JUSTICE VIEWS ON S. 905 AND H.R. 3987 THE NATIONAL ARCHIVES AND RECORDS ADMINISTRATION ACT OF 1984.

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP95B00895R000200090020-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 21, 2016
• Document Release Date: February 25, 2009
• Sequence Number: 20
• Publication Date: April 20, 1984
• Content Type: MEMO

-'- It /i I;
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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
April 20, 1984
LEGISLATIVE REFERRAL MEMORANDUM
TO: Legislative Liaison Officer
General Services Administration
Department of Defense
Central Intelligence Agency
National Security Council
Department of the Treasury
E 71 r-- (- f r
SUBJECT: Justice views on S. 905 and H.R. 3987, the "National Archives
and Records Administration Act of 1984.
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
to the program of the President, in accordance with OMB Circular
A-19.
Please provide us with your views no later than COB April 23, 1984.
NOTE: We will assume your concurrence if we don't hear from you.
Direct your questions to Gregory Jones
,F-,)3 - 6 M Q `Im '11 11% ~CA.JC A A a A
;&4-
(395-3856),
of this office.
/
~~--
bro urv" b 41 James C. Murr or
J. '46 Assistant Di or
cc: M. Chaffee
F. Reeder
J. Coffey
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Honorable William V. Roth, Jr.
Chairman
Committee on Governmental Affairs
United State Senate
Washington, D.C. 20510
Office of Legislative nffairs
Dear Mr. Chairman:
This presents the views of the Department of Justice on the
"National Archives and Records Administration Act of 1984." The
Department of Justice objects to the enactment of S. 905.
S. 905 would remove the National Archives and Records Service
(NARS) from the General Services Administration (GSA), create a
National Archives and Records Administration built on the existing
NARS, and transfer statutory responsibilities for archival and
ndrdaadministrationiofsthin the e Federal
under the
The Department is concerned aboutsect4onU?(e) oft the( bill
which would add a new 44 U.S.C. 52105(f).
would broaden the responsibilities and authority of the Archivist
beyond those currently held by the Administrator of the GSA. This
proposal would at the minimum, confuse the question as to whether
the Archivist can have access to the records of components of the
Department of Justice, such as the Federal Bureau of Investigation,
over the objection or without the approval of the Attorney General.
iArcArchivist
The Department is concerned that such language might give
personnel unrestricted access to classified information,
files, information relating to pending investigations, Foreign
Intelligence Surveillance Act records, Title III information,
Federal grand jury matters, or tax information provided to the
Department pursuant to 26 U.S.C. ?6103.
Additionally, section 2(e) of the bill would add 44 U.S.C.
?2105(a), which authorizes the general promulgation of regulations
by the NARS. This section provides that each agency must adopt
such orders and directives as necessary to conform its activities
to the NARS regulations. These provisions would make agencies
completely subject to the authority of NARS and would make the
ency. the find lthisbprovision ntocbefparticularyntrNARS and oublesomen
agency. We f
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2 -
The Department of Justice recommends against enactment of
this legislation.
The Office of Management and Budget has advised this Depart-
ment that there is no objection to the submission of this report
from the standpoint of the Administration's program.
Sincerely,
Robert A. McConnell
Assistant Attorney General
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u. a. uepartment Yusuce
Office of Legislative Affairs
Office of the Assistant Attorney General ' Washington. D.C. 20530
Honorable Jack Brooks
Chairman
Committee on Government Operations
House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This presents the views of the Department of Justice on
H.R. 3987, a bill "To improve the preservation and management of
federal records and for other purposes," as ordered reported by
the Committee on Government Operations. The Department of
Justice opposes the enactment of this legislation.
H.R. 3987 would accomplish essentially two separate objec-
tives. First, it would remove the National Archives and Records
Service from the General Services Administration ("GSA"), and
establish it as an independent entity, the National Archives and
Records Administration, under the supervision and direction of
the Archivist of the United States. The Archivist would be a
Presidential appointee, but appointed for a ten year term without
regard to political affiliations. The bill would amend various
statutes pertaining to the Archives, in order to conform with the
proposed establishment of the Archives Administration.
Second, H.R. 3987 would delegate to the Archivist substan-
tially greater powers and functions than those presently dele-
gated to GSA, the agency currently responsible for the management
and administration of the National Archives. Section 102 of the
bill would amend 44 U.S.C. S 2104 to authorize the Archivist to
prescribe regulations on all aspects of the National Archives and
Records Administration's functions that are binding on the heads
of all federal agencies, and to require each federal agency, upon
request, to provide the Archivist unlimited access to the infor-
mation and data of that agency. Section 103(b)(3) would transfer
the responsibilities under sections 5.1(b) and 5.2(a) of Execu-
tive Order No. 12356 (relating to national security information
and the Information Security Oversight Office), from GSA to the
Archivist. Section 107(b)(15) would amend 44 U.S.C. S 2904 to
expand the Archivist's responsibility or ensuring that agencies
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ensure adequate and proper documentation of the policies and
transactions of the federal government. Section 203 of the bill
would grant the Archivist new authority to bring an action for
the recovery of materials believed to have been wrongfully
removed, where the agency head has failed to do so. Section 204
would amend 44 U.S.C. S 3301 to provide the Archivist unlimited
authority to. inspect any records of any federal agency to deter-
mine compliance with the provisions of the Records Disposal Act,
44 U.S.C. S 3301 et seq., and would transfer from the head of
each federal agency to the Archivist the responsibility to
determine which records are appropriate for preservation by that
agency as evidence of its organization, functions, policies, and
operations, or because of their informational value.
We understand that the principal purpose of the first of
these two objectives is to provide a greater measure of stature,
independence, and budgetary stability for the National Archives
as an independent establishment rather than as a component of
GSA. This bill would indeed provide for a separate budgetary
process, but it should be understood that the Archivist would not
be independent from the direction of the President. We note that
the Archivist and the National Archives and Records Administra-
tion would still be a part of the Executive Branch, see 44,U.S.C.
? 2102, as added by section 101 of the bill. Accord ni gly, they
would be subject to the direction of the President as is GSA and
all other Executive establishments. Officers of the United'
States acting on questions of policy are the President's alter
egos, "who 'act by his authority and in conformity with his
orders." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 164 (1803);
7 Op. Att'y Gen. 453, 469-70 (1855) (Opinion of Attorney General
Cushing that the President controls the official acts of Heads of
Departments). Moreover, proposed 44 U.S.C. S 2103(a), as added
by section 102 of H.R. 3987 reported by the Committee on Govern-
ment Operations, correctly provides that the Archivist may be
removed from office by the President.
The Department's principal concerns, however, relate to the
second objective of the bill, to expand substantially the author-
ity of the Archivist over the records and the records policies of
the federal agencies. In particular, the amendments made by
sections 102 and 204 of H.R. 3987 appear to authorize unbridled
access by the Archivist to the records of all federal agencies.
We are also concerned about section 203, which would expand the
enforcement authority of the Archivist to initiate suit for, the
retrieval of documents believed to have been wrongfully removed
from the custody of a federal agency. We do not believe that
these changes are either needed or appropriate. Although we
perceive no direct conflict with the Freedom of Information Act,
5 U.S.C. ? 552, we oppose the enactment of section 102 of the
bill, which would add a new 44 U.S.C. ? 2104 (a) and (f) , sec-
tion 203 of the bill, which would amend 44 U.S.C. SS 2905 and
3106, and section 204 of the bill, which would amend 44 U.S.C.
? 3301.
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Litigation Authority
The Department believes that the existing statutes governing
records retention and management provide adequate administrative
remedies, pursuant to 44 U.S.C. SS 2905 and 3106, for violations
of the Federal Records Act, and that the unprecedented right of
the Archivist's to initiate, through the Attorney General, a
retrieval action would be unnecessary and unwarranted. Under
existing law, when an agency determines that records have been
improperly removed from its custody, the agency head, the Admin-
istrator of GSA, and the Attorney General must make a determina-
tion whether to initiate suit to retrieve the documents.
The amendments would clearly undercut the agency's own
determination on whether a retrieval action for documents wrong-
fully removed from its custody would be justified in a particular
instance. Further, the Department is concerned that the proposed
amendments might be construed to undermine the Attorney General's
discretionary exercise of his authority whether to initiate a
lawsuit to retrieve wrongfully removed documents. It is unclear
what would be gained, in a case where the agency head, the
Administrator of GSA, and the Attorney General already have
determined not to bring such an action, by authorizing the
Archivist to bring his own action, through the Attorney General.
To be sure, the Department notes with approval that the
version of the bill reported by the Committee does not provide
for the Archivist to conduct such litigation independent of the
authority of the Attorney General, as did the original version of
this bill. Centralization of litigation authority in the
Attorney General was first established in 1870 when the Depart-
ment of Justice was created. Congress has identified the legal
officers who are to protect the rights of the government under
the records management and disposal laws codified at chapters 21,
29, 31 and 33 of Title 44 of the United States Code, i.e., the
Attorney General and the Department of Justice. Sutherland v.
International Insurance Co., 43 F.2d 969 (2d Cir.), cert. denied,
282 U.S. 890 (1930). Such centralization furthers the important
policy goals of ensuring that the government speaks with one
voice, ensuring consideration of the potential impact of litiga-
tion upon the government as a whole, and facilitating presiden-
tial supervision over Executive Branch policies implicated in
litigation. To grant independent litigation authority to the
Archivist would have seriously impaired those goals.
Access to and Evaluation of Agency Records
The Department has serious reservations about section 204 of
the bill, which would amend 44 U.S.C. ? 3301, pertaining to the
determination of whether a record is subject to the stringent
records retention requirements of the Records Disposal Act,
44 U.S.C. ? 3301, et seq. Essentially, the proposed provision
would permit the Archivist to overrule determinations made by an
agency head on whether an agency record comes within the purview
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of the Act. We fear that such a procedure could result in
inaccurate determinations on whether documents are subject to the
statute. The agency is much more qualified and able to assess
the nature of the documents within its custody than the Archivist.
We believe that each agency should continue to make its own
determinations, based on its expertise and familiarity with
documents within its custody or possession and under general
government-wide guidelines governing such decisions, as to
whether its documents are subject to the requirements of the
Records Disposal Act. Under existing law, there are adequate
statutory provisions and departmental regulations issued there-
under to achieve the purposes of that Act.
It should be noted that section 204 of H.R. 3987 appears to
contradict the provisions of 44 U.S.C. 5 2906(a)(2). In its
existing form and also as amended by section 103(b)(16) of the
bill, S 2906(a)(2) provides that "Records, the use of which is
restricted by law or for reasons of national security or the
public interest, shall be inspected, in accordance with regula-
tions promulgated by the Administrator [and the Archivist],
subject to the approval of the head of the agency concerned or of
the President." The proposed amendment to S 3301 would be
inconsistent, appearing to eliminate the discretionary authority
of the agency head or of the President to limit access to certain
records, and would directly conflict with Executive order 12356
governing access to classified National Security Information. 44
U.S.C. S 2104(f), as added by section 102 of the bill, also would
require any' federal agency to furnish any information to the
Archivist upon request.
records question
These provisions would, at a minimum, have access to confuse
sthen
as to whether the Archivist can
Department of Justice or of one of the Department's components,
the Federal Bureau of Investigation, over the objection or
without the approval of the Attorney General or the Director of
the FBI. The Department is concerned that such language might
give Archives personnel unrestricted access to classified
information, informant files, information relating to pending
investigations, Foreign Intelligence Surveillance Act records,
Title III wiretap information, federal grand jury matters, or tax
information provided to the Department pursuant to 26 U.S.C.
5 6103. Our recent experience has shown that National Archives
employees often do not have current full-field investigations or
appropriate security clearances necessary to gain access to the
various levels of national security information, including
Sensitive Compartmented Information. To permit unrestricted
access to sensitive records and/or classified information could
compromise ongoing investigations, reveal the identities of
informants, endanger the lives and safety of Department
employees, seriously impede the mission of the Department of
Justice, and possibly endanger the national security.
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Promulgation of Regulations by the Archivist
Finally, we note that section 102 of the bill would add a
new 44 U.S.C. ? 2104(a), authorizing the Archivist to promulgate
general regulations; and providing that each agency must adopt
such orders and directives as necessary to conform its activities
to the Archivist's regulations. These provisions would make all
federal agencies completely subject to the authority of the
Archivist, and would make the Archivist the sole arbiter of any
conflict between an agency and the Archivist's staff. Notwith-
standing our observations above that the Archivist would continue rvi
sion ton be subject to the President's
unbridled authority in the Archivist
find this concentration
to be particularly troublesome.
of this legi lat on ent of Justice recom-
For the foregoing
mends against enactment The Office of Management and Budget has advised this Depart-
of this report
ment that there is no objection
Administrationbs program.
from the standpoint of
Sincerely,
ROBERT A. McCONNELL
Assistant Attorney General
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