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individuals that have long since been concluded. The restrictions I have mentioned protect the living, but the records in the National Archives chiefly concern the historic past.
Recent records, those pertaining to living persons or individuals more recently deceased, are maintained in the Federal Records Centers. In these centers records are administered in behalf of the transferring agency. Access to and use of the records are governed by agency policies. The 50 million files covering former civilian employees of the Government in the National Personnel Records Center in St. Louis are available only so far as the regulations of the Civil Service Commission permit. The 30 million personnel and medical files at the same center covering individuals who have served in the Armed Forces are handled in compliance with the regulations of the Department of Defense and the Coast Guard. In the same fashion the concerned agencies control the use of records relating to individuals in the 13 regional Federal Records Centers: Social Security and Veterans Administration case files, naturalization files, income and estate tax returns, investigative files, and many more.
Mr. Chairman, when our Government was in its infancy Thomas Jefferson warned that “eternal vigilance is the price of liberty.” In our own day, as the Government finds it necessary to accumulate even greater amounts of information about the individual, we believe that Jefferson's admonition has as great a validity as when he made it. One of the earmarks of a free society is the concern of the government for the rights of its citizens, and not the least of these is the right of the individual to expect that during his lifetime information secured in confidence will be kept in confidence.
Mr. Chairman, this concludes my statement. (Mr. Bahmer's statement in full follows:)
STATEMENT OF ROBERT H. BAHMER, ARCHIVIST OF THE UNITED STATES, NATIONAL
ARCHIVES AND RECORDS SERVICE, GENERAL SERVICES ADMINISTRATION, BEFORE THE SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PROCEDURE, SENATE COMMITTEE ON THE JUDICIARY, CONCERNING THE CONFIDENTIALITY OF GOVERNMENT RECORDS HELD IN THE NATIONAL ARCHIVES
Mr. Chairman and members of the subcommittee, on behalf of the Administrator of General Services, Lawson B. Knott, Jr., who in accordance with your letter to him of February 13, 1967, asked me to testify at this hearing, I wish to think you for the opportunity of appearing before your Subcommittee for the purpose of discussing the existing guidelines governing the confidentiality of records held in the national archives system.
The recordkeeping responsibilities of the General Services Administration are carried out by two instrumentalities of the National Archives and Records Service. The first of these is the National Archives, responsible for preserving the official records of the Federal Government that the Archivist of the United States has determined to have sufficient historical or other value to warrant continued preservation by the United States Government, and that have been accepted by the Administrator of General Services for deposit. The second is a system of fourteen Federal Records Centers, in as many major cities throughout the nation, which provides for the storage and eventual disposition of the great mass of Federal records that are no longer needed in office files for the conduct of the Government's current business, but that cannot yet be destroyed or incorporated in the National Archives.
Papers and other historical materials relating to and contemporary with any President or former President of the United States may be deposited in the National Archives or a Presidential archival depository subject to restrictions specified by the donors or depositors as to their use under the provisions of Sec
tion 507 (e) and (f) of the Federal Records Act. Pursuant to that Act such deposits and donation have been accepted.
Among the records deposited in the National Archives are millions of documents relating to persons who had some sort of relationship with the Federal Government. The number of individuals about whom some fact or other is recorded in the National Archives is beyond calculation. In some cases there is very full information about the person, as for example in certain military and civilian personnel files. In other cases there is very scanty information about the individual. Military muster rolls give a little information about a select group. Population census schedules, on the other hand, cover the entire population and contain at least a minimum amount of information about each person enumerated. Although the amount of information varies with each decennial census, generally speaking each successive census has recorded more information about each individual. In some special censuses it is very detailed. Passenger lists report the arrival of immigrants. Naturalization certificates record the granting of citizenship. Federal court records document criminal and legal difficulties of individuals. Investigative bodies document their findings relating to individuals. The health and mental condition of individuals of various classes are documented in personnel and hospital records. Loans, grants-in-aid and pension programs require substantial information about the applicants. Statistical, licensing, and fact-gathering activities of the Government gather a wealth of information concerning the social, educational, economic and financial characteristics of many divergent groups and classes.
I could go on indefinitely.
Many of the records relating to individuals are not available for public use or for examination by other than the agency transferring the records to the National Archives. Some are subject to restrictions and limitations imposed by law, some by Executive order, and others are restricted as specified by the agency from which they originated.
The statutory authority for imposition of restrictions on records in the custody of the Administrator of General Services is found in Section 507(b) of the Federal Records Act of 1950. It provides that “whenever any records the use of which is subject to statutory limitations and restrictions are ... transferred,... statutory provisions with respect to the examination and use of such records applicable to the head of the agency from which the records were transferred or to employees of that agency shall thereafter likewise be applicable to the Administrator, the Archivist, and to the employees of the General Services Administration, respectively."
This law also contains an explicit procedure for the continuation of nonstatutory restriction of records imposed by the transferring agency. It provides that “whenever the head of any agency shall specify in writing restrictions that appear to him to be necessary or desirable in the public interest, on the use or examination of records being considered for transfer from his custody to the Administrator, the Administrator shall impose such restrictions on the records so transferred, and shall not remove or relax such restrictions without the concurrence in writing of the head of the agency from which the material shall have been transferred.
The same section of the Federal Records Act provides that neither statutory or agency-specified restrictions shall remain in force after the records have been in existence for 50 years unless the Administrator makes a specific determination that a longer period is warranted. It is this provision of the law that requires the Archivist, by delegation from the Administrator, to play an active rather than a passive role with respect to records containing information about individuals. I might say that except for records of this kind, the authority to restrict records beyond the age of 50 years is almost never exercised. We believe that there is very rarely any reason other than the protection individual rights that should be used to deny the citizen access to Federal records created more than half a century ago. It is, however, our usual practice to extend to 75 years the restriction on records containing information about individuals. Most of the records of this class reflect Government relationships wtih adult persons, and in nearly every instance, a 75 year period of restriction prevents the release of information during the lifetime of the individual. This period was arrived at after extensive discussions with the agencies that transferred records of this class to the National Archives. Experience has, I believe, demonstrated both the feasibility and the wisdom of this policy.
Statutory restrictions are numerous and are binding on the Archivist. They include, for example, records relating to the issuance or refusal of visas, those relating to the registration of aliens, and business information obtained under authority of the Federal Reports Act.
Executive Order 10501 and related Executive orders define categories of records dealing with national defense, and provide for very severe limitations on their use.
Agencies themselves have placed many restrictions on the use of files in accordance with pledges of confidentiality or in order to protect individuals from unwarranted persecution or embarrassment. Examples include fitness reports of midshipmen ; labor organization registration case files; records of Navy CourtsMartial, Courts of Inquiry and Boards of Investigation; case files relating to loan applications of the Small Business Administration; and records covering passports and related citizenship matters.
Occasionally an agency may fail to request the restriction of sensitive information about living individuals, or may seek the advice of the Archivist as to to appropriate restrictions to be applied to records of this character. The Archivist views it as his responsibility to work with the transferring agency in the development of restrictions in conformance with these principles :
That information obtained by the Government from any person or organization on a basis of privilege or confidentiality should remain so;
That information which would constitute an unwarranted invasion of personal privacy should not be disclosed ;
That no innocent person should be hurt by the release of information harmful to him;
That the rights of living persons, and their next of kin, as a general rule, are adequately protected by a period of restriction 75 years in duration.
The following examples illustrate the concern we feel in these matters :
Our agreement with the Veterans Administration restricting the use of pension and claims files reads: "These records are deemed confidential and privileged,' and no disclosure shall be made of any information ... that would be detrimental to the veteran .. or prejudicial ... to the interest of any living person.
Our agreement with the Department of Defense on the use of individual service records of persons having served in the Armed forces provides :
“Such records may be examined only by authorized representatives of the Government officially concerned with them. No information based on such records will be furnished without the written consent of the person concerned, his legal representative, or (after his death) his next of kin, except a summary statement of service and latest known address, which may be furnished without restriction."
Records containing information about the physical or mental health or the medical or psychiatric care or treatment of individuals are restricted as follows: “Access to information in such records will be subject, as nearly as may be, to any pertinent current regulations of the agency that created the records or that succeeded to its functions."
Records of the investigation of persons or groups of persons by investigative authorities of the Executive Branch are made available only as authorized by an appropriate official of the originating agency or its successor agency.
I believe that during the more than 30 years since the establishment of the National Archives we have been able to reconcile very well both the right of the citizen to have the fullest possible access to the records of his Government, and the responsibility of the Government to protect the individual's right to privacy. We take these dual responsibilities very seriously, and I take a great deal of pride in the success with which we have met them.
In Speaking of records in the National Archives I am speaking for the most part of records reflecting transactions and relationships with individuals that have long since been concluded. The restrictions I have mentioned protect the living, but the records in the National Archives chiefly concern the historic past.
Recent records, those pertaining to living persons or individuals more recently deceased, are maintained in the Federal Records Centers. In these Centers récords are administered in behalf of the transferring agency. Access to and use of the records are governed by agency policies. The 50 million files covering former civilian employees of the Government in the National Personnel Records Center in St. Louis are available only so far as the regulations of the Civil Service Commission permit. The 30 million personnel and medical files at the same Center covering individuals who have served in the Armed Forces are handled in compliance with the regulations of the Department of Defense and the Coast Guard. In the same fashion the concerned agencies control the use of records relating to individuals in the 13 regional Federal Records Centers: Social Security and Veterans Administration case files, Naturalization files, income and estate tax returns, investigative files, and many more.
Mr. Chairman, when our Government was in its infancy Thomas Jefferson warned that “eternal vigilance is the price of liberty.” In our own day, as the Government finds it necessary to accumulate even greater amounts of information about the individual, we believe that Jefferson's admonition has as great a validity as when he made it. One of the earmarks of a free society is the concern of the Government for the rights of its citizens, and not the least of these is the right of the individual to expect that during his lifetime information secured in confidence will be kept in confidence.
This concludes my prepared statement, Mr. Chairman. However, if you or members of your Subcommittee have any questions you may wish to ask I shall be pleased to answer them at this time or furnish the desired information for the record.
Senator Long. Doctor, thank you very much. And without objection your entire statement will be placed in the record. Thank you very much for your testimony.
Mr. Fensterwald ?
Mr. FENSTERWALD. I just have one question: If we were to establish a national data center, why would it not be logical to place it in the National Archives or within your organization?
Dr. BAHMER. My personal opinion is that there is a great deal of logic that would lead to that conclusion. I will admit I am probably a minority in making that statement among those who are promoting this particular development.
Mr. FENSTERWALD. If it were placed there, do you think that the present general statutes and regulations with respect to security would be sufficient for the additional information which would be, in effect, pumped into your system?
Dr. BAHMER. I think it would be very desirable that there be a statement of policy by the Congress as to use and availability of this type of information.
Mr. FENSTERWALD. Thank you. .
Just one question, Dr. Bahmer, pursuant to that. On pages 6 and 7 you spell out certain principles. I understand the National Archives now puts information on computers in a limited sense. Is that correct?
Dr. BAHMER. No, Mr. Kass, not in that full sense. We have a lot of computer tape in our records centers, tape made by other agencies of the Government and transferred to us for storage.
Mr. Kass. But they are safeguarded under the same guidelines that you spell out.
Dr. BAHMER. Yes, exactly. We do use a computer in the National Personnel Records Center but not to record information. It is simply a control device to help us in our warehousing of these enormous masses of material, not for the recording of information about individuals, except name, serial number and the number of his file.
Mr. Kass. But my question, then, is related—in your experience as both the Archivist for file cabinet information and also information which is on computer tapes, you feel these guidelines are adequate for both purposes.
Dr. BAUMER. In my judgment, yes.
Dr. Bahmer, this subcommittee is also interested and has got some legislation pending in connection with trial by publicity in which sometimes material is disseminated about respondents who appear before an administrative agency. In that connection, I would like to invite your attention to page 7 of your statement in which you refer to the Department of Defense, and the use of individual service records that can be examined only by authorized representatives of the Government officially concerned with them, and that information based on records will not be furnished without written consent.
From time to time we read in the press about individuals who have been in the military service and their background is published or disseminated in connection with whatever collision they had with an agency of the Government at that time. Can you give us any idea how that gets into the press ?
Dr. BAHMER. No, other than to say that it does not come from releases by the employees that we have in our Personnel Records Center.
These records are, of course, loaned for official business, officially to other agencies of the Government, and I cannot speak for them.
Mr. WATERS. When you say that they can be looked at, examined by authorized representatives of the Government, who do you consider to be authorized representatives?
Dr. BAHMER. The Department of Defense. In certain cases the Veterans Administration in connection with benefits to which the veteran is entitled, certain State agencies in connection with State benefits granted to veterans, and so on.
Mr. WATERS. And, in your case, does that not mean the documents themselves would have been turned over to another agency?
Dr. BAHMER. To the Federal Government, normally not to State agencies or local agencies.
Mr. WATERS. To get the information elicited then, in your opinion, it would have to come from the agency which had physical custody of that document from your archives. Is that correct?
Dr. BAHMER. Or from the individual himself or his legal representative, if he obtained the information.
Mr. WATERS. Thank you very much.
Thank you, Doctor, and the gentleman who is with you. We are very grateful for your appearance this morning.
Our next and concluding witness this morning will be Mr. Lawrence Speiser, who is the director of the Washington office of the American Civil Liberties Union.
We are happy to have you before our committee again.
Senator Long. You have a prepared statement, I believe. If you will give your name, address, and official position for the record, we will be glad to hear you.