
TO ARCHIVE FILE NO. 890035NAR001
January 18, 1989
Ms. Trudy Peterson
Assistant Archivist of the United States
National Archives and Records Administration
Washington, DC 20408
RE: Freedom of Information Act Request
Dear Ms. Peterson,
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. Section 552, et
seq. (as amended), I hereby request disclosure of the materials and documents
described on the attachment to this letter for inspection and possible copying. I
note for your information that we are making this FOIA request to preserve the
materials in question which we understand might otherwise be improperly
destroyed. In this vein, I' have made possibly overlapping requests to the Executive
Office of the President, the National Security Council and the National Archives
and Records Administration. Once we have received assurances that the
information will be properly preserved, we are willing to dramatically narrow the
scope of the request for materials to be actually copied and provided.
If you regard any of these materials as non-records under the FOIA, I request
that you retain copies of all such materials until we have had an opportunity to
clarify your interpretation through litigation or congressional action. Similarly, if
you regard any of these materials as exempt from the FOIA's disclosure
requirements, I request that you nonetheless exercise your discretion to disclose
them. In this connection I note that you are required under the FOIA to release
any reasonably segregable nonexempt portions of documents containing
information you regard as exempt. Section 552(b). To permit an intelligent,
informed decision whether or not to file an administrative appeal of any denial
decision, you are also requested to describe withheld records (or portions thereof)
and explain the logical and factual basis for exemption claims. See Mead Data
Central. Inc. V. Department of the Air Force, 566 F.2d 242, 251 (D.C. Cir., 1977).
This request is made on behalf of the National Security Archive, a nonprofit
public interest research institute and library located in Washington, D.C. and the
Center for National Security Studies, a nonprofit public interest research facility
located in Washington, D.C. The Archive and the Center are both organized and
operated as a division of The Fund for Peace, Inc., a nonprofit corporation that is
exempt from federal income tax under section 501(c)(3) of the Internal Revenue
Code, and has been acknowledged by the Internal Revenue Service since November
19, 1962 to be "organized and operated exclusively for educational purposes."
The fee waiver provisions under section 552(a)(4)(A) of the FOIA were
recently amended by the Freedom of Information Reform Act. The Reform Act's
fee provisions became effective on April 25, 1987 and rewrote section 552(a)(4)(A)
to create categories of requesters entitled to fee waivers. Pub.L. 99-570, Sec. 1803,
1804. One category consists of "educational or noncommercial scientific
institution[s] whose purpose is scholarly or scientific research" and another consists
of representatives of the "news media." 5 U.S.C. 552 (a)(4)(A)(ii)(II). Requesters in
these groups receive an automatic waiver of all search and review fees, irrespective
of the nature or contents of the documents requested. They can be charged
standard duplication costs (in excess of the first one hundred copied pages), but
these charges may also be waived in certain circumstances.
On May 11, 1987 the Archive submitted a comprehensive memorandum to your
agency providing documentation under penalty of perjury which establishes that
the Archive is entitled to fee waivers under the categories of educational or
noncommercial scientific institutions and representatives of the news media within
the meaning of the Reform Act. To summarize, the Archive's purpose is to enrich
public policy debate by making available records pertaining to important, mostly
contemporary issues of major public concern in the areas of foreign, defense,
intelligence, and international economic policy.
Documents obtained by the Archive, including the records requested in this
letter, are carefully analyzed, indexed and organized into document sets in the
Archive's collection. Document sets are available for inspection and copying by
scholars, journalists, Members of Congress and Congressional staffs, present and
former public officials, other public interest organizations, and the general public
at the Archive's Washington office. In addition, information in the documents will
be disseminated across the country through distribution of comprehensive
document indices to university and other research libraries and through the
Archive's publications.
As the executive director of the Archive, I regularly use records such as those
sought in this request in research on foreign and national security matters. In
addition, the Archive and the Center both make all records available to a broad
range of scholars, journalists, public interest organizations, members and the staff
of Congress, and members of the general public.
I therefore request that you waive all search and reproduction fees pursuant to
section 552(a)(4)(A), as amended. If you determine that the Archive does not fall
within one of the two categories of requesters described above, this request would
also qualify for favored treatment under the "all other requesters" category because
disclosure of the information in the requested documents is in the public interest
because it is likely to contribute significantly to public understanding of the
operations or activities of the government and is not primarily in the commercial
interest of the Archive within the meaning of the Reform Act. See 5 U.S.C.
552(a)(4)(A)(iii). Should you decline to waive all fees, however, we are prepared to
pay you normal search fees (and reproduction fees, if I decide to copy the records
produced). Our willingness to pay fees is subject to our rights to appeal and litigate
the fee waiver question, and payment would be deferred until exhaustion of such
rights. I further ask that if you decline to waive fees that you set forth your
reasons for doing so in writing and that you obtain our authorization before
incurring search costs in excess of $100.
In order to expedite the release of the listed documents, I request that you
disclose them as they become available to you, without waiting until all the
documents have been assembled. If you have any questions that I might be able to
answer regarding the identity of the records, their location, or the scope of the
request, please call me. I look forward to receiving your response within the
statutory time period.
Yours very truly,
Scott Armstrong
Executive Director
89203ENAR001
01/18/1983
3668
Copies of all tapes, discs, and/or other storage formats for the PROFS
System serving the Executive Office of the President and/or the National
Security Council, and all information contained therein, as well as all
records in whatever format derived from the PROFS System, from the date of
the installation of said system to the end of the Reagan Administration.
(The requester is prepared to narrow the scope of this request upon
consultation.)
Exhibit 2
THE NATIONAL SECURITY ARCHIVE
SUITE 500 1755 MASSACHUSETTS AVENUE, N.W. WASHINGTON, D.C. 20036 (202) 797-0882
IN ALL CORRESPONDENCE PLEASE REFER
TO ARCHIVE FILE NO. 890034EOP001
January 18, 1989
Ms. Nell Doering
Chief, Records & Publications
Executive Office of the President
2200 New Executive Office Bldg.
Washington, DC 20503
RE: Freedom of Information Act Request
Dear Ms. Doering:
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. Section 552, et
seq. (as amended), I hereby request disclosure of the materials and documents
described on the attachment to this letter for inspection and possible copying. I
note for your information that we are making this FOIA request to preserve the
materials in question which we understand might otherwise be improperly
destroyed. In this vein, I have made possibly overlapping requests to the Executive
Office of the President, the National Security Council and the National Archives
and Records Administration. Once we have received assurances that the
information will be properly preserved, we are willing to dramatically narrow the
scope of the request for materials to be actually copied and provided.
If you regard any of these materials as non-records under the FOIA, I request
that you retain copies of all such materials until we have had an opportunity to
clarify your interpretation through litigation or congressional action. Similarly, if
you regard any of these materials as exempt from the FOIA's disclosure
requirements, I request that you nonetheless exercise your discretion to disclose
them. In this connection I note that you are required under the FOIA to release
any reasonably segregable nonexempt portions of documents containing
information you regard as exempt. Section 552(b). To permit an intelligent,
informed decision whether or not to file an administrative appeal of any denial
decision, you are also requested to describe withheld records (or portions thereof)
and explain the logical and factual basis for exemption claims. See Mead Data
Central. Inc. V. Department of the Air Force, 566 F.2d 242, 251 (D.C. Cir., 1977).
This request is made on behalf of the National Security Archive, a nonprofit
public interest research institute and library located in Washington, D.C. and the
Center for National Security Studies, a nonprofit public interest research facility
located in Washington, D.C. The Archive and the Center are both organized and
operated as a division of The Fund for Peace, Inc., a nonprofit corporation that is
exempt from federal income tax under section 501(c)(3) of the Internal Revenue
Code, and has been acknowledged by the Internal Revenue Service since November
19, 1962 to be "organized and operated exclusively for educational purposes."
The fee waiver provisions under section 552(a)(4)(A) of the FOIA were
recently amended by the Freedom of Information Reform Act. The Reform Act's
fee provisions became effective on April 25, 1987 and rewrote section 552(a)(4)(A)
to create categories of requesters entitled to fee waivers. Pub.L. 99-570, Sec. 1803,
1804. One category consists of "educational or noncommercial scientific
institution[s] whose purpose is scholarly or scientific research" and another consists
of representatives of the "news media." 5 U.S.C. 552 (a)(4)(A)(ii)(II). Requesters in
these groups receive an automatic waiver of all search and review fees, irrespective
of the nature or contents of the documents requested. They can be charged
standard duplication costs (in excess of the first one hundred copied pages), but
these charges may also be waived in certain circumstances.
On May 11, 1987 the Archive submitted a comprehensive memorandum to your
agency providing documentation under penalty of perjury which establishes that
the Archive is entitled to fee waivers under the categories of educational or
noncommercial scientific institutions and representatives of the news media within
the meaning of the Reform Act. To summarize, the Archive's purpose is to enrich
public policy debate by making available records pertaining to important, mostly
contemporary issues of major public concern in the areas of foreign, defense,
intelligence, and international economic policy.
Documents obtained by the Archive, including the records requested in this
letter, are carefully analyzed, indexed and organized into document sets in the
Archive's collection. Document sets are available for inspection and copying by
scholars, journalists, Members of Congress and Congressional staffs, present and
former public officials, other public interest organizations, and the general public
at the Archive's Washington office. In addition, information in the documents will
be disseminated across the country through distribution of comprehensive
document indices to university and other research libraries and through the
Archive's publications.
As the executive director of the Archive, I regularly use records such as those
sought in this request in research on foreign and national security matters. In
addition, the Archive and the Center both make all records available to a broad
range of scholars, journalists, public interest organizations, members and the staff
of Congress, and members of the general public.
I therefore request that you waive all search and reproduction fees pursuant to
section 552(a)(4)(A), as amended. If you determine that the Archive does not fall
within one of the two categories of requesters described above, this request would
also qualify for favored treatment under the "all other requesters" category because
disclosure of the information in the requested documents is in the public interest
because it is likely to contribute significantly to public understanding of the
operations or activities of the government and is not primarily in the commercial
interest of the Archive within the meaning of the Reform Act. See 5 U.S.C.
552(a)(4)(A)(iii). Should you decline to waive all fees, however, we are prepared to
pay you normal search fees (and reproduction fees, if I decide to copy the records
produced). Our willingness to pay fees is subject to our rights to appeal and litigate
the fee waiver question, and payment would be deferred until exhaustion of such
rights. I further ask that if you decline to waive fees that you set forth your
reasons for doing so in writing and that you obtain our authorization before
incurring search costs in excess of $100.
In order to expedite the release of the listed documents, I request that you
disclose them as they become available to you, without waiting until all the
documents have been assembled. If you have any questions that I might be able to
answer regarding the identity of the records, their location, or the scope of the
request, please call me. I look forward to receiving your response within the
statutory time period.
Yours very truly,
Scott Scotta Armstrong 6
Executive Director
890034EOP001
01/18/1989
3667
Copies of all tapes, discs, and/or other storage formats for the PROFS
System serving the Executive Office of the President and/or the National
Security Council, and all information contained therein, as well as all
records in whatever format derived from the PROFS System, from the date of
the installation of said system to the end of the Reagan administration.
(The requester is prepared to narrow the scope of this request upon
consultation. )
Exhibit 3
THE NATIONAL SECURITY ARCHIVE
SUITE 500 1755 MASSACHUSETTS AVENUE, N.W. WASHINGTON, D.C. 20036 (202) 797-0882
IN ALL CORRESPONDENCE PLEASE REFER
TO ARCHIVE FILE NO. 890033NSC001
January 18, 1989
Ms. Nancy V. Menan
Director, FOI Office
National Security Council
375 Old Executive Office Building
Washington, DC 20506
RE: Freedom of Information Act Request
Dear Ms. Reger,
Pursuant to the Freedom. of Information Act (FOIA), 5 U.S.C. Section 552, et
seq. (as amended), I hereby request disclosure of the materials and documents
described on the attachment to this letter for inspection and possible copying. I
note for your information that we are making this FOIA request to preserve the
materials in question which we understand might otherwise be improperly
destroyed. In this vein, I have made possibly overlapping requests to the Executive
Office of the President, the National Security Council and the National Archives
and Records Administration. Once we have received assurances that the
information will be properly preserved, we are willing to dramatically narrow the
scope of the request for materials to be actually copied and provided.
If you regard any of these materials as non-records under the FOIA, I request
that you retain copies of all such materials until we have had an opportunity to
clarify your interpretation through litigation or congressional action. Similarly, if
you regard any of these materials as exempt from the FOIA's disclosure
requirements, I request that you nonetheless exercise your discretion to disclose
them. In this connection I note that you are required under the FOIA to release
any reasonably segregable nonexempt portions of documents containing
information you regard as exempt. Section 552(b). To permit an intelligent,
informed decision whether or not to file an administrative appeal of any denial
decision, you are also requested to describe withheld records (or portions thereof)
and explain the logical and factual basis for exemption claims. See Mead Data
Central, Inc. V. Department of the Air Force, 566 F.2d 242, 251 (D.C. Cir., 1977).
This request is made on behalf of the National Security Archive, a nonprofit
public interest research institute and library located in Washington, D.C. and the
Center for National Security Studies, a nonprofit public interest research facility
located in Washington, D.C. The Archive and the Center are both organized and
operated as a division of The Fund for Peace, Inc., a nonprofit corporation that is
exempt from federal income tax under section 501(c)(3) of the Internal Revenue
Code, and has been acknowledged by the Internal Revenue Service since November
19, 1962 to be "organized and operated exclusively for educational purposes."
The fee waiver provisions under section 552(a)(4)(A) of the FOIA were
recently amended by the Freedom of Information Reform Act. The Reform Act's
fee provisions became effective on April 25, 1987 and rewrote section 552(a)(4)(A)
to create categories of requesters entitled to fee waivers. Pub.L. 99-570, Sec. 1803,
1804. One category consists of "educational or noncommercial scientific
institution[s] whose purpose is scholarly or scientific research" and another consists
of representatives of the "news media." 5 U.S.C. 552 (a)(4)(A)(ii)(II). Requesters in
these groups receive an automatic waiver of all search and review fees, irrespective
of the nature or contents of the documents requested. They can be charged
standard duplication costs (in excess of the first one hundred copied pages), but
these charges may also be waived in certain circumstances.
On May 11, 1987 the Archive submitted a comprehensive memorandum to your
agency providing documentation under penalty of perjury which establishes that
the Archive is entitled to fee waivers under the categories of educational or
noncommercial scientific institutions and representatives of the news media within
the meaning of the Reform Act. To summarize, the Archive's purpose is to enrich
public policy debate by making available records pertaining to important, mostly
contemporary issues of major public concern in the areas of foreign, defense,
intelligence, and international economic policy.
Documents obtained by the Archive, including the records requested in this
letter, are carefully analyzed, indexed and organized into document sets in the
Archive's collection. Document sets are available for inspection and copying by
scholars, journalists, Members of Congress and Congressional staffs, present and
former public officials, other public interest organizations, and the general public
at the Archive's Washington office. In addition, information in the documents will
be disseminated across the country through distribution of comprehensive
document indices to university and other research libraries and through the
Archive's publications.
As the executive director of the Archive, I regularly use records such as those
sought in this request in research on foreign and national security matters. In
addition, the Archive and the Center both make all records available to a broad
range of scholars, journalists, public interest organizations, members and the staff
of Congress, and members of the general public.
I therefore request that you waive all search and reproduction fees pursuant to
section 552(a)(4)(A), as amended. If you determine that the Archive does not fall
within one of the two categories of requesters described above, this request would
also qualify for favored treatment under the "all other requesters" category because
disclosure of the information in the requested documents is in the public interest
because it is likely to contribute significantly to public understanding of the
operations or activities of the government and is not primarily in the commercial
interest of the Archive within the meaning of the Reform Act. See 5 U.S.C.
552(a)(4)(A)(iii). Should you decline to waive all fees, however, we are prepared to
pay you normal search fees (and reproduction fees, if I decide to copy the records
produced). Our willingness to pay fees is subject to our rights to appeal and litigate
the fee waiver question, and payment would be deferred until exhaustion of such
rights. I further ask that if you decline to waive fees that you set forth your
reasons for doing so in writing and that you obtain our authorization before
incurring search costs in excess of $100.
In order to expedite the release of the listed documents, I request that you
disclose them as they become available to you, without waiting until all the
documents have been assembled. If you have any questions that I might be able to
answer regarding the identity of the records, their location, or the scope of the
request, please call me. I look forward to receiving your response within the
statutory time period.
Yours very truly,
Scott Armstrong
Executive Director
890033NSC001
01/18/1989
3666
Copies of all tapes, discs, and/or other storage formats for the PROFS
System serving the Executive Office of the President and/or the National
Security Council, and all information contained therein, as well as all
records in whatever format derived from the PROFS System, from the date of
the installation of said system to the end of the Reagan administration.
consultation.) (The requester is prepared to narrow the scope of this request upon
10001
136
S. Rept. No. 100-216
H. Rept. No. 100-433
Exhibit 4
Report of the Congressional Committees Investigating the
Iran-Contra Affair
Appendix A: Volume 1
Source Documents
Daniel K. Inouye, Chairman,
Senate Select Committee
Lee H. Hamilton, Chairman,
House Select Committee
U.S. Senate Select Committee
U.S. House of Representatives
On Secret Military Assistance to Iran
Select Committee to Investigate
And the Nicaraguan Opposition
Covert Arms Transactions with Iran
November 13, 1987.-Committed to the Committee of the Whole House
on the State of the Union and ordered to be printed.
November 17, 1987. - -Ordered to be printed.
Washington : 1988
898
From: NSRCM --CPUA
Chapter 6 Formote 76
Date and the
09/03/83 21:34:09
To: NSOLN --CPCA
UNCLASSIFIED
JOHN M. POINDENTER
NOTE FROM: ROBERT MCFARLANE
N 3265
SUBJECT: Reply to Hamilton on Ollie's Activities
I have sent you both separately a draft letter I have composed to answer Lee
Humilton's letter on Ollie's activities. One or two smotistions 379
appropriate. T!:- reference : Hiser: refers :- puragraph sex of page two
5: your drait wise Insert resers :- i.e second paragrapi. o: pjec ===.
Please do not share either this note or the separate draft 61th anyone. Wil
will prepare a smooth version of it for me Wednesday morning. Please bring se
any edits you have. Ollie. don't send me any PROFS notes about it. Many
thanks.
6-76
500 x 4
Released E.J. on 1/20/85 123cuncil
wer
Far.
is Reger. 1 security 2 it
UNCLASSIFIED
4265
ERRIA
Guart EUS
1202
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Chapter 12, Footnote 60 PAGE
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moblence or ... guaption to " golicy, they could Oaks you
Secretary of shate. Dol they cas't have ... complete If carp did--auch
Is the alate of devoctory is the loto 2016 contury. But the mission ...
forsibly picolaing, as you how 1 do set 4014 derbenifer is bigh caused sed se
1178
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I Dore just vollen a sete froe Jobs sobing obother 02 not B could to .... tise
sest voeh sed that the Prosident is .. board, 1 agreed. Be busier door and got
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free nite to assist is gottleg visaster to CODE 10 Spitsorland
1 have
retured. gurely " abog beve est seel bone fides they too gots 1000 As Tobres
the Soles cabonay of monewhere .100. $ " not lotend to tell sike any of
this ... info. Receivent agalast your dolog so.
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12-60
UNCLASSIFI
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UNITS nouss CONNUDECATIONS NIKI
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1178
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" lessibly 1 nose hore particolarly week just and getten that visa . the .... 10 note prosident base case tree 10 scho 10 100 anking .. 10 board. channein, sbother I syreed. bet I et bero set pack so bad I benter goot could bussodic bays dove to .... 10 sequests and be got
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1100 1610 the ⑉ solon into. cobunny becommend against you dolay
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60
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DOTE POUR: OLIVER POSTS
subjecti ... ... ihleyer
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12120
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Chapter 12
rether than continue the process " obich " deal thronyh interendiation scople like
the secting DUEVOR 10 emphanize the need for disoci cogetact wilk these
Albort mehis, .. IKII who rung the Recepase operallen for ⑉
Corbonldabe. Decause CSR of not stavide . translater for the sonsices, 00 ased
Footnote 61
tooletance support actionis
along she od provide .. " ective" occount.
becampanied se that I " have .......
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translation ... bed " be corrected by ... ... .. occasione " ........ abot
natters .. reached as follows: bee authority 10 cote bis ... decisions on
Visally bad sibaji transfeto both vaya. of sty 4 agreement
decisions take. --160 govt. of Issa is terrified of . ... Seviet ..
of yreat lupost. --- 4500 not bave 10 check bock " Tobres
" boutages vill be released during " during the cost scoting. --1hop .... --011 sest
-Ther are cooking . topprectiont but are filled " fees 8 sistrest. ibreat.
edvice is Item/Itaq ⑉ thee " originally believed. --9hop cost tochnical loss
interented ergently and have suggested @usho 10. ... Bacisi abbae. --8hap are
millassy - not oil loctica --8601 consitted to ...
case thes area 08 intelligance. --goch advice and be .. connection 8
418. contact
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vergo Valle of of this could be se such smoke, I believe that " say vali be on of the
intreased all that there .... ... sev. over/thtents that -- ... .......
selationship .. 0 shole. so need only to " 10 this westing obice box
a sajor berabthrough ⑉ only .. the bel " the
the agends other then to iletes 10 oach other to release the bestayen ond so stort
despita process. Dave briefed both joi and Casey -- seltber ..., onthonisetic
Date chartered to 10 casis sest of - or maybe this workend - bet don't you have be to
inocth clasg lines above, Believe 1bst are
1179
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2 necess " corriest convertance. Darm, bet follgood reyards, notth
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substance 10 you and has vives so dates that yes ARE not ovall.
vill that endonces " to acbed. sty " that these do not cooflict bee
device ... their call as 10 date of siv. Just coc's say is Secord cated ... to secure JEP
date " aboil have . ..., plunnest bas again surprise. coaffirmed olch 6 ibat 1 believe ouce .. that have ... . be
.. ... solag,
proposing to release ... of the bestayes warly. Dick also indicated sawy any
covetorport " the way od be netuanjani. Nice croud you ... ..... sed that willing "
12-61
UNCLASSIFI
403
FILD: DOTE
UNITE 08 ' COMMUNICATIONS acount
UNGLASSIFIED
POLO on,
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good Loss ... e little 0000 back ooch " all cosy .... babo five grace of the
one 100g no for .. lives. 001 ... " 0 seed DOIS positive injustionship then ... obich ONCIS botters boon
That volue ... friendable ... confidence ..., asvany ... 41d not
Jap you bed reveeled these exchangen. " cahlog that you set .... ladicate 1. later 10
thei cooprosion sproit 08 . polot is visa be needs so be absolutely .. ...
# ... sely lefereing that I Bod ⑉ 1016 bio anything of " as .... to
this 111. can wri. Be is, 00 only you can 1000, under transadors costain
... batter ... concerned that " " according to pice. " past proseure is 00
0113 ..., couposed to bis. 8 only bed to dest will ... Be bee to this doel
the Bachanges cabloct. neep thenks for " treat. Uses logards, Borth
RSG PROM: BROLD
--CPOA
TO: BSACA
9
Yes BSPCR --CPUR
trus
02/27/06 20:22:22
... neply 10 note of 03/27/06 16:02
5/6/87
DO FB PPOTI OLIVED POSTS
Subject: ... ... abinges
Nave Be reading ihings ... of Requesce doe 10 fatigue. Mony themks 101
Gooss will concerne " site ... chased here. WILCO " the passing of cood
coo. " responded to cost of this " " coply " eschosged - belore I " sote. this
that 10 ... good. De also have ekas Corbs tells site " tree,
ible is relationship " Corbo, and perhaps Scholmoon. wike
. francial but ..... a elysificant probles. " cage be bas lafe that lefe. " Dee
... their about (funcial ond 101 the Ironiancia Hurope. " ought 10 since be
manager 116 need to bave bie invelved 10 the TOOD transactions coage
" will ..... .. edditional ...... to get Corbo ⑉ of the long corrything picture ... SSAP.
... DO bendle *ite so that be does not start ⑉ veletis
of cetting Secord " .. area delivery for the Die realatance. a ... of where islents be
is .... .. ponnible after Dich leteres tomorrow signe to Gas of yes sed
sacord " " 1601's . verds. Mare schod JBP for 0 seccion telhlay out of Dich
realetence 1a. Seet be off. as 10 case . speech ⑉ andhor may the Die
NOV age thinger
10 a group of supportation. Best regards. Borth
JACARI
UNCLASSIFIED
404
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1181
From NSRCM --CPUA
Chapies 12 Footnote 62
To: NSOLN --CPLA
Date and : : me 02/27/86 21:37:48
404
--- Reply to note of 02/27/86 20:11
1363
NOTE FROM: ROBERT MCFARLANE
UNSERSSIFIED SECRET N
41077
Subject: Exchanges
No I sweat GI. I just sent a separate note about not shar9ing with John
had forgotten to put it in the other note. And I fully understand the because
play reasons (Regan) and those who don't want to do it at all (GPS and Cap). So
path he is trying to walk. between those who want to & balls out for the narrow wrong
it any way you must. As for my commitments don't worry about them; set it up
any way you wish that it works for them. I only mentioned it to John to ask
to do--with some grace.
that he try to give se a heads up soon so that I can cancel-which I as glad
UNCLASSIFIED
12-62
1205
under
22Dams1987
ty B.
En. 12356
Countr
UNDERSON
AKW026704
OLNOOR will 4/2/87
Beb
1192
UNCLASSIFIED
Chapter 12, Tootnote 83
From: NSRCM
-CPCA
Date and time
To: NSOLN --CPUA
03/10/86 22:16:26
I
Reply to note of 03/10/86 21:10
N 41078
1364
NOTE FROM: ROBERT MCFARLANE
Subject: How's It Going?
Roger Ollie. I guess I'm 4 little puzzled about the Iranian wiring diagram.
From whom are we getting the word concerning & seeciffs in the Gulf? Is Gorbs
involved in that dialogue or is that info coming through the Israelis? It
strikes se that it is probably OK to keep Gorbs in the dark--to the extent
that is possible to do so if there is another channel. Gorba is basically 4
self-serving mischief maker. Of course the crouble is that as far as we know,
so is the entire lot of chose we are dealing with. The Soviet threat 13 the
strategic sense and I would guess that they would like to avoid having
Russians in Iran. But it is going to take some time to get a feel for just who
the players are on the contemporary scene in Teheran. So the sooner we get
started the better.
I would be glad to seet to talk about he Marine Corps. I will be having lunch
with Paul Nitze this Friday. How about right after that at about 2:00pm in
your office?
Frank.y. I would expect the heat from the Mill to become immense on you by
summer. Consequently it strikes as as wise that you leave the White House. At
the same time, there will be no one to do all (or even 4 small part of what)
you have done. And if it isn't done, virtually all of the investment of the
past five
years will go do wn the drain.
How's this for & self-serving scenario: 1. North leaves the White House in May
and takes 30 days leave. 2. July 1st North is assigned as 4 fellow at the CSIS
and (lo and behold) is assigned co McFarlane's office 3. McFarlane/North
continue to work the Iran account as well as to begin to build other
clandestine capabilities so such in demand here and there. Just & knee jerk
musing.
12-83
8Jdy87
12005
Credit!
1969
OLNOOF 804/24-67
AKW026705
2D9
UNCLASSIFIED
83
1364
11181
0
UNITE NOUSE CUARUMICATIONS AGREET
UNCLASSIFIED
"
pinalip, 08 a ... subjects of very DUCD like 10 have 0 ---------- " you 18
Chapter 12
the cost fee days It " all secuible. I have been advised by BONC that they
have cet orders for as 10 " 10 14 MADDIV this This is a situation
Foother 3M
(like se nony others) fraeght of opportunity and rish. 1, guite trackly doe't
law what 10 do about the situation, bet will have 10 take .... hied et action
is the sest too moke. H very such approciate " good couseel on the
of sech 00 andigneent and advice 00 box to proceed. Use
regards and sang thanks to both you and Jonnay for the beautiful flovers.
12-84
Sou's " Coloy?
0
use PROM: PIKE
10d3es
701 SSOLS
1083m
03/10/06 09/00/46
To: 83018 --CPUA
... noply 10 note of 03/10/06 00:30
DOTS reon, ROBERT OCFABLASE
Subject: lev's " coingr
Dogor: Dang thanks.
. Nev's " coing?
use FROM: DOLD --CPOA
TO: BASCO
1043-
02/11/06 07:23:34
Yes BEACE -CPUR
... Deply to note of 03/10/06 22:14
DOTE PDOR: OLIVER DOBTH
Subject: Nev's It sekago
A, get response on " sceassie so Bection personal situation is that E like
11. These As a question as to bee to sake 11 all happen, bet At od be good 10
dias.-/ yes 01400 scidey. Save blocked sase on " ached. Looking forward 10
1193
it. Is so the corbs probs Be is avase of the Rish sty and is basically
earrying our vater - the org since be is still the sely access DO have to the
Ireates political londership. It od be unatel, I bulieve, for yes to telk "
Goorge Care, the Egency's Item expect. Be shares oor CORCUER that " say be
dealing only " these who have as interest is area sales and their ---
personal fincecial yako ... believes the are coolage approach is
about the only way to broader the perspective. " of do cell to explare other
contacts at chey ... - opened
Cooryo is going 10 ... what - have .. this 00 abot
- cae accoss ******* not 11 of be regist 1a cake sook as approach. Is
advises that " 90 vore able to got to
:
=
vale " night be able 10 scho same headday. only advise. If you ad
like to seet " cookye, plu let DO have and 1 will assange. BACK regards.
Bosth "
BOO'S 14 Going!
use MORI USDCA
1063->
901 BOOLD --CPUA
03/10/06 22:10:29
to: BOLD --CPOR
... sopin 10 note of 83/10/86 21,10
DOTE rece? BOBIET OCPABLAND
Subject: . " doing?
Boyer 01116. yours I's a little pussled about the Ironien visiny diayrac.
UNCLASSIFIED
1211
Chapter 12, Footnole 127
12-126
12-127
UNCLASSIFIED
From: NSJMP --CPUA
Date and time 04/16/86 19:02:42
To: NSOLN --CPUA
N 9212
- Reply to note of 04/16/86 16:40
SECRET --
NOTE FROM: JOHN POINDENTER
Subject: PRIVATE BLANK CHECK
You may go ahead and go. but I want several points made clear to them. There
are not to be any parts delivered until all the hostages are free in
accordance with the plan that you laved out for se before. None of this half
shipment before any are released crap. It 13 either all or nothing. Also you
may tell them that the President 13 getting very annoyed at their continual
stalling. Me will not agree to any more changes in the plan. Either they agree
finally on the arrangements that have been discussed or we are going to
permanently cut off all contact. If they really want to save their asses from
the Soviets, they should get on board. I am beginning to suspect that
doesn't have such authority.
CC: NSPBT --CPUA PAUL THOMPSON
,
5/6/87
1 C:::: 7
UNCLASSIF
426
12-159
Chapter 12
NOTE PI
JOHN POINDRITSH
Subject. Itam
GOOD WORK. LET'S DISCUSS AT LUNCH.
ASSIFIED
Tixtrinte 163
- Itan
ASC PHON: #50LN
--CPUA
TO: RSJMP
--CPUA
05/08/06 08:07:4
To: BSJMP --CPUA
... Reply to note of 05/06/86 00:55
while
beclassion
Guily 1987
under providers of 10. 12356
SPCREY
NOTE PHON: OLIVES BODTH
by :'. Reger. indical Security Council
Subject: Itam
Done. 1 believe " have succeeded. Deposit being made tomorrow gtoday is a
bank holiday is Suitzerland), helease of hostages set for week of 19 May is
sequence you have specified. Specific date to be determined by how quickly "
can assemble requisite parts. Thank God - No ABSUCES prayers. v/n, North
Iran
9
ASG PNOM: USOLU
--CPUA
TO: вујир --CPUA
05/08/86 08:02:59
To: BSJBP -CPUA
... Beply to note of 05/06/86 01:00
Speart
NOTE PROM: OLIVER BORTH
1457
23224
Subject: CONTRA PROJECT
1221
Yes, in general teras. He is supportive, as is Biliott. It is, to say the
least, a bigh risk option - but 11 may be the only way we can QUOE get this
Jmp 9/27723
thing to work. It is also important for you to know that
sent bis
to see as with the following offer: The Istaella ed be willing to put
20-50 Spanish speaking silitary traimers/advisors into the DBP 11 " want this
to happes. They wd do this is coacert with as Israell plan to sell the ARED
fighter to Hondures as a replacement for the 10 " old which
12-163
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Scott Armstrong, et. al.,
)
)
Plaintiffs
)
)
Civil Action No.
)
V.
)
89-0142 (JCR)
)
)
Ronald W. Reagan, et. al,
)
)
Defendants
)
Declaration of George Van Eron
I, George Van Eron, declare and say as follows:
1. I am currently the Director of the National Security
Council (NSC) Secretariat. I have worked in the NSC Secretariat
since November 1969 and I became Director in 1979. The NSC
Secretariat is the information management office for the NSC.
Among my responsibilities is to act as NSC staff liaison officer
with the White House Communications Agency (WHCA). WHCA is the
joint services Department of Defense activity which is charged
with, among other responsibilities, providing certain computer
services to the NSC staff.
2
2. I make this declaration based upon personal knowledge
and belief and upon information made available to me in the
course of my duties by other employees at the NSC and by WHCA
employees.
3. The "PROFS" computer system" is the user term referring
to one computer system available for use on WHCA's mainframe
computer. A "PROFS" system was installed for use by the NSC
staff on a pilot project basis in February 1982. In
approximately April of 1985, the system became fully operational
and available to most members of the NSC professional and support
staff.
4. As set up for use by NSC staff members, the PROFS system
has the capability to perform three primary functions: creation
and transmittal of so-called "electronic mail"; creation and
transmittal of formal documents that would then become part of
the computer's data base; and creation and maintenance of an
individual user's calendar. In addition, the PROFS system has
the capability to perform other relatively minor functions, such
as the "reminder function" which alerts the user to scheduled
meetings/appointments and a function which includes the NSC staff
telephone directory.
5. NSC staff members have used PROFS for messages about
telephone calls, scheduling appointments, and to convey other
types of routine information that in the past would have been
3
transmitted on the telephone. 1 Over the past few years, NSC
staff members have come to use electronic mail a great deal in
their daily work. It is far quicker than regular inter-office
mail and it is less intrusive than a telephone call because the
user can send the message and the recipient can read the message
whenever convenient. Moreover,- since the system is cleared to
handle classified information, it often can be used to exchange
information more easily than a "secure" telephone call. It saves
time and enhances the efficiency of both the NSC professional
staff and the NSC support staff. NSC staff members have used the
"document" creation function very little because it was seen as
clumsy, slow and not user friendly and most staff members already
had word processing capabilities at individual work stations.
6. Backup tapes of the NSC "PROFS" system are in effect
"snapshots" of the information in the WHCA computer space
maintained for NSC use taken at a particular point in time. See
Exhibit 2. The back-up procedures outlined in Exhibit 2 are
still in place.
The standard procedure regarding departing staff members
electronic mail accounts was that approximately thirty days after
1 In addition, the Assistant to the President for National
Security Affairs (the "National Security Adviser"), and his
assistants and secretaries used the calendar function to keep
track of his schedule. Although these calendars are kept as a
matter of convenience in scheduling, copies of both the
electronic phone logs and calendars of General Colin Powell and
Mr. Frank Carlucci were sent to the Reagan Library during the
transition. Some staff members also have used the calendar
function.
4
the staff member's departure, the NSC Secretariat would make the
necessary arrangements for WHCA to delete the staff member's
electronic mail file. Not all deletions, however, took place
within the thirty day time frame because of the Iran/Contra
matter and because of a lack of clear delineation between pre-
December 1986 and post-December-1986 use of the PROFS which made
application of the thirty day time frame difficult to implement
in practice.
The "PROFS" backup tapes for November 15, 22 and 29, 1986
and a "PROFS" backup tape made in February 1987 were retained by
WHCA. These tapes contain information relevant to the
Iran/Contra matter. These tapes continue to be preserved because
of the ongoing criminal investigation/prosecutions of Iran/Contra
related-matters. If any data on the tapes is determined to be
federal or presidential record material, the data will either be
turned over to the National Archives or retained by the NSC at
the conclusion of the criminal cases.
7. The functions of the NSC staff and adequate
recordkeeping were among the subjects discussed in the Reagan
Administration's National Security Decision Directive No. 266.
See Exhibit 6.
During the Reagan Administration, the NSC Secretariat
maintained a number of recordkeeping systems to process and track
NSC presidential and agency records. See Exhibit 1. Members of
the NSC staff were given instructions about their obligations
5
regarding the creation and maintenance of NSC agency and
presidential records. See Exhibits 1, 3, & 4.
8. Members of the NSC staff also were given specific
written instructions regarding the use of electronic mail, see
Exhibit 2, and their obligations under the Federal and
Presidential Record Acts with regard to electronic mail messages,
see Exhibit 5.
I declare under penalty of perjury that the foregoing
statements are true and correct, to the best of my knowledge,
information and belief.
2/6/89
Date
Eron Van/Sun
THE WHITE HOUSE
0155
WASHINGTON
January 15, 1987
MEMORANDUM FOR NSC STAFF
FROM:
FRANK C. CARLUCCI
SUBJECT:
Document Control Procedures
To follow up my remarks to you at the January 2 staff meeting, I
would like to emphasize that the orderly flow of action and
information documents based upon effective staff and interagency
coordination is critical to a complete and objective presentation
of views.
The Office of the Executive Secretary (Grant Green and Bob
Pearson) is the sole channel for all material addressed to me or
to Colin Powell. All papers, regardless of sensitivity or
classification, will come through the Executive Secretary.
Appropriate measures are being taken to ensure the proper
handling of such documents. A special "dummy" system for
extremely sensitive items has been established and will be
outlined in a separate memo to you from Grant Green.
The following procedures are to be instituted, effective
immediately:
I. The Executive Secretary will continue to task papers
for production by the staff. Colin and I have asked our
front office staff to pass taskings to you through the
Executive Secretary.
II. All material is to be submitted and logged through the
Executive Secretary. You are requested not to bring
documents directly to the front office. If an advance copy.
is forwarded, please advise Grant or Bob. All "eyes only"
NSC documents for me or Colin are to be delivered to Grant
Green or Bob Pearson.
III. I want to have the full and frank views of all staff
members on matters of importance to the President.
Therefore, any staff officer may forward his or her views on
a particular subject in an information memo through the
Senior Director and the Executive Secretary.
Ensuring the highest quality product for the President requires
discipline in our document management process. I have tasked
Grant and his team to ensure that decision documents reflect a
frank, open and full presentation of policy options and to ensure
that such information is shared among all those with policy
responsibility. I look to each of you to cooperate in this
process.
Van Eron Decl. Exhibit 1
NATIONAL SECURITY COUNCIL
WASHINGTON, D.C. 20506
January 15, 1987
MEMORANDUM FOR NSC STAFF MEMBERS
FROM:
GRANT S. GREEN
SUBJECT:
Document Control Procedures
In an effort to improve the orderly flow of action and
information items to and from the President, the Assistant to the
President for National Security Affairs, the NSC staff and the
departments and agencies, and to ensure the necessary
accountability, all papers will be logged and their progress
tracked through the NSC Secretariat's document control system.
As a first step, departmental couriers are being instructed to
deliver all material previously delivered to individual NSC staff
members in OEOB to the Secretariat in Room 381 OEOB. There it
will be handled by properly trained and cleared personnel in
accordance with appropriate security regulations and forwarded
promptly to the appropriate staff member (S).
The procedure for delivery of material to the White House West
Wing Ground Floor remains unchanged.
Sensitive intelligence material will continue to be delivered to
the Secretariat Coordinator in Room 300 OEOB.
All papers to and from Mr. Carlucci will come through my office.
If time pressures do not permit adherence to normal procedures,
handcarry the package to my office for immediate delivery to the
front office. The copies will be used to complete the control
process.
A special category of "X" items has been established to handle
those items of particular sensitivity which are not handled in
System IV. The logging and control procedures will be based on a
dummy sheet prepared by staff officers. A detailed procedure for
handling "X" items is attached. Use of the "X" designator will
be monitored to prevent its abuse.
Attachment
a/s
SAMPLE
NSC SECRETARIAT DUMMY PROFILE
Prepared by:
Smith
Log. No.
1234 X
Date Logged
1-5-87
Ref. Nos.
State 4567
DOD 8910
TO:
Carlucci
DOC. Date
1-1-87
FROM:
SecState
CLASS.
S/Codeword
SUBJECT:
Mali (or "Trade Restrictions" if subject is
functional rather than geographic)
ACTION:
Memo for President's signature
BY:
Smith
INFO ONLY:
(Check if info only, no action required)
COPIES:
(Names of other staff officers to whom copies are
sent by action officer)
DATE
TIME
ACTION
1-6
Memo to FC
1-7
Returned to Smith for re-do
1-8
Revision to FC
1-9
To President
1-10
President signed; dispatched to
State; CC DOD
FILE LOC:
PA
X ITEM PROCEDURES
When a staff officer decides that additional protection is
required beyond the standard security classifications, the
following procedures will be followed:
1. The officer's secretary will call the Secretariat (ext.
6534) and ask for an X number. If the item has already been
logged and numbered, he/she will ask that the number be made
an X number and that any copies retained by NSC/S be
returned to him or her.
2. NSC/S will assign the next log number, followed by an X,
and await further information on the item.
3. The X number will be typed on the item in the upper
right-hand corner and a dummy sheet prepared in accordance
with the sample attached giving only such information as is
required for future identification.
4. The dummy sheet will be sent to NSC/S as its record of
the item. No copies of the document itself will pass
through NSC/S.
5. The original and all copies of the document will be
handcarried to the Executive Secretary.
6. NSC/S will be notified as the item moves through the
offices: e.g., #1234X has been returned to staff officer
for revision; #1234X has been sent to the President;
President has signed #1234X, etc. This movement will be
recorded on the dummy sheet, including the file location
when action on the item has been completed.
0155
NATIONAL SECURITY COUNCIL
WASHINGTON, D.C. 20506
ACTION
January 15, 1987
MEMORANDUM FOR FRANK C. CARLUCCI
SIGNED
FROM:
GRANT S. GREEN
SUBJECT:
Information Accountability and Quality Control
RECOMMENDATION
That you sign the memo to the staff at Tab I.
Approve
Disapprove
That you approve my signing the memo to the staff at Tab II.
Approve
Disapprove
That you approve my signing the memo to agency counterparts at
Tab III.
Approve
Disapprove
1372
NATIONAL SECURITY COUNCIL
WASHINGTON. D.C. 20506
March 5, 1987
MEMORANDUM FOR THE NSC STAFF
FROM:
GRANT S. GREEN
SUBJECT:
PROFS and Al
The following is provided in response to questions from new
incoming staff regarding PROFS and the electronic mail systems.
PROFS (on the IBM system) and Al (on the VAX system) are the
two basic computer systems that allow members of the NSC staff
to communicate information electronically among each other.
PROFS/A1 is an internal electronic system that is used for
information that would otherwise be handled by phone. Items
requiring staff action should be typed, logged, and processed
through the normal record systems, i.e., Systems I, II and IV.
Should you be tasked for action via PROFS/A1, the PROFS/A1 note
should be printed and made part of the package forwarded for
action by the principals.
Each note should be appropriately classified. If it contains SCI
information, special category, or compartmented intelligence, SC
specify.
White House Communications Agency (WHCA) takes a daily snapshot
of PROFS data files on all USERIDS. These are "written over"
after seven days except Saturday's snapshot, which is retained
for two weeks and then "written over. " The Technical Support
Staff for the VAX uses essentially the same "write-over"
procedures, but monthly.
WHCA responses to requests for access to NSC data are coordinated
with the NSC.
Attached for your convenience is a brief PROFS/A1 users fact
sheet. Should you have further questions or computer problems,
please call George Van Eron, ext. 7386.
Attachment
PROFS/A1 User fact sheet
Van Eron Decl. Exhibit 2
PROFS/VAX
PROFS (IBM) and ALL-IN-1 (Vax/Al) is an internal electronic
system, cleared to the SCI level.
Every effort should be taken to keep information stored in the
system to a minimum. Please review your NOTELOG and files
frequently and retain only those items needed for future
reference.
Enter the appropriate classification at the top of each note
or document. If it contains special category or compartmented
information, so specify.
=
The PROFS in-basket and Al's 'Reading New Mail' function is used
to receive incoming notes and/or documents. You should not retain
notes in the PROFS in-basket. You should file or delete your
notes as soon as possible. The more notes in your PROFS
in-basket, the slower is machine response time.
A1 automatically files your notes in a 'read' file.
NOTELOGS & 'Read File'
Notelogs and 'Read Files' are used to store the notes you
have filed plus all of your outgoing notes. You should review
information stored in the system each week and retain only those
notes that are needed.
DOCUMENTS
Documents are more formal than PROF notes and require a.
knowledge of some special functions. If you expect to use this
feature, please contact the PROFS or Al administrators on ext.
6330 or 5132, respectively.
HELP
There is a user assistance feature already built into both
PROFS and A1. It is called HELP. In PROFS, you access the HELP
feature through PF9 from any PROFS screen. This will give you
access to an on-line USERS guide.
In addition, there is a "Helpme" assist facility which
provides access to a variety cf useful programs, e.g., NOTELOG
maintenance, RECALL note feature, set-up calendar access, create
nicknames, send a reminder, etc.
In Al, you simply use the vellow gold kev on the upper right
part of the keyboard together with the letter H. This feature
will display an easy-to-read users guide that will explain the
features you are interested in.
2324
NATIONAL SECURITY COUNCIL
WASHINGTON, D.C. 20506
May 19, 1988
MEMORANDUM FOR THE NSC STAFF
FROM:
PAUL SCHOTT STEVENS
PM
SUBJECT:
Records
It is important that you begin now to review documents in your
custody in preparation for the eventual transfer of all official
records to a depository at the end of the administration. You do
not want to wait until November to begin this process.
Regardless of your personnel status during and after the
transition, all presidential and NSC records of the Reagan
Administration, including those convenience files in the
possession of staff officers, will be reviewed and retired or
stored before the start of the new administration.
All data stored electronically will be subject to a similar
process of review and disposition.
The schedule for implementing the program outlined in this
memorandum takes into account the somewhat slower pace that
normally characterizes the summer months, the availability of
additional personnel resources in the Secretariat to assist staff
officers in organizing their files, and the hope that most of
this work can be completed before the busier months of the fall
and the transition. Clearly some directorates will have heavier
schedules than others and the deadlines indicated are meant to be
suggestive of the pace and progress we would like to achieve.
I. Personal Records: (Phase I, Deadline: June 15, 1988)
No later than June 15, 1988, all of the files you believe are
personal in nature should be segregated from official records and
available for review prior to being removed from the complex.
This is in your interest. In more hectic days ahead, your
personal files could be inadvertently mingled with official
records. I will ask each staff officer to certify completion of
this requirement.
Once your personal files are ready, please inform Brenda Reger
(or, in her absence, Nancy Menan), the staff of whose directorate
will review them and authorize their release. Under no
circumstances should any records be removed from the complex
absent such authorization.
Van Eron Decl. Exhibit 3
2
It is also recommended that any personal mail you are now
receiving at the office be redirected to your home address so
that it will not be lost during the transition period.
The definition of what constitutes a personal record is very
narrow and only will relate to a very small number -- or perhaps
none -- of the documents in your files. Documents produced in
the course of your normal duties are considered to be official
records and must be formally retired at the end of the
Administration.
Personal files are described in the Presidential Records Act as:
The term "personal records" means all documentary materials,
or any reasonably segregable portion thereof of a purely
private or nonpublic character which do not relate to or
have an effect upon the carrying out of the constitutional,
statutory or other official or ceremonial duties of the
President.
Attached is an excerpt from the White House Staff Manual which
provides additional information on personal and presidential
records.
To qualify as personal, a record must be unclassified and may not
relate to White House or NSC business. Some examples are:
personal correspondence, personal financial records and personal
photos. Again, these items must be filed separately and may be
removed only after approval by the staff of the Information
Policy directorate.
II. Official Records: (Phase II, Deadline: August 15, 1988)
No later than August 15th, all official records in your custody
should be assembled, in an orderly fashion, and prepared for
transfer to the Secretariat for retirement or storage. It is
recommended that you transfer to the Secretariat as soon as
possible all files that you no longer need. Secretariat staff
will contact your office and help you box these records.
The following steps should be taken immediately to prepare your
office files for transfer:
1. All originals of LOGGED items must be returned to the
Secretariat. These are either presidential or federal records
and must be retained by the NSC or the National Archives. This
includes outstanding X system items that should be sealed in an
"EYES ONLY" envelope and given to the Executive Secretary for
appropriate disposition.
3
2.
To help ensure that retired official records include a
complete set of materials originated or utilized under your
tenure, copies may be retained among your retired official files
of those original records turned over to the Secretariat for
disposition.
3
Under no circumstances may any original official
records/files be destroyed. This is strictly prohibited by law.
A.
Chron Files:
Most staff members maintain CHRON (also identified as convenience
or subject files) copies of materials that they have originated
and that have been processed, in the various systems, through the
Secretariat. Chron files may include other materials (such as
reports from other agencies). These files should be assembled
and maintained in good order.
Those files to be retained are traditionally sent to the
appropriate presidential library to document the employee's
contribution as a member of the president's staff. It is in your
best interest to ensure that these files are maintained in good
order, both for the historical record and also in the event that
you later wish to gain access to the files. Such access is
limited to those files that you created.
An employee may not retain copies of classified documents.
Copies of unclassified documents he or she originated may be
retained only after review and approval by the Information Policy
directorate and after the original record has been returned to
and accounted for by the Secretariat.
It is strongly recommended that you begin to review your files
and to maintain them in a manner that allows both easy
identification and separation later this year.
B.
Special Cases:
Intelligence Documents
All serial-numbered intelligence documents, including publica-
tions coming from the intelligence community such as NIEs or DIA
appraisals, MUST be returned to the Secretariat for disposition.
They cannot be destroyed by you or left in your chron files.
Freedom of Information
All FOI/EO cases should be acted upon immediately and returned
with your recommendations, to the Office of Information Policy
for final disposition.
4
Pre-NSC Service
Classified materials brought to the NSC by detailees from other
agencies, which predate your service on the NSC staff, must be
maintained separately from all other records/files. These
materials must be so identified and may only be removed from the
NSC in accordance with established procedures authorized by the
Information Policy directorate.
III. Wrap-Up: (Phase III, Deadline: December 1, 1988)
No later than December 1, 1988, you should have in your
possession only the current month of files in your office. All
X items, FOI/EO cases (completed) and intelligence documents
should be returned to the Secretariat.
Bob Perito, George Van Eron, and the Secretariat staff will be
available to answer any questions you may have and otherwise to
assist you throughout this effort. Your cooperation in this
important undertaking will be greatly appreciated.
Attachment
government business. Personal documents and
files should be segregated and stored separately
The ownership, maintenance and disposi-
from official records.
tion of Presidential documents are governed by
the Presidential Records Act, 44 U.S.C. §§
II. Units of the Executive Office of the
2201-07 (the "Act") The Act's requirements
President Covered by the Act
must be followed by White House and
Executive Office staff. Pending issuance of
All records of the White House Office, the
regulations by the Archivist of the United
Office of Policy Development, the Council of
States, the following guidance should be
Economic Advisers and the Intelligence
followed with respect to these records.
Oversight Board are Presidential records.
Records of the Office of Management and
I.
Types of Records Covered by the Act
Budget, the Office of the United States Trade
The Act defines "Presidential records" to
Representative, the Council on Environmental
include not only the official documents written
Quality, and the Office of Administration are
and received by the President but also the
federal, not Presidential, records.
official records created or received by his staff.
The records of the National Security
While the Act requires that staff members
Council staff are federal records if they were
adequately document the performance of the
received or created in connection with the work
President's constitutional, statutory and
of the statutorily-created National Security
ceremonial duties, the decision whether
Council (including any interagency groups
information should be memorialized in the first
convened under National Security Council
instance remains with each staff member. For
auspices). Additionally the NSC's internal
example, it is within the discretion of a staff
administrative records are federal records. The
member to dispose of scratch pads, unimportant
records of the National Security Council staff
notes to one's secretary and the like, provided
are Presidential records if they were received or
this is done contemporaneously and is based
created for the President, the Assistant to the
upon a determination that creation of a record
President for National Security, his Deputy or
is not required in the circumstance.
a member of the White House staff
"Presidential records" encompass any form of
independently of any meeting or policy and
memorializing information, including but not
staff actions of the NSC or its various groups.
limited to written documents, models, pictures,
films and audio and electronic recordings.
The records of the Office of Science and
Records relating to political activities which
Technology Policy are federal records; however,
are undertaken in the course of carrying out
those records produced or received by the
the President's official or ceremonial duties are
Director of OSTP in his role as Science Advisor
Presidential records (e.g., political briefing
to the President are Presidential records and
papers for official trips and official meetings
should be segregated as such.
are Presidential récords. Records relating to
III. Maintenance of Presidential Records
political activities not associated with the
President's official duties are not Presidential
The law imposes an affirmative obligation
records (e.g. materials for political and
on staff members to document adequately the
campaign-related meetings and trips.)
performance of the President's constitutional,
statutory and ceremonial duties. Staff members
Private papers, which staff members
are urged to document the performance of their
might keep in their offices, such as insurance
duties and preserve these records in complete
claim forms or purely personal correspondence,
and orderly files. Personal records should be
are personal, not Presidential records. Personal
kept apart from official records and clearly
records include phone logs, visitor logs, notes,
labeled as such. Moreover, those officials or
diaries or journals that are kept by a staff
units which maintain both Presidential records
member exclusively for his or her own use and
reference, are not accessible to others on the
and federal records should file them separately
staff and are not used for transacting
with a clear indication of whether they are
Presidential or federal.
E-1
be obtained from the Office of the Counsel to
federal records are accessible to the public
the President. Assistance in establishing file
under the provisions of the Freedom of
systems can be obtained from the White House
Information Act.
Office of Records Management.
Upon completion of the Administration,
IV. Disposition and Destruction of
the Archivist acquires custody of Presidential
Presidential Records
records. However, the President may assert
control for twelve years over public access to
Once a decision is made to memorialize and
certain categories of records. Basically, these
maintain information as a Presidential record
categories are: (a) security classified items;
it becomes the property of the United States
(b) documents related to appointments to
and may be disposed of only in accordance with
Federal office; (c) items specifically exempted
procedures established by the Archivist of the
from disclosure by other statutes; (d) trade
United States. The Act prohibits the disposal of
secrets and commercial or financial informat-
Presidential records unless those records no
ion; (e) confidential communications request-
longer have administrative, historical, infor-
ing or submitting advice between the President
mational, or evidential value. Moreover, before
and his advisers, or between such advisers; and
disposing of any records the President must
(f) personnel or medical files, the disclosure of
notify the Archivist and under some circum-
which would constitute a clearly unwarranted
stances appropriate Congressional committees.
invasion of personal privacy. Thereafter, public
The White House Office of Records
access is determined by the Freedom of
Management ("ORM") maintains records
Information Act, subject in all cases to the
disposal schedules, which have been approved
President's right to invoke any Constitutional
by the Archivist, for certain recurring types of
privilege against disclosure.
disposable papers, such as form letter public
mail, anonymous public mail, unsuccessful and
VI. Records that May be Retained by Staff
unsolicited applications for employment, and
Members Upon Departure
enclosures received in public mail. If you have a
To insure that the President maintains the
recurring type of disposable material in your
maximum controls permitted by law, staff
office, you may wish to request that ORM enter
members may not remove copies of Presidential
it on the records disposal schedule. Before you
records from their offices either now or at the
dispose of any documents, contact ORM to
end of the Administration. When a staff
determine whether the category of items
member leaves the White House, he or she
involved has been approved for disposal. Such
shall deliver all files and records to ORM at the
prior notice is not necessary for destruction of
White House or, in the case of the National
exact duplicates of documents which are being
Security Council staff, to the Executive Secre-
maintained, or for copies of officially published
tariat of the National Security Council. Federal
documents, such as printed reports, etc.
records shall be left with the appropriate
ORM can also arrange for storage of records
agency. Staff members may remove only those
which are to be preserved, but for which there
records-which are purely personal.
is no longer a current need. Offices are
The foregoing is designed to provide
encouraged to develop systematic records
general guidance with respect to the
retirement schedules, reserving filing space for
Presidential Records Act. Specific questions of
those records for which there is a current need.
coverage or interpretation should be addressed
to the Counsel's Office. Assistance in records
V.
Legal Control of Presidential Records
maintenance and storage can be obtained from
Presidential records remain in the custody
the White House of Records Management.
and control of the President during his term of
E-2
Presidential, federal and personal records can
the Freedom of Information Act. In contrast,
be obtained from the Office of the Counsel to
federal records are accessible to the public
the President. Assistance in establishing file
under the provisions of the Freedom of
systems can be obtained from the White House
Information Act.
Office of Records Management.
Upon completion of the Administration,
IV. Disposition and Destruction of
the Archivist acquires custody of Presidential
Presidential Records
records. However, the President may assert
control for twelve years over public access to
Once a decision is made to memorialize and
certain categories of records. Basically, these
maintain information as a Presidential record
categories are: (a) security classified items:
it becomes the property of the United States
(b) documents related to appointments to
and may be disposed of only in accordance with
Federal office: (c) items specifically exempted
procedures established by the Archivist of the
from disclosure by other statutes: (d) trade
United States. The Act prohibits the disposal of
secrets and commercial or financial informat-
Presidential records unless those records no
ion; (e) confidential communications request-
longer have administrative, historical, infor-
ing or submitting advice between the President
mational, or evidential value. Moreover, before
and his advisers, or between such advisers: and
disposing of any records the President must
(f) personnel or medical files, the disclosure of
notify the Archivist and under some circum-
which would constitute a clearly unwarranted
stances appropriate Congressional committees.
invasion of personal privacy. Thereafter, public
The White House Office of Records
access is determined by the Freedom of
Management ("ORM") maintains records
Information Act, subject in all cases to the
disposal schedules, which have been approved
President's right to invoke any Constitutional
by the Archivist, for certain recurring types of
privilege against disclosure.
disposable papers, such as form letter public
mail, anonymous public mail, unsuccessful and
VI. Records that May be Retained by Staff
unsolicited applications for employment, and
Members Upon Departure
enclosures received in public mail. If you have a
To insure that the President maintains the
recurring type of disposable material in your
maximum controls permitted by law, staff
office, you may wish to request that ORM enter
members may not remove copies of Presidential
it on the records disposal schedule. Before you
records from their offices either now or at the
dispose of any documents, contact ORM to
end of the Administration. When a staff
determine whether the category of items
member leaves the White House, he or she
involved has been approved for disposal. Such
shall deliver all files and records to ORM at the
prior notice is not necessary for destruction of
White House or, in the case of the National
exact duplicates of documents which are being
Security Council staff, to the Executive Secre-
maintained, or for copies of officially published
tariat of the National Security Council. Federal
documents, such as printed reports, etc.
records shall be left with the appropriate
ORM can also arrange for storage of records
agency. Staff members may remove only those
which are to be preserved, but for which there
records which are purely personal.
is no longer a current need. Offices are
The foregoing is designed to provide
encouraged to develop systematic records
general guidance with respect to the
retirement schedules, reserving filing space for
Presidential Records Act. Specific questions of
those records for which there is a current need.
coverage or interpretation should be addressed
to the Counsel's Office. Assistance in records
V. Legal Control of Presidential Records
maintenance and storage can be obtained from
Presidential records remain in the custody
the White House of Records Management.
and control of the President during his term of
E-2
2324
NATIONAL SECURITY COUNCIL
WASHINGTON, D.C. 20506
March 28, 1988
ACTION
MEMORANDUM FOR PAUL SCHOTT STEVENS
FROM:
ROBERT PERITO Rr
SUBJECT:
Disposition of Records
It is important that the staff begin organizing their files in
preparation for the presidential transition. Attached at Tab I
is a memorandum for your signature directing the staff to begin
this process.
In support, Van is planning to have Brian, Art and two others
available to assist the staff in organizing and retiring their
files. Additional part-time staff is being hired now in order to
have the resources necessary to support this project.
George Van gove Eron, Brenda Reger, Mary Dix, Michael Donley, MD and
Reade-
3id
Nicho Rs. ISS Rostow concur.
RECOMMENDATION
That you sign the memorandum to the staff at Tab I.
Approve PM
Disapprove
Attachment
Tab I - Memorandum to the Staff
NATIONAL SECURITY COUNCIL
WASHINGTON, D.C. 20506
November 4, 1988
MENAN
MEMORANDUM FOR THE NSC STAFF
FROM:
PAUL SCHOTT STEVENS
spm
SUBJECT:
Disposition of Records
This is MUST reading. It is important that you begin now to
review documents in your custody in preparation for the eventual
transfer of all official records to a depository at the end of
the administration.
Regardless of your personnel status during and after the
transition, all presidential and NSC records of the Reagan
Administration, including those convenience files in the
possession of staff officers, will be reviewed and retired or
stored before the start of the new administration.
All data stored electronically will be subject to a similar
process of review and disposition.
I.
Personal Records (Phase I. Deadline: November 5, 1988)
We had hoped that, by this date, any files a staff member
believes to be personal in nature would have been segregated from
official records and made available for the review that must take
place prior to any files' being removed from the complex. If you
have not attended to this, please do so immediately.
Once your personal files are ready, please inform Nancy
Menan, whose staff will review them and authorize their release,
if appropriate. I repeat, under no circumstances may any records
be removed from the complex absent such authorization.
It is also recommended that any personal mail you are now
receiving at the office be redirected to your home address SO
that it will not be lost during the transition period.
The definition of what constitutes a personal record is very
narrow and will only relate to a very small number--or perhaps
none--of the documents in your files. Documents produced in
the course of your normal duties are considered to be official
records and must be formally retired at the end of the
Administration.
Van Eron Decl. Exhibit 4
I. Personal Records (continued)
Personal files are described in the Presidential Records Act
as:
The term 'personal records' means all documentary
materials, or any reasonably segregable portion thereof,
of a purely private or nonpublic character which do not
relate to or have an effect upon the carrying out of the
constitutional, statutory or other official or ceremonial
duties of the President.
Attached is an excerpt from the White House Staff Manual
which provides additional information on personal and
presidential records.
To qualify as personal, a record must be unclassified and
may not relate to White House or NSC business. Some examples
are: personal correspondence, personal financial records and
personal photos. Again, these items must be filed separately
and may be removed only after approval by the staff of the
Information Policy directorate.
II. Official Records (Phase II. Deadline: November 15, 1988)
No later than November 15th, all official records in your
custody should be assembled, in an orderly fashion, and prepared
for transfer to the Secretariat for retirement or storage. It
is recommended that you transfer to the Secretariat as soon as
possible all files that you no longer need. Secretariat staff
will contact your office and help you box these records.
The following steps should be taken immediately to prepare
your office files for transfer:
1. All originals of LOGGED items must be returned to the
Secretariat. These are either presidential or federal
records and must be retained by the NSC or the National
Archives. This includes outstanding X system items that
should be sealed in an "EYES ONLY" envelope and given to
the Executive Secretary for appropriate disposition.
2. To help ensure that retired official records include a
complete set of materials originated or utilized under
your tenure, copies may be retained among your retired
official files of those original records turned over to
the Secretariat for disposition.
3. Under no circumstances may any original official
records/files be destroyed. This is strictly prohibited
by law.
A. Chron Files
Most staff members maintain CHRON (also identified as
convenience or subject files) copies of materials that they have
originated and that have been processed in the various systems,
through the Secretariat. Chron files may include other materials
(such as reports from other agencies). These files should be
assembled and maintained in good order.
Those files to be retained are traditionally sent to the
appropriate presidential library to document the employee's
contribution as a member of the president's staff. It is in your
best interest to ensure that these files are maintained in good
order, both for the historical record and also in the event that
you later wish to gain access to the files. Such access is
limited to those files that you created.
An employee may not retain copies of classified documents.
Copies of unclassified documents he or she originated may be
retained only after review and approval by the Information Policy
Directorate and after the original record has been returned to
and accounted for by the Secretariat.
It is strongly recommended that you begin to review your
files and to maintain them in a manner that allows both easy
identification and separation later this year.
B. Special Cases
Intelligence Documents
All serial-numbered intelligence documents, including
publications coming from the intelligence community such as NIEs
or DIA appraisals, MUST be returned to the Secretariat for
disposition. They cannot be destroyed by you or left in your
chron files.
Freedom of Information
All FOI/EO cases should be acted upon immediately and
returned with your recommendations to the Office of Information
Policy for final disposition.
Pre-NSC Service
Classified materials brought to the NSC by detailees from
other agencies, which predate your service on the NSC staff, must
be maintained separately from all other records/files. These
materials must be so identified and may only be removed from the
NSC in accordance with established procedures authorized by the
Information Policy directorate.
III. Wrap-Up (Phase III. Deadline: December 1, 1988)
No later than December 1, 1988, you should have in your
possession only the current month of files in your office. All X
items, FOI/EO cases (completed) and intelligence documents should
be returned to the Secretariat.
Bob Perito, George Van Eron, and the Secretariat staff will
be available to answer any questions you may have and otherwise
to assist you throughout this effort. Your cooperation in this
important undertaking will be greatly appreciated.
Attachment
Excerpt from White House Staff Manual
tion of Presidential documents are governed by
the Presidential Records Act. 44 U.S.C. 11
IL Units of the Executive Office of the
2201.07 (the "Act") The Act's requirements
President Covered by the Act
must be followed by White House and
All records of the White House Office. the
Executive Office staff. Pending issuance of
Office of Policy Development, the Council of
regulations by the Archivist of the United
Economic Advisers and the Intelligence
tates, the following guidance should be
Oversight Board are Presidential records.
followed with respect to these records.
Records of the Office of Management and
1.
Types of Records Covered by the Act
Budget, the Office of the United States Trade
Representative, the Council on Environmental
The Act defines "Presidential" records" to
Quality, and the Office of Administration are
include not only the official documents written
and received by the President but also the
federal, not Presidential. records.
official records created or received by his staff.
The records of the National Security
While the Act requires that staff members
Council staff are federal records if they were
adequately document the performance of the
received or created in connection with the work
President's constitutional, statutory and
of the statutorily-created National Security
ceremonial duties, the decision whether
Council (including any interagency groups
information should be memorialized in the first
convened under National Security Council
instance remains with each staff member. For
auspices). Additionally the NSC's internal
example, it is within the discretion of a staff
administrative records are federal records. The
member to dispose of seratch pads, unimportant
records of the National Security Council staff
notes to one's secretary and the like, provided
are Presidential records if they were received or
this is done contemporaneously and is based
created for the President, the Assistant to the
upon a determination that creation of a record
President for National Security, his Deputy or
is not required in the circumstance.
s member of the White House staff
"Presidential records" encompass any form of
independently of any meeting or policy and
memorializing information, including but not
staff actions of the NSC or its various groups.
limited to written documents, models, pictures,
The records of the Office of Science and
films and audio and electronic recordings.
Technology Policy are federal records; however,
Records relating to political activities which
those records produced or received by the
re undertaken in the course of carrying out
Director of OSTP in his role as Science Advisor
the President's official or ceremonial duties are
to the President are Presidential records and
Presidential records (e.g., political briefing
should be segregated as such.
papers for official trips and official meetings
are Presidential records. Records relating to
III. Maintenance of Presidential Records
political activities not associated with the
President's official duties are not Presidential
The law imposes an affirmative obligation
on staff members to document adequately the
records (e.g. materials for political and
campaign-related meetings and trips.)
performance of the President's constitutional,
statutory and ceremonial duties. Staff members
Private papers, which staff members
are urged to document the performance of their
might keep in their offices, such as insurance
duties and preserve these records in complete
claim forms or purely personal correspondence,
and orderly files. Personal records should be
are personal, not Presidential records. Personal
kept apart from official records and clearly
records include phone logs, visitor logs, notes,
labeled as such. Moreover, those officials or
diaries or journals that are kept by a staff
units which maintain both Presidential records
member exclusively for his or her own use and
and federal records should file them separately
reference, are not accessible to others on the
with a clear indication of whether they are
staff and are not used for transacting
Presidential or federal.
E-1
8251
NATIONAL SECURITY COUNCIL
WASHINGTON, D.C. 20506
December 20, 1988
MEMORANDUM FOR THE NSC STAFF
FROM:
PAUL SCHOTT STEVENS
spm
SUBJECT:
Review of Computer Files for Presidential and
Agency Records
As you are aware, members of the NSC staff have an ongoing
responsibility to create written records pursuant to the Federal
and Presidential Records Acts. The Federal Records Act requires
the creation of records reflecting "the organization, functions,
policies, decisions, procedures and essential transactions" of an
agency, and the Presidential Records Act requires the
documentation of "the activities, deliberations, decisions, and
policies" that reflect the performance of the President's
constitutional duties.
Consistent with longstanding NSC policy and practice, information
meeting the definition of a federal or presidential record is
required to be formally entered into the Secretariat's record
systems and may not be maintained solely in staff convenience
files or in electronic mail or other computer files.
with the end of the Administration approaching, it is prudent to
remind you of your obligations under the Federal and Presidential
Records Act. I anticipate that there are no federal or
presidential records maintained in your computer files that are
not also to be found in our formal records systems. Incident to
the change of Administration, such computer files may no longer
be accessible after January 20, 1989. Therefore, in order to
guard against the inadvertent loss of any record, however, I ask
that you review your computer files prior to your departure or
January 20, 1989, whichever comes first. Should you identify
therein any federal or presidential record, as defined above,
that you believe may not be contained in the Secretariat systems,
please forward it in hard CLDV to George Van Eron for appropriate
Any questions should be addressed to the Legal Adviser's Office.
Van Eron Decl. Exhibit 5
THE WHITE HOUSE
WASHINGTON
SYSTEM II
90249
March 31, 1987
MEMORANDUM FOR THE VICE PRESIDENT
THE SECRETARY OF STATE
THE SECRETARY OF THE TREASURY
THE SECRETARY OF DEFENSE
THE ATTORNEY GENERAL
THE SECRETARY OF THE INTERIOR
THE SECRETARY OF AGRICULTURE
THE SECRETARY OF COMMERCE
THE SECRETARY OF LABOR
THE SECRETARY OF HEALTH AND HUMAN SERVICES
THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT
THE SECRETARY OF TRANSPORTATION
THE SECRETARY OF ENERGY
THE SECRETARY OF EDUCATION
THE DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET
THE DIRECTOR OF CENTRAL INTELLIGENCE
THE CHIEF OF STAFF TO THE PRESIDENT
THE COUNSEL TO THE PRESIDENT
THE ASSISTANT TO THE PRESIDENT FOR POLICY
DEVELOPMENT
CHAIRMAN, JOINT CHIEFS OF STAFF
DIRECTOR, ARMS CONTROL AND DISARMAMENT AGENCY
ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION
DIRECTOR, UNITED STATES INFORMATION AGENCY
ADMINISTRATOR OF VETERANS AFFAIRS
SUBJECT:
Implementation of The Recommendations of The
President's Special Review Board
The President has formally approved the attached National
Security Decision Directive on the implementation of the
recommendations of the President's Special Review Board
(Tower Board). This NSDD is unclassified and was provided to
Congress in connection with the President's March 31, 1987
message.
Frank e. Carlucci
Attachment
NSDD 266
Van Eron Decl. Exhibit 6
SYSTEM
THE WHITE HOUSE
90249
WASHINGTON
NATIONAL SECURITY DECISION
March 31, 1987
DIRECTIVE NUMBER 266
IMPLEMENTATION OF THE RECOMMENDATIONS OF
THE PRESIDENT'S SPECIAL REVIEW BOARD
The President's Special Review Board submitted its Report on
February 26, 1987. I addressed the Nation on March 4 and
announced first, that I endorse the Board's recommendations; and
second, that I intend to go beyond the Board's recommendations to
put the National Security Council (NSC) process in even better
order. This Directive spells out the specific steps I have
approved recommendations. to implement the letter and spirit of the Board's
Many steps were taken even prior to the issuance of the Board's
Report. The NSC staff was rebuilt and made subject to proper
management discipline. A directive was issued on my instruction
to prohibit the NSC staff itself from undertaking covert
operations. A comprehensive legal and policy review of such
operations, ordered by me, was already far advanced. Proper
procedures for consultation with the Congress were reaffirmed and
are being observed.
In light of the Board's Report, additional measures are
required. This Directive sets forth the specific timetable
according to which I expect all such measures to be completed.
It is of utmost importance that the NSC -- including all members
of, and advisors to, the NSC, the Assistant to the President for
National Security Affairs, the NSC staff, and all other
participants in the NSC process -- act decisively to accomplish
my objectives fully.
I shall inform Congress of the nature and progress of these
Executive branch efforts prior to the end of March; I also shall
call upon Congress to heed the balance of the Board's
recommendations, namely:
-- that no substantive change be made in the provisions of the
National Security Act dealing with the structure and operation of
the NSC system;
-- that the position of Assistant to the President for
National Security Affairs not be made subject to Senate
confirmation; and
-- that Congress replace the existing Intelligence Committees
of the Senate and House of Representatives with a new joint
community. committee with a restricted staff to oversee the intelligence
2
These recommendations of the Board, which are addressed to
Congress, I also strongly endorse.
I. Model fór the National Security Council System
The structure and procedures of the National Security Council
shall incorporate all aspects of the model of the NSC system
described in the Report of the President's Special Review Board
as the Board's principal recommendation. This directive
implements that recommendation in each of the following respects:
-- organizing for national security, including provision of
appropriate guidelines to participants in the NSC process;
-- the role and functions of the Assistant to the President for
National Security Affairs;
-- the nature and responsibilities of the NSC staff; and
-- the NSC and interagency process.
A. Organizing for National Security
The National Security Council shall be the principal forum for
consideration of national security policy issues requiring
presidential decision. The function of the NSC shall be as set
forth in the National Security Act of 1947, as amended. Broadly
speaking, the NSC shall advise the President with respect to the
integration of domestic, foreign, and military policies relating
to the national security so as to enable Executive departments
and agencies to cooperate more effectively in matters involving
the national security.
Participation in the NSC shall be as provided by law and this
Directive. Statutory members of the NSC are the President, the
Vice President, the Secretary of State, and the Secretary of
Defense. Other heads of Executive departments and agencies and
senior officials within the Executive Office of the President
shall participate in the NSC as provided in this Directive.
The Director of Central Intelligence and the Chairman of the
Joint Chiefs of Staff are statutory advisors to the NSC. The
Director of Central Intelligence shall advise the NSC with
respect to coordinating intelligence activities of Executive
departments and agencies in the interest of national security and
as otherwise provided by law. The Chairman of the Joint Chiefs
of Staff shall be principal military advisor to the President,
the Secretary of Defense, and the NSC.
3
The Directors of the United States Arms Control and Disarmament
Agency and United States Information Agency are special statutory
advisors to the NSC. The Director of the Arms Control and
Disarmament Agency shall be principal advisor to the President,
the Secretary of State, and the NSC on arms control and
disarmament matters. The Director of the United States
Information Agency shall be principal advisor to the President,
the Secretary of State, and the NSC on international
informational, educational, and cultural matters.
The Secretary of State shall be the President's principal foreign
policy advisor. As such, the Secretary shall be responsible for
the formulation of foreign policy, subject to review within the
NSC process and the President's guidance as appropriate, and for
the execution of approved policy. I assign to the Secretary of
State authority and responsibility, to the extent permitted by
law and this Directive, for the overall direction, coordination,
and supervision of the interdepartmental activities incident to
foreign policy formulation, and the activities of Executive
departments and agencies of the United States overseas. Such
activities shall not include those of United States military
forces operating in the field under the command of a United
States area military commander, and such other military
activities as I elect, as Commander in Chief, to conduct
exclusively through military or other channels. Activities that
are internal to the execution and administration of the approved
programs of a single department or agency and that are not of
such nature as to affect significantly the overall United States
overseas program in a country or region are not considered to be
activities covered within the meaning of this Directive.
The Secretary of Defense shall be the President's principal
defense policy advisor. As such, the Secretary shall be
responsible for the formulation of general defense policy,
subject to review within the NSC process and the President's
guidance as appropriate, for policy related to all matters of
direct and primary concern to the Department of Defense, and for
the execution of approved policy. I assign to the Secretary of
Defense authority and responsibility, to the extent permitted by
law and this Directive, for the overall direction, coordination,
and supervision of the interdepartmental activities incident to
defense policy formulation.
The Director of Central Intelligence shall be the President's
principal advisor on intelligence matters. As such, the Director
shall be responsible for the formulation of intelligence
activities, policy and proposals, subject to review within the
NSC process and the President's guidance as appropriate, as set
forth in law and relevant Executive orders. I assign to the
Director of Central Intelligence authority and responsibility, to
the extent permitted by law, Executive order, and this Directive,
for the overall direction, coordination, and supervision of the
interdepartmental activities incident to intelligence matters.
4
Although taking part in the NSC system by virtue of official
positions as heads of Executive departments or agencies or as
senior officials within the Executive Office of the President,
all NSC participants shall sit as advisors to the President in
connection with the President's exercise of authority under the
Constitution and laws of the United States. In their capacity as
department and agency heads, NSC participants shall ensure the
effective and expeditious execution and implementation of overall
national security policies established by the President.
Execution and implementation of such policies shall not be the
responsibility of the Assistant to the President for National
Security Affairs or of the NSC staff except as the President
specifically directs.
B. The Assistant to the President for National Security Affairs
The Assistant to the President for National Security Affairs
("National Security Advisor") shall have primary responsibility
for day-to-day management of the National Security Council
process, and shall serve as principal advisor on the President's
staff with respect to all national security affairs. The
National Security Advisor shall have access and report directly
to the President, and shall keep the President and the Chief of
Staff to the President fully and currently informed on all
matters of substance.
As manager of the NSC process, the National Security Advisor
shall ensure the following: that matters submitted for
consideration by the NSC cover the full range of issues on which
review is required; that those issues are fully analyzed; that a
full range of options is considered; that the prospects and risks
of each are examined; that all relevant intelligence and other
information is available to NSC participants; that legal matters
are addressed; and that difficulties in implementation are
confronted. The National Security Advisor shall monitor policy
implementation to ensure that policies are executed in conformity
with the intent of presidential decisions. He shall initiate
periodic reassessments of policies and operations, in light of
changed circumstances or United States interests. The National
Security Advisor shall keep NSC participants currently informed
of presidential decisions. He shall ensure that NSC consulta-
tions and presidential decisions are adequately recorded, and
that appropriate and timely preparations are made with respect to
meetings convened under NSC auspices.
As the President's principal staff advisor on national security
affairs, the National Security Advisor shall present his own
views and advice and, at the same time, faithfully represent the
views of other NSC participants.
5
C. The National Security Council Staff
The functions and responsibilities of the Executive Secretary of
the National Security Council shall be as provided by the
National Security Act of 1947, as amended. The Executive
Secretary heads the NSC staff and, in accordance with applicable
laws and regulations, appoints and fixes the compensation of
personnel required to perform such duties as may be prescribed by
the President, the NSC, or the National Security Advisor. The
Executive Secretary shall establish procedures within the NSC
Executive Secretariat for maximum effective support of the NSC
and the National Security Advisor in performance of
responsibilities assigned by the President. With the guidance
and under the instruction of the National Security Advisor, the
Executive Secretary shall develop and implement appropriate
policies with respect to the overall size of the NSC staff, the
background and experience of its members, the duration of their
service, and the organization of staff offices. The objectives
shall be twofold: first, an NSC staff that is small, highly
competent, broadly experienced in the making of national security
policy, and properly balanced from among Executive departments
and agencies and persons drawn from within and outside
government; and second, an NSC staff organization that imposes
clear, vertical lines of control and accountability.
The Executive Secretary, through the National Security Advisor,
shall recommend for my consideration specific measures designed
to enhance the continuity of the functioning of the NSC,
including measures to ensure adequate institutional recordkeeping
from administration to administration. Specific recommendations
for these purposes shall be made not later than June 30, 1987.
The NSC staff, through the Executive Secretary, shall assist the
National Security Advisor in each aspect of his roles both as
manager of the NSC process and as my principal staff advisor on
national security affairs.
The NSC staff shall include a Legal Advisor whose particular
responsibility it will be to provide legal counsel to the
National Security Advisor, the Executive Secretary, and the NSC
staff with respect to the full range of their activities, and to
assist the National Security Advisor in ensuring that legal
considerations are fully addressed in the NSC process and in
interagency deliberations. The NSC Legal Advisor shall be
accorded access to all information and deliberations as may be
required for these purposes, and shall advise the National
Security Advisor and Executive Secretary as appropriate on all
matters within his responsibility. He shall work cooperatively
with the Counsel to the President, the Legal Adviser of the
Department of State, and with senior counsel to all other NSC
members, advisors, and participants.
6
D. The National Security Council and Interagency Process
1. National Security Council Meetings
The National Security Council shall meet regularly to consider
matters directed by the President or recommended by the National
Security Advisor or by the other NSC members. The National
Security Advisor shall attend all NSC meetings and shall be
responsible for the agenda and conduct of such meetings under my
direction. The statutory members of the NSC, and the Director of
Central Intelligence and Chairman of the Joint Chiefs of Staff as
statutory advisors to the NSC, shall attend NSC meetings. In
addition, the Attorney General, the Secretary of the Treasury,
and the Chief of Staff to the President at my invitation shall
attend NSC meetings. The special statutory advisors to the NSC,
the Director of the Office of Management and Budget, and the
heads of other Executive departments and agencies shall be
invited to attend such NSC meetings as relate to matters vested
under their authority.
The National Security Advisor shall provide NSC participants
advance notice of all NSC meetings and agenda therefor. To the
extent practicable, the National Security Advisor shall circulate
decision documents in advance of such meetings. The Executive
Secretary of the NSC and the NSC staff shall assist the National
Security Advisor in connection with appropriate preparations for,
and follow-up to, NSC meetings, as directed by the President.
Such assistance shall include preparation of meeting minutes and
the development and dissemination of decision documents and, as
appropriate, study directives. All decision documents shall be
submitted for the President's review and action by the National
Security Advisor. The National Security Advisor shall transmit
decision documents to the President through the Chief of Staff to
the President. National Security Decision Directives,
intelligence findings, and similar decision documents shall be
coordinated, in advance of their submission to the President, by
the NSC Legal Advisor with the Counsel to the President.
2. The Interagency Process
To assist the NSC at large and its individual members and
advisors in fulfilling their responsibilities, I previously
directed or authorized the establishment of senior interagency
groups and regional and functional interagency groups. The
purpose of such groups was to establish policy objectives,
develop policy options, make appropriate recommendations,
consider the implications of agency programs for foreign policy
or overall national security policy, and undertake such other
activities as may be assigned by the NSC.
The NSC, through the National Security Advisor, shall review the
structure of senior interagency groups and regional and
functional interagency groups established pursuant to, or under
authority of, presidential directives or applicable memoranda,
and shall recommend all such changes thereto as may be necessary
7
or desirable to realize fully and promptly in practice the
Special Review Board's recommended model for the NSC system, as
well as all of the Board's other recommendations. These include
establishment of an interagency process in which the National
Security Advisor chairs the senior level committees of the NSC.
The National Security Advisor shall present, for consideration by
the NSC, a draft National Security Decision Directive for this
purpose not later than April 30, 1987.
II. Covert Actions and Use of Non-Government Personnel
I have directed the National Security Council's Planning and
Coordination Group (PCG) to review all covert action programs.
This review is designed to ensure that such programs are
commenced and pursued in accordance with law and are consistent
with United States policy. The PCG shall complete this review on
an expedited basis. It shall report its findings to the NSC on
or before April 30, 1987. The NSC promptly shall review all such
programs and seek my concurrence in their continuation as
appropriate. The NSC, through the National Security Advisor,
shall review current procedures for covert action policy approval
and coordination and shall recommend such changes as may be
necessary or desirable to ensure, among other things, the
following:
-- that proposed covert actions will be coordinated with NSC
participants, including the Attorney General, and their
respective recommendations communicated to the President;
-- that all requirements of law concerning covert activities,
including those requirements relating to presidential
authorization and congressional notification, will be addressed
in a timely manner and complied with fully;
-- consistent with the foregoing, that covert activities will
be subject to tightly restricted consideration, and measures to
protect the security of all information concerning such
activities will be enhanced;
-- that the NSC staff itself will not undertake the conduct of
covert activities; and
-- that the use of private individuals and organizations as
intermediaries to conduct covert activities will be appropriately
limited and subject in every case to close observation and
supervision by appropriate Executive departments and agencies.
8
This review shall take fully into account such changes as I have
authorized by this Directive to the structure of the NSC. The
National Security Advisor shall present, for consideration by the
NSC, a revised National Security Decision Directive on procedures
for covert action policy approval and coordination not later than
April 30, 1987.
III. Intelligence Process
Maintaining the integrity and objectivity of the intelligence
process is an important goal of the United States intelligence
effort. It demands, as the President's Special Review Board has
stated, careful differentiation between the respective roles of
foreign intelligence, on the one hand, and policy advocacy, on
the other. The Director of Central Intelligence shall provide
such additional review of, guidance for, and direction to, the
conduct of national foreign intelligence estimates as may
be required to accomplish fully this objective. The Director of
Central Intelligence shall review established procedures for the
production of national foreign intelligence estimates and, not
later than July 31, 1987, shall inform the NSC, through the
National Security Advisor, of any modifications or additions
thereto he may deem appropriate for this purpose.
IV. Reporting
The National Security Advisor shall keep me fully informed of
progress on all aspects of the implementation of the
recommendations of the President's Special Review Board.
J Sonald Reagan
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SCOTT ARMSTRONG, et al.,
)
)
Plaintiffs,
)
)
V.
)
Civil Action No.
)
89-0142 (JCR)
GEORGE H.W. BUSH, et al.,
)
)
Defendants.
)
)
DEFENDANTS' RESPONSES TO PLAINTIFFS' INTERROGATORIES
TO DEFENDANTS BUSH AND THE NATIONAL SECURITY COUNCIL
AND TO PLAINTIFFS' REQUEST FOR PRODUCTION OF DOCUMENTS
Pursuant to Rule 33, Fed. R. Civ. P., defendants respond
to Plaintiffs' Interrogatories to Defendants Bush and the
National Security Council ("NSC") as follows:
GENERAL OBJECTIONS
1.
Defendants object to the fact that plaintiffs have
directed interrogatories concerning all components of the
Executive Office of the President ("EOP") to President Bush.
President Bush, at the time of the actions giving rise to the
Complaint, was the Vice President and had direct responsibility
only for the functioning of the Office of the Vice President. He
would have had no knowledge or control over the record-keeping
practices of other components of the Executive Office of the
President. Moreover, to the extent that issues of Presidential
records determinations are at issue, the relevant records are
those of the Reagan administration and not President Bush. 1
1 Nor is the NSC suable eo nomine in a case of this nature
Cf. Blackman V. Guerre, 342 U.S. 512, 514-515 (1952). Neverthe-
less on the assumption that proper party defendants can be named
and in the interest of expediting disposition of the case, but
(continued...)
2. Defendants object to each interrogatory on the grounds
of relevance and unreasonable burden to the extent that judicial
review of plaintiffs' claims is not available in this action and
that the evidence of record is already sufficient for purposes of
summary judgment. See Memorandum of Points and Authorities in
Support of Defendants' Motion to Dismiss or Alternatively for
Summary Judgment ("Dfs. M.D. Memo.") at 16-27. Defendants
further object on the grounds that the majority of the
interrogatories call for legal conclusions that are either not
relevant to the case or that have been fully addressed in Dfs.
M.D. Memo. or in declarations and exhibits filed in the case.
Notwithstanding the foregoing, in an effort to provide the Court
with the fullest possible record regarding the PROFS computer
system and to expedite the resolution of this case on the merits,
defendants hereby serve the following responses. In responding
to any interrogatory, however, defendants do not concede the
relevance or materiality of the interrogatory or the subject to
which the interrogatory refers.
3. Defendants object to all interrogatories containing
computer terminology on the ground that such terminology is not
defined, making the question unclear.
1 ( continued)
without waiving the suability defense for other purposes, these
interrogatories are being responded to.
- 2 -
Specific Responses
INTERROGATORY NO. 1
(a) Specify those functions performed by NSC staff pursuant
to which the staff produces "records" that are subject to (i) the
FOIA, and/or (ii) the Records Management Act; (b) specify those
functions performed by NSC staff pursuant to which the staff
produces "Presidential records."
RESPONSE
See Memorandum in Support of Defendants' Motion to Dismiss
or Alternatively for Summary Judgment (Dfs. M.D. Memo.) at 5-6;
Declaration of George Van Eron (Van Eron Decl.), filed with Dfs.
M.D., Ex. 3 (White House Manual at E-1) ; Van Eron Decl. Ex. 6
(NSDD 266). National Security Decision Directive ("NSDD") 2,
later replaced by NSDD 266, established the inter-agency process
for the Reagan Administration called for by the National Security
Act of 1947. Records received or created pursuant to these
directives are NSC agency records for purposes of the FOIA. A
copy of NSDD 2 is provided herewith.
INTERROGATORY NO. 2
(a) State the number of individuals on the NSC staff;
(b) provide a breakdown of how many of those individuals are
(i) professionals, (ii) clerical, or (iii) other, and provide a
description of each such other category; and (c) provide a
breakdown of how many of those individuals produce (i) only
Presidential records and (ii) only agency records.
- 3 -
RESPONSE
As of January 19, 1989, there were approximately 184
individuals on the NSC staff, including 82 professionals and 102
members of the support staff. These figures include staff
detailed from other government offices. During the Reagan
Administration, all members of the NSC professional staff might
have produced both agency and Presidential records.
INTERROGATORY NO. 3
State whether defendants claim that, when any member of the
NSC staff, regardless of that person's position, conducts any
business relating to the National Security Advisor's role as
adviser to the President, the records generated or received by
such staff person are not "records" subject to either the Freedom
of Information Act, 5 U.S.C. § 552, et seq., or the Records
Management Act, 44 U.S.C. § 3101, et seq.; (b) if this is
defendants' position, state the legal and factual basis for it;
(c) if this is not defendants' position, explain under what
circumstances defendants claim that the members of the NSC staff
generate records that are "records" subject to (i) the FOIA; and
(ii) the Records Management Act.
RESPONSE
(a)-(c) Defendants object on the ground that this
interrogatory calls for legal conclusions. For a statement of
defendants' position see Defs. M.D. Memo. at 5-6, 19-22;
Declaration of James J. Hastings (Hastings Decl.) Ex. 1.
- 4 -
INTERROGATORY NO. 4
(a) List all components of the EOP; (b) with respect to each
such component, (i) state the number of its employees;
(ii) provide a breakdown of the number of such employees who are
professionals, clerical, or fall within another category and
provide a description of each such category; (iv) describe the
functions and responsibilities of the component and provide
citations to any statutes, regulations, and Executive Orders that
prescribe or describe such functions and responsibilities;
(v) state whether the component creates "records" subject to
(A) the FOIA and/or (B) the Records Management Act, and explain
under what circumstances it creates such records; and (v) state
whether the component creates "Presidential records," and explain
under what circumstances it creates such records.
RESPONSE
(a) - (b) (ii) : Response for the EOP (Not including the NSC) :
The following figures are approximate.
COMPONENT
TOTAL
PROF
ADM/CLER
Council of Economic Advisers
32
20
12
Council on Environmental Quality
12
9
3
National Critical Materials
Council
2
1
1
Office of Administration
230
108
122
Office of Management and Budget
595
439
156
Office of Policy Development
42
29
13
Office of Science and Technology
Policy
58
48
10
- 5 -
Office of the Vice President
24
14
10
President's Foreign Intelligence
Advisory Board
5
3
2
President's Intelligence Oversight
Board
2
1
1
United States Trade Representative
189
126
63
White House Office
428
296
132
Professional staff positions ("PROF") are typically filled
with persons with a college background and, if in the classified
civil service, would be paid in two-grade intervals from GS-11.
Common titles in this category are Budget Examiner; Economist;
Program, Management, or Policy Analyst; Computer Specialist;
Assistant, Deputy Assistant, or Special Assistant to the
President; Director, Deputy Director, Associate Director, etc.
Administrative or clerical support staff positions
("ADM/CLER") provide technical, administrative, or clerical
support to the Professional staff. If, in the classified civil
service, they would be paid at one-grade intervals at all levels,
usually with a maximum pay rate of GS-9. Common titles in this
category are Secretary; Administrative or Staff Assistant;
Accounting, Personnel, Payroll, or Budget Clerk or Technician;
Mail Clerk and Messenger; Motor Vehicle Operator; etc.
(a) (b) (ii) : Response for the NSC - See response to
Interrogatory Nos. 1-3 above.
(b) (iv) Defendants object to providing "citations to
statutes, regulations, and Executive Orders that prescribe or
describe" the functions and responsibilities of EOP components on
- 6 -
the ground that such citations are not relevant to this action
and that plaintiffs can obtain such citations through their own
legal research. See Plaintiffs' Opposition to Defendants' Motion
to Dismiss or Alternatively for Summary Judgment (Pls. opp.) at
17-19 and referenced exhibits.
(b) (v), (v) See Hastings Decl. Exs. 1-3; Dfs. M.D. Memo. at
5-6; Defendants' Reply to Pls. Opp. (Dfs. Reply) at 21.
INTERROGATORY NO. 5
(a) State the number of NSC staff members that use or have
access to the PROFS systems at (i) the NSC and (ii) the EOP;
(b) with respect to each component of the EOP, state the number
of staff members who use or have access to the PROFS system at
(i) the NSC and (ii) the EOP; and (c) explain who else has access
to the PROFS system, other than NSC and EOP staff members.
RESPONSE
As to the NSC [ (a) (i) and (b) (i) 1, the responses are based
on the number of USERIDs issued as of January 19, 1989. As to
employees of agencies and EOP components other than the NSC
(a) (ii) and (b) (ii), the responses are based on the number of
USERIDs issued as of December 30, 1988. These individuals had
access to PROFS, but may not have used the system.
(a) (i)
Approximately 92
(a) (ii)
None
(b) (i)
None (Prior to January 19, 1989, approximately 5
staff members of the Office of the Vice-President
had USERIDs)
- 7 -
(b) (ii) Unassigned, available to systems users - 47
Office of Administration - 154
White House Office - 70
Office of the Vice President - 13
Office of Science and Technology Policy - 10
Office of Management and Budget - 3
Office of Policy Development - 4
United States Trade Representative - 4
Council on Environmental Quality - 1
Others - 1
(c) PROFS USERIDs for the EOP system have been issued to 69
users in 24 federal agencies outside the Executive Office of the
President. The percentage of computer resources used by these
users is very small. It constitutes approximately 8% of total
connect time. No NSC PROFS system USERIDs have been issued
outside the Executive Office of the President; however, a few FBI
agents were given very controlled access to the PROFS system for
limited purposes with respect to the Iran/Contra investigations.
INTERROGATORY NO. 6
(a) State whether the information recorded on the PROFS
computer tapes is representative of the kind of information that
is normally generated on the PROFS system by (i) the NSC staff
and (ii) the EOP staff; and (b) if the information is not
representative, explain in what respects it is not, and explain
the reasons that it is not.
- 8 -
RESPONSE
Because individual use of the PROFS system varies, it is
impossible to state whether the information on the backup tapes
is "representative of the kind of information that is normally
generated on the PROFS system. PROFS backup tapes are only a
"snapshot" of the system at a given point in time. See Van Eron
Decl. 9 6 and Ex. 2; Declaration of Dennis Keating (Keating
Decl.) 9 15.
INTERROGATORY NO. 7
(a) State whether the PROFS system is used as a substitute
for interoffice mail by (i) the NSC and/or (ii) the EOP; (b) if
so, explain under what circumstances it is so used and describe
the frequency with which the system is so used (e.g., on a daily
basis, once a week, several times a month, rarely, etc.) ;
(c) state whether any, and how much, information recorded on the
PROFS computer tapes was generated as a substitute for
interoffice mail; (d) state whether it is defendants' position
that when the PROFS system is used as a substitute for
interoffice mail, the information generated on the system is
subject to (i) the FOIA; (ii) the Records Management Act; or
(iii) the Presidential Records Act, explain the circumstances
under which information is subject to each statute and explain
the legal- basis for your position; (e) with respect to the use of
the PROFS system as a substitute for interoffice mail by the NSC
and/or the EOP, set forth all information, including the basis or
source of such information, that you have concerning (i) the
- 9 -
number of times such information transmitted or received over the
system has been printed out in hard copy (A) on a daily basis,
(B) on a weekly basis, (c) on a monthly basis, and (D) on a
yearly basis, (ii) the circumstances under which such information
has been printed out in hard copy; and (iii) identify all
documents and describe all oral communications that in any way
instruct the NSC staff or the EOP staff that such information
should be printed out in hard copy; and (f) state whether you are
able to identify all documents that constitute the hard copies of
information on the PROFS computer tapes that was used as a
substitute for interoffice mail, and state the number of such
documents and identify the locations of them.
RESPONSE
(a)-(c) Defendants object to the use of the term
"interoffice mail," which is not defined. The different
components of the EOP and individual staff members have used
different functions of the PROFS system with varying frequency.
Many of the users of the system during the Reagan Administration
are no longer employed by an EOP component. It is impossible to
quantify the frequency of usage for particular functions and the
frequency with which users printed in hard copy data entered into
the system without polling each user and/or reviewing each entry
item by item. For a description of the functions of the PROFS
system at the NSC, see the Van Eron declaration and attached
exhibits. For a description of the functions of the PROFS system
- 10 -
available to other EOP components see the declarations of Gordon
Riggle and Dennis Keating.
(d) Defendants object on the grounds that the interrogatory
calls for a legal conclusion and is unduly burdensome. Review of
each individual "hard copy" generated from PROFS and the
circumstances surrounding its creation, use, and storage would be
necessary to determine whether it is a "record" within the
meaning of any of these statutes.
(e) (i) See response to Interrogatory 7 (a) - (c) above.
(e) (ii) Individual users are responsible for printing hard
copies at their individual work stations.
(e) (iii) Specific instructions regarding record-keeping
responsibilities of EOP components are attached to the Van Eron,
Riggle, and Hastings declarations. In addition, a meeting was
conducted in December 1988 in conjunction with the issuance of
the Culvahouse Memorandum attached as Exhibit 2 to the Hastings
Declaration. The purpose of that meeting was to brief
representatives of relevant components of the Executive Office of
the President on the substance of the memorandum. In addition,
other oral communications regarding record-keeping have taken
place among NSC and EOP staff members, but details regarding such
communications cannot be determined.
(f) Hard copies of PROFS data that are Presidential records
would be in the custody of the National Archives. Hard copies of
PROFS data that are federal records would be located in the
respective agency components of the EOP or at appropriate storage
- 11 -
facilities. These records are not filed with any reference to
the fact that they were generated on the PROFS system, however.
INTERROGATORY NO. 8
(a) State whether the PROFS system is used by (i) the NSC
and/or (ii) the EOP, to transmit and receive messages concerning
the conduct of government business; (b) if so, explain under what
circumstances it is so used and, to the extent that you have not
addressed such messages in response to Interrogatory No. 7,
provide all of the information requested in that Interrogatory,
with respect to the use of the PROFS system to transmit and
receive such messages; and (c) state the number of instances in
which the NSC or EOP has sought reimbursement from staff members
for their personal use of the PROFS system.
RESPONSE
(a)-(b) Defendants object to the use of the phrase "conduct
of government business," which is unclear and undefined. The
system is used at the discretion of each individual user. See
response to Interrogatory 7(a)-(c) above.
(c) None.
INTERROGATORY NO. 9
(a) State the number of (i) NSC staff members and (ii) EOP
staff members, who use the PROFS system to create and maintain
(A) individual calendars for themselves and/or (B) calendars for
others; (b) state whether any (i) NSC staff members and (ii) EOP
staff members, who create and maintain calendars on the PROFS
system, make those calendars accessible to others on the PROFS
- 12 -
system; (c) if so, state the number of such staff members who
make their calendars accessible to others, explain the frequency
with which this is done, and explain the circumstances under
which staff members make their calendars accessible to others and
state the purpose (s) for which such calendars are made accessible
to others; (d) state whether it is defendants' position that
calendars created and maintained on the PROFS system and made
accessible to others in either the NSC or the EOP are not
(i) agency records subject to the FOIA, (ii) records subject to
the Records Management Act, or (iii) Presidential records, and
explain the factual and legal basis for your position;
(e) explain under what circumstances members of the (i) NSC staff
and (ii) EOP staff, have been instructed to print out in hard
copy calendars that are created on the PROFS system and made
accessible to others at the NSC or the EOP; (f) identify all
written and describe all oral instructions to the staff of the
NSC or the EOP regarding their responsibilities to print out such
calendars; and (g) state whether you are able to identify all
documents that constitute the hard copies of calendars that are
recorded in the PROFS computer tapes, and state the number of
such documents and describe the locations and custodians of them.
RESPONSE
(a) The use of calendars is not centralized and is subject
to the discretion of each individual user. See response to
Interrogatory No. 7(a)-(c) above.
(b) Yes, at the discretion of each individual user.
- 13 -
(c) See response to Interrogatory No. 7 (a) - (c) above.
(d) See response to Interrogatory No. 7 (d) above.
(e) Copies of the calendars of former National Security
Advisors General Colin Powell and Mr. Frank Carlucci are in the
custody of the National Archives at the Reagan Library in
California. For other EOP staff members, see response to
Interrogatory 7 above.
(f) See response to Interrogatory No. 7 (e) (iii) above.
(g) See response to Interrogatory No. 9 (d) above.
INTERROGATORY NO. 10
(a) State the number of (i) NSC staff members and (ii) EOP
staff members who use the PROFS system's calendar processing
function to schedule meetings concerning the conduct of
government business, and explain the frequency with which this
function of the PROFS system is used for this purpose (e.g.,
daily, weekly, monthly, seldom) ; (b) state whether when the PROFS
system is used to schedule meetings, such schedules may include
information concerning who will attend the meetings, the date the
meetings will be held, the agenda for the meeting, the place of
the meeting, and/or the subject matter of the meetings; (c) state
whether any (i) NSC staff members and (ii) EOP staff members, who
use the PROFS system to schedule such meetings, make those
schedules accessible to others on the PROFS system; (d) if so,
state the number of such staff members who do so, explain the
frequency with which this is done, explain the circumstances
under which staff members make such schedules accessible to
- 14 -
others, and state the purpose (s) for which such schedules are
made accessible to others; (e) state whether any and how much
information recorded in the PROFS computer tapes constitutes
information concerning the scheduling of meetings; (f) state
whether it is defendants' position that when (i) NSC staff and
(ii) EOP staff use the PROFS system to schedule meetings and
then make those schedules accessible to others on the PROFS
system such information does not constitute (A) agency records
subject to the FOIA, (B) records subject to the Records
Management Act, or (c) Presidential records, explain under what
circumstances defendants claim such information does not fall
within each of these categories of records, and state the basis
for defendants' position; (g) explain under what circumstances
members of the (i) NSC staff and (ii) EOP staff, have been
instructed to print out in hard copy information concerning
meetings that have been scheduled over the PROFS system;
(h) identify all written and describe all oral instructions to
the staff of the NSC or the EOP regarding their responsibilities
to print out such information; and (i) state whether you are able
to identify all documents that constitute information concerning
the scheduling of meetings that is contained in the PROFS
computer tapes, and state the number of such documents and
identify the locations and custodians of them.
RESPONSE
(a) See response to Interrogatory 7 (a) - (c) above.
- 15 -
(b) With the EOP system, such information may be included
at the discretion of the individual user; however, agendas are
not normally included. Although invitees may be identified,
attendance is not.
Within the NSC staff, the PROFS system can be used to
"schedule" meetings in the same way as the telephone. The NSC
PROFS scheduling function cannot be used to schedule meetings
with people outside of the NSC staff or to schedule official NSC
meetings or NSC subgroup meetings.
(c) - (e) See response to Interrogatory 7 (a) - (c) above.
(f) See response to Interrogatory 7 (d) above.
(g) - (h) See response to Interrogatory 7 (e) (iii) above.
(i) No.
INTERROGATORY NO. 11
(a) State the number of (i) NSC staff members and (ii) EOP
staff members who use the PROFS system to draft documents, and
explain the frequency with which the PROFS system is used for
this purpose (e.g., daily, weekly, monthly, seldom) ; (b) state
whether any (i) NSC staff members and (ii) EOP staff members who
use the PROFS system to transmit draft documents or otherwise
make the information contained in such drafts or the resulting
documents accessible to others on the PROFS system; (c) if so,
state the number of such staff members who do so, explain the -
frequency with which this is done, explain the circumstances
under which staff members make the information contained in
documents and drafts accessible to others and state the
- 16 -
purposes (s) for which such information is made accessible to
others; (d) state whether any and how much information contained
in the PROFS computer tapes constitutes drafts of documents or
the information contained in the resulting documents; (e) state
whether it is defendants' position that when (i) NSC staff and
(ii) EOP staff use the PROFS system to (A) draft documents and
(B) transmit or otherwise make the information in such drafts or
resulting documents available to others on the PROFS systems,
such information does not constitute (1) agency records subject
to the FOIA, (2) records subject to the Records Management Act,
or (3) Presidential records, and, if so, explain under what
circumstances defendants claim that such information does not
fall within each of these categories of records and state the
basis for defendants' position; (f) explain under what
circumstances members of the (i) NSC staff and (ii) EOP staff,
have been instructed to print out in hard copy documents drafted
on the PROFS system; (g) identify all written and describe all
oral instructions to the staff of the NSC or the EOP regarding
their responsibilities to print out such information; (h) state
whether you are able to identify all documents that constitute
the drafts and final documents that are recorded in the PROFS
computer system, and state the number of such documents and
identify the locations and custodians of them; and (i) state
whether, with respect to each such document, the NSC or EOP has
other documents that demonstrate who participated in the editing
of the document and when such editing was done.
- 17 -
RESPONSE
(a) (i) NSC staff would not ordinarily create documents on
PROFS. See Van Eron Decl. 5. See also response to
Interrogatory 7 (a) - (c) above regarding any documents that might
have been created.
(a) (ii) None.
(b) - (c) See response to Interrogatory 7 above. At the NSC,
staff members circulate hard copies of documents in draft or
final form for review and/or formal clearance. The PROFS system
is viewed as clumsy and not "user friendly" for purposes of
document transmittal.
(d) At the EOP, approximately .0005% of the space on PROFS
is allocated to the document storage function. At this time,
that space is approximately 85% full.
At the NSC, approximately .021% of the space on PROFS is
allocated to the document storage function.
(e) See response to Interrogatory 7 (d) above.
(f) - (g) See response to Interrogatory 7 (e) (iii) above.
(h) For both systems, see response to Interrogatory No.
7 (f) above. This information could be determined through review
of each PROFS document database index file.
(i) No. See response to Interrogatory 7 (a) - (c) above.
INTERROGATORY NO. 12
(a) State the number of (i) NSC staff members and (ii) EOP
staff members for whom the PROFS system creates a chronological
log or listing that keeps track of messages, documents, or other
- 18 -
transmittals sent or received over the system; (b) with respect
to any such files, state whether they contain information
concerning (i) who the transmittal is from or to, (ii) the
subject of the transmittal, (iii) the date and time of the
transmittal, or (iv) comments concerning the transmittal;
(c) state the purpose (s) for which such chronological files are
created; (d) state whether any (i) NSC staff members and (ii) EOP
staff members for whom the PROFS system creates such
chronological logs or listings make them accessible to others on
the PROFS system; (e) if so, state the number of such staff
members for whom the PROFS system performs this function, explain
the frequency with which this is done, explain the circumstances
under which staff members make such chronological logs or
listings accessible to others and state the purposes (s) for which
such logs or listings are made accessible to others; (f) state
whether any and how much information in the PROFS computer tapes
constitutes the chronological logs or listings of such staff
members; (g) state whether it is defendants' position that when
the PROFS system creates such chronological logs or listings for
(i) NSC staff and (ii) EOP staff, such information does not
constitute (A) agency records subject to the FOIA, (B) records
subject to the Records Management Act, or (c) Presidential
records, and state whether defendants take the same position with
respect to such logs or listings that are made accessible to
others on the PROFS system, explain under what circumstances
defendants claim such logs or listings do not fall within each of
- 19 -
these categories of records, and state the basis for defendants'
position; (h) explain under what circumstances members of the
(i) NSC staff and (ii) EOP staff, are instructed to print out in
hard copy the chronological logs or listings that are created on
the PROFS system; (j) identify all written and describe all oral
instructions to the staff of the NSC or the EOP regarding their
responsibilities to print out such information; and (k) whether
you are able to identify all documents that constitute the
chronological logs and listings that are recorded in the PROFS
computer tapes, and state the number of such documents and
identify the locations and custodians of them.
Responses for the EOP system:
Defendants object on the ground that the question is
unclear.
(a) The system does not create a log for messages. As to
notes, the sender and recipient users may keep a log at their own
discretion. An index for documents is created for each user. A
chronological log is created for uploading documents
(transferring documents from user's personal computer to PROFS)
and downloading documents (transferring documents from PROFS to
user's personal computer).
(b)
Notes
Documents
Document Transmittal
(i)
yes
yes
upload - identifies
sender
download - identi-
fies sender and
recipient
- 20 -
(ii)
under user
under user
yes
control
control
(iii)
yes
no
yes
(iv)
no
no
no
(c) The purpose of note logs is decided by the individual
user. Chronological logs for documents and transmittals are for
system control.
(d) Unless one user gives another his password, EOP staff
users cannot make note logs accessible to others on the system.
(e) See response to Interrogatory 7 (a) - (c) above.
(f) Document logs are stored in document space and
constitute a small part of the .0005% of the system space
allocated for documents. Note and transmittal logs are stored in
the 41% of the system space that is user space.
(g) See response to Interrogatory 7 (d) above.
(h), (j) See response to Interrogatory 7 (e) (iii) above.
(k) No.
Response for the NSC System
Defendants object on the ground that the question is
unclear.
(a) The system does not create a log for messages. In the
rare event a user created a document on the PROFS system, the
system would create an index for such document. In ordinary use,
PROFS creates an "inbox file" for PROFS notes received by a user.
Once the user opens the "inbox," the user can retain, erase, or
transfer the note to another file (a "notelog") as he wishes.
PROFS notes sent by a user ordinarily are automatically filed in
- 21 -
a note log (from which the sender can transfer, erase, or retain
the note) i however, the PROFS user can choose not to retain in
the note log a copy of the note sent. In that use of various
files is a matter of individual user discretion, we cannot be
more specific.
(b) The "inbox file" and any notelog files would contain
information concerning (i) who the transmittal is from or to,
(ii) the subject of the transmittal, and (iii) the date and time
of the transmittal. The meaning of interrogatory No. (b) (iv) is
unclear.
(c) Inbox files and the automatic retention of outgoing
notes are a PROFS function. Creation of additional files would
be a matter of individual user discretion.
(d) - (e) This would not be ordinary NSC staff practice. In
order for an individual to make his inbox and notelog files
available to another user, he would have to share his password
and USERID. Such information would not be available on the
computer. See response to Interrogatory 7(a)-(c) above.
(f) Note and transmittal logs are stored in approximately
1.26% of the space on PROFS (as of January 19, 1989).
(g) See response to Interrogatory 7 (d) above.
(h), (j) See response to Interrogatory 7 (e) (iii) above.
(k) No.
INTERROGATORY NO. 13
(a) State whether any aspect of the PROFS system reflects or
contains any distribution lists, or information concerning the
was - available 22 - to users for
Hote Ho & transmittal logs as of
January 19, 1989.
distribution or routing of transmittals; (b) explain what
information is reflected on such a list; (c) state whether such
distribution lists or the routing and distribution information
identifies (i) to whom a particular transmittal was sent,
(ii) the individuals authorized to receive or otherwise review
the transmittal, (iii) which individual(s retrieved the
transmittal for viewing, and/or (iv) information concerning any
additions or alterations to the transmittal; (d) state whether,
in all cases, when a hard copy of a transmittal is printed out
from the PROFS system, it reveals all of the information
contained on the distribution list with respect to that
particular transmittal; (e) state whether (i) NSC staff and
(ii) EOP staff are instructed that when they print out a hard
copy of information from the PROFS system because it constitutes
either a record subject to the FOIA or the Records Management Act
or a Presidential record, they must ensure that the distribution
list for each such copy is also printed out; (f) if so, identify
all documents that reflect such an instruction and describe all
such oral instructions; (g) state whether defendants take the
position that the distribution list that would demonstrate to
whom an agency "record" or "presidential record" was transmitted
or who was permitted to read the transmittal is information that,
in and of itself, is covered by the FOIA or the Records
Management Act, or is a Presidential record; and (h) if not,
explain the legal and factual basis for defendants' position.
- 23 -
RESPONSE
Response for the NSC and EOP Systems:
(a)-(d) Defendants object to this interrogatory on the
ground that "distribution list" is not defined. The system
contains a full system directory of the USERIDs used to route
transmittals. This "directory" is the core or baseline by which
nicknames or distribution lists are used to transmit messages.
In addition, there is a user aid available -- a "distribution
list," which is a user-created file created for convenience when
the user frequently sends notes to the same group of individuals.
In addition, there is a user aid available -- a "nickname"
function, which can be used by a sender (e.g. for convenience as
an abbreviation or as an easier identifier to remember). If
either the nickname or the distribution list function is used,
when a note is printed by sender or receiver, full USERIDs
ordinarily would be displayed on the hard copy. See response to
Interrogatory No. 7(a)-(c) above.
Response for the NSC System:
(e) (f) When a hard copy of a PROFS note is printed,
it would ordinarily reveal the sender and all recipients.
Accordingly, no additional instructions were necessary to
preserve this information in record material.
(g)-(h) Defendants object on the ground that these
interrogatories call for a legal conclusion. The USERID would be
printed if the document is "record" material. For such data
standing alone, see Defs. Reply at 12-13.
- 24 -
Response for the EOP System:
(e) - (f) See response to Interrogatory No. 7(e) (iii) above.
(g) - (h) Defendants object on the ground that the
Interrogatory calls for a legal conclusion. See response to
Interrogatory No. 7 (d) above.
INTERROGATORY NO. 14
(a) State whether the PROFS system reflects information
concerning who is authorized to review an individual's calendar
that is created or maintained on the system; (b) state whether
such authorization information is always reflected on a hard copy
when calendar information is printed out; (c) if it is not,
explain whether defendants take the position that information
reflecting who was authorized to review an individual's calendar
is, in and of itself, information that is covered by the FOIA or
the Records Management Act, or is a Presidential record; (d) if
not, explain the basis for defendants' position.
RESPONSE
Response for the EOP System:
(a) Yes, the PROFS system contains information concerning
who is authorized to review an individual's calendar.
(b) No.
(c)-(d) Defendants object on the ground that this
interrogatory calls for a legal conclusion. For a statement of
defendants' position, see Dfs. Reply at 12-13.
Response for the NSC System:
- 25 -
(a) Yes, the PROFS system contains information concerning
who is authorized to review an individual's calendar.
(b) No.
(c) - (d) Defendants object on the ground that this
interrogatory calls for a legal conclusion. For a statement of
defendants' position, see Dfs. Reply at 12-13.
INTERROGATORY NO. 15
(a) State whether the PROFS system contains information
concerning (i) "user files," or files created by or for the
individual user of the system to assist that individual in the
conduct of government business or (ii) "user space," or
information that reveals how much the system has been used by a
particular individual to create and transmit information; (b) if
so, explain what kinds of information are kept in such files and
are reflected concerning the user space; (c) state whether such
user file information is always reflected in the hard copies of
documents that are printed out by (i) NSC staff or (ii) EOP
staff; (d) state whether defendants take the position that such
(i) user file information and (ii) user space information, does
not, in and of itself, constitute either a record subject to the
FOIA or the Records Management Act, or a Presidential record; and
(e) if so, explain the basis for that position.
RESPONSE
(a) Defendants object to the use of the terms
"information," "user files," and "user space," as those terms are
not clearly defined. For purposes of responding to this
- 26 -
interrogatory, the term "information" is defined as file control
data generated and maintained by the operating system. If "user
file" is defined as a file created and maintained by a user of
the PROFS system, such as a note log or a distribution list, the
computer on which PROFS runs does contain information about "user
files." If "user space" is defined as the portion of a disk
drive (which is a magnetic storage device attached to the main
frame computer) allocated to a particular USERID, the PROFS
systems does not contain this information; however, size and
location on the disk drive ("address") is information generated
and maintained by operating system software on the computer on
which PROFS runs. If the interrogatory refers to "information
that reveals how much the system has been used by a particular
individual to create and transmit information," the PROFs system
does not contain this information; however, the operating system
does generate and record information such as the date and time a
particular USERID LOGGED-OFF the system.
(b) Information such as the size and location of the file.
(c) No, given the definitions used above.
(d) (e) See response to Interrogatory No. 14(c)-(d) above.
INTERROGATORY NO. 16
(a) State whether members of the (i) NSC staff or (ii) EOP
staff use the PROFS system to set up "nickname files," or a
procedure by which the user can, by code, tell the system to
transmit information to particular individuals who have access to
the PROFS system; (b) if so, state how often such a procedure is
- 27 -
employed by (i) the NSC staff and (ii) the EOP staff; (c) state
whether a hard copy of information printed from the PROFS system
would necessarily reflect that a code was used to transmit the
information, and, if it would, state whether the hard copy would
reflect the meaning of the code, i.e., to whom the information
was sent; (d) state whether it is defendants' position that such
"nickname files" or codes used to transmit information over the
PROFS system do not, in and of themselves, is either a record
covered by the FOIA or the Records Management Act, or a Presi-
dential record, and if so, state the basis for such position.
RESPONSE
See response to Interrogatory No. 13 above.
INTERROGATORY NO. 17
State all facts which form the basis for the statement
contained in the Declaration of Gordon Riggle, 1 9, that "if a
message had enduring value, or if it documented agency functions
and transactions, the message was printed in hard copy and
retained in an official file, or its substance was memorialized
in a written memorandum or letter."
RESPONSE
Riggle Decl. Ex. 1 and Gordon Riggle's personal knowledge of
the use of the system by himself and his staff.
INTERROGATORY NO. 18
(a) When a member of the (i) NSC staff or (ii) EOP staff
creates and transmits a message over the PROFS system, who -- the
sender, receiver, or both -- is responsible for deciding whether
- 28 -
the message (i) has "enduring value," (ii) documents "agency
functions and transactions," or (iii) is a "Presidential
record?"; (b) if a PROFS message is sent or made available to
several members of the staff, are all members who received it
responsible for making (i) independent or (ii) collective
determinations of the record status of the message?; (c) identify
all documents that in any way reflect instructions to either the
(i) NSC staff or (ii) EOP staff explaining which staff person is
responsible for determining the record status of a message
transmitted over the PROFS system, and describe all oral
instructions to that effect; (d) state whether defendants take
the position that all members of the NSC and EOP staff interpret
their responsibilities to print out hard copies of all PROFS
messages that rise to the level of either a "record" or a
"Presidential record" in the same way; (e) if so, state the basis
for such position; (f) if not, explain how the NSC and EOP ensure
that all PROFS messages that are either "records" under the
Records Management Act or "Presidential records" are preserved;
and (g) state whether all members of the (i) NSC staff and
(ii) EOP staff who use the PROFS system, including clerical
workers, make decisions as to what information transmitted or
received by them constitutes either "records" subject to the
Records Management Act or Presidential records.
RESPONSE
(a) - (b) Both the sender and recipients may make
determinations whether a PROF note is a federal or Presidential
- 29 -
record. For the NSC, whether record information is a "federal
record" or a "presidential record," is determined by the task for
which it was generated. The function of other EOP components
determines whether record information of those components is a
"federal record" or a "presidential record."
(c) See Van Eron Exs. 1, 3-5; Hastings Decl. Exs. 1-3; see
also response to Interrogatory No. 7 (e) (iii).
(d) - (f) Clear instruction was given to staff members
regarding the record status of information generated and received
through any documentary form, including electronic data. Staff
were expected to follow those instructions. It is impossible to
state whether staff members interpreted their responsibilities
"in the same way. See Pls. M.D. Memo. at 32, note 8.
(g) All staff may make decisions as to what information
constitutes "records;" however, whether a "record" is a "federal"
record or a "Presidential" record is determined by the task for
which it was generated and/or the function of the component
generating or receiving the information.
INTERROGATORY NO. 19
(a) State the factual and legal basis for the assertion on
page 35 of defendants' memorandum of points and authorities in
support of its motion to dismiss ("memorandum"), that "'drafts'
are non-record materials outside the scope of the Federal Records
Acts;" and (b) state whether, in making that assertion,
defendants mean to include the Presidential Records Act.
- 30 -
RESPONSE
(a) See Dfs. M.D. Memo. at 33-36; see also Declaration of
Claudine J. Weiher (Weiher Decl.) Ex. 1 (NARA Bulletin 89-2 and
Records Management Handbook at 2) ; see also Riggle Decl. Ex. 1 at
7.
(b) Reagan Administration direction regarding the status of
drafts of "Presidential records" is set forth in Hastings Decl.
Ex. 2.
INTERROGATORY NO. 20
(a) State the factual and legal basis for defendants' claims
that any information that remains on the PROFS computer tapes
concerning the NSC staff's and EOP staff's functions as advisers
to the President are either "personal records" or "extra copies
of documents produced only for convenience or reference," within
the meaning of the Presidential Records Act, 44 U.S.C. § 2201 (2) ;
(b) describe all steps that have been taken by defendants to
determine that none of the information falls outside of these two
categories of information; (c) state whether all such "extra
copies" have been "clearly so identified" as such, as required by
the Presidential Records Act and, if so, explain how this was
accomplished; (d) describe the steps that were taken by
defendants to ensure that all "extra copies" were "clearly so
identified;" and (e) state whether it is technologically feasible
to designate such "extra copies" within the PROFS system as
"clearly so identified."
- 31 -
RESPONSE
Defendants object to the interrogatory because it does not
accurately reflect defendants' statements in their motion for
summary judgment. See Dfs. M.D. Memo at 17, 29 and 33
(defendants assert that some information remaining on the PROFS
computer tapes may be non-record material). Moreover, this
interrogatory calls for legal conclusions set forth in Dfs. M.D.
Memo. at 29-32. Staff members were instructed to print out in
hard copy all "Presidential records." Hastings Decl. Exs. 1-3;
Van Eron Decl. Exs. 4, 5. The EOP components consider the hard
copy to be the "record." Identical electronic data is a "copy"
of the record. Without examining the data in each user's
directory, defendants assumed for purposes of the referenced
Memorandum that at least some users may have data meeting the
definition of "personal records" on the PROFS system.
INTERROGATORY NO. 21
With respect to paragraph 19 of defendants' Statement of
Material Facts, (a) describe the procedures that are used by
(i) the NSC and (ii) the EOP to ensure that material that rises
to the level of either a "record" subject to the Records
Management Act or a "Presidential record" has not been "lost
through mechanical failure or inadvertent deletion;" and (b) in
particular, identify who is responsible for reviewing the backup
tapes to ensure that such materials has not been "lost," and
explain under what circumstances such a review is conducted.
- 32 -
RESPONSE
Plaintiffs misunderstand the backup process. The backup
tapes are not reviewed for lost material. Rather, if the system
fails mechanically, causing current data to be lost, the backup
tape can be used to retrieve data that had been recorded on the
tape if a user requests it. Similarly, if a user inadvertently
deletes information, the information can be retrieved if it was
captured on a backup tape.
INTERROGATORY NO. 22
Explain what is meant by the following statement made in
Exhibit 2 attached to the Declaration of Van Eron: "Should you
be tasked for action via PROFS/A1, the PROFS/A1 note should be
printed and made part of the package forwarded for action by the
principals," and, in particular, explain what is meant by
(i) "tasked for action," (ii) "via PROFS/A1," and (iii) "the
principals.
RESPONSE
(a) "Tasked for action" means assigned work, e.g., to
prepare a memorandum, set up a meeting, etc.
(b) "via PROFS/A1" means through an electronic mail note.
(c) During the Reagan Administration, "the principals"
were the National Security Advisor, the Deputy National Security
Advisor, and the Executive Secretary of the NSC.
INTERROGATORY NO. 23
With respect to each of the Exhibits attached hereto as
Plaintiffs' Discovery Exhibits A-J, (a) state whether the
- 33 -
document is a hard copy of information that at one time existed
on the PROFS system and explain the basis for your statement;
(b) state whether defendants take the position that the document,
or any portion thereof, is (i) an "agency record" subject to the
FOIA, (ii) a "record" subject to the Records Management Act, or
(iii) a Presidential record, and explain the basis for each such
position; (c) state whether the document reflects all of the
individuals to whom the information was distributed or who
reviewed or otherwise had access to the information through the
PROFS system, and, if it does reflect such information, specify
how that information is so reflected; (d) state whether the
document reflects when it was transmitted and when it was
received or reviewed by each individual to whom it was sent or
who otherwise had access to it in the PROFS system, and if it
does reflect such information, specify how that information is so
reflected; (e) state the circumstances under which the document
was printed out in hard copy; (f) state whether this document was
printed out in hand copy by (i) the individual who created it and
(ii) the individual (s) to whom the information was transmitted,
or (iii) any other person, and state the basis for your answer;
(g) state whether the document was printed out in response to a
request for information from the Congressional Select Committees
investigating the Iran-Contra matter; and (h) state whether the
document was ever printed out prior to such request, and, if so,
state when and identify by whom.
- 34 -
RESPONSE
Defendants object on the grounds that the information sought
is not material to the case, cannot be expected to lead to
material evidence and that the questions are unclear. Defendants
also object on the grounds that the interrogatory calls for legal
conclusions and that answers could interfere with pending
criminal proceedings.
The exhibits appear to be hard copies of data on tapes
preserved in late 1986 and early 1987 in part because of the
investigation of the President's Special Review Board and the
ongoing criminal investigations/prosecutions into Iran/Contra
matters. Van Eron Decl. 1 6. No one presently on the NSC staff
can attest to the authenticity of the exhibits.
The data, which has been so useful in the various
Iran/Contra investigations, were retained prior to any request by
the FBI or other investigators, as follows. On the evening of
Tuesday, November 25, 1986, the day that then Attorney General
Edwin Meese publicly announced the connection between the Iran
initiative and the contras, White House Communications Agency
(WHCA) Master Sergeant Kelly Williams, at the direction of NSC
Secretariat Director George Van Eron, as a prudent measure to
secure and preserve information on the USERID account of Oliver
North, changed the USERID password to Oliver North's PROFS
account. After this change, Oliver North was not able to obtain
access or in any way alter the information on his USERID account
on the NSC PROF system.
- 35 -
On Friday, November 28, 1986, as a prudent measure the
following steps were taken: 1. the November 15 and 22, 1986,
PROFS backup were secured and preserved by WHCA; 2. on
November 29, 1986, a back-up tape was made of all PROFS data
existing as of that date; and 3. this new tape was secured and
preserved. WHCA personnel considered the question of the WHCA
back-up tapes then in existence pursuant to the then standard
WHCA practice. The then standard practice for WHCA would have
been to write over the back-up tapes from the Saturday night two
weeks previous (15 November) the next day. In February 1987, at
the request of the NSC, WHCA created and retained additional
back-up tapes for the use of the various investigating entities.
At all times during the various Iran/Contra investigations, the
NSC staff and WHCA provided the FBI and other investigators with
the technical and other support necessary.
INTERROGATORY NO. 24
With respect to Exhibit K attached hereto, which is an
article from the Washington Post, dated February 14, 1989 (at A-
5, col. 3), (a) state whether the "note written on an NSC
computer by McFarlane on Nov. 8, 1986, "referred to therein
refers to a PROFS note; (b) if so, state whether it is
defendants' position that this information does not rise to the
level of either a record subject to the Records Management Act or
the Disposal of Records Act, or a Presidential record, and state
the basis for such position; (c) state the circumstances under
which the note was printed out in hard copy; (d) state whether
- 36 -
the note was printed out in hard copy by (i) McFarlane and
(ii) the individual (s) to whom it was transmitted, or (iii) some
other person, and state the basis for your answer; (d) state
whether the note was printed out in hard copy in response to a
request from the Congressional Select Committees investigating
the Iran-Contra matter; and (h) if so, state whether the document
was ever printed out prior to such request and, if so, state when
and identify by whom.
RESPONSE
24. See response to Interrogatory 23 above.
INTERROGATORY NO. 25
With respect to the requirement of the Records Management
Act, 44 U.S.C. § 3102(1), that the head of each agency "shall
establish and maintain an active, continuing program for the
economical and effective management of the records of the
agency," including "effective controls over the creation and over
the maintenance and use of records in the conduct of current
business," (1) identify all documents that reflect those programs
with respect to the NSC's and the EOP's creation, maintenance,
and use of the PROFS system and the information contained on it.
RESPONSE
For basic direction regarding the use of PROFS during the
Reagan administration, see exhibits to Van Eron and Riggle
declarations; see also Weiher Decl. Exs. 2, 3 [General Records
Schedules ("GRS") 20 and 23].
- 37 -
INTERROGATORY NO. 26
(a) State whether (i) the NSC and (ii) the EOP, have
established and maintained a records disposition program, as
required by 36 C.F.R. § 1228.10, with respect to information
generated by the PROFS system; (b) state whether such disposition
program includes instructions for retention of any information in
the PROFS system that is considered to be (i) "temporary
records," pursuant to 36 C.F.R. § 1228.12 (b) and (ii) "nonrecord
material," pursuant to § 1228.20 (b) (5) ; and (c) identify all
documents that reflect any such dispositions programs; (d) if
defendants take the position that no such disposition schedules
are required with respect to information generated by the PROFS
system, state the basis for such position, particularly as it
relates to the requirement that such programs include
instructions for the disposition of "temporary records" and
"nonrecord materials."
RESPONSE
PROFS is not a records system. At the NSC, to the extent
that a record may be created using PROFS, the creator/sender is
required to print a hard copy and send the hard copy to the NSC
Secretariat where it is filed in either agency or presidential
files depending on the task for which the document was generated.
NSC agency records are periodically transferred to the National
Archives and Records Administration ("NARA"). NSC. Presidential
records are transferred to NARA for the President's library at
the end of the President's term in office.
- 38 -
For other EOP agency components, to the extent that
information generated by the PROFS system rises to the level of
an agency record, see Weiher Decl. Exs. 2, 3.
INTERROGATORY NO. 27
With respect to defendants' memorandum, the last sentence on
the bottom of page 38, continuing to the top of page 39, state
whether defendants take the position that an agency that is
subject to the FOIA may destroy records in its possession after a
FOIA request for those records is received by the agency, as long
as the agency does so within the ten working days that are
permitted under the statute for a response to such a request. If
so, explain the legal basis for such a position.
RESPONSE
Dfs. M.D. Memorandum sets forth defendants' position.
INTERROGATORY NO. 28
Describe what has been preserved as the PROFS computer
tapes, including a statement as to (a) the number of tapes that
have been preserved; (b) when the tapes were made, including how
many existed on January 18, 1989; (c) how many of those tapes are
tapes of the NSC's PROFS system and how many are tapes of the
EOP's PROFS system; (d) the time periods during which the
information reflected on (i) each of the NSC PROFS tapes and
(ii) each of the EOP PROFS tapes was generated; (e) a breakdown
of how much of the information recorded on the system reflects
(i) programming and (ii) information created by an individual
- 39 -
using the system; and (f) if available, provide a listing of the
files contained on the tapes.
RESPONSE
Response for the EOP System
(a) 31 tapes
(b) December 31, 1988 - January 20, 1989; 20 tapes existed
on January 18, 1989.
(c) 31 - EOP system
(d) Data reflected on these tapes could date back to
November 1986, when the PROFS system became operational, if that
data had not been deleted by individual users.
(e) Available space on the system can be broken down into
the following approximate percentages:
(i) 58% System space
(ii) 41% User disk space
.0005% Document space
.0005% Calendar space
At a minimum, there are approximately 2 million pages of
information on the 31 tapes.
(f) Not available.
Response for the NSC System
(a) Approximately 144 tapes.
(b) Dates for creation of all preserved tapes are:
1/1/88-2
1/16/88-12
1/7/88-27
1/17/88-13
1/8/88-2
1/18/88-17
- 40 -
1/13/88-11
1/19/88-1
1/14/88-28
1/20/88-31
(c) Approximately 144 - NSC system.
(d) Inclusive up to the date the tape was created, at user
direction.
(e) (i) Space available for "programming" = 25%.
(e) (ii) Space available for "user information" = 75%.
(f) Not available.
INTERROGATORY NO. 29
(a) State the percentage of information reflected on the
PROFS computer tapes that has been printed out in hard copy;
(b) state the percentage of information on such tapes that has
been printed out from (i) the NSC PROFS tapes and (ii) the EOP
PROFS tapes; state the percentage of information on the tapes
that existed on January 18, 1989 that has been printed out; and
(d) state the percentage of information on the tapes that were
made after January 18, 1989 that has been printed out.
RESPONSE
It is impossible to determine the answers to this
interrogatory. Individual users are responsible for printing
documents for record-keeping purposes on an on-going basis.
"Records" are then placed in the appropriate federal or
Presidential records file. Users may also print out nonrecord
material for convenience purposes.
- 41 -
INTERROGATORY NO. 30
(a) State whether there are materials at the NSC and/or EOP,
other than the PROFS computer tapes, that are covered by
plaintiff Armstrong's FOIA request; (b) if so, identify such
materials and state whether defendants take the position that any
such materials do not constitute "agency records" subject to the
FOIA, and state the basis for such position.
RESPONSE
Defendants have responded to plaintiffs' FOIA requests in
letters dated February 1, 1989 (NSC) and February 3, 1989 and
February 17, 1989 (Office of Administration), attached hereto.
Those letters, along with the memoranda filed in this case, set
forth defendants' position.
INTERROGATORY NO. 31
Identify each individual, other than counsel who have
entered an appearance for defendants in this case, who was
consulted in the preparation of the answers to these
interrogatories.
RESPONSE
The factual information in responses to these
interrogatories is provided by the individuals whose names appear
below and individuals in their offices in consultation with
appropriate counsel.
- 42 -
PLAINTIFFS' REQUEST FOR THE PRODUCTION OF DOCUMENTS
Pursuant to Rule 34 of the Federal Rules of Civil Procedure,
defendants are requested to produce copies of the documents that
have been identified in response to Plaintiffs' Interrogatories
To Defendants Bush And The National Security Council, Nos. 7,
9-13, 15, 18, 25, 26 and 30, and that have been identified in
response to Plaintiffs' Interrogatories To Defendant Wilson, Nos.
3, 4, 6, 9, 10 and 14.
RESPONSE
All documents that have been identified in the foregoing
responses to interrogatories, that have not been previously filed
in this case, are attached hereto.
I declare under penalty of perjury that, as to the NSC, the
factual responses to Interrogatory Nos. 6, 7, 8, 9, 10, 11(a)- -
(c), (f)-(g), 12(d)-(e), (h)-(j), 13(e)-(f), 20, 23, 24, and 31
are true and correct, to the best of my knowledge, information,
and belief.
Date: 9 March 1988
Buen T Merchent
Brian Merchant
Deputy Director
National Security Council
Secretariat
I declare under penalty of perjury that, as to the NSC, the
factual responses to Interrogatory Nos. 5, 11(d), (h), (i),
12(a)-(c), (f), (k), 13(a)-(d), 14(a)-(b), 15, 16, 21, 23, 24,
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28, and 31 are true and correct, to the best of my knowledge,
information, and belief.
Dated: March 9, 1989
Kelly KellyWillin (Williams
Operations Non-commissioned
Officer for the Data Systems
Unit
White House Communications
Agency
I declare under penalty of perjury that, as to the NSC, the
factual responses to Interrogatory Nos. 1, 2, 4, 18, 22, 26, 29,
30, and 31 are true and correct, to the best of my knowledge,
information, and belief.
Dated: Mar 9,1989
Nancy Menan
Senior Director
Information Policy Directorate
National Security Council
I declare under penalty of perjury that, as to the
components of the Executive Office of the President other than
the NSC, the factual responses to Interrogatory Nos. 4-18, 20,
21, 26, 28, 29, 30, and 31 are true and correct, to the best of
my knowledge, information, and belief.
Dated: March 9, 1989
Dear Manager, Dennis Keating White Kesting House
Information Systems
Information Resources
Management Division
Office of Administration
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As to the objections noted herein:
Respectfully submitted,
JOHN R. BOLTON
Assistant Attorney General
JAY B. STEPHENS
United States Attorney
DAVID J. ANDERSON
ELIZABETH A. PUGH
MONA S. BUTLER
JEFFREY G. KNOWLES
Attorneys
U.S. Department of Justice
Civil Division - Room 3335
10th & Pennsylvania Avenue, N.W.
Washington, D.C. 20530
(202) 633-3374
Attorneys for Defendants
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