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JGR/Presidential Records (3 of 5)
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135838956
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JGR/Presidential Records (3 of 5)
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Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Subject Files
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Presidential Records
(3 of 5)
Box: 39
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
Form Dj-r
RLS-exika
(mail
UNITED STATES GOVERNMENT
DEPARTMENT OF JUSTICE
Memorandum
Walter W. Barnett
: FOI Control Officer
DATE:
Civil Rights Division
Leon Ulman
FROM : Deputy Assistant Attorney General
Office of Legal Counsel
Removal of Papers by Departing Employees and
SUBJECT:
Related Problems.
This is in response to your memorandum on the same
subject dated December 17, 1975. We have ascertained, after
consulting with the Office of Management and Finance, that
there are no current Departmental policies or guidelines
concerning the removal of papers by departing employees of
the Department. 1/
At the outset it should be noted that problems are
likely to be encountered concerning the removal of four types
of records. Classified documents and information are separately
1/ "Removal of papers" implies a permanent removal, rather
than simply taking work home overnight. Such removal may of
course involve a variety of consequences, ranging from un-
authorized disclosure of confidential information contained
in the papers through loss to the agency of important records.
Policies favoring employee access and removal rights may also
have some effect on enhanced public understanding or support
of an agency's mission. The significance of removal will
frequently turn on particular facts or on the anticipated
consequences of release (through removal) of particular types
of information. While removal need not invariably lead to the
consequences anticipated, their risk must nonetheless be
considered in the development of agency policy.
2
controlled by statute, executive order, and regulation. Their
removal in any form is generally prohibited without proper
authorization. See E.O. 11652 and 28 C.F.R. part 17. Second,
documents which qualify as official public records (generally
the retained original or file copies 2/ of documents) are
public property which may not be removed at all. For these
reasons any Division policy regarding removal of papers should
include safeguards to protect classified information and also
public records in the sense noted above. Third, some recorded
information may also be inappropriate for removal by reason of
the effects of 18 U.S.C. $1905, forbidding unauthorized dis-
closure of presumably confidential information held by a depart-
ment or agency which relates to the business and financial
affairs of identifiable business firms. Fourth, the Privacy
Act of 1974 might also create problems if a departing employee
were to retain and remove records subject to that Act which
pertain to another individual without the latter's consent,
in circumstances where that Act might require such consent.
A policy of usually permitting the removal by departing
employees of carbon or xerographic non-file copies of most
unclassified documents not involving the privacy of others or
business informa tion within the ambit of 18 U.S.C. $1905 would
perhaps be useful and desirable, at least in many offices or
components. This is particularly the case as to copies of
documents as to which the departing employee was the author or
2/ 18 U.S.C. $2071 makes it unlawful to conceal, remove, or
mutilate public records. The phrase "file copy" means the
copies which are filed in a central and/or other officially
prescribed file for the continuing or permanent use and ref-
erence of an office or agency. It does not refer to copies
made for convenience purposes by those individuals who deal
with a particular document.
3
a contributor. However, the delicate nature of ongoing studies,
investigations, negotiations, and court actions undertaken or
contemplated by the various subdivisions of the Department of
Justice must counsel discretion in any such policy, leading to
some exceptions. The Department serves as the principal legal
representative of the federal government, and many of its un-
published documents are prepared for law enforcement purposes or
in the rendition of legal services. Removal of documents likely
to lead to a premature release or disclosure that would preju-
dice the interests of the government or infringe on the attorney-
client relationship ought not be allowed.
As you indicated, the Freedom of Information Act certainly
defines the extent to which a departing employee might ultimately
enforce access to copies of agency records in his or her posses-
sion. However, the general absence of any uniform screening
procedure for such persons contrasts rather sharply with the
carefully measured consideration usually given to formal FOIA
requests. Moreover, the FOIA standards are frequently complex
and it is often uncertain whether a particular document falls
within one or more FOI exemptions. The numerous uncertainties
of interpretation and application which exists under several FOI
exemptions may militate against blanket adoption of FOIA as the
sole standard for permissible removal. For example, the former
departmental policy of allowing removal of all unclassified legal
research memoranda (even ones which could and would be withheld
under Exemption 5 of the FOIA) would be replaced by a standard
less liberal to the departing employee should the FOIA be adopted
as the sole standard in such instances.
We also note that FOIA procedures require decisions by
responsible Departmental personnel as to the release of records,
whereas the informal removal of documents by departing employees
would as a rule include no such expert judgment as to whether the
papers qualified for removal. We do, of course, agree that it
4
would usually make no sense to deny a departing employee
permission to remove a copy of a record to which he would
clearly be entitled under FOIA, if permission has been
expressly sought.
The last official Department of Justice memorandum
on this subject seems to have been rescinded over four years
ago, according to OMF. I am enclosing a copy of it for your
convenience. No replacement has yet been issued although the
question is currently receiving consideration from that office.
I am also attaching a detailed staff memorandum prepared in
connection with your inquiry. In addition, I am enclosing
several memoranda on this and related issues prepared by
various members of the OLC staff over a period of years.
Finally, I am forwarding copies of this memorandum and the
accompanying staff memorandum to the Office of Management
and Finance for their consideration in developing any future
statements of Departmental policy which may be issued. 3/
3/ Such a directive might, for example, forbid removal of
classified material, material containing confidential business
of financial information, official public documents, and
material containing personal information on other individuals
of the sort protected by the Privacy Act. The directive might
also require that departing employees proposing to take with
them papers acquired during their employment must notify their
superiors of that intention, and make such papers available for
examination prior to any physical removal.
MEMORANDUM
Re: Removal of Papers by Departing Employees.
The question has been raised whether departing employees of
the Department of Justice may take with them copies of papers,
documents, and records they have acquired during their employ-
ment. This memorandum examines that question and concludes
that -- in the absence of any current and comprehensive Depart-
mental guidance or regulation -- the various subdivisions of
the Department may within certain limits establish policies
which best suit their individual circumstances. * Some of the
more significant statutory and non-statutory considerations
affecting such policies are discussed herein.
Outline of Discussion
I. The Federal Interests
a. Interests Favoring Limitations on Removal
b. Interests Favoring Employee Access to Papers
Upon Departure
II. Constitutional, Statutory, and Regulatory Limitations
a. Federal Property and Federal Papers
b. Department of Justice Regulations
C. Statutes Regulating the Retention of Public
Records, Generally
d. Statutes Requiring Confidential Treatment of
Information Held by Federal Agencies
e. Public Policy
f. Privacy and Freedom of Information
Three subdivisions or agencies apparently have such policies
now in effect: the FBI, the LEAA, and the Immigration and
Naturalization Service. None of the three appears to be incon-
sistent with the discussion found in the body of this memorandum,
because the memorandum does not specifically prescribe or define
policies, but rather discusses the legal and other factors which
should be considered in formulating policy on this subject.
2
III. Distinguishing Private and Official Documents.
IV.
Summary of Recommendations.
Discussion
I.
The Federal Interests.
a. Interests Favoring Limitations on Removal.
The federal interests at stake in the retention of ade-
quate operating and reference files are not insubstantial. The
efficiency, continuity, and consistency of many governmental
activities depend increasingly on the existence and availability
of complete information concerning previous actions. No federal
agency can afford to so divest itself of basic information and
records of its past decisions, actions, or advice that future
decisions or actions are divorced from its experience or
precedents. Not only may the records removed by an employee
themselves be federal property, and so subject to divestment
only by means authorized by the Congress, but their absence may
impose insuperable handicaps to the efficient functioning of that
employee's successors in office.
These broad considerations of government-wide scope apply
equally to the Department of Justice. But there are other factors
unique to the special role of this Department as the legal arm
of the federal government which must also be taken into account.
The Justice Department is, in effect, the lawyer for the United
States of America. Much of the information it receives, the
documents it prepares, the actions it takes, are in response to
3
requests for legal advice or services on behalf of other
operating agencies of the government. An attorney-employee
who leaves the Department is of course subject to the duty
imposed by Canon 4 of the Code of Professional Responsibility
to preserve his client's confidences and secrets. But most
of the Department's employees, whether professional or non-
professional, are employed essentially in aid of the provision
of legal services to and by the federal government. All must
respect the privileged nature of the information with which
they deal, and their attorney supervisors who establish
Departmental and subdivisional policies must protect the con-
fidentiality of that privileged information wherever necessary.
Other major tasks of the Department of Justice are law
enforcement and civil litigation, undertakings which produce
a significant amount of sensitive and possibly damaging infor-
mation concerning individuals and organizations who may violate
the law or become involved in litigation with the United States.
Unwarranted release of investigatory information, including some
which may be preliminary or unverified, may work unjustified
hardships on its subjects. Moreover, similarly unauthorized
release of investigatory information or information relating to
the legal tactics, strategy, and advice of government lawyers
can seriously prejudice the conduct of criminal investigations,
the outcome of pending cases, or the welfare of persons furnish-
ing the information. Even those recent statutes which place
greatest emphasis on public availability of information recognize
the need to avoid some releases of data which may impede the
enforcement of Acts of Congress or the proper representation in
adversary proceedings of the legitimate interests of the United
States. That need is substantially increased when the federal
agency in question is the one charged with enforcement and trial
of most of the nation's criminal and civil laws and regulations.
5
present and former government employees) to be informed as to
the conduct of public affairs should be limited only in care-
fully defined and obviously needful cases. This rationale is
a basic policy of the United States and should be a central
feature of any federal policies or practices in this area.
A third consideration is drawn from simple realities.
Extra copies of public papers and documents are a fact of life
in most agencies. They are retained for convenience of access
and ease of reference by both individual employees and organi-
zational units, and serve a valuable function in reducing the
time and expense of demands for services involving access to
official, "record-copy", files and information systems. Another
and probably related fact is that many government employees,
when leaving employment, commonly take with them copies of such
files and papers as they wish and consider proper. This is
especially likely to be true in agencies where there is no
effective agency policy prescribing the terms for such removals
or requiring examination of documents proposed for removal.
Thus, in view of the prevalence of extra copies and of the
practice of allowing employees to remove such copies with con-
siderable freedom, any policy affecting removal must consider
both the necessity and enforceability of any restrictions to
be imposed on these practices.
II.
Constitutional, Statutory, and Regulatory Limitations
a. Federal Property and Federal Papers
Only the Congress has ultimate power to prescribe the
treatment and disposition of federal property.
4
Thus, the sensitive and important nature of the several
kinds of legal duties performed by Departmental employees, as
noted above, requires special care to be exercised when dealing
with information the release of which might impair the conduct
of the Department's professional responsibilities.
b. Interests Favoring Employee Access
to Papers Upon Departure.
Nevertheless, there are convincing reasons to support
a Departmental or subdivision policy allowing removal by depart-
ing employees of many papers, and a legitimate concern for the
confidentiality of law enforcement and litigation materials
ought not obscure the liklihood that such policies can be
developed with no harm to the federal or public interests
involved. The most obvious reason for such a policy is its
relationship to employee morale, efficiency, and fairness.
There should be little surprise that public employees, particularly
those most interested in their work, wish to retain copies of
their work products accumulated over years or decades of public
service: such copies may well represent an employee's life work,
his or her chief professional achievement and principal source
of pride. As well, they may serve as invaluable educational,
historical, and reference materials during later service with
other organizations. When the employee is in high public office,
the historical rationale may become particularly significant,
but even less exalted public servants often have understandable
wishes to retain copies of papers reflecting their periods of
service.
A second principal reason favoring substantial employee
access to public documents may be found in the policies which
underlie the Freedom of Information and Privacy Acts. In a
representative democracy the right of the people (including
6
The Congress shall have Power to dispose
of and make all needful Rules and
Regulations respecting the Territory or
other Property belonging to the United
States.
Constitution, Art. IV, §3, cl 2.
The Congressional authority includes all real and personal
property of the United States, Ashwander V. T.V.A., 297 U.S.
289, 294, and is exclusive of other powers of disposition or
control, United States V. California, 332 U.S. 19, 27; Alabama
V. Texas, 347 U.S. 272, 273, 274. However, as the Congress
cannot pass on the care and disposition of each element of the
property of the United States, it has established broad stat-
utory procedures to accomplish the same end.
The Heads of Executive departmens have long been autho-
rized by express statute to regulate the custody and manage-
ment of each Department's papers, 1 Stat. 28, 49, 65, 68. That
authority is now codified in 5 U.S.C. 301:
The head of an Executive department or
military department may prescribe
regulations for the government of his
department, the conduct of its employees,
the distribution and performance of its
business, and the custody, use, and
preservation of its records, papers, and
property. This section does not authorize
withholding information from the public
or limiting the availability of records
to the public.
(Emphasis supplied)
7
The Department of Justice is, of course, such an
Executive department headed by the Attorney General with
full powers of administration over its operations, 5 U.S.C.
101; 28 U.S.C. 501, 503, 509. The Attorney General may
delegate to other officers of the Department of Justice such
of his authority to prescribe rules and regulations as he
may consider appropriate, 5 U.S.C. 302; 28 U.S.C. 510. Such
delegations are made to the heads of bureaus, divisions,
offices, and other major subdivisions of the Department in
28 C.F.R. Part 0. Thus, within the limits imposed by other
statutes, both the Attorney General and the heads of major
departmental subdivisions have substantial authority to
prescribe policies relating to treatment of papers, documents,
and records within their areas of responsibility.
b. Department of Justice Regulations
There is no longer a single Department of Justice policy
concerning employee removal of papers. The last such policy
statement was contained in Memo #185, Supplements 1-3, 1/ issued
by the Assistant Attorney General for Administration on behalf
of the Attorney General. That memo was rescinded without
comment by Memo #701 and its successors, none of which addresses
the matter.
There are, however, several sections of the Departmental
Regulations which provide useful guidance to a Division or
Office considering policies on removal of papers. For example,
1/ It permitted a departing employee to take with him the
following types of documents: 1) extra copies of printed
briefs and other pleadings; 2) copies of memoranda on legal
research; and 3) Personal papers as distinguished from
official papers.
This policy was in some respects broader, in some respects
narrower, than analogous standards under the FOIA. See §IIf, infra.
8
procedures for the production or disclosure of material or
information are contained in 28 C.F.R. Part 16. While these
procedures are somewhat more formalized than might seem
necessary for Divisional policies on employee-papers, they
are nonetheless clear statements of the Department's position
with respect to releases of information generally. See,
especially, 28 C.F.R. $16.1(a) [Freedom of Information requests],
28 C.F.R. $16.21-26 [Subpenas or Demands of Courts or other
Authorities], and 28 C.F.R. $16.30-34 [FBI Identification
Records -- only to the subject thereof].
Many persons within the Department of Justice have
access to information or documents classified under Executive
Order 11652. Departmental regulations concerning the use
and safekeeping of such documents and information are codified
at 28 C.F.R. Part 17. It is important to note that these
regulations protect both the classified materials (papers,
documents, etc.) and the information which they contain, 28
C.F.R. $17.1(a). A document held by the Department which
contains classified information, therefore, should be considered
in light of the regulations even though it may not yet have re-
ceived formal classification. In general, classified information
may not be disseminated to or removed by a departing employee,
28 C.F.R. $17.47, 17.61-64, 18 U.S.C. 798.
Standards of Conduct for present and former employees of
the Department of Justice are contained in Part 45 of 28 C.F.R.
They apply to all employees regardless of their professional
status, and are essential to consider in the development of
related policies by subdivisions of the Department. Basic
standards and goals are set out in $45.735-2, and elaborated
in subsequent sections. Removal of papers may properly be
denied whenever such removal might tend to violate one or more
of the Standards of Conduct. Sections worthy of special note
are:
9
$45.735-7: Disqualification of former employees
in matters connected with former
duties. 2/
$45.735-10: Improper use of information acquired
by reason of employment. 3/
$45.735-12: Speeches, lectures, and publications.
$45.735-16: Misuse of Federal Property.
Other positions of the Department of Justice which may
be pertinent here are contained in Part 50 of 28 C.F.R.,
Statements of Policy. The release of information relating to
unresolved civil and criminal proceedings is strictly controlled
by $50.2. Departing employees may not take with them information
relating to a pending or contemplated civil or criminal court
or other proceeding when that information is of a type described
in section 50.2. The Department bears a particular responsibility
for unwavering adherence to this limitation, since premature
release of such information might not only violate the Department's
(and the employee's) duty of confidentiality to the United States,
but might also prejudice the possibilities of a just resolution
of the proceeding itself. Other sections of Part 50 which may
2/ This section is in terms concerned with former employee's
actions as agent or attorney for another. Where the circumstances
of an employee's departure reveal a substantial likelihood that
the departure may ultimately occasion a violation of the section,
stricter scrutiny of papers may be justified than in other instance
3/ See 18 U.S.C. 1905, making such disclosures a criminal offense
in defined cases. See also 18 U.S.C. 1902, 1903, 1904, 1911.
Other confidential-information statutes are discussed infra.
10
be applicable in particular instances are:
$50.8:
Access to investigatory records
of historical interest, and
$50.12:
Exchange of FBI Identification
Records.
C. Statutes on the Retention of Public Records, Generally.
There are a large number of relatively specialized federal
statutes affecting the treatment of papers and information held
by federal agencies. However, basic policies concerning the
retention of public records are contained in Chapters 27-33 of
title 44, United States Code. Under these provisions, GSA
(Archives) coordinates the records management practices of
federal agencies. However, the operative definition of "records"
in those chapters expressly excludes convenience copies or copies
kept merely for ease of reference, 44 U.S.C. 3301. Thus, while
qualifying (or "official") public records themselves may not be
removed, the status of carbon or other copies of those records
is not protected under title 44.
A statute of more general application, but only occasional
use, is 18 U.S.C. 2071. That section makes unlawful the un-
authorized concealment, removal, mutilation, obliteration,
falsification, or destruction of documents or papers deposited
in a federal office or courthouse. Documents, records, and
material protected by $2071, if read literally, include far more
than "records" as defined in 44 U.S.C. 3301, but the exact scope
of coverage of §2071 is uncertain. The statute's purpose is said
to be to preserve the public records and papers intact from all
kinds of spoliation, mutilation, or destruction, United States V.
11
De Groat, 30 F. 764, (D.C. Mich., 1887) (construing predecessor
to §2071 using same language). The words "record" and "document"
are said to include every paper filed and which becomes a part
of the records of the court or office, McInerney V. United States,
143 F. 729 (1906), but some more recent treatments of the section
seem to indicate that the papers removed must be of real utility
to the government, not simply on file within federal custody.
See, e.g., United States V. Rosner, 352 F. Supp. 915 (D.C.N.Y.
1972) (purpose of section is to prevent any conduct which deprives
the government of the use of its documents, be it by concealment,
destruction, or removal). Rosner also indicates that subsection
(a) of $2071 (relating to all persons, not just federal officers
or employees) does not of its own force prohibit merely photo-
copying - rather than physically removing - government records.
It is possible that this conclusion may also apply to the conduct
of federal employees under $2071 (b), dealing with the unauthorized
removal of documents in their official custody. That is, an
employee's action in making photocopies or carbon duplicates of
such documents and then removing such copies may wellbe held
not to violate the statute. 4/
4/ Of course, where Departmental or Divisional policy clearly
prohibits personal retention by employees of such copies or use
of photocopy machines to prepare personal copies, the federal
interest in control of its own employees and machinery becomes
more apparent. Where such a policy was in force its violation
would presumably be enforceable by ordinary disciplinary means,
entirely apart from the physical removal of the copy resulting
from that violation.
12
d. Statutes Requiring Confidential Treatment of Information
Held by Federal Agencies.
Many federal statutes require that certain kinds of
information acquired or held by federal agencies be held in
confidence. Any officer or employee of the United States who
without authority "makes known inany manner" certain broadly
described types of business information discussed below coming
to him in the course of his employment can be held criminally
liable under 18 U.S.C. $1905. That section is, however, rather
complex and difficult of proof; the court decisions interpreting
it have been in civil rather than criminal cases. Divisions
should note that it applies only when the information is actually
disclosed, a term which is neither defined by the statute nor
explicated by the available case law. Where the information
disclosed is an income tax return or copy thereof, however,
disclosure is defined as being "seen or examined by any person
except as provided by law,"
26 U.S.C. §7213 (a), and is
separately prohibited.
The classes of information protected from disclosure by
§1905 are those which concern or relate:
to the trade secrets, processes,
operations, style of work, or apparatus,
or to the identity, confidential
statistical data, amount or source of
any income, profits, losses, or
expenditures of any person, firm,
partnership, corporation, or associ-
ation
Although many subdivisions of this Department will possess papers
that seem literally to contain these classes of information,
Federal trial courts have generally shown little tendency to
13
interpret this criminal statute other than narrowly. For
example, they have held that any information which is
discoverable under Rule 26 of the Federal Rules of Civil
Procedure in a civil suit cannot be said to be confidential
information under this section; Exchange Nat. Bank of Chicago
V. Abramson, 295 F. Supp 87, appeal dismissed 407 F.2d 865
(1969); Pleasant Hill Bank V. United States, 58 F.R.D. 97
(D.C. Md. 1973). Nonetheless, where the information contained
in documents removed by departing employees is plainly of the
sort covered by 18 U.S.C. 1905, its disclosure would seem to
be unlawful. This probably is the case where information
literally within the statute would, if released, tend to
injure the business firm that furnished it. See Charles River
Park "A," Inc. V. HUD, 519 9F.2d 935 (D.C. Cir. 1975). A
reasonable interpretation of "publishes, divulges, discloses,
or makes known in any manner or to any extent not authorized
by law" would be any action which results in dissemination of
the information from its official file and which is not in
itself authorized by law. The mere transition of an employee
to private life while holding such information would not of
itself be such a disclosure.
A number of other statutes require that particular kinds
or sources of information be held confidential. A partial but
lengthy list identifying several such statutes is attached as
appendix A. Of course, many of these confidentiality provisions
are directed to public officials outside the Department of
Justice and will not apply to employees of this Department in
most instances. Yet the wide-ranging responsibilities of
Departmental employees, and the scope of their duties in the
investigation and litigation of cases both civil and criminal,
necessarily produce a great deal of information in Departmental
files which is within the protection of one or another of the
statutes cited above (most. particularly information derived from
14
lawful examination of income-tax returns, 26 U.S.C. §6103-
6104, 7213). Divisions whose employees come into contact
with statutorily-confidential information should accordingly
take measures to assure that departing employees will not
violate that confidence.
e. Public Policy.
There is a further meaning to the numerous confidentiality
statutes which goes beyond their individual applications. Some
of them are examples of a generalized recognition that the
Government must necessarily encounter and deal with items of
information concerning individuals and firms which these
subjects may legitimately expect to be protected from access
by persons outside the Government. For example, there is no
justification for the general release of tax returns to interested
onlookers, and unauthorized release of an income tax return is
a violation of law. 26 U.S.C. 7213. Many of the statutes listed
[on the preceding pages and at appendix A] are of this sort.
Several other statutes recognize that the Government
sometimes comes into possession of information which is simply
too dangerous to the public welfare to be bandied about without
limits. The classified information discussed earlier is one
form of such information, where unauthorized release might
damage the national defense or foreign relations of the United
States. But there are other aspects to the public welfare, and
other forms of damage. And so "restricted data" relating to
Atomic plants and processes may be limited in access and
dissemination independently of the classification system, just
as information on weather modification techniques may be pro-
tected by the Secretary of Commerce (15 U.S.C. 330) and in-
formation on economic poisons and pesticides may be restricted
by the Environmental Protection Agency (7 U.S.C. 135).
15
f. Privacy and Freedom of Information.
This policy of protection of individuals and firms
against official or private misuse of information held by
federal agencies is most strongly expressed, as regards in-
dividuals, in the Privacy Act of 1974, 5 U.S.C. 552a. The
purpose of that Act is to provide safeguards against invasions
of personal privacy by limiting the sorts of information which
federal agencies may acquire and retain, by allowing the subject
of such information a right of access to verify its propriety
and accuracy, and by limiting the uses which federal agencies
may make of personal information. Among those latter limits
are ones on disclosure, set out in 5 U.S.C. 552a (b). Agencies
are forbidden to allow or make any disclosure of personal
information except under the conditions described in 552a (b),
and unauthorized disclosure is subject to criminal penalties
under 552a (i) (1). These restrictions apply whether the dis-
closure is to another person or to another federal agency. Thus,
Divisions should assure that departing employees do not take
with them information on other individuals of a sort which is
protected from disclosure by the Privacy Act.
A countervailing public policy is embodied in the Freedom
of Information Act, 5 U.S.C. 552. Whereas the purpose of the
various confidentiality statutes and the Privacy Act is to protect,
in varying degree, sensitive information from indiscriminate
publication, the Freedom of Information Act is expressly designed
to increase the right of public access to information and records
held by the federal government. The FOIA requires each agency,
upon request for identifiable records, to produce any such records
unless they fall within one of nine generally described exceptions.
$552 (b) (1) - (9). Yet while at first glance it might seem that the
FOIA right of access is determinative of an employee's right to
16
remove papers which he might also acquire under the FOIA,
the FOIA limits are not always appropriate in employee
departure situations.
It is first necessary to note that the FOIA procedures,
while implementing a qualified right of access, are also
designed to assure that information released will not in-
advertently infringe upon one of the interests protected by
the Act's exemptions. Every FOI request for release must be
made in writing, as a specific act brought to the attention
of the agency; disclosure is not undertaken casually or even
without specific agency knowledge as may occur in matters of
employee removal of papers. Each FOI request must receive agency
handling by designated officials, with an agency determination
that the information requested is not within one of the exempted
classes, or that in any event it should be released. This sort
of positive review and determination, which may be quite burden-
some and costly, is generally lacking in employee removals of
papers.
Moreover, we note that while the FOIA probably defines
most of the outer limits of an employee's legal entitlement to
information or records held by his agency, these limits may
also be affected by the numerous statutes discussed above, which
can narrow the entitlement. Such statutes are not inconsistent
with the FOIA, since they are generally recognized by Exemption
3 of the Act. Furthermore, comparison of the FOIA and earlier
Department of Justice policy statements on removal of papers
demonstrates that the FOIA itself may be more restrictive in
some respects than Departmental policies. Thus, earlier Depart-
ment policy permitted employees to take with them copies of
"legal memoranda", even under conditions where those memoranda
might constitute inter-agency (or intra) memoranda otherwise
17
exempt from disclosure under Exemption 5 of the FOIA. Because
of this and other such instances where the terms of the FOIA
may actually be more restrictive than the policies which a
Department or Division would otherwise enforce as to employee
removal of work-related papers, we do not believe that the
FOIA itself should be employed as an automatic test of entitle-
ment. Indeed, the Department's policy in administering the
FOIA itself is to give outside requesters access to records that
may be legally withholdable when there is no good reason not to
grant access, thus following the general policy of the FOIA
rather than the legal standards in its exemptions, which in
themselves are merely options to withhold. A somewhat similar
approach, using FOIA policies rather than FOIA legal standards,
may be appropriate in departing employee situations.
III.
Distinguishing Private and Official Documents
Governments generally have an overriding interest in
materials received or prepared under their aegis. Both State
and federal courts have accepted that proposition, although they
generally agree that employees may assert valid claims to what
is clearly personal or expressly available by statute. Even
though the papers or information were not directly ordered by
his superiors, an employee may not lay claim to them against
the interests of the United States if acquired or produced during
and as a result of the employee's responsibilities to the United
States. See, e.g., United States V. Chadwick, 76 F. Supp. 919,
923 (N.D. Ala. 1948).
On the other hand, where documents are clearly personal
the official status of their preparer will not automatically
deliver them to exclusive governmental custody. For example,
18
United States V. First Trust Company of St. Paul, 251 F.2d
686 (8th Cir. 1958), was an action to quiet title to certain
historical documents written mainly by William Clark of the
Lewis and Clark Expedition. Although the Court of Appeals
noted that Clark's records, if the written records of a govern-
ment employee made in the discharge of his official duties, would
be public documents with ownership in the United States, it found
that Clark had made the notes as a matter of personal interest
and not -- as had Lewis -- in the conduct of his official duties.
Thus, the notes were not the work product of a government
representative engaged in the performance of his duties, and
accordingly not the property of the United States. And in
Public Affairs Assoc., Inc. V. Rickover, 268 F. Supp. 444
(D.D.C. 1967) (on remand from 369 U.S. 111), the district court
held that speeches made by a prominent vice admiral of the United
States Navy to private organizations on the admiral's own time
were not a part of his official duties and were private property
of the admiral subject to copyright, even though the admiral
had used government facilities to duplicate his speeches. The
court thus implied that the speeches would have belonged to the
United States (and so would not have been subject to private
copyright) if they had been prepared as a part of official duties
on government time. See also Sawyer V. Crowell Publishing Co.,
108 F.2d 28 (2d Cir. 1939), cert. denied, 309 U.S. 686 (1939);
Scherr V. Universal Match Corp., 417 F.2d 497 (2d Cir. 1969),
cert. denied, 397 U.S. 936 (1940), and Smith, Government Documents:
Their Copyright and Ownership, 5 Texas Tech. Law Review 71
(1973).
The State court cases also hold that papers obtained or
made by public officers in the discharge of their public duties
belong to the State and are not private. Coleman V. Commonwealth,
66 Va. 865, 881 (1874); People V. Peck, 138 N.Y. 386, 34 N.E. 347,
19
351 (1893) Robison V. Fishback, 175 Ind. 132, 93 N.E. 666, 668-9
(1911) ; Commonwealth V. Desilver, 3 Phila. 37 (1859-60). These
cases do not appear to be based on specific statutes, but rather
on the extension to public officers and employees of concepts
which would ordinarily apply in private employment to the work
product of employees.
This common judicial acceptance of the principle that
papers or information made or obtained by public employees in
the discharge of public duties belong to the government and not
to the individual employee serves, like the policies inherent in
many of the statutes discussed in section II of this memorandum,
to limit employee claims of a right to remove papers. Such claims
by an employee must ordinarily begrounded on personal ownership
of the papers, on access rights under the FOIA, or on formal or
informal agency policy or practice. The heads of agencies have
wide discretion to prescribe rules and regulations governing the
care and custody of public papers and the conduct of federal
employees. Those rules must respect statutes protecting individual
privacy and government property, and the statutes mandating con-
fidentiality for many classes of information. They must also
respect the confidentiality of information properly classified
under an applicable executive order. Subject to such limits, there
is reasonable discretion as to the policy on the furnishing or
removal of extra or convenience copies of records and the material
which they contain.
Persons desiring access to documents held by the government,
including departing or former employees, have a highly responsive
and well-articulated path to follow through Freedom of Information
procedures, especially if an agency hesitates to grant access in-
formally. Those procedures envision a considered agency deter-
mination that information released does not invade the privacy or
business interests of another or compromise the interests of the
20
several exemptions. Although an agency may determine that the
full range of FOI procedures is inappropriate for use in the
absence of a formal request, their general tenor should be
respected in any agency or division policy regarding employee
removal of papers.
IV.
Summary of Recommendations
Subject to the foregoing discussion, some general re-
commendations for agency and division use can be offered, as
follows:
1. Preserve Official Records. As a general rule, no
document should be removed by a departing employee if that
document can be described as within 44 U.S.C. $3101.
2. Copies only. Even though documents may not qualify
as "official records", as a general matter official or record
file copies of agency records should not be removed under any
circumstances. Where removal is otherwise appropriate, a copy
should be made for removal and the original or official file
copy retained.
3. Purely Personal. Obviously, an employee has a right
to remove papers which are his own property. However, it may
sometimes be unclear whether a particular paper belongs to the
agency or to an employee. Generally, an agency record is any
record in the possession of the agency, whether prepared in the
agency or received from outside sources, unless it can clearly
be demonstrated that the paper belongs to a person other than
the agency. Records which clearly are predominantly personal
21
in nature and which will not affect the future conduct of
agency business are presumably devoid of substantial federal
interest and ordinarily may be removed by the employee.
Diaries and desk calendars maintained voluntarily for personal
convenience are commonly within this class of documents. The
fact that papers or forms furnished by the government may have
been used in maintaining such documents is not controlling,
although it may be considered in determining whether the
documents were produced in the course of an employee's duties.
Letters addressed to an employee at his or her office may be
either personal or official, dependent upon their content and
purposes. In most such cases where letters are addressed to
an employee by name there would be no substantial objection
to an agency policy allowing removal of copies of such letters,
even though largely official in character.
4. Classified Documents and Information may not be
copied or removed without declassification by authorized
officials.
5. Confidential Information. Documents containing in-
formation of a sort which would fall within one of the statutes
requiring confidential treatment for such information may not
be removed by departing employees for so long as the information
remains confidential. This restriction also applies to documents
falling within one of the FOIA exemptions, save that the
5/
responsible official may decide to waive such exemptions,
5/ Waiver of an FOIA exemption may be by individualized deter-
mination or by a departmental or divisional policy applicable to
a category of records or to departing employees. See also the
reference to records that are "furnished customarily" to the
public set forth in 28 C.F.R. 16.1(a).
22
while waiver of the confidentiality statutes may be done --
if at all -- only in accordance with the terms of those laws.
6. Interests of the United States. Information which
might reveal or prejudice the conduct of criminal and civil
investigations under federal laws, the conduct of civil or
criminal enforcement proceedings or litigation involving the
interests of the United States, or information which falls within
the attorney-client privileges of the United States or of the
party furnishing the information may not ordinarily be released
other than in the manner prescribed in those sections of 28 CFR
which are discussed in Part IIb of this memorandum. This
paragraph is a limitation on the possible waiver of FOIA
exemptions referred to in the preceding paragraph.
7. Use of Copiers, etc. The Attorney General and the
heads of principal operating subdivisions of the Department of
Justice may prescribe policies relating to the number of copies
made of documents, the retention of personal convenience files,
procedures required to assure the completeness of official
records and files, and limits on the use of copying equipment
on federal premises. These officials are also responsible,
under regulations implementing the Privacy Act and FOIA, for
assuring that requests for documents or information under those
Acts are processed in accordance with the procedures applicable
to those Acts, and can waive fees and procedural defects in such
requests.
8. Counseling and Physical Review. Agencies or principal
subdivisions thereof may provide for counseling of departing
employees on their rights and responsibilities with respect to
information acquired as a part of their duties while employed
by the federal government, together with physical review as may
be necessary or appropriate. Such policies should be uniformly
applied and widely distributed to be of maximum effectiveness
and equity.