While researching my book on the history of presidential libraries, I discovered a shocking but perhaps not surprising situation: the National Archives and Records Administration (NARA) is improperly withholding its own records. Theoretically a non-partisan as well as non-political agency, NARA is at the center of some of the most controversial issues of our time, including government secrecy, executive privilege, and timely access to presidential records. Rather than abide by legislative requirements and professional standards, NARA has chosen to avoid accessioning and processing many (if not most) of its own records dating back more than forty years. Worse, officials have blocked access to the records, perhaps due to concerns over possible criticism of the agency.

Among many other functions, NARA oversees the twelve presidential libraries. The records of the Archivist detail the development of the libraries through 1964, when NARA created the Office of Presidential Libraries (NL). However, none of NL’s records are available. According to NARA’s own estimate, this amounts to more than three quarters of a million pages. While the records schedule required the vast majority to have been accessioned or destroyed decades ago, NARA has never even begun the process.

During my research at the Archives, I was able to examine the records of the Archivist that deal with the roughly twenty-five years from the planning of the Roosevelt Library through the acceptance of the Hoover Library. After that time, the public finding aid for RG64 (Records of the National Archives) stops mentioning presidential libraries. I began seeking access to NL’s records in October 2006 and did not learn of their status for almost eight months. After several unexplained delays, NARA finally told me in June 2007 that officials consider every record that NL has ever created or received as “operational” (NARA’s term of art for records they deem “necessary for current operations or reference”) and available only through Freedom of Information Act (FOIA) requests. NARA also informed me that, as the records had never been processed or even described, I would have to make the requests without any sort of finding aid.

The status of NL’s records is remarkable, not only for the lack of compliance with the schedule and even minimal professional standards, but given NL’s role in leading the often-controversial presidential libraries. It is also unique within the federal government, contrary to NARA’s claim that is it “quite common.” Units within federal agencies and executive departments routinely hold on to certain kinds of records longer than others (sometimes for decades), but they do not retain, indefinitely, every document. The schedule would prohibit this, 1 but so would concerns about space and preservation. For roughly their first thirty years, the National Archives followed their regulations for its own records, preserving, processing and making them available to the public. It is unclear exactly when or why that changed.

In an informal survey of federal historians, archivists, records managers and FOIA officers, I have not been able to identify another agency or department that has withheld every document it has ever created or received for any reason, much less as necessary for current operations or reference. According to Dr. Harold Relyea, a Specialist in American Government at the Congressional Research Service and a prominent authority on federal records, no part of the federal government other than the intelligence community even uses the term “operational records” – and then only to refer to ongoing classified operations.2   Dr. Relyea confirmed that to his knowledge, no agency, department or unit within the federal government has ever withheld every one of their records as current or “operational.” 3

Dr. Patrice McDermott, Director of OpenTheGovernment.org, a non-partisan coalition working for open, responsive federal government, said, “It is hard to understand how records that are old enough to have been destroyed if the records schedule had been followed can be considered ‘operational.’ Presidential libraries are an area of keen congressional and public interest and information about them held by NARA should be affirmatively disclosed to the greatest extent possible.” 4

Over the past thirteen months I submitted several FOIA requests, which for the most part have gone unfilled or ignored. According to NARA, over seven hundred and forty thousand pages from NL’s files were potentially responsive to my first request.5  To date, I have only received about two hundred and fifty pages from NL’s records through FOIA.6 NARA has availed itself of many bureaucratic maneuvers to avoid or delay releasing the records, from simply not responding for several months at a time to threatening to impose many thousands of dollars of up-front search and processing fees to claiming that they cannot find any responsive records. 7 

In the past, allegations about improper withholding of records have been levied against the libraries with the assumption that the former president or his supporters have tried to block potentially-embarrassing information. In this case, I am seeking access not to presidential documents but to NARA’s own records; however, the reasons why NARA is reluctant to release them seem to be the same. Regardless of any potential criticism that may result from disclosure, NARA is obligated to release them. Steven Aftergood, Director of the Project on Government Secrecy at the Federation of American Scientists, told me, “Because NARA’s own conduct is implicated in these records, the National Archives has a special responsibility to make them readily available. And they have failed to do so.” 8

Since June 2007, NARA FOIA officials and NL staff insisted that NL’s records were vast, unprocessed and unorganized, and that these were the reasons for the delayed and non-responsive FOIAs. This contrasts sharply with what Sharon Fawcett, Assistant Archivist for Presidential Libraries, told me during an interview in April 2008; namely, that NL held only a very small number of records, which had been arranged and described (but not reviewed). 9  After ten months of blind FOIA requests, Ms. Fawcett revealed the existence of a “finding aid” for NL’s records and promised to send it to me within one week. She then delayed its release for ten weeks. It was only after I contacted the Archivist, Allen Weinstein, that I received a reply – and, finally, the folder list. When the folder list arrived, it was accompanied by a letter from Ms. Fawcett with a wholly manufactured excuse for the delay. 10 

Ms. Fawcett also told me that the reason why NARA had not produced anything responsive to the site selection process for presidential libraries was that NARA has never had a role to play in the process, and therefore would hold no documents. 11  She said that NARA finds out where a presidential library will be located the same day that the public does.12    This strains credulity, and contradicts a memo written by a NARA official dated January 11, 1997 to then-Archivist John Carlin in advance of an early meeting with President Clinton regarding his library. The author of the memo urges the Archivist to remind the president that “NARA can play a key role in assisting the President in making the site decision…Provide evaluation criteria and assess the viability of competing sites...Provide the rejection for sites not selected in accordance with the President’s wishes…NARA through the Office of Presidential Libraries has a long history of assisting Presidents with the planning, development, and establishment of Presidential Libraries.” 13  Ms. Fawcett, then-Deputy Assistant Archivist for Presidential Libraries, is the author of the memo.14

Responding to my concerns, Dr. Page Putnam Miller, former Executive Director of the National Coordinating Committee for the Promotion of History (now the National Coalition for History), said, “I was pleased to see in Allen Weinstein's introduction to the National Archives' 2006 to 2016 strategic plan that the agency's goal is to ensure that the nation's records ‘are usable and accessible.’ This goal should apply regardless of a researcher's topic and of concerns of possible criticism directed at NARA.” 15  Dr. Anna K. Nelson, Distinguished Historian in Residence at American University and a frequent presidential library researcher, said, “The appalling part of this is that the institution we rely on to support access [NARA] is denying access...it is a terrible situation. It is outrageous that they are not willing to share their historical records.” 16

In light of the charges of favoritism, excessive limitations, and withholding that have been leveled against the libraries in the past, it is ironic that researchers now have greater access to records in any presidential library than to the records of the federal agency charged with administering them. If NARA can improperly withhold records that they deem may be inconvenient or embarrassing, they can withhold any record. This is a cause for great concern, given the regrettable ways in which the Archives has responded to recent presidential records issues. 17  If NARA will go to great lengths to avoid releasing routine records in order to avoid possible criticism of themselves and of former presidents, how will they treat requests for potentially-explosive records in the recent – and future – presidential libraries?

Notes

2 Harold Relyea, telephone interview with the author, April 29, 2008.

3 Harold Relyea, telephone interview with the author, July 6, 2008.

4 Patrice McDermott, email message to the author, June 28, 2008.

5 Ramona Oliver, letter to author, August 23, 2007.

6 Quarterly narrative reports from the presidential libraries for three specific FY quarters. I have also received through FOIA roughly three hundred additional pages related to presidential libraries from the Office of the Archivist. Ironically, three of those pages comprise the memorandum referred to in Note 13.

7 In response to one FOIA request, NARA granted my request for a waiver of fees and then informed me that no documents could be found that were responsive to my request.

8 Steven Aftergood, telephone interview with the author, June 26, 2008.

9 Sharon K. Fawcett, recorded interview with the author, Washington, DC, April 18, 2008.

10 In her letter to me of June 26, 2008, Sharon Fawcett claims that she told me during the interview that her staff would have to review and redact the finding aid – actually a box/folder list – before sending it to me, a lengthy process that would delay delivery. In the recorded interview, and in an email to me three days later, Ms. Fawcett promised to send me the document within one week. At no time did she ever mention any review process, or communicate with me in the interim to tell me that the document would be delayed.

11 Sharon Fawcett interview.

12 Sharon Fawcett interview.

13 Sharon K. Fawcett, “Briefing paper for meeting with the President,” Memorandum to John Carlin, Archivist of the United States, and Lewis Bellardo, Deputy Archivist of the United States, January 11, 1997. Released to me through FOIA from the Office of the Archivist, National Archives and Records Administration, Washington, DC.

14 In fact I found extensive evidence that NARA has played a direct role in helping presidents and the private foundations select a site for their library, as recently as the George H. W. Bush Library, which opened in 1997.

15 Page Putnam Miller, email message to author, June 29, 2008.

16 Anna K. Nelson, telephone interview with the author, June 13, 2008.

17 Executive Order 13233; missing White House emails; Information Security Oversight Office; the Controlled Unclassified Information Office; and others.

Floranne Sarah Snyder - 10/4/2010

I am not surprised.

I submitted a FOIA request directly to the White House almost a year ago and they never dignified the request with a reply.

So much for transparency in government.

Patrick Haughey - 12/29/2008

Like Anthony Clark, I am in the middle of a vast presidential libraries research project. First of all, I sympathize with the vastly undermanned and underfunded circumstances associated with records management--particularly those associated with presidential records. Second, Mr. Clark's apparent 'blow off' by the National Archives does appear rather odd and I am anxious to see the results of his work. However, my principle rationale for contributing to this thread is derived from the Cox-call for a non-temple mechanism for the preservation AND access to pres records. My problem with his and other critics--all of whom I agree with on principles of universal and total access and transparency--is that is fails to account for the public. I have a suspicion that if Clark was only one of many who requested NA operational records, those records would become a priority. I spent a week at the Bush Library in the middle years of his son's first term and the ENTIRE staff was at my disposal. NOT ONE OTHER PERSON entered that research room while I was there. It took YEARS for anyone to seriously contest EO 13233! I find it inexcusable that we as a community of historians/archivists/etc are only willing to hold the institution that holds the materials we crave accountable without turning a burning lens upon ourselves and our 'representative' publics for not taking up the burden of accountability through record access. If more people cared, maybe the resources devoted to making all materials easily available and accessible without restriction would be more than meager. Government accountability through public access to the records of their actions is an extraordinary thing...and, a relatively young phenomenon that is evolving ever-too-slowly. The burden of democratic citizenship--and scholarly citizenship for that matter--is vast and unending. I suggest that rather than merely rage against the bureaucracies and mechanisms of records management (although that should continue as well) perhaps energy should be spent on a little self-analysis wondering at the cricket sounds in empty presidential library reading rooms. We tend to get the government we deserve.

Maarja Krusten - 7/26/2008

Before reading Mr. Clark's article, I had submitted just over a week ago a new article for HNN. I wrote it after reading James Rosen's book on John Mitchell. The title of my article is "The National Archives: Alone in a Clash of Cultures." Rick Shenkman just has posted it and the other HNN entries for the week of July 28. See
http://hnn.us/articles/52508.html

Maarja Krusten - 7/26/2008

A couple of additional items related to the contemporaneous use of the term "final review" regarding the work done on the Nixon tapes during 1981-1987.

Your article uses the term "initial review" regarding the work done on the Nixon tapes during the 1980s. A separate but related term, "initial processing," has a specific regulatory meaning. That term of art refers to archival work done independently by the National Archives prior to allowing the former President's representatives to look over what the Archives has marked for disclosure. See 36 CFR §1275.16(g), 36 CFR §1275.42(a); the explanation in the U.S. Court of Appeals decision in Nixon v. Freeman, 670 F.2d 351-352 (D.C. Cir. 1982); and "Legal Explanation of Proposed Regulations," pages G-23-24 of the March 1975 Report to Congress on Title I of the Presidential Recordings and Materials Preservation Act, reproduced in May 13, 1975 and June 3, 1975 hearing records.

Stanley Kutler's attorneys used the regulatory definition of “initial processing” in their pleadings in Kutler v. Wilson. They noted in Plaintiffs' Opposition to Intervenors' Motion for Partial Summary Judgment, filed August 31, 1994 that

"Initial archival processing expressly includes 'identifying materials requiring further processing,' which are then referred to the Senior Archival Panel under § 1275.46. When the archivists completed their archival review of the tapes in 1987, they had referred no issues to this Panel, nor were there any unresolved processing issues. Def. Resp. to Requests for Admissions Nos. 1-3.

Therefore, the Archives should have begun the process of releasing the tapes during 1987. Indeed, during the mid-1980s, that was the Archives' plan. Specifically, the Archives planned to release the Watergate-related tapes in 1989, to be followed by release of cabinet and legislative leadership meetings later in the same year, with the subsequent release of six-month chronological segments in 1991 and each year thereafter through 1995 until all releasable portions of the 4000 hours had been made public. Letter to R. Stan Mortenson from James E. O'Neill, Assistant Archivist for Presidential Libraries (July 26, 1985) (Pl. Ex. B); Letter to R. Stan Mortenson from James E. O'Neill, Assistant Archivist for Presidential Libraries (April 4, 1986) (Pl. Ex. C); Letter to R. Stan Mortenson from James E. O'Neill, Assistant Archivist for Presidential Libraries (October 22, 1986 ) ( P1. Ex . D).”

The court record in the Kutler litigation includes many once internal NARA documents. These show that beginning in 1982, Assistant Archivist for Presidential Libraries James E. O’Neill and the director of the National Archives' Nixon Presidential Materials Project sent a series of letters that informed Nixon’s attorneys that “we have completed final review” of segments of tapes in monthly increments, beginning with February 1971. (The Nixon White House taping system was in operation from February 1971 until June 1973.) As archivists completed their review of each monthly segment, senior Archives' managers sent Nixon’s lawyers a letter saying that “final review” of the segment was complete.

I also referred above in the comments I posted on Thursday evening to public statements made about when the Archives contemplated releasing the Nixon tapes. Here are two additional quotes for you and for HNN's readers.

In July 21, 1979, government attorney Stephen Garfinkel told the Washington Star that “an extraordinarily optimistic estimate’ is that the Nixon White House tapes held by the National Archives would be made public ‘two years from now, at the very earliest.”

If you have examined materials related to the March 1975 Report to Congress on Title I of the Presidential Recordings and Materials Preservation Act, you know that the National Archives initially anticipated staffing up to just over 100 people to work on its Nixon Project. Yes, that is public information. Budget cutbacks affected that. A Reagan-era Reduction in Force forced the Archives to scale back its staffing. This slowed archival processing, making it impossible to meet the initial target to which Garfinkel had referred, of beginning to release tapes in the early 1980s.

NARA's 1992 submission of interrogatory responses in Kutler errs in listing only 8 of what actually had been 16 archival staff (archivists and archives-technicians) who had worked on Phase I (preservation), Phase II (description) and Phase III (review) on the tapes over the years. NL may have records somewhere which show the actual numbers and who was involved. (I know that information ancdotally, of course, having been employed by NLNS from 1976 to 1990.) In any event, you undoubtedly know already that the Nixon Project's staffing numbers never approached 100. They never even made it to half that number, and at times hovered around a mere one-third or that.

Finally, for a good contemporaneous account of the National Archives' Nixon Project, see Professor Clement Vose's article, “The Nixon Project,” in PS, Summer 1983. Note that in 1983 [after the 1981-1983 Reduction in Force], Dr. Vose wrote that according to Archives' management, "it will take three more years to duplicate all the tapes, log them [that is, to produce outline summaries of the conversations], excerpt restricted material, and organize them for listening.”

After reading it, I gave considerable thought to the narrative you presented in the Public Historian in 2006. I don’t connect the article with the Nixon Foundation, by the way. I view it simply as what is says it is on its face, as a NARA product. That's just a feeling on my part.

Maarja Krusten - 7/25/2008

Among the contemporaneous comments I cited above is one from Joan Hoff in the late 1980s in which she noted that the Archives had been ready to release Nixon’s tapes but that Nixon’s lawyers wanted application of a stricter privacy standard. I actually quoted that from memory when undergoing questioning during Kutler v. Wilson.

Joan's written statement appears to refer to a then ongoing examination by NARA’s high level Presidential Materials Review Board of thousands of pages of documents of White House files. The Nixon Project’s archivists had marked them for release during the 1989s. Nixon filed claims against release. It was the job of the board to examine the so-called contested items and to accept or reject Nixon’s claims. This process took a long time: Nixon filed his claims in 1987 and the board finished its work in 1996.

Of the items for which Nixon’s agents disputed the status, the National Archives late in 1996 announced that it was retaining 33,199 documents and returning to the Nixon estate 8,992 documents. Of the retained documents, NARA opened to the public 28,035 documents. See NARA’s press release for October 3, 1996 at
http://www.archives.gov/press/press-releases/1997/nr97-02.html

Nixon had every right to file claims. The very idea that a former President has a right to have a representative screen statutorily controlled archival materials can be difficult to explain to laymen. (I could see that on a number of politically oriented message boards when the Sandy Berger story broke. However, when I read reports that said Berger was authorized to do communications privilege reviews, I knew that such review had a legal premise.) Sharon Fawcett gave an excellent account of how that all works for Presidential Records Act controlled materials. See her interview at
http://news.nationaljournal.com/articles/071217nj1.htm

One of Nixon’s agents, Marin Strmecki, covered this issue well in a letter to the New York Times in 1988. He was reacting to an op ed published in the NYT by Dan T. Carter on July 25, 1988. Mr. Stremecki wrote of Mr. Carter:

“He acts as if filing objections to the release of certain documents from the special files - not the central files - is, prima facie, illegitimate. On the contrary, archives regulations provide for a system of appealing rulings by the archivists.

Reasonable people can disagree over these judgments, and the objections of Mr. Nixon’s lawyers typically involve disputes about whether release of specific documents would violate a person’s privacy or whether certain materials contain personal political communications not subject to release under archival regulations.”

It was a good explanation, one that served well all the parties: NARA’s employees *at all levels*; Nixon himself; Nixon’s agents, and his law firm. (I’ll never know for sure why it later seemed impossible to stick to the type of explanation which I thought Mr. Strmecki had spelled out well, substantively and strategically, in 1988.) I noted earlier this week what I thought would have been a good line for NARA to take during this time period – rather than repeat it, I’ll point readers to
http://hnn.us/readcomment.php?id=125407&;bheaders=1#125407

Of course, at the time that Stanley Kutler filed his lawsuit for access to the tapes, the Board had not finished its examination of areas of dispute between Nixon and NARA. We Nixon tapes archivists consequently were unable to explain what those areas were and what was meant by disputes over “privacy.” Unable to speak of what had not been released, whether such questions rose from Nixon’s side or from researchers, we only had NARA’s lawyers to protect us. In my view, this placed an enormous responsibility on the lawyers in 1992 to balance a number of obligations to all of the people in their care.

Since the release of some of the previously contested materials, readers can judge for themselves what was at issue. I recently cited a couple of examples related to White House discussions of blacks and of Jewish civil servants in my exchanges with Nixon Foundation director John Taylor over at the New Nixon website. It is very much to John Taylor’s credit that he has made me (of all people) feel welcome at that site associated with the Nixon Foundation. That bespeaks confidence. See John’s essay and our exchange of comments last week at
http://thenewnixon.org/2008/07/17/nixon-and-school-desegregation/

HNN’s readers may remember my article here on “How Hard Is the Job of Nixon Archivists?” in which I asked readers to vote on whether a released document was personal-returnable or governmental-retainable. The document related to what Richard Reeves once described in his book as the “Nixon the Man” campaign. More recently, I posted some thoughts on a related area at an earlier version of the Nixon site: see
http://thenewnixon.org/2008/07/04/rns-historic-first-at-yankee-stadium/
It’s my fault entirely that the posting at the link there has some repetition. I was new to the site then and tried posting a very long comment initially. Yep, you all have noticed how I go on at length. When it did not seem to go through, I broke it into segments and reposted portions. It looks as if the web master later posted the initial posting. I understand entirely why the repetition theremight seem annoying. But part of posting on websites is learning to live with what you said and how you said it!

Michael Davis - 7/25/2008

You helped Haldeman, Erlichman and Dean?
That's impressive. Although I would have had a hard time giving Dean the time of day (joke.)

Maarja Krusten - 7/24/2008

I am inclined to accept that NARA well may have changed its mind about the status of some of NL’s records. I suspect records managers would tell HNN's readers that this is not uncommon. Records once appraised as temporary might very well be re-designated permanent. I am not at all alarmed by that.

I myself see no problem with Sharon Fawcett deciding that this should be done. As I’ve noted here previously, I have no complaints about the way Sharon Fawcett has dealt with me. That I am inclined to give her the benefit of the doubt is just an individual choice on my part.

There do seem to have been delays in the scheduling and accessioning process but I have no way to assess whether the reasons were or were not benign. That actually is not my greatest concern here.

Okay, here's the difficult part.

Mr. Stern, you became the National Archives’ General Counsel in 1998 and were not a NARA employee during the Kutler Nixon tapes litigation that ran from 1992 to 1996. I was very surprised to see you author an article for the Public Historian in 2006 about Presidential Libraries. The article was "A Historical Review of Access to Records in the Presidential Libraries" by Nancy Kegan Smith and Gary M. Stern. Public Historian 28:3 (Summer 2006): 79-116. When you decided to do that, it appeared to me that you officially lent your name to a narrative and put your imprimatur on a version of the story of Presidential Libraries.

But very often, over time, as historians know, a more nuanced and shaded version (I recently used the term “grown up” on the New Nixon blog) emerges of past actions. Internal documents fill in the dots or even paint a differently shaded picture. Getting at what happened lies at the core of what historians do and is central to NARA’s mission. Consider, for example, what we know now, decades after his death, about President Lyndon Johnson’s tortured conversations about the Vietnam War. Archivists did well to persuade Lady Bird Johnson to allow NARA to start opening them. Released records have humanized LBJ in the eyes of many historians.

You are the person the public relies on to get such insights into NARA’s operations. But you also are the co-author with Nancy Smith of NL of an article about Presidential Libraries. It is very unusual for a Chief FOIA Officer to author such an article, thereby creating a detailed narrative which provides an agency’s official version of a story.

In this case, your article was made a part of the hearing record as an attachment to a testimony statement by Allen Weinstein, Archivist of the United States. That means the highest official in the agency is associated with assertions in the narrative, as well.

More typically, such articles are written by subject matter experts, public affairs officials, or perhaps agency historians -- employees who play no role in deciding what internal documentation the public may or may not see. And who do not have obligations to clients (corporate or individual). As one expert noted of such narratives of the near past, the standard is that if there are people “still working in the agency and whose viewpoints may clash with those of other employees. . . [the writer] documents the views of all parties and, if pressed to comment in writing, describes the position of both sides and states what decision was made.”

Usually, the expert noted, the authors of articles reveal what is appropriate at the time and leave the rest for later. That creates a firewall. Someone else acts as an honest broker to screen pertinent records for scholars and journalists who are interested later in researching the same subject. And another official serves to hear appeals.

The FOIA officer usually does not have to examine documents which deal with the same subject, either to support, illuminate, or rebut assertions that he or she may have made in a published article. Sure, if he or she is a lawyer, I imagine the FOIA officer may have played a part in crafting a hearing statement or a press release or some incremental public statements. But I would think that rarely would such a person produce a comprehensive historical overview.

I think this separation largely is based on the same principle as hiring objective, nonpartisan federal archivists to screen federal records at NARA, rather than hiring a Pierre Salinger or a Ron Ziegler or a Mike McCurry to decide what the public should see of a former President’s records. As former press spokesmen, they might be perceived as having too great a stake in the versions they once told. I certainly wouldn’t burden Ziegler with deciding what should be released from Nixon’s tapes!

Your article would appear to cover some of the same ground as Mr. Anthony Clark’s area of inquiry. Since I don’t see a firewall between your role as author of such an article and as Chief FOIA Officer, and the hearing record links Dr. Weinstein to your article, I’m curious as to how processing Mr. Clark's requests will work out. Have the highest officials at NARA embraced as a narrative your article, as inclusion in the hearing record implies? How would NARA handle requests for internal documents about some of the subjects you covered, given the seeming absence of a firewall?

The article you wrote with Nancy Smith states that "The archival review of the Nixon White House Tapes started with an initial review of the tapes by Nixon tape processing archivists, which occurred between 1981 and 1987."

To understand the concerns I am raising, HNN’s readers should consider the following, which is not covered in the article but which I believe a reasonable researcher may expect to be covered by documents at NARA:

Professor Stanley Kutler's attorneys asked for document production and called a number of witnesses to testify during Kutler v. Wilson. Among the documents entered in the court record is the Nixon Project's Fiscal Year 1987 Annual Work Plan, which stated that "final archival review and technical processing of the White House tapes will be completed during the second quarter of FY 87." The Work Plan, which was entered into evidence during the litigation, did not refer to this work as "initial review."

In 1989, Bruce Oudes noted in his book, From: The President (1989), that “the Archives has . . . advised Nixon that it plans the systematic release of the balance of his White House tapes in 1991, the twentieth anniversary of the installation of the White House taping system.”

The plan for a phased release of the tapes is confirmed by contemporaneous documents entered into the court record in Kutler, including correspondence to R. Stan Mortenson, Mr. Nixon’s attorney. Also, internal NARA manaerial notes showed that Watergate Special Prosecution tapes once were scheduled for opening in 1989 and tapes from 1971 were slated for opening in 1991.

Nixon's former chief of staff, H. R. Haldeman, himself noted in 1988 in an article in NARA's magazine, Prologue, that processing of the tapes was nearly complete and the public soon would begin hearing Nixon's conversations. Haldeman wrote “The time has finally come, almost fifteen years after the end of the Nixon administration, when one may reasonably look forward to hearing . . . portions of the White House tapes. The National Archives’ processing of the tapes is virtually complete, and the agency is nearly ready to go forward with a schedule of phased openings.”

Former White House aide John Ehrlichman also wrote about planned releases of the tapes, stating in 1986 that the Archives had “another year’s work to do, editing and getting the log into the word processor.” (Ehrlichman, “Should Nixon’s Tapes be Public,” Parade, November 30, 1986)

Paul A. Schmidt, an archivist and colleague of mine who spent years preparing the tapes for release, wrote in a staff paper in 1985 on “opening the Nixon tapes” that “archival processing of the Nixon tapes is nearing completion.” He described as the next step for NARA consideration of how to handle the public opening. His paper, approved for release by a senior NARA manager, did not describe a second review of the tapes prior to this opening. (Paul Schmidt, The Opening of the Nixon White House Tapes, May 8, 1985, is publicly available in the National Archives’ library. Or was during the 1990s.).

Historian Joan Hoff wrote in 1988 that although “the Archives has basically completed processing the tapes and prepared a 27,000-page finding aid for researchers” lawyers for Nixon complained that “the review process agreed to in the 1979 ‘negotiated agreement’ has not proven feasible with respect to these controversial secret tapings and that, therefore, they should be reviewed again using stricter privacy standards.” (Joan Hoff-Wilson, Papers of the Nixon White House microform guide, Part 2, the President’s Meeting Files, 1969-1974, page vi.)

Stephen Ambrose echoed this story, which clearly derived from officials at NARA, writing in his Nixon biography that “four thousand hours of White House tapes, although processed by the Archives. . . which is ready to release them, also remain under seal, as a result of legal objections by Nixon’s lawyers.”

See also the informational hand-outs given to researchers at the Nixon Project during the 1980s, which stated that “archival processing” of the tapes “will be completed in 1987.” NL may hold in its files copies of these handouts which say “will be completed in 1986.” This later was changed to 1987 as the date slipped. The documents were public handouts and if they still exist NARA, presumably could be released under FOIA.

Your article addresses none of this. I actually appreciate the fact that you chose not to throw any mud at the archivists who worked on the tapes during the 1980s. Of course, the existence of such an accurate but perhaps later deemed inconvenient paper trail was not our fault. We and our managers just wrote up documents the way civil servants typically do while working on something. We weren't creating a narrative, we were just being ordinary bureaucrats.

I understand why NARA wanted to put something out on some of these issues after the turmoil that surrounded Kutler’s litigation. It couldn't have been easy to decide how to cover this. But cover it you did.

For his article in Prologue in 2007, James Worsham of NARA’s public affairs staff skipped over the tricky 1980s altogether. He wrote

“President Nixon himself had sued, arguing that the 1974 PRMPA constituted an illegal search and seizure of his personal property. The Supreme Court upheld the government's authority to seize the materials but said that Nixon should be compensated. The suit was settled in 1998 with a $16 million payment to the Nixon estate.

In 1991, the watchdog group Public Citizen and historian Stanley Kutler sued NARA for not abiding by its own regulations for the processing and release of the Nixon tapes.” {The lawsuit actually was filed in 1992.)

This neatly sidestepped the actions during the 1980s described in the paper trail I cited above.

Mr. Worsham plays no role in FOIA. Nancy Smith is not a lawyer. She is an archivist in Washington who serves in a liaison role with various Presidential Libraries. But you’re the Chief FOIA Officer. So my question is, what impact, if any, do you see your once having published an article in Public Historian and (and someone later attaching it to Dr. Weinstein’s testimony) having on FOIA?

I would welcome any insights (or assurance??) you can offer – and I recognize you may face many constraints, something with which I actually sympathize as NARA seemingly is in a very tough spot.

Thanks much for considering my concerns.

Maarja Krusten - 7/24/2008

Kate Theimer is a former National Archives' employee who worked at NARA more recently than I. She was there during John Carlin's tenure as U.S. Archivist. Moreover, Kate worked in Communications and Policy rather than for NL, as I did. She guessed correctly that there would be a response from NARA. I guessed wrong. I had not anticipated a posting here from NARA for two reasons. I was thinking more in terms of a press release and thought NARA would not view this HNN item as an issue rising to that level. (Such a release might have required a lot of coordination, also).

I am surprised that the response is from Mr. Stern. This provides me a chance to ask a few questions of NARA's FOIA Officer. More on that anon.

My reaction to the NARA communication is mixed. Since this gets complicated, I'll post some comments/questions under Mr. Stern's posting later this evening.

For another archivist's reaction to the NARA response above, see "ArchivesNext" at
http://www.archivesnext.com/?p=174

John Taylor of the New Nixon Blog also has linked to Mr. Clark's article. See
http://thenewnixon.org/2008/07/24/nara-and-its-records/

More anon.

Kate Theimer - 7/24/2008

Dear Gary,

Thank you for posting this response on NARA's behalf.

Would you please clarify your statement "After Mr. Clark’s pending FOIA requests for these records are closed, we will take action to accession the records into the permanent holdings of the National Archives."

What is the status of the schedule covering NL's older "operational records"? Has the process of changing their disposition begun or does your statement above indicate that this process of updating the schedule will not take place until Mr. Clark's FOIA requests are closed? Or did you mean that, assuming the schedule for the records has been successfully modified, that the actual accession and processing of the records will not occur until after Mr. Clark's FOIA requests are closed?

Thanks,

Kate

Gary M. Stern - 7/24/2008

As an agency committed to providing public access to records, the National Archives and Records Administration (NARA) takes very seriously the FOIA requests submitted by Mr. Anthony Clark over the past year. NARA has endeavored to be as responsive as possible to Mr. Clark’s questions and concerns, and we recognize his frustration that we have not been able to provide him with the information he requested as quickly as he would like. We acknowledge and apologize for the fact that our communications with him may not have always been as clear as they could have been.

The volume of records responsive to his many FOIA requests has turned out to be rather extensive, and we have had to review the records to determine whether specific information is subject to a FOIA exemption. Ultimately, the problem is a simple, and unfortunate, one of delay, in which, like many other agencies with limited resources, we are not always able to meet the statutory FOIA timelines.

We are not ignoring Mr. Clark’s requests, nor denying him access to records, nor concerned that responsive records may be interpreted in a negative fashion. Rather, we are doing the best that we can to work with Mr. Clark to ensure that he receives the records that he has requested.

As a point of clarification, NARA uses the term “operational records” to distinguish all of the federal agency records that we create as a government agency from the billions of pages of the U.S. Government’s permanent “archival records” that we preserve in the National Archives of the United States. Our regulations clearly explain that “Operational records means those records that NARA creates or receives in carrying out its mission and responsibilities as an executive branch agency. This does not include archival records as defined in paragraph (a) of this section.” 36 C.F.R. § 1250.2(i). The FOIA and other access laws can apply somewhat differently to agency/operational records, as opposed to archival records.

Mr. Clark has identified a legitimate issue with respect to NARA’s delay in accessioning our own permanent records from the Office of Presidential Libraries into the National Archives. Delays of this kind truly are not uncommon, and are something that NARA archivists work with agency records officers on a regular basis. As we explained to Mr. Clark, most of the records from the Office of Presidential Libraries had previously been scheduled as temporary, and therefore could have been properly destroyed. Sharon Fawcett, Assistant Archivist for Presidential Libraries, determined that many of these records should, in fact, be permanent and the records schedule updated.

Again, limited resources have delayed the process of organizing and transferring these “operational” records into “archival” records. But the records exist, and we are working to make them available to Mr. Clark on a rolling basis under FOIA. After Mr. Clark’s pending FOIA requests for these records are closed, we will take action to accession the records into the permanent holdings of the National Archives.

We regret that Mr. Clark has been unhappy in how he believes he has been treated. We hope that he can elicit a further degree of patience as we continue to respond to his many FOIA requests and related queries.

Gary M. Stern
General Counsel and
Chief FOIA Officer

Maarja Krusten - 7/23/2008

Apologies for *all* the typos, transposed words, etc. I have no excuses, I simply did not read it through before hitting post. I meant to write we're all shaped by our own experiences, of course. I came out sounding as I'm saying we all are shaped by *my* experiences. Obviously not, LOL.

Maarja Krusten - 7/23/2008

Glad to see Kate, Richard and Fred chime in here. If any of you (or any other reader) hears of a publicly released NARA response, please post here to let others know. I'll keep an eye out as well.

I’m of two minds as to whether NARA can comment on this essay. From her comment this morning, it looks as if Kate, who once worked for NARA’s Policy and Communications Staff (now split into two separate units) believes NARA well may issue a public statement. I lean the other way. I don't believe it will. As to why, well, it’s because this matter involves a Freedom of Information (FOIA) request. FOIA is a process which can be litigated. And a public response forms lays down markers or forms part of a paper trail. A researcher has the right to request information under FOIA and in the case of denials, appeal the denials within the agency. If that does not produce a result satisfactory to the requester, he or she can take it to the next step, which is going to court. There actually is some judicial review built into the FOIA process. But to get to that point, the researcher first has to receive answers responsive to his or her inquiries, granting or denying in full or in part what is sought. From the essay, it doesn’t sound as if that point has yet been reached with Mr. Clark’s requests.

So, while I understand that NARA might want to an opportunity to clarify some of the delays (some of which do seem lengthy on the face of it), it has to balance the risk of speaking up against the risk of remaining silent. The blogosphere certainly presents new challenges to agencies which were not there when I worked at NARA (1976-1990).

Depending on the issue, I tend to have trouble distinguishing between NARA’s voice and that of a White House. That is due almost entirely to my experiences in the Kutler litigation. I had come to view that as one of those things that happens. However, the quote from the NARA lawyer about the IG and his handling of the Berger case set me back. (I linked above to the Washington Post article which contained the NARA lawyer's comments about the IG .)

Had NARA been able to handle Stanley Kutler’s 1992 lawsuit differently than it did, I probably wouldn’t be here yapping now. The handling in court and in the press of that case shook my faith in NARA’s ability to craft a message satisfactory to all the stakeholders (including its working level staff). Of course, I had the additional experience of being exposed to the dark side of Washington in my work with the now-released “abuse of governmental power” segments of the Nixon tapes.

As I’ve said before, we’re all shaped by my experiences. Had mine been different, I'd be more optimistic about NARA and the challenges it faces. While I agree with Richard that the issues that surround Presidential Libraries warrant discussion, the forum in which to do that seems difficult to find. The greatest challenge would be getting a useful perspective from present and even from former NARA insiders. It actually would be interesting, at least for me, to hear former Presidents share their candid views on when and how to open their paper trails, but they come from a very different culture than historians and it's hard to picture them engaging in such dialogue.

Maarja Krusten - 7/23/2008

Kate, because of where you used to work at NARA (NPOL – the Policy and Communications staff), I’m intrigued by your doghouse comments. You note that “Many other people in the archival community may feel constrained from being too active in their criticism of NARA.”

I’m going to have to keep this relatively brief in maarja terms (LOL) because I am using my Smartphone while out on my lunch break. But in terms of communications strategy, isn’t NARA’s best course a public stance of “Hey, it’s the good ol’ US of A, people outside have freedom of speech, we can live with that.” I happen to have my own views on what constitutes reasonable criticism and what does not. But shouldn’t NARA’s corporate position be to aim to give of a vibe of “we can handle whatever comes our way?” To do otherwise signals that it is on an unsustainable course in the areas which people are quesitoning.

This was before yr time but nothing signalled trouble to me more strongly than a NARA spokeswoman saying archivists were transcribing Nixon’s tapes in 1991 when records existed which showed no such systematic transcribing was taking place. Or lawyers making comments to Seymour Hersh of the type reported in his article about NARA in December 1992. Big red flags there.

Had I been in charge of communications strategy back in 1991-1992, I would have formulated a message along these lines: “We are required to apply a statutory framework to Nixon’s materials. This is new for all the stakeholders. Past Presidents have been able to regard their records as personal property. This is the first time we have had a mandate to open abuse of power material. We stand by the work of our employees, many of whom we have rewarded for their work. We also recognize that Mr. Nixon may view some issues differently than NARA does. By law, he has a right to make his views known. We are working through the emerging issues with Mr. Nixon and with government lawyers. As we work through the process, we will release the disclosable portions of his White House records to the public.” Confident, candid-sounding, and a win-win in tone, although such a statement really wouldn’t have revealed anything of substance. And would not have addressed the issue of establishment of a Nixon Library, etc. (mentioned in court documents but not in the press). The comments in the New Yorker revealed *much* more, actually, implying that things could become really scary for working level staff.

Kate Theimer - 7/23/2008

I considered giving this the subject line "NARA dog house," but then I thought that just might end up putting me there. Not that there is one.

No, there is no official, corporately-sponsored NARA dog house. I'm sure opinions are just as diverse on Richard within NARA as they are in the rest of the world. Certainly Richard believes that there are highly-placed NARA officials who have no love for him. He is also in the enviable position of really not needing to care whether people like him or not. Many other people in the archival community may feel constrained from being too active in their criticism of NARA.

I also see no reason why NARA cannot and should not make statements regarding their own internal records management. The scheduling and implementation of records schedules for NARA-created records is at heart of this problem, and I look forward to seeing them address those issues very soon.

Kate

Maarja Krusten - 7/23/2008

What a coincidence, no more than 10 minutes before you posted your comment, I had looked in on your blog to see if you had discussed Mr. Clark's article yet! If you don't mind, once you have a post up, I'll link to it here.

As to NARA issuing a public comment or official reaction, I'm not so sure that will happen. (Just guessing. You may have actual sources; I do not not.) Doing so might require coordination with the White House (which NARA could not admit to). I do not know whether NARA would want to ramp up the issue that way. It may prefer just to let this lie, despite the resulting inability to respond. Coordination with the WH might result our hearing Fred Fielding's voice without the position being attributed to him, of course.

As to Richard being in the doghouse with NARA, are you sure that is the case? I accept that Richard believes that is the case. However, it may be more complicated than it appears on the surface. There may be individuals at NARA who are annoyed at what outsiders say but I'm not sure they represent a corporate position, officially or unofficially. NARA seems fragile to me in some areas but I'm not convinced criticizing it from outside or raising questions about it always puts the person who does so in the doghouse. In any event, it seems to me that separating NARA from the WH gets tricky in areas relating to NL.

Looking forward to seeing what you write on your blog, Kate!

Maarja

Kate Theimer - 7/23/2008

Hi Richard and Maarja,

I've got a post or two on this subject lined up for my blog. I strongly suspect there will be a response from NARA and I'm waiting for that to be released before I comment.

Richard, since you're already in NARA's dog house, I'd love to see you put together a session where some of NARA's critics talk about how they might address NARA's shortcomings. Maybe in Austin next year?

I've been following the comments here, as I'm sure others have too. There are serious allegations in this article and I hope there are many archivists following the story, if not joining in on the discussion.

Best,

Kate

Maarja Krusten - 7/23/2008

Richard:

If your goal is to encourage others to post here (a goal I certainly support), I don't think you need to worry about backing off or asking me to do so. We've largely set forth our views so the threads we've engaged in most likely will fade out soon, perhaps today.

As to HNN, that a couple of people debate something back and forth within a set of a mere 20+ comments is unlikely to affect whether or not others chime in. Articles posted here on HNN on other subjects have drawn as many as 191 comments. See, for example, the one on a poll of historians regarding the Presidency, posted this past Spring. At last count, it had drawn 191 comments, a few recently, but most submitted when it first was posted.
http://hnn.us/articles/48916.html

Our little debate here is unlikely to inhibit or discourage anyone, assuming anyone other than Mr. Clark actually even reads what what write here. The issues here are arcane although we know they are important.

Of course, NARA's employees, although NARA's actions are described in the article, in practical terms can't post here. Just as you or any other academic would have to think twice about posting under an article which dealt with contentious matters at your employing institution. You're braver than most people and might speak out even then but the reality is, most people would think hard about whether it was safe to engage in a public forum under those circumstances.

Maarja Krusten - 7/23/2008

Except for the essay by Larry Hackman, I saw little useful in the 2006 issue of Public Historian.

As to why NARA's officials shy away from the issue, perhaps it is because they do not want to become the focus of negative press attention. I would step up and take the heat (indeed I have done so in the past). But I understand why others may be reluctant to do so. Have you forgotten what happened to Trudy Peterson in 1994? Consider also that Bill Leonard was unable to stay on at NARA. Where you see a NARA which may be too timid, I see one that is very fragile.

Academics have been of little help in triggering candid discussion of Presidential Libraries. Look at how Lynn Scott Cochrane noted simply in a thesis written in 1998 "Acting Archivist Trudy Peterson, who had started out at the Hoover Library, did not support the presidential library concept." The characterization was unsourced and I did not see Dr. Peterson listed among the people Cochrane thanked for assistance with the thesis. So I cannot tell what opportunities Trudy may have had to explain her position to Cochrane.

Maarja Krusten - 7/23/2008

You write "let's back off and see if others chime in." I can predict what the answer will be: they will not. I've been following this particular forum for 5 years. The interest in and will to discuss these issues is not here. That includes E.O. 13233, the reclassification issue, etc. People such as Bill Leonard never are mentioned here except by me.

A couple of people have told me privately the issues are too complicated and they don't have time to educate themselves, too much on their plates already. They seem preoccupied with their research particular projects, most of which do not involve NARA. But as I've pointed out, a 5-year record of silence itself creates a record. I've never been able to unravel whether that reflects indifference or insularity or being too busy.

Richard J Cox - 7/23/2008

It is my hope that some future president will look past their own personal self-interests and end the tradition of these institutions (ones that have added costs to the taxpayers and created funding conflicts as recently reported).

I don't understand why some other arrangement would be anymore problematic than what we have.

I have never understood why NARA leadership cannot participate in honest discussion about such critically important matters as how we administer presidential records -- supposedly they are there for their archival expertise, why can't they use it?

Why not get a group together of people like Bruce Montgomery and other critics, current NARA leadership and archival leaders on the outside, prominent historians and members of the media who have been users of these records, and insiders who have expressed concerns and made efforts to reform certain aspects (such as Larry Hackman). We have a group of essays in the special Public Historian issue that began to deal with some of this -- we need to go further and work harder to be very honest about the future of these institutions and what they really represent. Perhaps either Obama or McCain will see the possibilities of not building a pryamid to their memory, and can understand the greater importance of administering their papers in more innovative ways.

Richard J Cox - 7/23/2008

This does represent complicated matters, for sure, but when viewed against other issues (such as the NARA reclassification scandal of just a couple of years ago and the Sandy Berger debacle a little before then) it suggests that we lack adequate leadership at this agency (and perhaps professionally) to deal with these complicated matters in an effective way. And there have been good commentaries on the specifics of presidential records, such as Bruce Montgomery's two recent books and others -- of course, you might just dismiss them as armchair analysts. However, I think looking at this issue entirely from an insider's perspective is perhaps even more problematic, because there has developed quite a legacy of problems that have not been effectively dealt with (read Bruce Craig's essay on presidential libraries in a recent issue of the Public Historian, for example, with specific recommendations) and that can often be dismissed as challenges that cannot be resolved due to the uneven power of the NA/OPL and the Oval Office.

However, the real issues here ought to be first making these administrative OPL records open to Mr. Clark except only for matters of personal privacy and second understanding that NA ought to administer its own records in precisely the same manner that it expects other federal agencies to administer their records. What I see here is a lack of accountability by NARA itself to the public, a problem not acceptable for anyone.

And it is not as if the problems with presidential libraries or the administration of presidential papers are new. We have known about them for a long time (Anna Nelson, Joan Hoff Wilson, Althan Theoharis, Benjamin Hufbauer, David Bearman, etc), but here is what happens. NARA lauds the system for its great successes. When challenged it describes how difficult it is to deal with the power of the president. More problematic, the archival and historical professions and open government advocates ignore most of the problems, except for occasionally speaking out against something like EO 13233 -- but these challenges never lead to a sustained effort for systematic reform. I once asked Tom Blanton of the National Security Archive what he would do if were Archivist of the US for one day and he replied he would enforce the law (in other words, there are things that could be done). But generally, we don't hear much about what NA leadership is doing except when it gets litigated or cornered in some way, and we often hear well-crafted pronouncements with all the appropriate rhetoric that leads us to have hope.

I know the NA has no regard for people who express criticism of what they do; I witnessed this in 1989 when SAA Council (I was a member) questioned its selling rights to Philip Morris for certain exclusive use of Bill of Rights documents. I have also been told face-to-face in more recent years that the NA has no regard for me because I work with David Bearman, who was an outspoken critic of NA (ironically, I have not worked with David in any official capacity since 1996 or so). The problem may be that the NA does not embrace its critics to try to resolve the real problems is has with presidential papers and many other matters.

I mean, let's be blunt. If NA cannot effectively deal with presidential records, enforce the law governing them, allow a researcher the opportunity to explore the history of the OPL and presidential records in its own records in a timely fashion, or speak out when it needs support for dealing with such records, why worry one way or the other that we have a NA at all? Even now, the Clark essay is just drawing a few commentators, perhaps suggesting that no really cares anymore anyway.

Maarja, let's back off and see if others chime in.

Maarja Krusten - 7/22/2008

Richard, a few more thoughts on this.

First the easy part. You write that “it seems strange that OPL records that are 30 and 40 years have not been appraised and accessioned into the NA.” Some appear to have been appraised. For example, one entry on the web posted schedule states:

“1408-2 Background papers, including correspondence with the White House, Congress, and other interested agencies, persons, and foundations; building drawings; blueprints; and related records. Files are maintained in NL - Central Office. Arranged by President. PERMANENT. Cut off when no longer needed for current operations. Transfer to NARA when 30 years old. (N1-64-87-1)”

If I am interpreting this correctly, the notation N1-64-87-1 under “authorized disposition” means that that those records eligible for transfer into RG 64 were appraised and approved for placement in the retention schedule in 1987. As I noted earlier, the cut off is open ended in this instance.

Now the part no one seems to want to discuss. U’ve heard many people say generally that records should be opened. I played a role in working with Richard Nixon’s records under statutory controls and I've given this a lot of thought over the years. Saying "open historical records" really only is a starting point for the discussion.

Why do historians shy away when I ask, “Ok, let’s say these are the records of *your* career. Let’s say outsiders can make a legitimate case for a public interest in disclosing large portions of them. What should be the timing and the scope of disclosures? What would make the disclosure process work well for you? What would cause problems for you?”

I’ve seen no attempts by historians to gain insights into why the processes of working with Presidential records have been so difficult for NARA. Very few people appear willing to do the hard work of examining the underlying issues.

Many outside observers – and I’m not directing this at you but generally at NARA's customers – seem to be entrenched in positions –- some of which sound pretty rote — which they first set out years, even decades ago. In the 16 years since Stanley Kutler filed his Nixon tapes litigation in 1992, I have seen little change among armchair analysts. But if something proves hard for an institution to do, the logical thing to do is to ask “why has this been difficult and what changes would make it work better, for all the stakeholders.”

Opening records involves human beings – the creators of the records and those tasked with reviewing records for disclosure. In recent years, on HNN and elsewhere, I’ve tried to get people to discuss the psychological issues that affect the life cycle of records. That includes what inhibits the creation of Presidential records and what makes it hard to open -- now or later -- the ones that are created and preserved.

I’m disappointed that so many people shy away from looking at root causes and core issues. That does not mean I am not interested in what Mr. Clark may obtain through his FOIAs. I am interested, very interested, in the result of his efforts. But I’ve come to recognize that the limitations on discussing the underlying issues do not necessarily derive *solely* from former Presidents, their advocates, or from the governmental players. That may be a comforting way for historians to paint the picture but for me, as a former archivist as well as an historian, it does not begin to capture all the factors. If I'm alone in seeing it that way, so be it.

Maarja

Maarja Krusten - 7/22/2008

Just a quick comment as I'm trying to munch my lunch at home at the same time as I type. Presidential Libraries as memorializing institutions had been in place for over 30 years by the time Richard Nixon left office. His were the first records placed under government control.

As you know, the Libraries have an archival component as well as a museum component. I think more people visit them to view exhibits than to use the archival materials. The number of researchers who actually study White House records is quite small.

It would take an unusually self-assured, well-grounded incumbent President to say one day, "You know what? I don't need a memorializing Library for myself. Just ship the Presidential records of my administration to the National Archives. The archival professionals and my representatives will work through the disclosure issues there. If I want people to see exhibits about me, I'll work that out separately through the private, not the public, sector."

A President always will play a role in archival disclosures. Courts have upheld a President's Constitutional right to communications privilege. As long as he is up front about it, that is, he mans up and claims privilege over what NARA wishes to release, rather than forcing archivists to take unsustainable actions, I'm fine with that. We are a nation of law.

Of course, even without Libraries, there still would have to be NARA controlled and staffed repositories into which to place the voluminous records, even in the electronic age. You couldn't fit them all in at Archives II in College Park, Maryland.

Where a reasonable conversation about Presidential Libraries could take place, I don't know. By reasonable, I mean with no political framing, no use of right or left wing media to attack those who might offer differing views, no mud slinging or antics of that sort. Come to think of it, I don't know whether any present NARA officials would feel safe partaking in such a public discussion. Just to risk discussing options for how to handle them seems to place officials at risk of being characterized as "not supporting" the concept of Presidential Libraries. I'm willing to air some of these things out but I no longer work for NARA.

Richard J Cox - 7/22/2008

All the more reason, it seems to me, to rethink the future of presidential libraries, with former presidents holding unreasonable power over their records and possessing more power than the NA has to care for our documentary heritage.

Richard J Cox - 7/22/2008

Yes, I admit there are some technicalities here, but it seems strange that OPL records that are 30 and 40 years have not been appraised and accessioned into the NA. This gives the agency the opportunity to cover its operations in a manner we would not want to see possible with any other federal agency. We demand accountability and transparency of the National Archives in the same manner we want these things for other agencies.

As for the issue that presidents and other officials might not create certain kinds of records because of increased openness and calls for greater transparency, I say that we must understand that the role of government archives is not merely to keep provide materials for future historians and other researchers but to work to preserve evidence and support accountability of the government to its citizens. I am a citizen first and archivist second; I want government to operate in the open, then we can worry about the implications for posterity later.

Maarja Krusten - 7/22/2008

I mentioned lawyers and the role of NARA's General Counsel as the agency's chief FOIA officer. My guess is that most of the ordinary work on FOIA coordination would be done at other levels. Some matters might rise to the level of the chief FOIA officer, however.

The FOIA liaison for NARA's operational records is Ramona Oliver, whom Mr. Clark mentions in one of his endnotes. The FOIA liaisons for NARA's Presidential records are Nancy Smith and James Laster of NL. The FOIA liaison for accessioned federal records is Steve Tilley (for whom my late sister once worked; she had a high regard for Steve). See
http://www.archives.gov/foia/contacts.html

FOIA exemptions include attorney-client privilege. However, sometimes lawyers step out of that narrow area covered by privilege and speak more generally of NARA's actions. That is a choice they seem to make from time to time. Attorney-client privilege wouldn't apply to examinations of such actions. For an example, see "Berger Case Still Roils National Archives" at
http://www.washingtonpost.com/wp-dyn/content/article/2007/02/20/AR2007022001344.html

Earlier examples of present and former NARA lawyers speaking publicly and providing assessments of agency employees can be found in Seymour Hersh's article on the Nixon tapes in the New Yorker (December 14, 1992). So lawyers have multiple roles, not all of which appear to fit under attorney-client privilege.

Maarja
(using my home computer, in case anyone is watching and is inclined to complain. And yes, that happened once from within NARA.)

Maarja Krusten - 7/22/2008

Thanks for clarifying some of this, including the careful wording of your requests to NARA, what you have seen among records, and so forth. I have no complaints about any of my own professional dealings with Sharon Fawcett, which admittedly have not been many in number of late. I first met Sharon in the late 1970s and we’ve always gotten along well.

I ask about semantics because in my experience, wording does matter. Sometimes officials parse their words carefully and only offer a glimpse at what happened. At times, there’s something to be learned even from the seeming necessity to do that.

An official such as Sharon Fawcett is in an extremely difficult position. Her office deals with sitting and former Presidents, who are steeped in a very different culture from that of the historian-archivists who make up much of NARA’s staff. At times, the two cultures clash and seem nearly irreconcilable. (I myself got caught in such a clash years ago.) NARA’s officials have the unenviable position of carrying out the agency’s mission without attracting the wrath of power players. They have to think about Presidents much more than Presidents have to think carefully about them, although it would help if some of the latter were more astute in some of their actions regarding NARA. Anyone who deals with power players has to walk a tightrope. As with senior managers, NARA’s lawyers too must struggle with many challenges, including who is the client and, when it comes to the staff in their care, whether to manage up or also to manage down.

Unsustainable statements can become a problem, however. Consider, for example, June 5, 1991, when the New York Times reported about the Nixon tapes that "National Archives experts are cataloging and transcribing thousands of hours of remaining conversations, which will be released over time, but years will pass before all become public, the archives' spokeswoman, Jill D. Brett, said today." Placed under oath in a court case in 1992, other NARA officials later said no transcription was taking place, indeed, such work would be against archival principles. It would do a researcher no good to ask the present Nixon Presidential Library for transcripts produced systematically by archivists around 1991. There are none. NARA never was able to explain the discrepancy.

When it was announced that Allen Weinstein had been nominated to replace John Carlin as U.S. Archivist, the discussions on HNN focused on Dr. Weinstein’s research notes. Some of the debate wandered off to look at right and left dichotomies. That largely was irrelevant, however. That the U.S. Archivist is a Presidential appointee and a subordinate officer within the executive branch seemed of little interest to historians here. Was it too jarring to contemplate? I don’t know. To date, only archival experts have responded to your article. Still, some academic historians may be lurking here. So, I’ll point out that even an academic institution might struggle if a determined researcher decided to look behind the press releases and to study in depth how some complicated and contentious issues played out on campus.

I’ve always felt that when it comes to NARA, sunlight would be helpful. Perhaps it is easier to balance often conflicting stakeholder requirements when an agency knows it may come under scrutiny from outside. Others might argue that sunlight is too dangerous, and that it’s best to leave well enough alone. Such an argument itself may be revelatory. Of course, we all look at things through the prism of our individual experiences. I once had to testify in the litigation that Professor Stanley Kutler filed to access the Nixon tapes. Not all of the history-trained federal witnesses testified the same way. That case suggested to me that NARA has the potential to really struggle with its paper trail. It’s not a position in which I enjoyed seeing the nation’s record keeper then.

I await with interest the outcome of your FOIA requests.

Anthony Clark - 7/21/2008

Thank you for the question. I believe it is not a semantic issue or one of interpretation. This is not really the question, though, because there is not a debate about the level of NARA's involvement in the process; I was told they had no role to play as the reason for holding no documents. I have since demonstrated that NARA did in fact play a role but, more important, they also do in fact hold these records. The role issue was just one of their excuses to help explain their lack of response. The fact that it was not true bears no relation to whether or not they hold the documents; they do, no matter what role (including none) they play.

And the manner in which I made the requests is not at issue. My FOIA requests were for documents related to the site selection process of several libraries, no matter what role NARA played (I was careful to distinguish records sent and received to and from the White House from those to and from the foundation, and to ask for both). In order to make it easier for NARA to locate documents, I narrowed the date ranges - from the first date that I could reasonably determine that active deliberations began through the date of the public announcement of the site. It was not as if I just said, "give me everything you've got on site selection!"

NARA would not have to play a role in the process to be kept informed by the White House and/or the private foundation, and therefore to hold responsive records. NARA was the SME for both groups in the early stages of most presidential libraries, preparing informational packets, responding to requests, providing sample deeds of gift, coordinating fact-finding tours of existing libraries, etc. It was interesting to see lower- and lower-resolution photocopies of some of the same informational documents in successive presidential libraries!

It was disconcerting to be told that NARA never played a role in the process when I had already come across documents at several presidential libraries that Archivists and others did in fact assist to varying degrees. I was even more concerned when I discovered, in documents released to me by NARA through FOIA, the depth of NARA's involvement in the site selection process for at least one library. I will address that in detail in the book. When I do, it will explain, among many other things, what you identify as unclear in the language of the 1997 memo ("...Provide rejection for sites not selected...").

NARA has recently informed me that they not only hold records related to the site selection process for the George H.W. Bush Library, as I previously demonstrated, but also for the Ronald Reagan and William J. Clinton libraries as well. In addition, the "finding aid" describes folders related to the site selection process for the Jimmy Carter and the Gerald Ford libraries, and perhaps others as well.

It is safe to say that contrary to what I was told for months, NARA holds records on this subject. The question now is, how much of what they hold will they release, and when?

Maarja Krusten - 7/21/2008

Thank you for writing this, Mr. Clark, very interesting. I had not realized that no records from NL (an organization unit for which I once worked) ever have been accessioned into RG 64, NARA's group for its own permanently valuable records.

I have a question. You write that

"Ms. Fawcett also told me that the reason why NARA had not produced anything responsive to the site selection process for presidential libraries was that NARA has never had a role to play in the process, and therefore would hold no documents. She said that NARA finds out where a presidential library will be located the same day that the public does. This strains credulity, and contradicts a memo written by a NARA official dated January 11, 1997 . . . "

Could this be a case of a narrow versus a broad interpretation of a query? Could it be that NARA construes "play a role" with a direct and assertive and affirmative action, such as advising the President or the selection committee as to which site to select? As opposed to a more passive role of providing contextual information.

To my knowledge, NARA does not act as a decision maker here although it does have the capacity to provide perspective on how things have been done in the past, requirements, etc.

Some of the 1997 memo sounds pre- and post-decisional rather than decisional. However, it's not clear to me what "Provide the rejection for sites not selected in accordance with the President’s wishes. . . " means. If it means, explain what NARA or NL knows about why sites were rejected as not fitting past President's criteria, that is contextual and passive. If it means "draft rejection talking points to give *to* an incumbent President and his representatives to use now," that is an active role. If it means, accept talking points *from* the White House that would enable the Archivist to take the heat by explaining to disgruntled applicants why their sites were not chosen, that too is not decisional. However, the meaning is unclear. Generally, could this be a semantic issue or a case of broad or strict construction of the meaning of "play a role?" Just trying to sort this out. Nothing related to Presidential Libraries is easy.

Thanks again for posting this piece, much food for thought here.

Maarja Krusten - 7/21/2008

Richard, at your blog (Reading Archives), in an article on Atrocity Files last November you wrote in passing that "Interestingly, the leadership of the U.S. National Archives has constantly invoked the notion that strict laws on Presidents and their staffs might lead them to not create full documentation."

What is your take on the thoughts expressed by two NARA officials (one with NL, one with OGC) in an article in the Public Historian two years ago:

"An unfortunate outgrowth of the current presidential record system is that, despite the ever-increasing volume of records, particularly e-mail records, there is less of a record that documents for posterity the immediate actions, motivations, and thoughts of the president. If the presidency is to remain well and richly documented, NARA will need to try to encourage not only the creation of records that document presidential thoughts and motivations, but also the donation of the personal records of presidents, members of their families, and their close advisors."

I haven't always seen eye to eye with NL and NARA's lawyers over the years. I certainly think a great deal about NARA's activities myself and sometimes write about them. I've only filed one FOIA request pertaining to NL related matters, and that one was narrowly centered on a meeting I attended in 1989.

In the case of my request, submitted around 1994 or 1995 and filled some months later, I'm named in the document I received but am not the subject of it. The responsive document was not generated by NL but did deal with NL. The writer was a Special Agent in NARA's Office of Inspector General. I have no complaints with the way NARA handled my narrow request, which I filed and received a response on while Trudy Peterson was Acting U.S. Archivist. NARA did well in that instance.

You write "these records should be open." But at what point? If you believe there should be a reasonable agency hold time for NL's records, do you think what is in the current schedule gets this right? If not, what would you change?

Maarja Krusten - 7/21/2008

Hi, Richard, good to see you here, as well.

You mention screening and opening of operational records. Generally, the Freedom of Information Act permits an agency (including NARA for its own unaccessioned records) to apply to some classes of information certain exemptions to disclosure. These go beyond protection of personal privacy and classified information. An executive agency may apply exemptions to certain types of unclasssified deliberative information. (That is, to pre-decisional information.) Once an agency sends its permanently valuable records to NARA for accessioning into the pertinent record group (which for NARA is RG 64), General and Specific Restrictions apply.

For such accessioned records, regulations state that the U.S. Archivist may waive deliberative process privilege due to the fact that the passage of time has eroded the privilege. See 36 CFR § 1256.54, especially (b).

This suggests that some information in unaccessioned NL records that presently is restrictable might, over time, become releasable once the records are accessioned into RG 64. I think that is one reason NARA scheduled some NL records with 25 or 30 year hold times. The thinking must have been that the records (1) might be needed to be kept on hand in NL for the first few years after creation and (2) after that, some passage of time was deemed necessary before they became eligible for accessioning into NARA’s own records series. That makes sense and fits with records management principles.

One complication I see here for NARA lies in the fact that the chief FOIA officer for NARA is the agency general counsel. He and his subordinates work on a number of issues related to Presidential Libraries, including litigation. (I was dismayed to see an unnamed NARA lawyer criticize in 2007 the agency’s Inspector General, who had delved deeply into the theft of records from NARA by Sandy Berger. (“Berger Case Still Roils Archives, Justice Dept,” Washington Post, February 21, 2007) Allen Weinstein, to his credit, stood up for the Inspector General, basically saying he has his job to do and I have mine.)

At any rate, there is the potential for the Chief FOIA Officer to be involved in requests for records where the requester has asked for records which touch on his own actions or those of his subordinates. Few people would find it easy to make judgments on the releasability of records that touch on their own actions or those of people in their direct reporting chain. I don’t know how that plays out, I would that there is a recusal process but I don’t know for a fact.

Readers interested in Dr. Cox’s Government Information Quarterly article on Presidential Libraries (America’s Pyramids) will find it at
www2.sis.pitt.edu/~rcox/AmericasPyramids.pdf
I’ve quoted from it here on HNN several times over the years.

Richard J Cox - 7/21/2008

I admit I am not surprised about this, for two reasons. First, sometimes archivists have not provided the best management for their own records possessing archival value (the shoemaker's children syndrome). If one systematically evaluated how archivists are maintaining their own records, I am sure more examples of such problems might surface (although without the difficulties of requesting access or forcing FOIA requests).

Second, NARA has always sought to portray its presidential libraries systems as being a model for how to manage and preserve such records, despite considerable evidence that the system is not the most optimal way of handling such records and that NARA often folds up before White House pressure. Recent revelations about forced financial contributions and the opaqueness of who donates to support and build these libraries are merely part of a long list of problems with the administration of such records in light of growing presidential secrecy.

In an article about these libraries half a dozen years ago, I referred to them as "pyramids" (I have been an archivist since 1972 and have taught archival studies since 1988). They have been referred by others as "temples." Neither use of these terms should be necessary in a democratic state, and the problems this researcher has encountered only makes the NARA archivists look like palace guards.

These records should be open, if for no other reason than they are crucial to ensure accountability by the NA in dealing with presidential records. Operational or current records can be open for researchers, with only a modest care for dealing with records of a personal or confidential nature. This is a serious matter and the NA should open immediately access to such records to any researcher.

Maarja Krusten - 7/21/2008

Hi, Fred,

It’s nice to see my former Nixon tapes supervisor commenting here. You’ve always been a straight shooter!

You're a former NARA official. You say that some employees were biased towards academic researchers and that they sneered at “genies.” A few of HNN’s readers might shrug and think “isn’t that the way it should be.”

Here's my take. NARA is a public institution and researchers are supposed to get equal treatment.

We at the Nixon Project started playing the 12-1/2 hours of Watergate Trail Tapes in 1980. That was it for researchers until we opened portions of the White House Central Files in 1986 and the White House Special Files in 1987. While we still worked at NARA, no other tapes were released.

We spent most of our work hours on processing, only a few on reference. We got far fewer researchers than our fellow employees did in the main research room, where the public came in to look at federal agency records. So we had the luxury of being able to provide our researchers with top notch treatment, if we wanted.

The period when you and I joined NARA and worked together coincided with the showing of the miniseries Roots on TV (1977). As you remember, Alex Haley’s Roots triggered a flood of interest by genealogists for which NARA did not seem prepared. Some officials and employees handled that better than others.

The records with which we worked were Presidential. I was inclined naturally to take an egalitarian approach always. Anyone who walked through the door deserved my time and attention, whether it was a tourist wandering in from the Mall to listen to the Watergate Trial Tapes at the main Archives building, a college student learning how to use archival resources, a seasoned name researchers such as Steve Ambrose, or a former White House insider such as Haldeman or Ehrlichman. You and I worked together with them all, and if I accepted that the right and fair thing to do was to handle them equally well, some of that came from your example.

Needless to say, not all who rely on NARA’s archival holdings are academics. James Rosen, author of the new biography of John Mitchell, has a graduate degree but does not work in academe. He is a reporter for the Fox News Channel. You remember him, of course, from when he was a college intern with us at the Nixon Project in 1987 and 1988.

We are long gone from NARA, I having left in 1990, you at the end of 1992. Friends who stayed on but retired in recent years told me of many changes since then related to researchers (academic or not). When it comes to resources, the “golden days,” such as they were, are long over. Civil agency budgets just have been too tight of late.

As to RG 64, I have heard a few NARA employees comment on it, their comments often being accompanied with eye rolls. I never had occasion to dig around in RG 64 myself during my 14 years as a NARA employee. So I can neither confirm nor deny that it is in poor shape.

Generally speaking, for any executive agency, good records management would appear to help mitigate risk. However, even if there are internal records management issues at NARA, files management should be in good shape. As long as paper files were boxed up in the original file folders, with rudimentary descriptive information as to what was in each FRC box, one should be able to track down information. Certainly, as I pointed out above, NARA has had to do that in matters related to litigation. As to electronic records, I do not know whether NARA has an ERMS. It should at a minimum have a DM system in place. Here, as in many other areas, it comes down to how an agency allocates its resources. But NL faces other challenges as well.

Maarja

Frederick Graboske - 7/21/2008

When I started working for NARA in the 1970s the agency's records management was a joke. The agency that advised other federal agencies on records management did nothing with its own files. That said, its files are organized and information can be retrieved. There also was an institutional bias toward academic researchers and against the general public--most egregiously against the geneologists, the "genies" as they are opprobriously known.

Maarja Krusten - 7/21/2008

That should read Ehrlichman, of course. Smartphones such as I'm using at the moment are not easy to type on.

Maarja Krusten - 7/21/2008

Not at all! When I worked for NARA as a NL-Nixon Project archivist, my colleagues and I worked over the years with a diverse group range of public researchers. They ranged from tourists to college students at the undergraduate level to former White House aides, such as H. R. Haldeman, John Ehrluchman, John Dean and others. I helped the former as willingly and with the same care as the latter. So did my colleagues.

Maarja Krusten
Historian and former NARA Nixon Project Archivist (1976-1990)

posted by Smartphone

Michael Davis - 7/21/2008

In the two instances people shared their experiences with me concerning the national archives (not presidential libraries,) the overall feeling was that if you didn't have the letters "Ph.D." behind your name, you were lucky to get the time of day from this government agency.

Maarja Krusten - 7/21/2008

More background information for HNN's readers.

That items are not accessioned into a NARA record group does not of course mean that there would be no "intellectual control" of them. They are not just dumped somewhere in an undifferentiated mass, without the ability locate items. That would present great legal hazards for NARA. In fact, the Office of Presidential Libraries (NL) has had to produce documents in discovery during litigation.

Here is how Stanley Kutler's lawyers used some such materials during the lawsuit he filed against NARA in 1992 for access to the Nixon tapes. Richard Nixon entered the case as Intervenor. (More on that soon.)

This is from Civ. A. 92-662-NHJ, Kutler v. Peterson, Defendant, and John H. Taylor and William E. Griffin, Co-executors of the Estate of Richard Nixon, Intervenors. The document is the Plaintiffs' Opposition to Intervenors' Motion for Partial Summary Judgment, filed August 31, 1994.

"Under its regulations, the Archives has a legal obligation to 'open for public access each integral file segment [such as the tapes] upon completion of initial archival processing on that segment,' with priority to be given to processing abuse of power materials, insofar as practicable. 36 C.F.R. § 1275.42(a). The term 'initial archival processing' refers to the archival review of the tapes undertaken from 1977-1987.

Id. § 1275.16(g). [Footnote 2]

[Footnote 2 reads: Initial archival processing expressly includes 'identifying materials requiring further processing,' which are then referred to the Senior Archival Panel under § 1275.46. When the archivists completed their archival review of the tapes in 1987, they had referred no issues to this Panel, nor were there any unresolved processing issues. Def. Resp. to Requests for Admissions Nos. 1-3.

Therefore, the Archives should have begun the process of releasing the tapes during 1987. Indeed, during the mid-1980s, that was the Archives' plan. Specifically, the Archives planned to release the Watergate-related tapes in 1989, to be followed by release of cabinet and legislative leadership meetings later in the same year, with the subsequent release of six-month chronological segments in 1991 and each year thereafter through 1995 until all releasable portions of the 4000 hours had been made public. Letter to R. Stan Mortenson from James E. O'Neill, Assistant Archivist for Presidential Libraries (July 26, 1985) (Pl. Ex. B); Letter to R. Stan Mortenson from James E. O'Neill, Assistant Archivist for Presidential Libraries (April 4, 1986) (Pl. Ex. C); Letter to R. Stan Mortenson from James E. O'Neill, Assistant Archivist for Presidential Libraries (October 22, 1986 ) ( P1. Ex . D).

During the period from 1985 through early 1987, Mr. Nixon worked behind the scenes to convince the Archives to let him (1) set a schedule for release of the tapes; and (2) choose the tapes that he wanted released last. See Pl. Exs. B-H. At first, the Archives appeared willing to accede to Mr. Nixon's demands in return for his agreement to establish a Nixon Presidential Library to be administered by the Archives. See Pl. Exs. B & C.

The Archives shifted course when Mr. Nixon sought increasingly longer delays in public release of the tapes and more complete veto authority over particular releases. Letter to James E. O'Neill, Assistant Archivist for Presidential Libraries, from R. Stan Mortenson (August 11, 1986) (Pl. Ex. E); Letter to R. Stan Mortenson from James E. O'Neill, Assistant Archivist for Presidential Libraries (September 10, 1986) (Pl. Ex. F); Letter to R. Stan Mortenson from James E. O'Neill, Assistant Archivist for Presidential Libraries (November 14, 1986) (Pl. Ex. G)."

I should add that the court case also revealed that the Archives’ internal work plans referred to completion of “final” review of the tapes in 1987. Indeed, the Nixon Project’s Fiscal Year 1987 Annual Work Plan stated that “final archival review and technical processing of the White House tapes will be completed during the second quarter of FY 87.” During the 1980s, researchers were given informational hand-outs, which stated that “archival processing” of the tapes “will be completed in 1987.”

Such records created enormous complications during the Kutler litigation as the Department of Justice, which speaks for NARA in court, struggled to present a different narrative to the court regarding the releasability or the Nixon tapes in its pleadings. I almost felt sorry for DOJ as it struggled to present a counter-narrative.

Maarja Krusten - 7/21/2008

http://hnn.us/articles/52350.html


A very interesting article. I’m going to have to give this some thought.

Those who have worked for the National Archives’ Office of Presidential Libraries (NL), as I have in the Nixon Presidential Materials Project, know that it deals with many challenging issues. I certainly can understand why a researcher might be interested in looking at some of them.

Larry Hackman, former director of the Harry S Truman Presidential Library, wrote in the Kansas City Star on February 10, 2007 about 6 issues which he thought warranted consideration. Among them he listed

“(1) Whether the National Archives, a small agency with other priorities to protect, can exercise sufficient coordination of the libraries, given the power of former presidents and their supporters, even long after a presidency.

(2) The “hidden-hand” influence of private foundations that supplement federal funds, especially for exhibits and educational programs. The libraries are overly dependent on these “partners,” and far too little is known about their influence.

(3) The huge document-processing backlogs that deprive us of timely access to our history. The high promise of the post-Watergate Presidential Records Act is unfulfilled.

(4) The overly biased interpretation in exhibits, the chief feature of these libraries for most visitors.

(5) The absence of collaboration among the 11 presidential libraries, each focused on one president. Hence, we miss traveling exhibits and educational programs on issues that cut across presidencies, as almost all do.

(6) The impact of library Web sites on how people around the world, especially students and teachers, understand the presidency and our democratic system.”

Some of the answers to those questions would have to come from within NARA, not just in the form of testimonial evidence, but through the examination of written, contemporaneous documentation. Not everyone who reads HNN knows much about records management and retention scheduling so I thought I would throw out a few contextual comments and observations.

I looked at NARA’s posted records retention schedule in which records relating to Presidential Libraries appear in sections such as
http://www.archives.gov/about/records-schedule/chapter-14.html . Some are designated temporary and eligible for destruction after a set time, others are permanent and eligible for accessioning into Record Group (RG) 64, which is the archival record group into which NARA’s own records are accessioned..

I take operational records (a terms records managers use) to mean records that chronicle and provide evidence of a unit’s operations. Government-wide, such records may be active, in which case the creating agency still holds them. Or they may be inactive, in which case the permanent portions are eligible for transfer into NARA after the designated agency hold time is up.

A quick glance suggests that the section of NARA’s schedule to which I linked above shows hold times ranging from 10 to 30 years. Note: hold time does *not* mean a period during which information must be withheld or restricted. That is governed instead by Freedom of Information Act (FOIA) exemptions as they have been developed over 40 years of case law. FOIA requesters have the right to request records being held at federal agencies and depending on the subject and whether exemptions apply, do sometimes obtain access to portions of such records. In terms of records management, hold time merely means the time that an agency holds on to records before turning the permanent portions over for accessioning into a record group at NARA.

For example, the schedule includes these two items among many records scheduled for destruction or permanent retention among NARA’s records of its own activities and operations::

“1408-1 Basic acquisition documents for Presidential papers and facilities maintained in NL - Central Office. Included are correspondence, letters of intent, deeds of gift, and other legal documents, including original legal documents concerning Presidential papers and facilities. Arranged by President and thereunder chronologically. PERMANENT. Cut off upon completion of acquisition. Transfer to NARA in 5-year blocks when 25 years old. (N1-64-87-1)

1408-2 Background papers, including correspondence with the White House, Congress, and other interested agencies, persons, and foundations; building drawings; blueprints; and related records. Files are maintained in NL - Central Office. Arranged by President. PERMANENT. Cut off when no longer needed for current operations. Transfer to NARA when 30 years old. (N1-64-87-1).”

For example, that means that under 1408-1, files that NARA generated during 1969-1974 which dealt with the Presidential Library of Lyndon B. Johnson were eligible for accessioning into RG 64 in 1999. Prior to that, they would have been held among NL’s active records, which, as you point out, can be requested under the Freedom of Information Act.

In 1408-2, the phrase “cut off when no loner needed for current operations” is quite open ended. Hmmm. In terms of records management, some types of files have yearly file breaks (for example, procurement records detailing items purchased during Fiscal Year 2005 would run from October 1, 2004 to September 30, 2005 with the cut off coming at the latter date. Other records may be organized as case files, as for example, a file dealing with a court case or an investigation or some other activity that stretches over several years. Here NARA uses an open ended designation, which needs to be handled with care. For example, I would not expect NARA/NL to argue that a file chronicling discussions with the foundation of a President whose Library opened in the 1980s or the 1990s would still be needed for “current operations” 20 or 30 or 50 years later. There has to be a reasonable cut off point here. I would expect that NARA would close a correspondence file on a discrete issue (such as the construction of a building) and open a new one, perhaps based on yearly file breaks, to deal with matters that come up later (such as ongoing maintenance).