PRESIDENTIAL RECORDINGS AND MATERIALS PRESERVATION ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP76M00527R000700170016-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 34
• Document Creation Date: December 12, 2016
• Document Release Date: September 4, 2001
• Sequence Number: 16
• Publication Date: November 27, 1974
• Content Type: REPORT

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93D CONGRESS HOUSE OF REPRESENTATIVES I REPORT
!?d Session No. 93-1507
PRESIDENTIAL RECORDINGS AND MATERIALS
PRESERVATION ACT
NOVEMBER 27, 1974.-Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. HAYS, from the Committee on House Administration,
submitted the following
REPORT
The Committee on House Administration, to whom was referred the
bill (S. 401.6) to protect and preserve tape records of conversations
involving former President Richard M. Nixon and made during
his tenure as President, and for other purposes, having considered
the same, reports favorably thereon with an amendment and recom-
mends that the bill as amended do pass.
The amendment strikes out all after the enacting clause and inserts
a substitute text which appears in italic type in the reported bill.
PURPOSE OF THE BILL
The purpose of the bill is twofold:
(1) to preserve the materials relating to the Presidency of Richard
M., Vixon. and to provide appropriate access to them; and
(2) to establish an independent commission to study the disposition
of records and documents of all Federal officials.
COMMITTEE ACTION .
S. 4016 was passed by the Senate on October 4, 1974, and referred
to the Committee on House Administration on October 7,.1974:
The Subcommittee on Printing of the Committee on House Adminis-
tration held public hearings on H.R. 16902 and other bills relating
to the handling of records and documents of Federal officials, including
the disposition of the Presidential materials of former President
Richard M. Nixon:. The hearings were held on September 30 and
October 4, 1974.
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The subcommittee marked up S. 4016 in public sessions on Novem-
ber 19, 1974, and ordered the bill reported on that day by. unanimous
voice vote. The full committee marked up the bill in public session
on November 26, 1974.
The full committee, on November 26, 1974, by a vote of 20 to 0,
ordered the bill reported to the House with an amendment.
BACKGROUND
The disposition and preservation of documents and' records of
public officials is a matter of continuing importance, particularly
to historians, political scientists, and other scholars who have a
special interest in preservation of the historical records of the Nation.
The disposition of public documents has taken on immediate sig-
nificance because of the uncertainty regarding the preservation of. the
tapes and other materials relating to the Presidency of Richard M.
Nixon, materials which could provide a full and accurate account of
the series of events that have come to be known as "Watergate".
It is unnecessary to recount here the events of "Watergate". It is
sufficient to observe that these events led to the approval by the
Judiciary Committee of the House of Representatives of three articles
of impeachment charging former President Nixon with (1) obstruction
of justice; (2) abuse and misuse of Presidential powers; and (3) the
failure to comply with congressional subpenas to produce tapes and
other materials necessary to the impeachment inquiry. In the face of
these unanimous recommendations, Mr. Nixon resigned from office.
These events also resulted in the investigation, prosecution, and con-
viction of high-ranking executive department officials, including
several close aides of former President Nixon, for crimes relating to
"Watergate".
Information included in the materials of former President Nixon
is needed to complete the prosecutions of Watergate-related crimes.
This information is necessary so that the Special Prosecutor may
expeditiously conclude his work. This information is necessary to
provide defendants in these criminal actions material which may be
necessary for their defenses, and information necessary to provide
the American people with a complete and accurate account of "Water-
gate".
But beyond the importance of the Watergate-related material,
there is a legitimate public interest in gaining appropriate access to
materials of the Nixon Presidency which are of general historical
significance. The information in these materials will be of great value
to the political health and vitality of the United States. It will permit
the American people to understand the events of this important 5)
year period, and to pass on to their legislative representatives any
mandates for change in the course of events as for reform of govern-
mental institutions.
Despite the overriding public; interest in preserving these materials
and for providing appropriate access to them, Mr. Arthur F. Sampson,
Administrator of General Services, entered into an agreement on be-
half of the Federal Government (see Appendix) which, if implemented,
could seriously limit access to these records and could result in the
destruction of a substantial portion of them.
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NIXON-SAMPSON AGREEMENT
On Sunday, September 8, 1974, President Ford announced a full
and unconditional pardon of Mr. Nixon. A few hours later Philip
Buchen, Counsel to the President, announced an agreement between
former President Nixon and Mr. Sampson regarding the disposition of
some 42 million documents and materials relating to the Nixon
Presidency.
A legal opinion of September 6, 1974, prepared by Attorney General,
William Saxbe, took the position that the tapes and other materials of
the Nixon Presidency were the private property of Mr. Nixon.
Included within the scope of the agreement is Mr. Nixon's Presi-
dential historical materials as defined in section 2101 of title 44, United
States Code. It apparently covers material generated by and collected
in the White House and Executive Office Buildings, and includes the
recordings, papers, and memoranda produced and collected by Mr.
Nixon, by members of his staff, and by staff members of Offices in the
Executive Office of the President.
In the agreement, Mr. Nixon asserts that he retains "all legal and
equitable title to the materials, including all literary property rigghts."
The agreement provides that the materials. are to be transferred
to California for deposit in a GSA facility for at least three years-
until a permanent depository may be established. The cost of storage is
to be assumed by the Federal Government.
Access to the materials would be controlled by Mr. Nixon, who
would have absolute, veto power over persons who could review the
tapes and records.
Although the agreement appears to set forth Mr. Nixon's intention
to donate the materials to the Federal Government at some point
in the future, it permits Mr. Nixon to withdraw "any or all of the
materials" (other than the tapes) after three years for any purpose..
This arrangement would permit Mr. Nixon to remove and destroy
any of thcaB documents if he wishes to do so.
The agreement further provides that the tape recordings shall
remain on deposit until September 1, 1979. Although the agreement
purports to donate the tapes to the United States, it allows Mr.
Nixon to' destroy any of these tapes after September 1, 1979. Further,
it provides that the donation of this material is to be based on the
condition that the "tapes shall be destroyed at the time of Mr. Nixon's
death or on September 1, 1984, whichever event shall first occur."
Thus, the agreement gives Mr. Nixon total control over all the
materials and the records of his Administration. It allows him to have
access to the materials but excludes other:, from reviewing these
records. By allowing Mr. Nixon to destroy all of the materials, the
agreement ignores the public interest in preserving them. It ignores the
legitimate continuing need for these materials in many judicial pro-
ceedings, including some in which U.S. law enforcement will be frus-
trrted and individual rights impaired if the materials are unavailable
to the courts. It ignores the needs of Congress and executive agencies
for continued use of the documents in the process of government.
And it ignores the needs of historians, political scientists, and other
scholars for the information these materials contain on the events
of recent years and the workings of our government.
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The Special Prosecutor expressed serious reservations about the
agreement, and it was determined that none of the materials would be
removed from their present locations pending further discussion
among Mr. Nixon, the Special Prosecutor, and the White House.
On October 15, 1974, Mr. Nixon brought suit in the United States
District Court of the District of Columbia to force Messrs. Sampson,
et at, to carry out the provisions of the depository agreement. Several
other private parties, including historians, journalists, and scholars,
filed, independent actions to block implementation of the agreement.
Other parties, including the Special Prosecutor, have moved to inter-
vene as parties in these actions.
The cases were consolidated and a temporary restraining order was
issued on October 22, 1974, blocking the Ford Administration from
giving Mr. Nixon custody of the materials. This order, with certain
subsequent amendments, also gives the Special Prosecutor, defendants
in "Watergate" cases, and Mr. Nixon access to the materials.
On November 11, 1974, Senator Ervin, Chairman of the Senate
Government Operations Committee, and Senators Nelson and Javits,
Chairman Hays and Mr. Brademas filed a memorandum of amici
curiae urging the court to maintain the status quo by extending the
order until the Congress considered this legislation. Extensive briefs
were filed by all the parties in this action in support of motions for
preliminary injunctions and oral arguments were heard on Novem-
ber 15 and November 18, 1974.
DESCRIPTION OF BILL
This legislation would nullify the Nixon-Sampson agreement of
September 7, 1974, and would provide that the Federal Government
retain custody of the Nixon tapes and Presidential materials. The bill
would also establish a 17-member commission to study the disposition
of the documents of all Federal officials.
TITLE I-PRESERVATION OF PRESIDENTIAL MATERIALS OF MR.
NIXON
Title I provides that, notwithstanding any other provision of law or
any agreement, the Administrator of GSA shall retain custody and
complete control of all tapes, papers, documents, and other materials
of general historical significance relating to the Presidency of Richard
M. Nixon.
The tape recordings include all conversations recorded beginning
June 20, 1969, and ending August 9, 1974, which (1) include former
President Nixon. or individuals who were employed by the Federal
Government, and (2) were recorded in the White House or in the Exec-
utive Office Buildings or Offices of the former President at Camp David,
Maryland, Key Biscayne, Florida, or San Clemente, California.
This title would give the Federal Government custody of all papers,
documents, meir.oranda, transcripts, and other objects and materials
which constitute the historical materials of Mr. Nixon as defined in
section 2101 of title 44, United States Code.
The material would be immediately available for use in judicial
proceedings, either by subpena or other legal process. Production of
material in these proceedings would be subject to any "right, defenses,
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or privileges" which the Federal Government or any person may
raise. A request for access to the material by the Special Prosecutor
would be given priority over other requests.
Mr. Nixon, or any person whom he may designate, may have at all
times access to the material for any purpose.
The legislation takes no position on the question of ownership of the
materials prior to enactment of this title; however, in the event a
court determines that this legislation deprives any person of private
property without "just compensation", this legislation authorizes the.
payment of such sums as may be deemed necessary by an appropriate
United States court.
To guard against the destruction or removal of any of the materials,
the bill provides that none of the materials shall be destroyed, except
as may be provided by law. It requires that the materials be main-
tained within the metropolitan area of Washington, D.C., and provides
that the Administrator shall issue at the earliest possible date regula-
tions to protect the material from loss or destruction and to prevent
access to the material by unauthorized persons.
The bill directs the Administrator to submit to the Congress, within
90 days of ter the enactment of the measure, regulations that would
provide public access to the tape recordings and other material.
These regulations would insure access to material related to "Water-
gate" as well as material of general historical significance. In preparing
these regulations, the Administrator shall take into account the
following factors: (1) the need to provide a full accounting of the
events of "Watergate"; (2) the need to make the materials available
in judicial proceedings; (3) the need to limit general access to material
relating to national security; (4) the need to protect every individual s
right to a fair and impartial trial; (5) the need to protect any in-
dividual's opportunity to assert any legal or constitutional right or
privilege which may limit general access to the material; (6) the need
to provide public access to material of general historical significance
in a manner consistent with procedures that have been used to provide
public access to materials of former Presidents; and (7) the need to
return to Mr. Nixon purely personal materials, which are not of general
historical value.
In the enumeration of criteria to be applied by the Administrator
in establishing guidelines for the management of materials referred
to in section 101, the committee added in subparagraph (5) the term
"privilege" to "legally or constitutionally based rights" as grounds for
limitation of access. The committee's purpose is to recognize the
legitimacy of the doctrine of executive privilege as stated in the
July 24, 1974, ruling of the Supreme Court in United States v. Nixon,
'President of the United States, et al.
None of the considerations above enumerated are intended to
limit access by the public, otherwise granted by the Freedom of
Information Act.
Section 105(a)(6) of this legislation is intended to underscore the
concern of the committee that the public be given access to the tapes
and other materials of the Nixon Presidency of general historical
significance as well as to the materials related to "Watergate." Access
under this subsection is to be provided in a manner comparable to
procedures that have been followed by Presidents in providing access
to their materials. Although it is recognized that some former Presi-
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dents have imposed broad restrictions on access to their materials, it
is understood that most, and particularly most recent former Presi-
dents, have exhibited an interest in preserving the material intact and
providing early public access to the material.
Thus, former President Franklin C. Roosevelt recognized the
importance of this approach :
I have been taking the advice of many historians and
others. Their advice is that material of that kind [i.e.,
Roosevelt's papers] ought not to be broken up, for the
future. It ought to be kept intact. It ought not to be sold at
auction; it ought not to be scattered among descendants. It
should be 'kept in one place and kept in its original form be-
cause Presidential papers and other public papers have been
culled over during the lifetime of the owner, and the owner
has thrown out a good deal of material which lie personally
did not consider of any importance which, however, from the
point of view of factual history, may have been of the utmost
importance. The Public Papers and Addresses of Franklin D.
Roosevelt 6:30 (1941).
This attitude: was also exhibited by former President Dwight D.
Eisenhower. During hearings before the Subcomcnittee on Printing,
John Eisenhower, who has continuing responsibility for maintaining
the late President's papers, stated:
Since we finished on my father's memoirs and. I left
Gettysburg, I have been involved on a continuing basis with
my responsibilities in trying to get those documents out of
Abilene into the public domain. Our philosophy is the quicker
the Presidential papers can be gotten out into the public
domain the more advantageous it is to the former President.
Where restrictions have been imposed by former Presidents, they
have been generally limited to matters of national security. It is not
the purpose of this section to authorize Mr. Nixon to place restriction
on overs to the materials. Any restrictions would be imposed by cur-
rent government officials in accordance with existing legal authorities
and procedures.
The legislation provides that the regulations shall take effect 90
days after submission to the Congress, unless disapproved by a resolu-
tion of either House of the Congress. If the committee to which the
regulations are referred has not reported it resolution of disapproval
within 60 days after their submission to the Congress, any Member
may initiate a resolution of disapproval. This title provides that any
Member may by resolution discharge the committee of further con-
sideration of the regulations. Such it discharge motion would be
privileged and a resolution of disapproval would be in order if the
discharge motion succeeds. The effect of this provision would be to
permit a vote of disapproval by the whole House, if appropriately
raised, 60 days after the relevant committee has had an opportunity
to review the regulations.
To assure an expeditious resolution of a challenge to any pro-
vision of the title, the bill would vest in the United States Dis-
trict Court for the District of Columbia exclusive jurisdiction to
hear any challenge to the legal or constitutional validity of any pro-
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vision of that title or any regulations issued thereto. This legislation
provides that such a challenge shall be heard by a three-judge panel,
with direct appeal to the United States Supreme Court. Any challenge
shall be considered a priority matter by both courts, requiring imme-
diate consideration and resolution.
It is the intent of the committee that this section not apply to
litigation now pending in which access to the material relating to
the Nixon Presidency under the Freedom of Information Act and
title to ' the material in issue. But rather, it is intended to apply to
actions filed subsequent to enactment of this title.
Historical materials
This title would give the United States custody of all the Presi-
dential "historical material" of Richard M. Nixon. Section 2101 of
title 44, United States Code, provides that the term "historical
material" includes "books, correspondence, documents, papers,
pamphlets, works of art, models, pictures, photographs, plots, maps,
films, motion pictures, sound recordings, and other objects or materials
having historical or commemorative value." It is understood that
these materials include not only memoranda, letters, and. other
documents generated by Mr. Nixon, but also all documents and
material produced or collected by aides to the former President
and officials employed in Offices of the Executive Office during the
Presidency of Mr. Nixon.
Private ownership
The legislation takes no position on the ownership of these materials
prior to enactment of this title. The committee believes that at this
time the resolution of the question of prior ownership is a matter
most appropriately left for the judiciary to decide.
Nevertheless, the committee believes it has the authority to pass
legislation concerning the disposition of the Nixon Presidential mate-
rials. If the material is already public property, the bill is simply an
exercise of the congressional power under Article IV of the Con-
stitution to dispose of the property of the United States-one of the
basic constitutional grants of authority to the Congress.
If the material is private property, the legislation would, if neces-
sary, exercise the power of eminent domain. This power to take prop-
erty is also vested in the Congress, although the authority to determine
"just compensation" belongs to the judicial branch..
Moreover, even if these materials are private property, the Federal
Government may take "protective custody" of material which is
necessary for the continuing use of the Federal Government where it
is in the public interest to do so. According to Attorney General
Saxbe's opinion:
None of the considerations above enumerated is intended to limit
access by the public otherwise granted by section 552 of title 5, United
States Code (the Freedom of Information Act).
Historically, there has been consistent acknowledgment
that Presidential materials are peculiarly affected by a
absolute
public interest which may justify subjecting the absolute
ownership rights of the ex-President to certain limitations
directly related to the character of the documents as records
of government activity * * *. Upon the death of Franklin
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D. Roosevelt during the closing months-of World War II,
with full acceptance of the traditional view that all White
House papers belonged to the President and devolved to
his estate, some of the papers dealing with prosecution of
the War the so-called "Map Room Papers") were retained
by President Truman under a theory of "protective custody"
until December 1946. (Citation omitted.) Thus, regardless
of whether this is the best way to approach the problem,
precedent demonstrates that the governmental interests
arising because of the peculiar nature of these materials
(notably, any need to protect national security informa-
tion and any need for continued use of certain documents
in the process of government) can be protected in full
conformity with the theory of ownership on the part of
the ex-President. (Op. of the Att'y Gen., September 6,
1.974, pp. 9-10.)
Clearly, it is in the public interest to preserve the materials and to
provide access to the materials for judicial proceedings to expeditiously
complete the prosecution of Watergate-related crimes and to permit
the just resolution of other adjudications requiring access to the
materials. Clearly, it is in the public interest to provide general
public access to the materials to assure a full and accurate account
of "Watergate" and to provide a basis for legislation and executive
action to prevent future "Watergates" and clearly it is in the public
interest to safeguard the historical record of the Presidency during
the last five and one-half years.
TITLE II-NATIONAL STUDY COMMISSION ON RECORDS AND Docu-
MENTS OF FEDERAL OFFICIALS
Title II would establish an independent commission to study the
handling of records and documents of all Federal officials. Federal
officials would include elected officials, members of the Federal
judiciary, and other appointed officers of the government.
The 17-member commission would be composed of two Members of
the House of Representatives; two Senators; three appointees of the
President, selected from the public on a bipartisan basis, the Librarian
of Congress; one appointee each of the Chief Justice of the United
States, the White House, the Secretary of State, the Secretary of
Defense, the Attorney General, and the Administrator of General
Services; and three other representatives, one each appointed by the
American Historical Association, the Society of American Archivists,
and the Organization of American Historians.
The commission would be directed to make specific recommendations
for legislation and recommendations for rules and procedures as may be
appropriate regarding the disposition of documents of Federal officials.
The final report is to be submitted to the Congress and the President
by March 31, 1976.
The Subcommittee on Printing held two days of hearings on
legislation relating to the disposition of documents of Federal officials.
't'estimony during these hearings indicated that the issues relating to
the disposition of these documents are so varied and complex that a
comprehensive study would be warranted to develop specific recom-
mendations that could be used by the Congress in considering perma-
nent legislation affecting documents of all Federal officials.
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The issues that should be considered by the commission are both
philosophical and procedural. They include a review of procedures to
insure maximum preservation of useful historical material and
procedures to assure earliest practicable accessibility of these historical
materials to scholars for their use and interpretation. The commission
should also consider the extent to which procedures for gaining early
access to these materials may affect the willingness of officials to preserve
to the maximum extent uiseful historical matter.
Other issues that should be considered include: (1) the nature of
public documents as an adequate documentation of the work of
government officials; (2) the disposition of records created by ap-
pointed officials such as cabinet officers, White House staff and
members of the Federal judiciary; (3) a discussion of a consistent
policy regarding records created within the Executive Office of
the Presidency; (4) the role of elected officers as they generate and
retain files reflecting both politics and public administration; (5)
whether personal and truly political matters could be separated
from matters of official jurisdiction in public administration; (6)
whether the inclusion of political files would inhibit political activities
in any way; (7) circumstances under which general public access to
materials should be allowed and appropriate procedures to provide
such access; (8) the need to protect certain materials for personal,
political, or national security reasons; and (9) whether legislation
would encourage officials to purge files while still in office.
The bill would establish a commission that would include the leading
authorities on, and persons with principal responsibilities for, the
disposition of historical records. This commission would ensure the
exchange of ideas among experts in the field and lead to highly pro-
fessional recommendations which will be necessary if the Congress is
to legislate intelligently in this area.
Dr. James B. Rhoads, Archivist of the United States, in his testi-
mony in support of the proposal, stated:
* * * we strongly support the call for a study commission
to examine the foundations of historical evidence and the
presumptions about what should be kept and how best to
preserve it to serve the needs of the future. Our archival
problems are both philosophical and procedural; a study
commission can be a good approach to solving them * * *.
Dr. Rhoads went on to observe that:
Study commissions have often overcome great difficulties
in organizing governmental efforts in the past: The creation
of a national archives system was brought about by the
efforts of a number of study commissions; the Brownlow
Committee of 1936-40 established the Executive Office of
the President and approved the efficiency of the Executive
branch; and the Hoover Commissions of 1949 and 1955 over-
hauled the whole organization of the Executive branch to make
it more responsive to the demands of a changed society. I
am confident that this study commission can meet with
the same level of success in an area of equal complexity.
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CONCLUSION
It is the opinion of the committee that this legislation meets the
public interest of preserving the tapes and materials of the Presi-
dency of Richard M. Nixon and that it provides appropriate access
to these materials for use in judicial proceeding.- and for leVitimate use
by the public. The committee also believes that the bill will con-
structively contribute to the development of a uniform national policy
regarding the handling of the documents and records of all Federal
officials.
SECTION-BY-SECTION SUMMARY OF THE BILL
The first section provides that this legislation may be cited. as the
"Presidential Recordings and Materials Preservation Act".
TITLE I--PRESERVATION OF PRESIDENTIAL RECORDINGS AND
MATERIALS
Watergate tape recordings
Section 101(a) provides that, notwithstanding any other law or
agreement reached under section 2107 of title 44, United States Code,
any Federal employee in possession shall deliver to the Administrator
of General Services (hereinafter in this summary referred to as the
"Administrator") all original tape recordings of conversations which
(1) were recd.^ded by any officer or employee of the Federal Govern-
ment; (2) involve former President Richard M. Nixon or other in-
dividuals who were employed by the Federal Government at the time
of the conversation; (3) were recorded in the White House or in
certain other offices of Mr. Nixon; and (4) were recorded during
the period beginning January 20, 1969, and ending August 9, 1974.
Retention of historical materials
Section 101_(b) provides that, notwithstanding any other law or'
agreement ree,ched under section 2107 of title 44, United States Code,
the Administrator shall receive and retain all papers, documents,
memorandums, transcripts, and other objects and materials which
constitute the Presidential historical materials of Mr. Nixon, covering
the period beginning January 20, 1969, and ending August 9, 1974.
Section 101(b) also defines the term "historical materials" as having
the meaning given it by section 2101 of title 44, United States Code.
Section 2101 provides that such term includes books, correspondence,
documents, papers, pamphlets, works of art, models, pictures, photo-
graphs, plats, maps, films, motion pictures, sound recordings, and
other objects or materials having historical or commemorative value.
Prohibition of destruction
Section 102(a) provides that none of the tape recordings or other
materials referred to in section 101 (hereinafter in this summary re-
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--ierred to as "recordings or materials") shall be destroyed, except as
may be provided by law.
Use in judicial proceedings
Section 102(b) provides that, notwithstanding any other provision
of title I of this legislation, any other law, or any agreement reached
under section 2107 of title 44, United States Code, the recordings or
materials shall be made available for use in any judicial proceeding or
.otherwise subject to court subpena or other legal process immediately
upon the date of enactment of title I of this legislation, subject to any
rights, defenses, or privileges which the Federal Government or any
person may invoke.
Section 102(b) also provides that priority shall be granted to any
request of the Office of Watergate Special Prosecution Force for the
recordings or materials.
Access by Mr. Nixon
Section 1.02 (c) provides that Mr. Nixon, or any person he designates
in writing, shall have access to the recordings or materials for any
purpose, subject to regulations issued by the Administrator under
section 104 of this legislation.
Access by executive agencies
Section 102(d.) provides that any agency or department in the
executive branch of the Federal Government shall have access to the
recordings or materials for lawful Government use, subject to regula-
tions issued by the Administrator under section 104 of this legislation.
Payment for deprivation of property
Section 103 provides that if any court of the United States deter-
mines that any provision of title I of this legislation deprives any
individual of his property without just compensation, then compensa-
tion shall be made to such individual from the Treasury of the United
States.
Determination of property rights
Section 103 also provides that the provisions of title I of this legisla-
tion shall not be construed as making any determination with respect
to any private property right of title to the recordings or materials, if
any such right existed before the date of enactment of title I of this
legislation. The committee does not intend this legislation to make any
decision, determination, or other rule with respect to the existence or
extent of any such private property rights. It is the opinion of the
committee that the question of private property rights with respect to
the recordings or materials should be left for determination by an
appropriate court.
REGULATIONS TO PROTECT CERTAIN TAPE RECORDINGS AND OTHER
MATERIALS
Section 104 provides that, the Administrator shall issue regulations
to protect the recordings or materials from loss.or destruction and to
prevent access to the recordings or materials by unauthorized persons.
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Custody of the recordings or materials shall be I aintsined.in Washing-
ton, District of Columbia, or its metropolitan area, unless custody at
another location is necessary to carry out the provisions of title I of
this legislation.
REGULATIONS RELATING TO PUBLIC ACCESS
Submission of regulations
Section 105 (a) requires the Administrator to submit to each House
of the Congress, no later than 90 days after the date of enactment of
title I of this leM'slation, a report proposing and explaining regulations
to provide public access to the recordings or materials. Such regula-
tions are required to take into account the following factors: (1) the
need to inform the public regarding the truth with respect to the
Watergate affair; (2) the need to make the recordings or materials
available in judicial proceedings; (3) the need to prevent or restrict
general access to information relating to national security; (4) the
need to protect the right of individuals to a fair trial; (5) the need to
protect the right of any party to challenge access to the recordings or
materials on legal or constitutional grounds; (6) the need to provide
public access to materials of general historical significance with respect
to the Presidency of Mr. Nixon, as well as to those materials related
to the factor described in (1), in a manner which is consistent with
procedures which have been used to provide public access to materials
of former Presidents; and (7) the need to give to Mr. Nixon those
tape recordings and other materials which are not likely to be related
to the factor described in (1) and are not otherwise of general historical
significance.
Congressional review of regulations
Section 105(b) (1) provides that regulations proposed by the Ad-
ministrator under section 105(a) shall take effect 90 legislative days
after they are submitted to the Congress, unless either House of the
Congress disapproves such regulations by resolution during the 90-
legislative-day period. The Congress may disapprove all the regulations
which are submitted at the same time by- the Administrator, or the
Congress may disapprove some of the proposed regulations while
accepting others. In the latter case, those regulations which are not
expressly disapproved would take effect after the 90-legislative-day
period.
Section 105(b) (2) provides that the Administrator may not issue any
regulation or any change in any regulation if such regulation or change
has been disapproved by either House of the Congress.
Section 105(b) (3) provides that subsection (b) shall apply to any
change in any regulation proposed by the Administrator.
Section 105 (b) (4) provides that section 105 (b) (5) is enacted by the
Congress as an exercise of the rule-making power of the House of
Representatives, with recognition that the House may change such
rules at any time.
Section 105(b)(5) provides that any resolution introduced in the
House of Representatives under section 105(b)(1) shall be referred to
a committee by the Speaker of the House.
Paragraph (5) also provides that if the committee to which such
resolution has been referred does not report any resolution relating to a
proposed regulation or change within 60 days after submission of such
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proposed regulation or change, then it shall be in order to move to
discharge the committee from further o d lat ono uchrp oposed
introduced under section 105(b)(1) which relate-,
regulation or change.
Paragraph (5) also provides that such motion may be made only by a
person favoring the resolution, and the motion shall be privileged. An
amendment to the motion is not in order, and it is not in order to move
to reconsider the vote by which the motion is agreed to or disagreed to.
Paragraph (5) also provides that if the motion to discharge is agreed
to or disagreed to, then it may not be renewed.
Paragraph (5) also provides that when the committee has reported,
or has been discharged from consideration of, a resolution introduced in
the House under section 105(b)(1), it shall be in order to move to pro-
ceed to the consideration of such resolution. The motion shall be priv-
ileged, an amendment to the motion is not in order, and it is not, in
order to move to reconsider the vote by which the motion is agreed to
or disagreed to.
Paragraph (6) provides that for purposes of. section. 105(b), the
term "legislative days" does not include any calendar day on which
both Houses of the Congress are not in session.
Recordings or materials given to Mr. Nixon.
Section 105(c) provides that, on and after the date upon which
regulations proposed under section 105(b) take effect, the provisions
of title I of this legislation shall not apply to recordings or materials
given to Mr. Nixon under section 105 (a) (7).
JUDICIAL REVIEW
Exclusive jurisdiction; three judge court
Section 106(a) provides that the District Court for the District of
Columbia shall have exclusive jurisdiction to hear legal or constitu-
tional challenges to title I of this legislation or to any regulation issued
under title I. Subsection (a) requires that any such challenge be
heard by athree-judge district court in accordance with the procedures
established by section 2284 of title 28, United States Code, with the
right of direct appeal to the Supreme Court. Subsection (a) also re-
quires that priority be given to such challenges on court dockets.
Savings provision
Section 106(b) provides that if any provision of title I of this legis-
lation or any regulation issued under title I is held unconstitutional
or invalid, such holding shall not affect the validity or enforcement, of
any other provision of title I or regulation issued under title I.
PARTICIPATION IN CERTAIN COURT ACTIONS
Section 107 provides that the Committee on Government Opera-
tions of the Senate and. the Committee on House Administration of
the House of Representatives may appoint counsel to intervene in any
case or proceeding which involves (1) the ownership, compensation for
any taking, or other similar rights to or in, the recordings of mate-
rials or (2) any challenge to the legal or constitutional validity or any
provision of title I of this legislation or of any regulation issued under
the authority granted. by title I. Each such committee may take such
action by acting jointly or separately.
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The committee intends that this provision shall serve to assure
that legal and constitutional issues in the two types of cases described
in the preceding paragraph are raised, developed, and presented in an
effective fashion. Section 107 provides each committee with an
opportunity to intervene in cases and proceedings if either committee
determines that such intervention is necessary to assure a proper and
adequate presentation of the issues.
AUTHORIZATION OF APPROPRIATIONS
Section 108 authorizes to be appropriated such sums as may be
necessary to carry out the provisions of title I of this legislation.
TITLE II-PUBLIC DOCUMENTS COMMISSION
SHORT TITLE
Section 201 provides that title II of this legislation may be cited as
the "Public Documents Act".
ESTABLISHMENT OF STUDY COMMISSION
Section 202 amends chapter 33 of title 44, United States Code, by
adding section 3315 through section 3324.
DEFINITIONS
Section 3315 contains the following definitions, which are defined
for purposes of section 3315 through section 3324:
1. The term "Federal officials" is defined to mean the President,
the Vice President, any Senator, Representative, Delegate, or Resi-
dent Commissioner, or any officer of the executive, judicial, or legis-
lative branch of the Federal Government.
2. The term "Commission" is defined to mean the National Study
Commission or. Records and Documents of Federal Officials.
3. The term "records and documents" is defined to include hand-
written and typewritten documents, motion pictures, television tapes
and recordings, magnetic tapes, automated data processing documen-
tation, and other records which reveal the history of the Nation.
ESTABLISHMENT OF COMMISSION
Section 3316 establishes the National Study Commission on Records
and Documents of Federal Officials (hereinafter in this summary
referred to as the "'Commission").
DUTIES OF COMMISSION
Section 3317 requires the Commission to study problems and ques-
tions with respect to control, disposition, and preservation of records
and documents of Federal officials. The Commission is required to
develop recommendations with respect to such problems and questions.
The study is required to include consideration of (1) whether the
historical practice with respect to Presidential records and documents
should be rejected or accepted, and whether such practice should be
made applicable: with respect to all Federal officials; (2) the relation-
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ship of the findings of the Commission to the provisions of chapter 19
of title 44 (relating to depository library program), section 2101
through section 2108 of title 44 (relating to archival administration),
and other Federal laws relatin to control, disposition, and preservation
of records and documents of Federal officials; (3) whether the findings
of the Commission should affect control, disposition, and preservation
of records and documents of agencies within the Executive Office of
the President created for short-term purposes; (4) the recordkecping
procedures of the White House Office; (5) rules which should apply to
control, disposition, and preservation of records and documents of
Presidential task forces, commissions, and boards; (6) criteria for
determining the scope of materials which should. be considered the
records anc documents of Members of the Congress; (7) the privacy
interests of individuals who communicate with Federal officials; and
(8) any other problems which the Commission considers relevant to
carrying out its duties.
MEMBERSHIP
Selection of members
Section 3318(a) provides that the Commission shall be composed of
the following 17 members: (1) one Member of the House of Repre-
sentatives appointed by the Speaker of the House upon recommenda-
tion by the majority leader; (2) one such Member appointed by the
Speaker upon recommendation by the minority leader; (3) one Mem-
ber of the Senate appointed by the President pro tempore of the
Senate upon recommendation by the majority leader of the Senate;
(4) one such Member appointed by the President pro tempore upon
recommendation by the minority leader; (5) one Justice of the Supreme
Court, appointed by the Chief Justice of the United States; (6) one
person employed by the Executive Office of the President or the White
House Office, appointed by the President; (7) three appointed by the
President (no more than two of which may be of the same political
party), by and with the advice and consent of the Senate, from persons
who are not officers or employees of any government and who are
qualified to serve on the Commission by virtue of their education,
training, or experience; (8) one representative of the Department of
State, appointed by the Secretary of State; (9) one representative of
the Department of Defense, appointed by the Secretary of Defense;
(10) one representative of the Department of Justice, appointed by the
Attorney General; (11) the Administrator of General Services or his
delegate; (12) the Librarian of Congress; (13) one member of the
American Historical Association, appointed by the counsel of such
Association; (14) one member of the Society of American Archivists,
appointed by such Society; and (15) one member of the Organization
of American Historians, appointed by such Organization.
Vacancies
Section 3318(b) provides that a vacancy in the Commission shall be
filled in the same manner as the original appointment was made.
Continuation of membership
Section 3318(c) provides that if a Member of the Congress serving
on the Commission leaves the Congress, or if a person appointed to
the Commission from persons not officers or employees of any govern-
ment becomes such an officer or employee, the Member or person may
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continue as a member of the Commission for 60 days after his change
in status.
Duration of mem6ersliip
Section 3318(d) provides that members of the Commission shall be
appointed for the life of the Commission.
Pay; travel expenses
Section 3318(e) provides that members of the Commission shall
serve without pay. Subsection (e) also provides for travel expenses
and per diem allowances for members of the Commission, except that
the per diem is not extended to members of the Commission who are
full-time officers or employees of the United States or Members of
the Congress.
Chairman
Section 3318(f) provides that the President shall designate the
Chairman of the Commission from among members appointed by
the President under section 3318(a) (1) (G).
Meetings
Section 3318(g) provides that the Commission shall meet at the
call of the Chairman or a majority of the members of the Commission.
Director
Section 3319(a) provides that the Commission shall appoint a
Director who shall be paid under the rate in effect for level V of the
Executive Schedule (5 U.S.C. 5316).
Additional personnel
Section 3319(b) provides that the Commission may appoint and fix
the pay of such additional personnel as it deems necessary.
Temporary and intermittent services
Section 3319(c) authorizes the Commission to procure temporary
and intermittent services. In procuring such services, the Commission
shall seek to obtain advice and assistance from constitutional scholars
and members of the historical, archival, and journalistic professions.
Assistance from Federal agencies
Section 3319(d,) provides that the heads of Federal agencies are
authorized to detail personnel to the Commission.
Section 3320 authorizes the Commission to hold hearings and
receive testimony and evidence. Any member or agent of the Com-
mission may take any action which the Commission may take, upon
authorization by the Commission.
Section 3320 also authorizes the Commission to secure information
from any department or agency of the United States, if such.informa
tion is necessary to enable the Commission to carry out its functions.
SUPPORT SERVICES
Section 3321 requires the Administrator of General Services and
the Archivist of the United States to provide services and assistance
to the Commission.
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REPORT
Section 3322 requires the Commission to transmit a report detailing
its findings and recommendations to the President and to each House
of the Congress no later than March 31, 1976.
TERMINATION
Section 3323 provides that the Commission shall terminate 60 days
after transmitting its report under section 3322.
AUTHORIZATION OF APPROPRIATIONS
Section 3324 authorizes to be appropriated such sums as may be
necessary to carry out section 3315 through section 3324.
TECHNICAL AMENDMENT
Section 203 makes a technical amendment to the table of sections
for chapter 33 of title 44, United States Code.
CHANGES IN EXISTING LAw MADE BY THE BILL, AS REPORTED
In compliance with clause 3 of Rule XIII of the Rifles of the House
of Representatives, changes in existing law made by the, bill, as re-
ported, are, shown as follows (new matter is printed in italic, existing
) :
i
h
n roman
own
law in which no change is proposed is s
TITLE 44.-UNITED STATES CODE
Chapter 33.-Disposal of Records
Sec.
3301. Deftnition of records.
3302. Regulations. covering lists of records for disposal, procedure for disposal, and
standards for reproduction.; approval by President.
3303. Lists and schedules of records to be submitted to Administrator of General
Services by head of each Government agency.
3303a.Examination by Administrator of General Services of lists and schedules of
records laching preservation value; disposal of records.
3308. Disposal of similar records where prior disposal was authorized.
3309. Preservation of claims of Government until settled in General Accounting
Office; disposal authorized upon written approval of Comptroller General.
3310. Disposal of records constituting menace to health, life, or property.
3311. Destruction of records outside continental United States in time of war or
when hostile action seems imminent; written report to Administrator of
General Services.
3312. Photographs or microphotographs of records considered as originals;
certified reproductions admissible in evidence.
3313. Moneys from sale of records payable into the Treasury.
3314. Procedures for disposal of records exclusive.
3315. Definitions.
3316. Establishment of Commission.
3317. Duties of Commission.
3318. Membership.
3319. Director and staff; experts and consultants.
3320. Powers of Commission.
3321. Support services.
3322. Report.
3323. Termination.
3324. Authorization of appropriations.
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? 3315. Definitions
For purposes of this section and section 3316 through section 3324 of
this title-
(1) the term "Federal official" means any individual holding the
-office of President or Vice President of the United States, or Senator
or Representative in, or Delegate or Resident Commissioner to, the
Congress of the United States, or any officer of the executive, judicial,
,or legislative branch of the Federal Government;
(2) the term "Commission" means the National Study Com-
mission on Records and Documents of Federal Officials; and
(3) the term "records and documents" shall include handwritten
and typewritten documents, motion pictures, television tapes and
recordings, magnetic tapes, automated data processing documenta-
tion in various forms, and other records that reveal the history of
the Nation.
? 3316. Establishment of Commission
There is established a commission to be known as the National Study
Commission on Records and Documents of Federal O f}icials.
? 3317. Duties of Commission
It shall be the duty of the Commission to study problems and questions
with respect to the control, disposition, and preservation of records and
documents produced by or on behalf of Federal officials, with a view toward
the development 9f appropriate legislative recommendations and other
recommendations regarding appropriate rules and procedures with respect
to such control, disposition, and preservation. Such study shall include
consideration of--
(1) whether the historical practice regarding the records and docu-
ments produced by or on behalf of Presidents of the United States
should be rejected or accepted and whether such practice should be
made applicable with respect to all Federal officials;
(2) the relationship of the findings of the Commission to the provi-
sions of chapter 19 of this title, section 2101 through section 2108
of this title, and other Federal laws relating to the control, disposition,
and preservation of records and documents of Federal officials;
(3) whether the findings of the Commission should affect the control,
disposition, and preservation of records and documents of agencies
within the Executive Office of the President created for short-term
purposes by the President;
(4) the recordkeeping procedures of the White house Office, with
a view towarl' establishing means to determine which records and
documents are produced by or on behalf of the President;
(5) the nature of rules and procedures which should apply to the
control, disposition, and preservation of records and documents
produced by Presidential task forces, commissions, and boards;
(6) criteria which may be used generally in determining the scope
of materials which, should be considered to be the records and docu-
ments of Members of the Congress;
(7) the privacy interests of individuals whose communications
with Federal officials, and with task forces, commissions, and boards,
are a part of the records and documents produced by such officials,
task forces, commissions, and boards; and
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(8) any other problems, questions, or issues which the Commission
considers relevant to carrying out its duties under section 3315
through section 3824 of this title.
3318. Membership
(a) (1) The Commission shall be composed of seventeen members as
follows :
(A) one Member of the House of Representatives appointed by the
Speaker of the House upon recommendation made by the majority
leader of the House;
(B) one Member of the House of Representatives appointed by the
Speaker of the House upon recommendation made by the minority
leader of the House;
(C) one Member of the Senate appointed by the President pro
tempore of the Senate upon recommendation made by the majority
leader of the Senate;
(D) one Member of the Senate appointed by the President pro
tempore of the Senate upon recommendation made by the minority
leader of the Senate;
(E) one Justice of the Supreme Court, appointed by the Chief
Justice of the United States;
(F) one person employed by the Executive Office of the President
or the White House Office, appointed by the President;
(G) three appointed by the President, by and with the advice and
consent of the Senate, from persons who are not officers or employees
of any government and who are specially qualified to serve on the
Commission by virtue of their education, training, or experience;
(H) one representative of the Department of State, appointed by
the Secretary of State;
(I) one representative of the Department of Defense, appointed
by the Secretary of Defense;
(J) one representative of the Department of Justice, appointed by
the Attorney General;
(K) the Administrator of General Services (or his delegate);
(L) the Librarian of Congress;
(M) one member of the American Historical Association, appointed
by the counsel of such Association; appointed
(N) one member of the Society of American Archivists, appo
by such Society; and
(0) one member of the Organization of American Historians,
appointed by such Organization.
(2) No more than two members appointed under paragraph (1) (G)
may be of the same political party.
(b) A vacancy in the Commission shall be filled in the manner in which
the original appointment was made.
(c) If any member of the Commission who was appointed to the Com-
mission as a Member of the Congress leaves such office, or if any member of
the Commission who was appointed from persons who are not officers or
employees of any government becomes an officer or employee of a govern-
ment, he may continue as a member of the Commission for no longer than
the sixty-day period beginning on the date he. leaves such office or becomes
such an officer or employee, as the case may be.
(d) Members shall be appointed for the life of the Commission.
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(e) (1) Members of the Commission shall serve without pay.
(2) While away from their homes or regular places of business in the
performance of services for the Commission, members of the Commission
shall be allowed `ravel expenses in the same manner as persons employed
intermittently in the service of the Federal Government are allowed expenses
under section 5703(b) of title 5, United States Code, except that per diem
in lieu of subsistence shall be paid only to those members of the Commission
who are not full-time officers or employees of the United States or Members
of the Congress.
(f) The Chairman of the Commission. shall be designated by the President
from among members appointed under subsection (a) (1) (G).
(g) The Commission shall meet at the call of the Chairman or a majority
,of its members.
3319. Director and staff ; experts and consultants
(a) The Commission shall appoint a Director who shall be paid at a
.rate not to exceed the rate of basic pay in effect for level V of the Executive
Schedule (5 U.S.C. 5316).
(b) The Commission may appoint and fax the pay of such additional
personnel as it deems necessary.
(c) (1) The Commission may procure temporary and intermittent services
to the same extent as is authorized by section 3109(b) of title 5, United
States Code, but at rates for individuals not to exceed the daily equivalent
of the annual rate of basic pay in effect for grade 05--15 of the General
Schedule (5 U.S.C. 5332).
(2) In procuring services under this subsection, the Commission shall
seek to obtain the advice and assistance of constitutional scholars and
members of the historical, archival, and journalistic professions.
(d) Upon request of the Commission, the head of any Federal agency is
authorized to detail, on a reimbursable basis, any of the personnel of such
agency to the Commission to assist it in carrying out its duties under
sections 3315 through 3324 of this title.
? 3320. Powers of Commission
(a) The Commission, may, for the purpose of carrying out its duties
under sections 3315 through 3324 of this title, hold such hearings, sit and
act at such time,,, and places, take such testimony, and receive such
evidences as the Commission may deem desirable.
(b) When so authorized by the Commission, any member or agent of the
Commission may take any action which the Commission is authorized to
take by this sections.
(c) The Commission may secure directly from any department or agency
of the United States information necessary to enable the Commission to
carry out its duties under section 3315 through section 3324 of this title.
Upon request of the Chairman of the Commission, the head o f such de-
partment or agency shall furnish such information to the Commission.
? 3321. Support services
(a) The Administrator of General Services shall provide to the Com-
mission on a reimbursable basis such administrative support services and
assistance as the Commission may request.
(b) The Archivist of the United States shall provide to the Commission
on. a reimbursable basis such technical and expert advice, consultation,
and support assistance as the Commission may request.
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3322. Report
The Commission shall transmit to the President and to each House of
the Congress a report not later than March 31, 1976. Such report shall
contain a detailed statement of the findings and conclusions of the Com-
mission, together with its recommendations for such legislation, adminis-
trative actions, and other actions, as it deems appropriate.
? 3323. Termination
The Commission shall cease to exist sixty days after transmitting its
report under section 3322 of this title.
? 3324. Authorization of appropriations
There is authorized to be appropriated such sums as may be necessary
to carry out section 3315 through section 3324 of this title.
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APPENDIX
NIXON-SAMPSON AGREEMENT RELATING TO PRESIDENTIAL MATERIALS
SEPTEMBER 6, 1974.
IIon. ARTHUR F. SAMPSON,
Administrator, General Services Administration,
Washington, D.C.
DEAR MR. SAMPSON: In keeping with the tradition established by
other former Presidents, it is my desire to donate to the United States,
at a future date, a substantial portion of my Presidential materials
which are of historical value to our Country. In donating these Presi-
dential materials to the United States, it will be my desire that they
be made available, with appropriate restrictions for research and
study.
In the interim, so that my materials may be preserved, I offer to
transfer to the Administrator of General Services (the "Administra-
tor"), for deposit, pursuant to 44 U.S.C. Section 2101, et seq., all of
my Presidential historical materials as defined in 44 U.S.C. Section
2101. (hereinafter "Materials"), which are located within the metro-
politan area of the District of Columbia, subject to the following:
1. The Administrator agrees to accept, solely for the purpose
or deposit the transfer of the Materials, and in so accepting the
Materials agrees to abide by each of the terms and conditions
contained herein.
2. In the event of my death prior to the expiration of the three-
year time period established in paragraph 7A hereof, the terms
and conditions contained herein shall be binding upon and inure
to the benefit of the executor of my estate for the duration of
said period.
3. 1 retain all legal and equitable title to the Materials, includ-
ing all literary property rights.
4. The Materials shall, upon acceptance of this offer by the
Administrator, be deposited temporarily in an existing facility
belonging to the United States, located within the State of Cali-
fornia near my present residence. The Materials shall remain de-
posited in the temporary California facility until. such time as
there may be established, with my approval, a permanent Presi-
dential archival depository as provided for in 44 U.S.C. Section
2108.
5. The Administrator shall provide in such temporary deposi-
tory and in any permanent Presidential archival depository rea-
sonable office space for my personal use in accordance with 44
U.S.C. Section 2108(f). The Materials in their entirety shall be
deposited within such office space in the manner described in
paragraph 6 hereof.
6. Within both the temporary and any permanent Presidential
archival depository, all of the Materials shall be placed within
secure storage areas to which access can be gained only by use
of two keys. One key, essential for access, shall be given to me
alone as custodian of the Materials. The other key may be dupli-
cated and entrusted by you to the Archivist of the United States
or to members of his staff.
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7. Access to the Materials within the secure areas, with the
exception of recordings of conversations in the White House and
the Executive Office Building which are governed by paragraphs
8 and 9 hereof, shall be as follows :
(A) For a period of three nears from the date of this in-
strument, I agree not to withdraw from deposit any originals
of the Materials, except as provided in subparagraph B below
and paragraph 10 herein. During said three-year period, I
may make reproductions of any of the originals of the Ma-
terials and withdraw from deposit such reproductions for
any use I may deem appropriate. Except as provided in sub-
paragraph B below, access to the Materials shall be limited
to myself, and to such persons as I may authorize from time
to time in writing, the scope of such access to be set forth by
me in each said written authorization. Any request for access
to the Materials made to the Administrator, the Archivist of
the United States or any member of their staffs shall be
referred to me. After three years I shall have the right to
withdraw from deposit without formality any or all of the
Materials to which this paragraph applies and to retain such
withdrawn ' Materials for any purpose or use I may deem
appropriate, including but not limited to reproduction, ex-
amination, publication or display by myself or by anyone
else I may approve.
(B) In the event that production of the Materials or any
portion thereof is demanded by a subpoena or other order
directed to any official or employee of the United States, the
recipient of tlhe subpoena or order shall immediately notify
me so that I may respond thereto, as the owner and custodian
of the Materials, with sole light and power of access thereto
and, if appropriate, assert any privilege or defense I may
have. Prior to any such production. I shall inform the United
States so it may inspect the subpoenaed materials and deter-
mine whether to object to its production on grounds of na-
tional security or any other privilege.
8. The tape recordings of conversations in the White House and
Executive Office Building, which will be deposited pursuant to
this instrument shall remain on deposit until September 1, 1979.
I intend to and do hereby donate to the United States, such gift
to be effective September 1, 1979, all of the tape recordings of
conversations in the White House and Executive Office Building
conditioned however on my continuing right or access as specified
in paragraph 9 hereof and on the further condition that such tapes
shall be destroyed at the time of my death or on September 1,
1984, whichever event shall first occur. Subsequent to Septem-
ber 1, 1979 the Administrator shall destroy such tapes as I may
direct. I impose this restriction as other Presidents have before
me to guard against the possibility of the tapes being used to
injure, embarrass, or hramss any person and property to safeguard
the interesl~s of the United States.
9. Access to recordings of conversations in the White House
and Executive Office Building within the secure areas shall be
restricted as follows:
A. I agree not to withdraw from deposit any originals of
the Materials, except as provided in subparagraph B and
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paragraph 10 below, and no reproductions shall be made
unless there is mutual agreement. Access to the tapes shall
be limited to myself, and to such persons as I may authorize
from time to time in writing, the scope of such access to be
set forth by me in each said written authorization. No person
may listen to such tapes without my written prior approval.
I reserve to myself such literary use of the information on
the tapes.
B. In the event that production of the Materials or any
portion thereof is demanded by a subpoena or other order
directed to any official. or employee of the United States, the
recipient of the subpoena or order shall immediately notify
me so that I may respond thereto, as the owner and custodian
of the Materials, with sole right and power of access thereto
and, if appropriate, assert any privilege or defense I may
have. Prior to any such production, I shall inform the United
States so it may inspect the subpoenaed materials and deter-
mine whether to object to its production on grounds of
national security or any other privilege.
10. The Administrator shall arrange and be responsible for the
reasonable protection of the Materials from loss, destruction or
access by unauthorized persons, and may upon receipt of any ap-
propriate written authorization from Counsel to the President
provide for a temporary re. deposit of certain of the Materials to a
location other than the existing facility described in paragraph 4
herein, provided however that no diminution of the Administra-
tor's responsibility to protect and secure the Materials from loss,
destruction, unauthorized copying or access by unauthorized per-
sons is affected by said temporary re-deposit.
11. From time to time as I deem appropriate. I intend to donate
to the United States certain portions of the Materials deposited
with the Administrator pursuant to this agreement, such dona-
tions to be accompanied by appropriate restrictions as authorized
by 44 U.S.C. Section 2107. However, prior to such donation, it will
be necessary to review the Materials to determine which of them
should be subject to restriction, and the nature of the restrictions
to be imposed. This review will require a meticulous, thorough,
time-consuming analysis. If necessary to fulfill this task, I will
request that you designate certain members of the Archivist's
staff to assist in this review under my direction.
If you determine that the terms and conditions set forth above are
acceptable for the purpose of governing the establishment and main-
tenance of a depository of the Materials pursuant to 44 U.S.C. Section
2101 and for accepting the irrevocable gift of recordings of conversa-
tions after the specified five year period for purposes as contained in
paragraph 8 herein, please indicate your acceptance by signing the
enclosed copy of this letter and returning it to me. Upon your accept-
ance we both shall be bound by the terms of this agreement.
Sincerely,
(Signed) RICHARD NI XON.
Accepted by: Arthur F. Sampson, /s/ Arthur F. Sampson 9/7/74,
Administrator, General Services Administration.
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Calendar
93D CONGRESS SENATE REPORT
Od Session No. 93-1181
PRESERVATION, PROTECTION, AND PUBLIC ACCESS
WITH RESPECT TO CERTAIN TAPE RECORDINGS AND
OTHER MATERIALS
Mr. ERVIN, from the Committee on Government Operations,
submitted the following
REPORT
The Committee on Government Operations, to which was referred
the bill (S. 4016) to protect and preserve recordings of conversations
involving former President Richard Al. Nixon and made during his
tenure as President, and for other purposes, having considered the
same, reports favorably thereon with an amendment and recommends
that the bill as amended do pass.
The amendment is in the nature of a substitute.
The purpose of S. 4016, as amended, is to (1) protect and preserve
tape recordings of conversations, and other materials, recorded or pre-
pared in the White House, the Executive Office Building, and certain
other specified places, between January 20, 1969 and August 9, 1974;
(2) make them available for use by the Special Watergate Prosecution
Force and for access by the public, under regulations promulgated by
the Administrator of General Services who would be required to retain
custody and control of such tapes and other materials ; and (3) make
them available to Richard M. Nixon, or his designees, for copying, or
any other purpose, consistent with the Administrator's regulations.
In order to accomplish these objectives, the Committee amendment
directs the Administrator of General Services, notwithstanding the
agreement or understanding he entered into with former President
3s-ono
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Nixon on September 6, 1974,* pursuant to section 2107 of title 44,
United States Code, or any other law, to obtain or retain complete
possession and control of all tape recordings of conversations, and
all papers, documents, memorandums, and transcripts, which meet cer-
tain stated conditions.
With respect to tape recordings, the Committee amendment covers
all recordings of conversations recorded or caused to be recorded by a
Federal officer or employee between January 20, 1969 and August 9,
1974, which (1) involve former President Nixon and/or others who,
at the time of the conversation, were Federal employees; and (2) were
recorded in the White House, the Executive Office Building in Wash-
ington, D.C.; Camp David, Maryland; Key Biscayne, Florida; San
Clemente, California; or any other place.
The papers, documents, memorandum, and transcripts are those
which constitute the Presidential historical materials of Mr. Nixon, as
defined in section 2101 of title 44, United States Code, covering the
period between January 20,1969 and August 9,1974.
In order to insure the safety and preservation o f the tape recordings,
and other materials; the committee amendment provides that they
cannot be destroyed except as the Congress may provide. In order to
insure their availability for use in judicial proceedings, including
court subpena and other legal process, prior to the promulgation by
the Administrator of General. Services of his required regulations gov-
erning access thereto, all of these recordings, and other materials, are
required to be made available for such uses immediately upon the date
of enactment of this Act, and requests for access to them by the Special
Watergate Prosecution Force is specifically given priority over any
other requests.
In order to insure the safety, preservation. and availability of all of
the materials, as well as access by the public, the Administrator of
General Services is required to promulgate reasonable regulations to
assure their protection from loss, destruction, or access by unauthor-
ized persons, and custody of all such materials must be maintained in
Washington, D.C., except as may otherwise be necessary to carry out
the purposes of the Act.
The Committee amendment further requires that the regulations
promulgated by the Administrator must provide that (1) that all tape
recordings, and other materials, shall be made available for use in
judicial proceedings or otherwise subject to court subpena or other
legal process, and that information relating to national security can
only be disclosed for such purposes; (2) that there shall be public
access to the tape recordings, and other materials, unless the Office of
Special Watergate Prosecution Forces certifies in writing, or a court
of competent jurisdiction determines, that, such disclosure or access
is likely to impair an individual's right to a fair and impartial trial ;
and (3) that Mr. Nixon, or any person whom he may designate in
writing, shall at all times have access to the tape recordings, and other
materials, provided that such access is consistent with the Admin-
istrator's regulations.
In order to protect Mr. Nixon's property, or other legal rights, if
any, in the tape recordings and other materials, the Committee amend-
ment provides two specific remedies : First, it authorizes payment of
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2
just compensation by the Administrator from funds in the, Federal
Treasury to anyy individual found by a Federal court of. competent
jurisdiction to Have been deprived of private ' property by the provi-
sions of this Act? second, it vests in the United States District Court
for the District of Columbia exclusive jurisdiction to hear challenges
to the: legal or constitutional validity of any provision of the Act. It
provides further that such challenges shall be heard by a three-judge
court, with the right of direct appeal to the United States Supreme
Court, and requires that such challenges shall be treated by both courts
as priority matters to be given: immediate consideration and resolution.
$ Q OROUND.. _...
l a
o
t
.7 -- - .. --, - -
In 1,
1-
The " VV ater'gate a ui, . 'is i
ranging series of illegal and abusive activities, engaged in by individ-
uals employed by or associated' with the Federal Government during
Richard 1\'I. Nixon's' tenure as President. The publicly available facts
are well known and need not be discussed in detail h ere: It is sufficient
to note that more than three dozen people have been indicted for
Witterate-related crin es. Many of these crimes are now being prose-
ted by the Office of Special Watergate Prosecution Force in the
Federal courts. generally believed to be true,
It has been widely reported, and is
that President' Nixon's papers, tape recordings, and other materials
contain additional evidence relating to the Watergate crimes. It is also
believed, based on papers and tape recordings already made public,
that those still undisclosed tapes and papers would provide considera-
ble information to explain . the evolution, planning, implementa-
tion, and cover-up of the Watergate affair. For these reasons, it was
hoped that ultimate access to the Nixon papers and tapes would be of
particular importance to the defendants being prosecuted for Water
gate crimes, to the Office of Special Watergate Prosecution Force, and
to the American people. These materials would enable all to know the
full truth of the Watergate affair. Moreover, the Congress, the execu
five branch, and others could take actions to help insure that the
Watergate affair remain an aberration of our past and not a prologue
to our future.
On September 8, 1974, President Ford announced that the White
House had negotiated an agreement between former President Nixon
and the Federal Government concerning the disposition of the papers,
tape recordings, and other materials relating tb his 'tenure in office.
The agreement was made pursuant to 44 U.S.C. f, 101, 'et seq., and was
signed by Mr. Nixon and Arthur Sampson, Admi list ator of General
Services.
The agreement presumes that all materials relating to Mr. Nixon's
tenure as President are his private property. Under its terms, Mr.
Nixon stated that he would donate a substantial portion of these ma-
terials to the Federal Government at, some point in the future. The
Agreement further provides that all those materials shall be kept in
the custody of the Federal Government at a storage facility near Mr.
Nixon's home in California.
Other provisions of the agreement are that-
(11} Mr. Nixon will control access to the materials; any requests
for access to them, whether by court subpena or other legal proc-
ess, must be referred to him.
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(2) Mr. Nixon has the right to withdraw any materials (except
tape recordings) from deposit after 3 years from the date of the
agreement for any purpose; presumably, this right to withdraw
also encompasses the right to destroy any papers or materials he
wishes.
(3) In a separate provision, Mr. Nixon agreed to donate the
tape recordings to the Federal Government on September 1, 1979.
The agreement, states, however, that this future gift is subject to
the condition that all the tapes in the Government's custody "shall
be destroyed at the time of Mr. Nixon's death or on September 1,
1984, whichever event shall first occur."
(4) Finally, the agreement provides that, in any event, Mr.
Nixon can direct the Administrator to destroy any tapes Mr.
Nixon chooses after the gift becomes effective in 1979.
The net effect of these provisions is to place the tape recordings in
imminent danger of destruction. In the event of Mr. Nixon's death,
all the tapes would have to be destroyed. The agreement also requires
the Office of Special Watergate Prosecution Force, as well as any other
litigant, to file with Mr. Nixon any request for access to the tapes and
other materials,. This, in turn, raises the strong possibility that the
prosecution of the Watergate crimes could be marked by protracted
delays in obtaining evidence, since it is quite possible that protracted Nixon
might resist sonic or perhaps. all of that Office's request for informa-
tion. Moreover, the agreement suggests that Mr. Nixon, or his des-
ignees, could start destroying all the papers and materials (other than
the tapes) by 1977.
The ultimate destruction of the tapes. coupled with the difficulties
in obtaining access to the other Nixon materials, would be a funda-
mental violation of public policy. To begin with, prosecutors, de-
fendants, and the courts probably would be deprived of crucial evi-
dence bearing on the defendants' innocence or guilt of the Watergate
crimes for which they stand accused. Moreover, the American people
would be denied full access to all facts about the Watergate affair,
and the efforts of Congress, the executive branch, and others to take
measures to prevent a recurrence of the Watergate affair may be
inhibited. The Nixon-Sampson agreement, then, bears not only on our
system of justice; it also bears on the viability of our constitutional
system of government.
LEGISLATION AND COMMITTEE ACTION
The importance and urgency of this matter explains the Commit-
tee's decision to Pict expeditiously on S. 4016 and to amend it as here-
tofore noted.
The Committee is of the opinion that no hearings are needed on
this legislation. The events and facts surrounding the Watergate af-
fair have been aired fully in hearings conducted by the House Com-
mittee on the Judiciary, the Senate Select Committee on Presidential
Campaign Activities, and other congressional bodies. Likewise, the
facts surrounding the negotiation of the agreement, as well as the
agreement itself, are a matter of public record.
The legislation does not take any position with respect to the owner-
ship of Mr. Nixon's tapes, papers, and other materials. First of all,
it is not clear that Congress can make a retroactive ruling as to
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whether these tapes and materials are or are not public property. The
question of ownership here is pre-eminently a matter of law for the
courts to decide. In any case, it is not necessary to decide the question
of o\vnership in order to have the Federal Government assume com-
plete possession and control of the Nixon tapes and papers.
If the materials are public property, then Congress is merely exercis-
ing its powers under Article IV of the Constitution to dispose of
public property.
If the materials are private property, then the Congress is merely
taking "protective custody" of them for critically important public
business. The Attorney General's opinion, which President Ford relied
on in negotiating the Nixon-Sampson agreement, acknowledges that
the Federal Government can take possession and complete control
of presidential materials in certain circumstances. According to that
opinion, such "protective custody" would be justified by clear and
important public purposes :
Historically, there has been consistent acknowledgment that
Presidential materials are peculiarly affected by a public
interest which may justify subjecting the absolute owner-
ship rights of the ex-President to certain limitations directly
related to the character of the documents as records of govern-
ment activity. . . . Upon the death of Franklin D. Roose-
velt during the closing months of World War II, with full
acceptance of the traditional view that all White House
papers belonged to the President and devolved to his estate,
some of the papers dealing with prosecution of the War (the
so-called "map Room Papers") were retained by President,
Truman under a theory of "protective custody" until Decem-
ber 1946. (Citation omitted.) Thus, regardless of whether this
is the best way to approach the problem, precedent demon-
strates that the governmental interests arising because of the,
peculiar nature of these materials (notably, any need to pro-
tect national security information and any need for continued
use of certain documents in the process of government) can be
protected in full conformity with the theory of ownership on
the part of the ax-President. (Op. of the Att'y Gen., Septem-
ber 6, 1974, pp. 9-10.)
Any taking authorized by S. 4016 clearly qualifies under the Attor-
ney General's opinion. The materials involved include information
relating to the Watergate affair. This information probably will be
critical in any judicial. determinations of the innocence or guilt of
individuals accused of Watergate crimes. The information probably
will be critical also in the decisions of Congress and the executive
branch as to what actions by each are necessary to prevent future abuses
comparable to the Watergate affair. In short, the Nixon materials are
needed for continued use in the processes of government.
If a court should decide that the legislation would in any way de-
prive Mr. Nixon, or anyone else, of private property, provision is then
made to have him paid just compensation 1 for the loss of any such
'It is traditionally the province of the courts to determine what would con-
stitute "just compensation." Therefore, the legislation does not seek to appraise
the value of the materials involved,
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6
property right. The payment of such just compensation will render
any "taking"under the legislation as constitutional.2
CONCLUSION
The Committee concludes that legislation must be enacted promptly
to protect and preserve the papers, documents, memorandums, tape re-
cordings, and transcripts originating during the presidency of Rich-
ard M. Nixon in order that all facts about. the Watergate affair may be
made available to the American people and to the courts, prosecutors,
and individuals involved in trials arising therefrom. S. 4016, as
amended, will provide such adequate protection and preservation.
In compliance with section 133 of the Legislative Reorganization
Act of 1946, as amended, rollcall votes taken during Committee consid-
eration of this legislation are as follows :
FINAL PASSAGE : Ordered reported : 8 yea-0 nays.
Yeas: Nays:
Muskie None
RibicofY
Metcalf
Chiles
I-luddleston
Percy
Javits
Ervin
(Proxy)
Jackson
'The Federal Government has an inherent power of "eminent domain" which
allows it to take private property. There are, however, two basic criteria if this
"taking" is to be constitutional and proper : the taking must be necessary to serve
a public purpose, and just compensation must be paid to any individual who is
deprived of property. United States e-- rel T.V.A. v. Welch, 327 U.S. 546 (1946)
Backus v. Fort Str;et Union Depot Co. 169 U.S. 557 (1898).
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APPENDIX
NIXON-SAMrsoN AGREEMENT RELATING TO PP.ESIDENTIAL MATEIUALS
SEPTEMBER 6, 1974.
Hon. ARTIIUR F. SAMPSON,
Administrator, General Services Administration,
Washington, D.C.
DEAR Mr,. S AMPSON : In keeping with the tradition established by
other former Presidents, it is my desire to donate to the United States,
at a future date, a substantial portion of my Presidential materials
which are of historical value to our country. In donating these Presi-
dential materials to the United States, it will be my desire that they
be made available, with appropriate restrictions for research and
study.
In the interim, so that my materials may be preserved; I offer to
transfer to the Administrator of General Services (the "Administra-
tor"), for deposit, pursuant to 44 U.S.C. Section 2101, et 'seq., all of
my Presidential historical. materials as defined in 44 U.S.C. Section
2101 (hereinafter "Materials"), which are located within =the metro-
politan area of the District of Columbia, subject to the fallowing:
1. The Administrator agrees to accept solely for the purpose
of deposit the transfer of the Materials, and in so accepting the
Materials agrees to abide by each of the terms and conditions
contained herein.
2. In the event of my death prior to the expiration of the three-
year time period established in paragraph 7A hereof; the terms
and conditions contained herein shall be binding upon and inure
to the benefit of the executor of my estate for the duration of
said period.
3. I retain all legal and equitable title to the Materials, includ-
ing all literary property rights.
4. The Materials shall, upon acceptance of this offer by the
Administrator, be deposited temporarily in. an existing facility
belonging to the United States, located within the State of Cali-
fornia near my present residence. The Materials shall remain de-
posited in the temporary California facility until such time as
there may be established, with my approval, a permanent Presi-
dential archival depository as provided for in 44 U.S.C..Section
2108.
5. The Administrator shall provide in such temporary!deposi-
tory and in any. permanent Presidential archival depository rea-
sonable office space for my personal use in accordance, avth 44
U.S.C. Section. 2108 (f ). The Materials in their entirety shall be
deposited -within such office space in the manner ;described in
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S
6. Within both the temporary and any permanent Presidential
archival depository, all of the Materials shall be placed within
secure storage areas to which access can be gained only by use
of two keys. One key, essential for access, shall be given to me
alone as custodian of the Materials. The other key may be dupli-
cated and entrusted by you to the Archivist of the United States
or to members of his staff.
7. Access to the Materials within the secure areas, with the
exception of recordings of conversations in the White House and
the Executive Office Building which are governed by paragraphs
8 and 9 hereof, shall be as follows :
(A) For a period of three years from the date of this in-
strruneitt, I agree not to withdraw from deposit any originals
of the Materials, except as provided in subtraragraph B below
and paragraph 10 herein. During said three-year period, I
may make reproductions of any of the originals of the Ma-
terials and withdraw from deposit such reproductions for
any use I may deem appropriate. Except as provided in sub-
paragraph 13 below, access to the Materials shall be limited
to myself, and to such persons as I may authorize from time
to time in writing, the scope of such access to be set forth by
me in each said written authorization. Any request for access
to the Materials made to the Administrator the Archivist of
the United States or any member of their staffs shall be
referred to me. After three years f shall have the right to
withdraw from deposit without formality any or all of the
Materials to which this paragraph applies and to retain such
withdrawn Materials for any purpose or use I may deem
approprgate, including but not limited to reproduction, ex-
amination, publication or display by myself or by anyone
else I may approve.
(B) In the event that production of the Materials or any
portion thereof is demanded by a subpoena or other order
directed to any official or employee of the United States, the
recipient of the subpoena or order shall immediately notify
me so that I may respond thereto, as the owner and custodian
of the Materials, with sole right and power of access thereto
and, if appropriate, assert any privilege or defense I may
have. Prior to any such production, I shall inform the United
States so it may inspect the subpoenaed materials and deter-
mine whether to object to its production on grounds of n.a-
tional security or any other privilege.
8. The tape recordings of conversations in the White house and
Executive Office Building which will be deposited pursuant to
this instrument shall remain on deposit until September 1, 1979.
I intend to and do hereby donate to the United States, such gift
to be effective September 1, 1979, all of the tape recordings of
conversations in the White House and Executive Office Building
conditioned however on my continuing right or access as specified
in paragraph 9 hereof and on the further condition that such tapes
shall be destroyed at the time of my death or on September 1, 1984,
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whichever event shall first occur. Subsequent to September 1, 1979
the Administrator shall destroy such tapes as I may direct. I
impose this restriction as other Presidents have before me to
guard against the possibility of the tapes being used to injure,
embarrass, or harass any person and properly to safeguard the
interests of the United States.
9, Access to recordings of conversations in the White House
and Executive Office Building within the secure areas shall be
restricted as follows :
A. I agree not to withdraw from deposit any originals of
the Materials, except as provided in subparagraph B and
paragraph 10 below, and no reproductions shall be made
unless there is mutual agreement. Access to the tapes shall
be limited to myself, and to such persons as I may authorize
from time to time in writing, the scope of such access to be
set forth by me in each said written authorization. No person
may listen to such tapes without my written prior approval.
I reserve to myself such literary use of the Information on
the tapes.
B. In the event that production of the Materials or any
portion thereof is demanded by a subpoena or other order
directed to any official or employee of the United States, the
recipient of the subpoena or order shall immediately notify
ine so that I may respond thereto, as the owner and custodian
of the Materials, with sole right and power of access thereto
and, if appropriate, assert any privilege or defense I may
have. Prior to any such production, I shall inform the United
States so it may inspect the subpoenaed materials and deter-
mine whether to object to its production on grounds of na-
tional security or any other privilege.
10. The Administrator shall arrange and be responsible for the
reasonable protection of the Materials from loss, destruction or
access by unauthorized persons, and may upon receipt of any ap-
propriate written authorization from Counsel to the President
provide for a temporary re-deposit of certain of the Materials to a
location other than the existing facility described in paragraph 4
herein, provided however that no diminution of the Administra-
tor's responsibility to protect and secure the Materials from loss,
destruction, unauthorized copying or access by unauthorized per-
sons is affected by said temporary re-deposit.
11. From time to time as I deem appropriate, I intend to donate
to the United States certain portions of the Materials deposited
with the Administrator pursuant to this agreement, such dona-
tions to be accompanied by appropriate restrictions as authorized
by 44 U.S.C. Section 2107. However, prior to such donation, it will
be necessary to review the Materials to determine which of them
should be subject to restriction, and the nature of the restrictions
to be imposed. This review will require a meticulous, thorough,
time-consuming analysis. If necessary to fulfill this task, I will
request that you designate certain members of the Archivist's
staff to assist in this review under my direction.
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If' you determine that the terms and conditions set; forth above are
acceptable for the purpose of governing the establishment and main-
tenance of a depository of the Materials pursuant to 44 U.S.C. Section
2101 and for accepting the irrevocable gift of recordings of conversa-
tions after the specified five year period for purposes as contained in
paragraph 8 herein, please indicate your acceptance by signing the
enclosed copy of this letter and returning it to rne. Upon your accept-
ance we both shall be bound by the terms of this agreement.
Sincerely,
(Signed) RICHARD NIXON.
Accepted by : Arthur F. Sampson, /s/ Arthur F. Sampson 9/7/74,
Ad. muustrator, General Services Administration.
O
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