[Federal Register Volume 61, Number 79 (Tuesday, April 23, 1996)]
[Rules and Regulations]
[Pages 17842-17849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9974]
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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
36 CFR Part 1275
RIN 3095-AA59
Preservation and Protection of and Access to the Presidential
Historical Materials of the Nixon Administration; Amendment of Public
Access Regulations
AGENCY: National Archives and Records Administration.
ACTION: Final rule and interim final rule.
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SUMMARY: This rule revises the procedures to be followed by the
National Archives and Records Administration (``NARA'') for preserving
and protecting the Presidential historical materials of the Nixon
Administration, for providing public access to these materials, and for
providing for the reproduction of the Nixon White House tape
recordings, based on a Settlement Agreement reached through mediation
among Public Citizen and Stanley I. Kutler, the National Archives and
Records Administration, and William E. Griffin and John H. Taylor, co-
executors of the Estate of Richard M. Nixon, parties to Stanley I.
Kutler and Public Citizen v. John W. Carlin, Archivist of the United
States, and William E. Griffin and John H. Taylor, Co-executors of
Richard M. Nixon's Estate, Civ. A. No. 92-0662-NHJ (D.D.C.) (Johnson,
J.). Furthermore, the final rule clarifies various terms that appear in
36 CFR Part 1275. This final rule and interim final rule will affect
the heirs of former President Nixon and other individuals whose names
appear in the materials, as well as members of the general public
interested in conducting research regarding those materials.
DATES: The effective date for this final rule and interim final rule is
May 23, 1996.
Comments on the amendments to Secs. 1275.42, 1275.48, and 1275.64
must be received by close of business June 24, 1996. NARA will issue a
final rule confirming or further amending these amendments after this
comment period closes.
ADDRESSES: All comments must be submitted in writing to the Regulation
Comment Desk, Policy and Planning Division (PIRM-POL), Room 3200,
National Archives and Records Administration, 8601 Adelphi Road,
College Park, MD 20740-6001.
FOR FURTHER INFORMATION CONTACT: Nancy Allard at (301) 713-6730.
SUPPLEMENTARY INFORMATION: Professor Stanley Kutler and Public Citizen
commenced an action against the Archivist of the United States on March
19, 1992, by filing a complaint under the Administrative Procedure Act,
5 U.S.C. 701, et seq. The complaint alleged that the Archivist had
failed to carry out his obligations under the Presidential Recordings
and Materials Preservation Act of 1974 (``PRMPA''), 44 U.S.C. 2111
note, concerning the release of approximately 3,700 hours of tape
recordings made during the Presidency of Richard M. Nixon. Thereafter,
former President Nixon intervened and filed cross-claims; after his
death in 1994, his co-executors were substituted in his place.
During the course of the litigation, which entailed substantial
discovery and motions, the principal disputes revolved around the issue
of how to reconcile the disclosure requirements of the PRMPA and the
privacy interests of Mr. Nixon and his family, as well as the other
interests legally protected by the PRMPA. A major portion of the
controversy centered on the issue of the timing of releases of the
tapes (all at once or in segments), and whether the releases could be
made before some or all of the tape segments found to be private or
personal were returned to Mr. Nixon or his estate as required by law.
Following the release of approximately 60 hours of tape recordings
subpoenaed by the Watergate Special Prosecution Force (``WSPF'') during
its investigation, NARA had decided that the best way to proceed with
the release of the body of the approximately 3,700 hours of Nixon White
House tape recordings was to release Watergate-related segments of the
tape recordings in small monthly groupings on an ongoing basis. The
first of these releases was noticed in the Federal Register on April 2,
1993, 58 FR 17433, and took place on May 17, 1993, without any
objections from affected parties.
The second and third releases were noticed in the Federal Register
on June 3, 1993, and July 2, 1993, to take place on July 15, 1993
(later extended to August 13, 1993), and August 26, 1993, respectively.
58 FR 31548 (June 3, 1993); 58 FR 35983 (July 2, 1993).
[[Page 17843]]
Former President Nixon raised certain objections to these proposed
releases. When NARA rejected former President Nixon's contention that
those releases should not go forward, he sought relief in the district
court. On August 9, 1993, Judge Royce Lamberth of the United States
District Court for the District of Columbia issued an order in the
Kutler case preliminarily enjoining NARA from carrying out the releases
of Watergate-related tape segments scheduled for release on August 13
and 26, 1993, pending (1) segregation and return to former President
Nixon of all private or personal conversations on the tape recordings;
and (2) processing of the tape recordings as a single ``integral file
segment'' before release to the public.
On March 25, 1994, the proposed amendments to the current PRMPA
regulations were published for public comment at 59 FR 14128. At that
time, NARA believed that the proposed amendments were required to
clarify various terms that appear in 36 CFR Part 1275; clarify the
nature of the archival processing being conducted on the Nixon
Presidential historical materials; and provide for the reproduction of
the available Nixon White House tape recordings.
During the comment period, originally 60 days but extended by an
additional 30 days, 59 FR 27257 (May 26, 1994), NARA received comments
from eight individuals and organizations in response to these proposed
regulations. The comments consisted of both objections to and support
for the proposed amendments, although many of the comments were
generally supportive of the proposed regulatory changes. The Nixon
estate submitted extensive comments objecting to the proposed
amendments.
The Kutler case was referred to a court-appointed mediator, and
most of the issues were resolved by the parties in a Settlement
Agreement, which is attached hereto as Appendix A to 36 CFR Part 1275.
As a result of the mediation, NARA is amending certain of its
regulations as set forth below. Other comments have been incorporated
into this final and interim final rule. Although NARA does not take a
position as to whether it is necessary to resubmit the proposed changes
to the regulations as a result of the Settlement Agreement, NARA
nevertheless is publishing as an interim final rule for a 60-day
comment period those sections of Part 1275 which have been revised in
accordance with the provisions of the Settlement Agreement reached
among the parties. Those sections of the proposed rule published on
March 25, 1994, that have not been further revised due to the
Settlement Agreement are issued as a final rule. No additional comments
will be considered on these sections, which include 36 CFR 1275.16(e)
and (g), 1275.20, 1275.46, 1275.56, 1275.66 and 1275.70. NARA had
previously proposed to amend Sec. 1275.16(b), but now has decided that
an amendment to this section is not necessary. NARA is amending the
current regulations in accordance with the terms of the Settlement
Agreement.
Interim Final Rule Provisions (Sections Affected by the Settlement
Agreement)
The following amended sections of 36 CFR Part 1275 are being issued
as an interim final rule to allow public comment.
NARA had previously proposed to amend Sec. 1275.42(a) to clarify
the manner in which NARA intends to proceed with the archival
processing and release of the tape recordings and all other textual
Nixon Presidential historical materials. To address these concerns, the
proposed amendments to Sec. 1275.42(a) would have allowed the release
of the tape recordings in groupings that would not necessarily have
constituted ``integral file segments,'' but which would have permitted
the opening of portions of the tape recordings without the need for the
approximately 3,700 hours to be released at once. The current
regulations provide that Nixon White House materials will be disclosed
to the public in ``integral file segments.''
As a result of the Settlement Agreement in the Kutler case, NARA is
now amending Sec. 1275.42(a) to describe specifically the schedule for
the opening of the approximately 3,700 hours of tape recordings, as
well as the procedures for allowing interested and affected parties--
including the Nixon estate--the opportunity to review (and object as
appropriate to) a particular segment of tape recordings being proposed
for opening. The Settlement Agreement also takes into account the fact
that due to the extensive nature of the tape recordings collection, it
would be impossible for the Nixon estate to review all portions of the
tape recordings proposed for opening within the allotted 30-day period.
As a result, the current revised amendments to Sec. 1275.42(a)
incorporate a procedure whereby the Nixon estate will be given
sufficient lead time to review each segment of tape recordings NARA
proposes for opening.
In addition, the previously proposed amendments to Sec. 1275.42(a)
provided that the Archivist was free to release segments of the tape
recordings prior to transferring private or personal material in
accordance with current Sec. 1275.48, thereby allowing NARA to continue
processing and opening Watergate- related segments of the tape
recordings at the earliest reasonable date, in accordance with its
statutory and regulatory responsibility. Based on the Settlement
Agreement in the Kutler case, however, NARA is now amending
Sec. 1275.42(a)(2) to allow for identification of additional private or
personal materials located during the rereview of the tape recordings
and return to the Nixon estate at approximately the time that NARA
proposes each segment for public release.
In accordance with the Settlement Agreement in the Kutler case,
NARA is amending Sec. 1275.44 by adding a new subsection (e) which sets
forth the precise procedures for the Nixon estate to raise any
objections to those tape recordings that NARA has designated as
relating to abuses of governmental power, as well as the standard to be
applied by the specially appointed review panel in reviewing those
objections. For those segments designated abuses of governmental power,
the Nixon estate has agreed to accept the review panel's decisions as
binding, thereby foregoing its right to appeal decisions regarding its
objections in the normal course pursuant to Sec. 1275.46. In addition,
although the Nixon estate has not waived its appeal rights available
for any objections with respect to the remaining tape segments,
subsection (e) provides that the Nixon estate may, at any time, elect
to use the procedures used for raising objections to the abuses of
governmental power tape segments. Subsection (e) also specifies the
standard that will be applied by the specially appointed review panel
in reviewing the objections to the remaining tape recordings should the
Nixon estate elect to use the alternative procedure.
NARA is amending Sec. 1275.48(a) to make clear that no portion of
the original tape recordings or master preservation copy is to be
returned to the heirs of former President Nixon. NARA's position is
that it is complying with the PRMPA by retaining the entire original
tape recordings and a master preservation copy containing these
materials. This is one of the issues in the Kutler case and the parties
to the Settlement Agreement have agreed to resolve this issue,
including the validity of this particular section and of
Sec. 1275.64(e), in the courts. NARA is also amending this section to
make clear that it restricts access to all private or personal material
on the original tape
[[Page 17844]]
recordings and master preservation copy that NARA maintains.
NARA had previously proposed to amend Sec. 1275.64 to include a
provision allowing for the reproduction of tape recordings opened to
the public. The issue of whether to provide copies of tape recordings
has been considered by NARA on several occasions. At the time the
current regulations were written, NARA decided to maintain its prior
position of not allowing copies of tape recordings, although it
specifically stated that this position would be reviewed periodically.
51 FR 7228 (Feb. 28, 1986). In accordance with the Settlement Agreement
in the Kutler case, Sec. 1275.64 is being amended to state that copies
of the tapes will be made available following the public release of the
last of the tape segments contemplated in Sec. 1275.42(a). However, if
the last tape segment is not released by December 31, 1999, NARA will
allow members of the public to obtain copies only of the abuses of
governmental power tapes, together with any other tapes publicly
released as of the effective date of the Settlement Agreement,
beginning January 1, 2000. If the releases contemplated in
Sec. 1275.42(a) are not completed by December 31, 2002, NARA will,
beginning January 1, 2003, allow members of the public to obtain copies
of all tapes that have been made available to the public by that date
and tapes that subsequently become available, as they are released.
NARA is also adding Sec. 1275.64(e) to make clear that the Archivist
will produce and maintain a master preservation copy of the original
tape recordings for preservation purposes.
Final Rule Provisions
The following amendments to 36 CFR Part 1275 are being adopted as a
final rule. No comments will be accepted on these provisions.
Section 1275.16(e) clarifies the nomenclature used throughout the
regulations and distinguishes between ``Archivist,'' defined as the
Archivist of the United States or his or her designated agent, and
``archivist,'' as defined in the current subsection, i.e., as an
employee of NARA, who, by education or experience, is specially trained
in archival science.
Section 1275.16(g) clarifies the definition of ``archival
processing'' to ensure that nothing in the subsection creates any
obligation on the part of the Archivist to perform any one particular
archival processing task listed in the subsection. In so doing, NARA
intends to make clear that transcripts of the tape recordings need not
be made. Although the current regulations indicate that the processing
of the Nixon White House materials may undergo one or more of several
archival processing phases, including the preparation of transcripts,
NARA does not believe that the regulations intended to obligate the
processing archivists to transcribe all of the approximately 3,700
hours of tape recordings before releasing them to the public. NARA does
not believe this is an obligation because the tapes are the original
record. NARA has created tape logs to serve as a subject guide to the
tape recordings. NARA chose to create tape logs instead of
transcriptions because NARA has estimated that it would take at least
400,000 hours of staff time to accomplish such transcriptions. In
addition, because of the sound quality of the tape recordings, NARA
could not guarantee the accuracy of the transcriptions. Furthermore,
the definition of ``archival processing'' in Sec. 1275.16(g) has been
expanded to reflect the archival processing of the Nixon Presidential
historical materials that actually has been taking place.
Section 1275.20 is amended to be consistent with the amended
definition of ``Archivist'' set forth in amended Sec. 1275.16(e).
Sections 1275.46(d) and 1275.46(f) are amended to be consistent
with the amended definition of ``Archivist'' set forth in amended
Sec. 1275.16(e).
Section 1275.64(b) is also amended to be consistent with the
nomenclature distinction between ``Archivist'' and ``archivist'' as set
forth in Sec. 1275.16(e).
Section 1275.66(a) is amended to accommodate two different
possibilities with respect to the reproduction of released Nixon
materials other than tape recordings: copying by researchers on self-
service government copiers; and copying by contract vendors at the
request of NARA. This change reflects not only current practice at the
Nixon Presidential Materials Staff, but common practice at other
Presidential libraries within the NARA system as well as NARA
regulations regarding copying of archival documents.
Sections 1275.70(a) and 1275.70(b) are amended to be consistent
with the nomenclature distinction between ``Archivist'' and
``archivist'' as set forth in Sec. 1275.16(e).
Typographical corrections are made to Sec. 1275.46(i) and
Sec. 1275.56.
Other
NARA has issued these regulations as an interim final rule under
the good cause exception to the Administrative Procedures Act. NARA
believes that the proper execution of the agency's function--in this
case, the release of the Nixon Presidential historical materials at the
earliest reasonable date--requires prompt implementation of the
amendments to Part 1275, including the provisions that have been
modified by the Settlement Agreement. Therefore, NARA finds it in the
public interest to issue these regulations as an interim final rule.
The amendments to 36 CFR Part 1275 are not a significant regulatory
action for purposes of Executive Order 12866 of September 30, 1993. As
required by the Regulatory Flexibility Act, it is hereby certified that
these regulatory amendments will not have a significant impact on small
business entities. For purposes of Title II, Subtitle E of Public Law
104-121, this rule is not a major rule as defined in section 804 of the
act.
List of Subjects in 36 CFR Part 1275
Archives and Records
For the reasons set forth in the preamble above, Part 1275 of Title
36 of the Code of Federal Regulations is amended as follows:
PART 1275--PRESERVATION AND PROTECTION OF AND ACCESS TO THE
PRESIDENTIAL HISTORICAL MATERIALS OF THE NIXON ADMINISTRATION
1. The authority citation for part 1275 continues to read as
follows:
Authority: Sec. 102(a) of the National Archives and Records
Administration Act of 1984, Pub. L. 98-497; 44 U.S.C. 2104; and
sections 103 and 104 of the Presidential Recordings and Materials
Preservation Act, 88 Stat. 1695; 44 U.S.C. 2111 note.
2. Section 1275.16 is amended by revising paragraphs (e) and (g) to
read as follows:
Sec. 1275.16 Definitions.
* * * * *
(e) Archivist. The term ``Archivist'' shall mean the Archivist of
the United States or his designated agent. The term ``archivist'' shall
mean an employee of the National Archives and Records Administration
who, by education or experience, is specially trained in archival
science.
* * * * *
(g) Archival processing. The term ``archival processing'' may
include the following general acts performed by archivists with respect
to the Presidential historical materials: Shelving boxes of documents
in chronological, alphabetical, numerical or other sequence; surveying
and developing a location register and cross-index of the boxes;
arranging materials; refoldering and reboxing the documents and
affixing labels; producing finding
[[Page 17845]]
aids such as folder title lists, scope and content notes, biographical
data, and series descriptions; rewinding, duplicating and preserving
the original tape recordings; enhancing the tape recordings on which
the conversations are wholly or partially unintelligible so that
extraneous noises may be filtered out; producing general subject matter
logs of the tape recordings; reproducing and transcribing tape
recordings; reviewing the materials to identify items that appear
subject to restriction; identifying items in poor physical condition
and assuring their preservation; identifying materials requiring
further processing; and preparation for public access of all materials
which are not subject to restriction.
* * * * *
3. Section 1275.20 is revised to read as follows:
Sec. 1275.20 Responsibility.
The Archivist is responsible for the preservation and protection of
the Nixon Presidential historical materials.
4. Section 1275.42 is amended by revising paragraph (a) to read as
follows:
Sec. 1275.42 Processing period; notice of proposed opening.
(a) (1) The archivists will conduct archival processing of those
materials other than tape recordings to prepare them for public access.
In processing the materials, the archivists will give priority to
segregating private or personal materials and transferring them to
their proprietary or commemorative owner in accordance with
Sec. 1275.48. In conducting such archival processing, the archivists
will restrict portions of the materials pursuant to Secs. 1275.50 and
1275.52. All materials other than tape recordings to which reference is
made in Sec. 1275.64 will be prepared for public access and released
subject to restrictions or outstanding claims or petitions seeking such
restrictions. The Archivist will open for public access each integral
file segment of materials upon completion of archival processing of
that segment.
(2) The archivists will conduct archival processing of the tape
recordings to prepare them for public access in accordance with the
provisions set forth in the Settlement Agreement (see Appendix A to
this part). In conducting the archival processing of the tape
recordings, the archivists will restrict segments of the tape
recordings pursuant to Secs. 1275.50 and 1275.52. The tape segments
which consist of abuses of governmental power information, as defined
in Sec. 1275.16(c), will be given priority processing by the archivists
and will be prepared for public access and released following review
and resolution of objections from the Nixon estate and other interested
parties as set forth in the Settlement Agreement (see Appendix A to
this Part). After the tape segments which consist of abuses of
governmental power information have been released, the archivists will
conduct archival processing of those tape recordings which were taped
in the Cabinet Room, as set forth in the Settlement Agreement, Appendix
A to this Part. Following release of the Cabinet Room tape recordings,
the remaining tape recordings will be prepared for public access and
released in five segments in accordance with the schedule set forth in
the Settlement Agreement. In addition, NARA will identify and return
any additional private or personal segments to the Nixon estate, at
approximately the time that NARA proposes each segment for public
release.
* * * * *
5. Section 1275.44 is amended by adding new paragraph (e) to read
as follows:
Sec. 1275.44 Rights and privileges; right to a fair trial.
* * * * *
(e)(1) In place of the right to make all other objections with
respect to the tape segments that NARA has designated as abuses of
governmental power materials, the Nixon estate may object to their
release only on the ground that such designation by NARA is clearly
inconsistent with the term ``abuses of governmental power'' as used in
Sec. 104(a)(1) of the Presidential Recordings and Materials
Preservation Act (PRMPA) and defined in Sec. 1275.16(c), as qualified
by Sec. 1275.50(b). Any such objection may not be based on isolated
instances of alleged failure by NARA to apply the appropriate review
standard, but only on a pattern of misapplication of the requirements
of the PRMPA and its implementing regulations. Further, any such
objection must be accompanied by specific examples of alleged review
errors and contain sufficient information to enable the review panel of
three Presidential Library archivists appointed by the Archivist, as
described in the Settlement Agreement, Appendix A to this Part, to
locate those examples readily.
(2) If an objection is made by the Nixon estate to the abuses of
governmental power tape segments, the matter shall be immediately
referred to a panel of three Presidential Library archivists appointed
by the Archivist as set forth in the Settlement Agreement, Appendix A
to this Part. The decision of the panel shall be either that the Nixon
estate's objection is sustained or that it is rejected. The decision
shall include a brief statement of the panel's reasons, but it need not
include an item-by-item determination. In deciding whether the
designation by NARA of the material proposed to be released is clearly
inconsistent with the definition of ``abuses of governmental power'',
the panel shall consider whether the release would seriously injure
legitimate interests of identifiable individuals, whether the errors
suggest a pattern of misinterpretation, and any other factor that bears
on the issue of whether NARA's designation of material as relating to
``abuses of governmental power'' was reasonable, considered as a whole.
The panel's decision shall be final and binding on all parties to the
Kutler litigation, and no party may exercise any right to appeal to any
person, board, or court that might otherwise be available.
(3) The Nixon estate may, at any time, elect to use the procedures
outlined in paragraphs (e)(1) and (e)(2) of this section for the tape
recordings other than the abuses of governmental power segments, except
that the standard under which objections shall be made by the Nixon
estate, and under which the review panel shall decide their merits, is
whether the release taken as a whole is plainly inconsistent with the
requirements of the Presidential Recordings and Materials Preservation
Act of 1974 and these regulations. If the Nixon estate elects to use
the procedures in paragraph 1 of the Settlement Agreement (Appendix A
to this Part) in place of the provisions in paragraphs 4 (b) and (d)
and 5(c) of the Settlement Agreement for a tape segment, the estate
cannot subsequently revert back to the formal objection process set
forth in this section for that tape segment.
Sec. 1275.46 [Amended]
6. Section 1275.46 is amended by removing in paragraph (d) and
paragraph (f), wherever it appears, the term ``Archivist of the United
States'' and adding in its place the term ``Archivist,'' and by
removing in paragraph (i)(2) the term ``reasonbly'' and adding in its
place the term ``reasonably.''
7. Section 1275.48 is amended by revising paragraph (a) to read as
follows:
Sec. 1275.48 Transfer of materials.
(a) The Archivist will transfer sole custody and use of those
materials determined to be private or personal, or
[[Page 17846]]
to be neither related to abuses of governmental power nor otherwise of
general historical significance, to former President Nixon's estate,
or, when appropriate and after notifying the Nixon estate, to the
former staff member having primary proprietary or commemorative
interest in the materials; however, no physical part of any original
tape recording or a master preservation copy to which reference is made
in Sec. 1275.64 shall be transferred to the heirs of former President.
NARA will maintain the original tape recordings and a master
preservation copy, including the private and personal segments, in a
manner consistent with the PRMPA and these regulations and will
restrict access to all private or personal material on the originals
and the master preservation copy.
* * * * *
Sec. 1275.56 [Amended]
8. Section 1275.56 is amended by removing the term
``adminsitrative'' and replacing it with the term ``administrative.''
9. Section 1275.64 is amended by removing in paragraph (b) the term
``Archivists'' and replacing it with the term ``archivists'' and adding
new paragraphs (d) and (e) to read as follows:
Sec. 1275.64 Reproductions of tape recordings of Presidential
conversations.
* * * * *
(d) The reproduction for members of the public of the reference
copies of the available tape recordings described in paragraph (a) of
this section will be permitted as follows: Copies of tape recordings
will be made available following the public release of the last of the
tape segments contemplated in Sec. 1275.42(a). If the releases
contemplated in Sec. 1275.42(a) are not completed by December 31, 1999,
NARA will, beginning January 1, 2000, allow members of the public to
obtain copies only of the abuses of governmental power tapes, together
with any other tapes publicly released as of the effective date of the
Settlement Agreement. If the releases contemplated in Sec. 1275.42(a)
are not completed by December 31, 2002, NARA will, beginning January 1,
2003, allow members of the public to obtain copies of all tapes that
have been made available to the public by that date and tapes that
subsequently become available as they are released. Such copying will
be controlled by NARA or its designated contractor. The fees for the
reproduction of the tape recordings under this section shall be those
prescribed in the schedule set forth in part 1258 of this chapter or
pertinent successor regulation, as that schedule is amended from time
to time.
(e) The Archivist shall produce and maintain a master preservation
copy of the original tape recordings for preservation purposes.
10. Section 1275.66 is amended by revising paragraph (a) to read as
follows:
Sec. 1275.66 Reproduction and authentication of other materials.
(a) Copying of materials other than tape recordings described in
Sec. 1275.64 may be done by NARA, by a contractor designated by NARA,
or by researchers using self-service copiers. Such self-service copying
shall be done in accordance with the NARA policy on self-service
copying set forth at 36 CFR 1254.71, to ensure that such copying will
not harm the materials or disrupt reference activities.
* * * * *
Sec. 1275.70 [Amended]
11. Section 1275.70 is amended by removing in paragraph (a) the
term ``an Archivist'' and adding in its place the term ``an archivist''
and by removing in paragraph (b) the term ``NARA Archivists'' and
adding in its place the term ``NARA archivists.''
* * * * * *
12. Appendix A to Part 1275 is added to read as follows:
Appenidx A--Settlement Agreement
Settlement Agreement filed April 12, 1996, in Stanley I. Kutler
and Public Citizen v. John W. Carlin, Archivist of the United
States, and William E. Griffin and John H. Taylor, Co-executors of
Richard M. Nixon's Estate, Civil Action No. 92-0662-NHJ (D.D.C.)
(Johnson, J.)
Settlement Agreement
This Settlement Agreement (``Agreement'') is made by and entered
into among plaintiffs Stanley I. Kutler and Public Citizen;
defendant/cross-claim defendant John W. Carlin, in his official
capacity as Archivist of the United States; and defendant-
intervenors/cross-claimants John H. Taylor and William E. Griffin,
co-executors of the estate of Richard M. Nixon (``the Nixon
estate''), in the above-entitled action by and through the parties'
undersigned attorneys.
It is hereby agreed, by and among the parties, appearing through
their undersigned attorneys, that this action is partially settled
on the following terms:
Terms of Agreement
1(a). As soon as practicable, the National Archives and Records
Administration (``the Archives'') will publicly release the segments
of tape recordings made during the Presidency of Richard M. Nixon
(``tape recordings'' or ``tapes'') identified by the Archives as
relating to ``abuses of governmental power,'' as defined by 36
C.F.R. Part 1275, along with the corresponding portions of the tape
log and any other finding aid. The date of that release, which is
expected to be on or about November 15, 1996, shall be determined in
the following manner.
(b). No later than April 15, 1996, the Archives shall deliver to
an agent of the Nixon estate a copy of the approximately 201 hours
of abuses of governmental power tape segments that it proposes to
release, together with the corresponding portions of the tape log
and any other finding aid, for review by the Nixon estate to
determine whether it intends to object to the release. The Archives
agrees to provide a period of orientation to the designated Nixon
estate agent with respect to the review of the abuses of
governmental power tape segments and to be available to respond to
questions thereafter.
(c). In place of the right to make all other objections with
respect to the tape recordings that the Archives has designated as
abuses of governmental power materials, the Nixon estate agrees that
it may object to their release only on the ground that such
designation by the Archives is clearly inconsistent with the term
``abuses of governmental power'' as used in section 104(a)(1) of the
Presidential Recordings and Materials Preservation Act of 1974
(``the Act''), 44 U.S.C. Sec. 2111 note, and defined in 36 C.F.R.
1275.16(c), as qualified by 36 C.F.R. 1275.50(b). Any such objection
shall be in writing and may not be based on isolated instances of
alleged failure by the Archives to apply the appropriate review
standard, but only on a pattern of misapplication of the
requirements of the Act and its implementing regulations. Further,
any such objection must be accompanied by specific examples of
alleged review errors and contain sufficient information to enable
the review panel described in subparagraph 1(e) below to locate
those examples readily. Nothing in this paragraph shall preclude the
Nixon estate and the Archives from having informal discussions
regarding the appropriate treatment of any of the abuses of
governmental power tape segments.
(d). The Nixon estate shall have until October 1, 1996, to
submit any objection in accordance with subparagraph 1(c) above. If
no such objection is filed, the Archives shall proceed to issue a
notice of proposed release pursuant to 36 C.F.R. 1275.42 as soon as
possible, but no later than October 15, 1996.
(e). If an objection is made, the matter shall be immediately
referred to a panel of the following three Presidential Library
archivists: David Alsobrook, Frances Seeber, and Claudia Anderson.
If any of these three persons is unable to serve, the Archivist
shall appoint a substitute who is acceptable to the other parties.
(f). The panel shall have such access to the tapes as it deems
necessary to make its decision. The decision of the panel shall be
either that the Nixon estate's objection is sustained or that it is
rejected. The decision shall include a brief statement of the
panel's reasons, but it need not include an item-by-item
determination. In deciding whether the designation by the Archives
of the material proposed to be released is clearly inconsistent with
the definition of ``abuses of governmental power,'' the panel shall
consider whether the release would seriously injure legitimate
interests of identifiable
[[Page 17847]]
individuals, whether the errors suggest a pattern of
misinterpretation, and any other factor that bears on the issue of
whether the Archives' designation of material as relating to abuses
of governmental power was reasonable, considered as a whole. The
decision of the panel shall be made within sixty (60) days of the
date of the objection. However, if the panel determines that
exceptional circumstances interfere with its ability to meet this
deadline, the panel shall have up to an additional sixty (60) days
to make its decision. The Archives shall notify the other parties of
the need for an extension and briefly describe the reasons therefor.
The panel's decision shall be final and binding on all parties, and
no party may exercise any right to appeal to any person, board, or
court that might otherwise be available. Nothing contained in this
Agreement shall preclude the panel from advising the Archives of any
particular processing errors that it believes may have been made,
but the Archivist shall make the final determination as to whether
to accept such advice.
(g). If the objection of the Nixon estate is sustained, the
Archives shall re-review the tapes sufficiently to address the
concerns raised by whatever aspect of the objection is sustained. At
the conclusion of such re-review, the same process of review, first
by the Nixon estate and then by the panel in the event of further
objection, shall be repeated for those tape segments concerning the
subject matter of the sustained objection prior to any release of
tape recordings designated as relating to abuses of governmental
power.
(h). The Nixon estate agrees to inform the Archives and
plaintiffs whether it intends to file objections as soon as it has
made its decision. If there is an objection by the Nixon estate and
it is overruled, the Federal Register notice shall be published
within ten (10) days of the date of the panel's decision.
(i). If, following the Federal Register notice, no objection by
other individuals to a release is received within the time provided
by law, the Archives shall release the tape recordings within ten
(10) days after such time has expired. If objections are received,
they shall be promptly considered by the Archives and shall be
decided as soon thereafter as practical. Any materials as to which
an objection to release has been timely filed shall not be released
until such objection has been resolved pursuant to 36 C.F.R.
1275.44. All materials not objected to shall be released no later
than thirty (30) days after the time for objections has expired,
provided that the Archives may withhold any additional conversation
to which no objection has been made, pending final resolution of an
objection to another conversation, if (i) such additional
conversation is in close proximity on the tapes to the objected-to
conversation and it would be burdensome for the Archives to separate
out the releasable and objected-to portions, or (ii) the subjects of
the releasable and the objected-to conversations are closely related
to one another and the Archives determines that it might be
misleading or might unfairly prejudice a living individual to
release only one conversation. Any release under this Agreement
shall include the corresponding portions of the tape log and any
other finding aid.
(j). The Archives shall send to plaintiff Kutler, to arrive no
later than the day that the release of the tapes occurs, a copy of
the portions of the tape log and any other finding aid that
correspond to the tapes being released. The Archives shall also make
suitable arrangements for plaintiff Kutler to listen to such tapes
on the date of their release, and/or on such other subsequent
business days as plaintiff Kutler shall designate.
2(a). Although the Agreement provides that the Archives will
identify and return to the Nixon estate a copy of any private or
personal materials identified on the tapes, the parties have been
unable to reach agreement regarding the Archivist's retention and
maintenance of the original tape recordings in their entirety,
including those segments deemed to be private or personal, along
with a master preservation copy. The government's position is that
it is complying with the Act by retaining the original tapes and a
master preservation copy, including those portions containing
private or personal conversations. The Nixon estate's position, with
which plaintiffs agree, is that the family has statutory,
constitutional, and other rights that prevent the Archives from
retaining private or personal materials, on both the original tapes
and all copies.
(b). The parties have agreed to litigate the issue described in
subparagraph 2(a) above, including the validity of 36 C.F.R.
1275.48(a) and 1275.64(e) as proposed for amendment. The parties
further agree that the Court shall retain jurisdiction of that
issue, as provided in paragraph 14 below, and that the right to
litigate this issue includes the right to seek review in the United
States Court of Appeals for the District of Columbia Circuit and the
United States Supreme Court. If there is litigation between the
Nixon estate and the Archivist over the issue described in
subparagraph 2(a) above, the plaintiffs shall support the Nixon
estate in any such litigation by filing a brief supporting the
estate's position in District Court. The parties agree to make all
reasonable efforts to expedite resolution of this issue.
(c). This Agreement and all discussions, negotiations and
exchanges of information leading to it shall be entirely without
prejudice to any positions the parties may take in the event of such
litigation. Nothing in this Agreement, in any discussions leading to
it, or in any information or materials exchanged by the parties as
part of the mediation may be relied on or disclosed by any party to
support or rebut the position of any party with respect to the
treatment of private or personal materials on the original tapes.
Nothing in this subparagraph prevents any party from expressing its
understanding as to the meaning and effect of the legal position of
another party.
3. The Archives will provide to the Nixon estate any additional
private or personal materials at approximately the time that the
Archives proposes each segment identified in paragraphs 4 and 5
below for public release. Any additional copies of that material
(other than on a master preservation copy, the status of which will
be determined in accordance with the resolution of the issue as
described in subparagraph 2(a) above), will be destroyed by
appropriate method, with appropriate means of verification.
4(a). The second group of tapes to be processed for release is
the approximately 278 hours recorded in the Cabinet Room. The
projected date for publishing a notice of proposed opening of tapes
in that group is August 1, 1997. The Archives will make the Cabinet
Room tapes proposed for release available to the Nixon estate in no
fewer than four (4) segments. The process by which those tapes will
be reviewed by the Nixon estate, and the objections handled by the
Archives, is set forth in the following subparagraphs of this
paragraph 4.
(b). The Nixon estate agrees to review each segment as it is
received and promptly to call to the attention of the Archives any
concerns that it may have. The Archives and the Nixon estate agree
to attempt to work out their differences informally in order to
minimize any objections to a proposed release. To facilitate
informal consultation between the Nixon estate and the Archives
concerning the tape review, the Archivist shall designate a panel
member identified in subparagraph 1(e) above who will serve as a
contact with the Nixon estate and assure access to information
relating to Presidential libraries practices and procedures that may
arise in the course of the tape review. The designated individual
will be responsible for assuring that the Nixon estate has access to
the appropriate person to answer its concerns. The Nixon estate may
communicate with the designated individual orally or in writing. If
the Archives agrees with the Nixon estate that any portion of a
segment that has been sent to the Nixon estate as a proposed release
should not be released, the Archives shall assure that there is
appropriate documentation to reflect that change.
(c). The Nixon estate will have a period of at least six (6)
months in which to review all of the Cabinet Room tapes, beginning
on the date the Archives makes the first installment of such tapes
available to the estate for review (but in no event will the six (6)
months begin earlier than November 15, 1996). During the review of
the Cabinet Room tapes, the Nixon estate will employ an agent or
agents who will spend an average of at least thirty two (32) hours a
week (total) in actual review of the tapes. The Nixon estate may
request from the Archives an extension of the six-month review
period, which the Archives shall grant if good cause is shown.
(d). If, during its review, the Nixon estate becomes aware that
there are materials proposed for release that it believes should not
be heard even by individuals on the registry list, it will promptly
advise the Archives of any such materials so that they can be
reviewed and/or segregated by the Archives before any other
individual is permitted to listen to them. The Nixon estate will
cooperate with the Archives so that the required Federal Register
notice is published as soon as possible, but in no event shall such
notice be provided later than ten (10) days after the time the Nixon
estate completes its review. Final objections from the Nixon estate
to the release of portions of the tapes shall be filed in accordance
with 36
[[Page 17848]]
C.F.R. Part 1275 no later than the date for filing objections by
other persons. Thereafter, subject to paragraph 7 below, the
provisions of subparagraphs 1(i) and 1(j) above will apply.
5(a). The remaining tapes, consisting of approximately 2338
hours, shall be processed for release in five (5) segments. Because
the precise number of hours of tapes for each month cannot readily
be determined, the parties have agreed to divide the releases into
the segments set forth below. The Archives will begin processing
(which includes, but is not limited to, tape review, preparing tapes
for declassification review, tape editing and production of finding
aids) each segment before processing of the preceding segment is
concluded. Processing of the tapes in each segment is projected to
take from about fifteen (15) to about twenty three (23) months. The
approximate number of hours of tapes to be reviewed in each segment
is set forth in parentheses in the following listing of the
segments. The projected number of months between the completion of
the Archives' processing of the immediately preceding segment and
the completion of the Archives' processing of each listed segment is
set forth in brackets.
1. February 1971-July 1971 (437 hours) [8 months]
2. August 1971-December 1971 (405 hours) [7 months]
3. January 1972-June 1972 (440 hours) [7 months]
4. July 1972-October 1972 (410 hours) [6 months]
5. November 1972-July 1973 (646 hours) [10 months]
(b). The time estimates in this Agreement are not enforceable as
such, but the parties agree to have the Court retain jurisdiction to
consider requests that it enter a binding order setting a schedule
for the Archives to complete the processing of the tapes. No party
may seek such an order unless that party first provides twenty (20)
days' written notice to the other parties of that party's intention
to seek such an order. Further, no party may seek such an order
except on the ground that the Archives has unreasonably failed to
meet the estimates contained herein by a substantial amount. The
type of proof that will demonstrate reasonableness on the part of
the Archives in this regard may include, but will not necessarily be
limited to, a showing that the Archives is reasonably allocating its
resources among its various programs and activities in the event
that it experiences a shortage of resources, including any
occasioned by court order.
(c). Portions of each segment processed by the Archives shall be
provided to the Nixon estate when the processing of each month of
tape recorded material is completed, unless there are a very few
hours for two (2) or more months, which may then be combined into a
single unit. During its review of the chronological tape segments,
the Nixon estate will employ an agent or agents who will spend an
average of at least thirty two (32) hours a week (total) in actual
review of the tapes, forty eight (48) weeks of the year. As its
review of the tapes proceeds, the Nixon estate shall provide a
written report of its progress to the Archives and the plaintiffs on
a bimonthly basis. The report shall include the number of hours
worked in each week, the number of hours of tapes reviewed in each
week, and the Nixon estate's projected completion date for review of
the segment currently under review. The provisions of subparagraphs
4(b) and 4(d) above shall apply to the review, objections, and
releases with respect to the chronological tape segments, subject to
paragraph 7 below.
(d). If one of the other parties to this Agreement determines
that the Nixon estate's review is not being conducted diligently or
in good faith, or that the estate's estimated completion date(s) of
one or more segments is unreasonable, that party may petition the
Archivist to establish an earlier date(s) for the completion of the
review of that segment and/or of future segments. Any such date(s)
established by the Archivist shall provide the Nixon estate with a
reasonable opportunity to protect and assert its interests without
unduly delaying the release of the tapes, and shall be based upon
consideration of the progress of the Archives' review and its
scheduled completion date(s); the progress to date of the estate's
review; and the time reasonably necessary to complete the estate's
review and to formulate and present any objections. The Archives may
also propose earlier dates for the completion of the review by the
Nixon estate on the basis provided for in this subparagraph. If a
proposal for an earlier date is made, the Nixon estate will have a
reasonable opportunity to respond.
6. Once the Archives has completed processing the approximately
2338 hours of tapes discussed in paragraph 5 above, and has made
corresponding releases, the Archives shall identify any additional
copies of partial tape segments in its possession. If the Archives
determines that some or all of such additional partial tape segments
are duplicative of any tape recordings that it has already
processed, the Archives may dispose of the duplicative tape
segments, following notification to the parties, subject to
paragraph 3 above. To the extent that such partial tape segments are
not duplicative of the tape recordings already processed, the
Archives shall promptly process such non-duplicative portions and
shall treat any portions determined to be private or personal
consistently with the resolution of the issue to be litigated as
described in paragraph 2 above.
7(a). After completion of the procedures described in paragraph
4 above, the Cabinet Room tapes that are found to be releasable
under paragraph 4 above may be released if either there has been a
final decision by the district court on the issue to be litigated as
described in subparagraph 2(a) above, or the release is scheduled
after April 1, 1998, whichever of these two events happens sooner.
(b). After completion of the procedures described in paragraph 5
above, the tapes described in paragraph 5(a) above that are found to
be releasable may be released if either there has been a final
judgment by the district court, which is not subject to further
review by appeal or certiorari, with regard to the issue to be
litigated as described in subparagraph 2(a) above, or there has been
a final decision by the United States Court of Appeals for the
District of Columbia Circuit on this issue, or the release is
scheduled to take place after November 1, 1999, whichever of these
three events happens sooner.
(c). As used in subparagraphs 7(a) and (b) above, the term
``final decision'' means a decision not subject to reconsideration
under Rule 59 of the Federal Rules of Civil Procedure, or Rules 35
or 40 of the Federal Rules of Appellate Procedure, respectively.
8. The Nixon estate may, at any time, elect to use the
procedures in paragraph 1 above with respect to any tape segment in
place of the provisions of paragraphs 4(b) and (d) and 5(c) above,
with the following substitution: The standard under which objections
shall be made, and under which the panel shall decide their merits,
is whether the release taken as a whole is plainly inconsistent with
the requirements of the Act and its implementing regulations.
Provided, however, that once the Nixon estate elects to use the
procedures in paragraph 1 above in place of the provisions in
paragraphs 4(b) and (d) and 5(c) above, it cannot subsequently
revert back to the formal objection process set forth in 36 C.F.R.
Part 1275 for that tape segment.
9. Within thirty (30) days of the Court's entry of an order as
described in paragraph 14 below, the Archivist shall designate a
particular person who shall be responsible for responding to
reasonable inquiries from the plaintiffs on the status of the
releases and objections. Such designation may be changed at any time
at the Archivist's discretion by a notice to plaintiffs through
their counsel.
10. If the Archives appoints a Senior Archival Panel as defined
in 36 C.F.R. 1275.46(d) and (e), no party to the Agreement may
object to the appointment of such a panel on the ground that the
suggestion to appoint such a panel was originated by an individual
other than the processing archivists assigned to the Archives' Nixon
Presidential Materials Staff.
11. The Archives will allow members of the public to obtain
copies of publicly accessible portions of the tapes after the
releases described in paragraph 5 above, are completed; provided,
however, that if the releases described in paragraph 5 above are not
completed by December 31, 1999, the Archives will allow members of
the public to obtain copies only of the abuses of governmental power
tapes, together with any other tapes publicly released as of the
date of the filing of this Agreement with the Court, beginning
January 1, 2000. Further provided, that if the releases described in
paragraph 5 above are not completed by December 31, 2002, the
Archives will, beginning January 1, 2003, allow members of the
public to obtain copies of all tapes that have been made available
to the public by that date and tapes that subsequently become
available, as they are released.
12(a). Promptly after the Court enters the Order provided for in
paragraph 14 below, plaintiff Kutler will withdraw his request under
the Freedom of Information Act, 5 U.S.C. 552, for any and all tape
logs and other finding aids, which is pending in Kutler v. Carlin,
et al., Civ. A. No. 92-0661-NHJ (D.D.C.). In all other respects,
plaintiff Kutler's request in that action shall be unaffected by
this Agreement.
[[Page 17849]]
(b). Nothing in this Agreement shall affect the processing by
the Archives of any dictabelts, which are a collection of recordings
of former President Nixon and other White House staff members
dictating memoranda, correspondence and speech drafts, that are
included in the materials that are subject to the Act.
13. Pursuant to Rule 315 of this Court, the plaintiffs and the
defendant shall attempt to resolve the plaintiffs' claim for
attorneys' fees and expenses and shall advise the Court no later
than forty-five (45) days after this Court has entered the Order
provided for in paragraph 14 below on whether they have been able to
resolve the issue of attorneys' fees and expenses. If no resolution
has been reached, they will, at that time, recommend a schedule to
the Court to resolve such claim.
14. The parties agree to the dissolution of the preliminary
injunction entered on August 9, 1993, and dismissal with prejudice
of this action, including all claims and cross-claims, except for
the issue to be litigated as described in subparagraph 2(a) above,
and any fees and expenses claimed pursuant to paragraph 13 above, by
filing the attached Joint Motion to Vacate Preliminary Injunction
and to Dismiss Claims, and the attached Consent Order. The parties
agree that the Court shall retain jurisdiction to: (a) Consider the
entry of an order in accordance with the terms of paragraph 5 above;
(b) resolve the issue to be litigated as described in subparagraph
2(a) above; (c) determine any fees and expenses claimed pursuant to
paragraph 13 above; and (d) for the purpose of enforcing the terms
of this Agreement. The parties further agree that such jurisdiction,
except with respect to the issue described in paragraph 2 above,
will be retained only until the later of the implementation of
paragraph 11 above or the completion of the releases called for in
paragraph 5 above. Plaintiffs and the Nixon estate further agree
that they will not challenge any regulations issued by the Archives
which implement and are consistent with this Agreement.
15. The terms of this Agreement may not be altered except with
the written consent of the parties. Nothing in this Agreement
constitutes an admission of liability or wrongdoing on the part of
any party.
Executed this 12th day of April, 1996.
For Plaintiffs Stanley I. Kutler and Public Citizen:
Alan B. Morrison,
(D.C. Bar No. 073114), Public Citizen Litigation Group, 1600 20th
Street NW., Washington, DC 20009, (202) 588-1000.
For Defendant John W. Carlin:
Anne L. Weismann,
(D.C. Bar No. 298190)
Judry L. Subar,
(D.C. Bar No. 347518)
Alina S. Kofsky,
(D.C. Bar No. 419093), Department of Justice, Federal Programs Branch,
Civil Division, 901 E Street NW., Room 1010, Washington, DC 20530,
(202) 514-4523.
For Defendant-Intervenors John H. Taylor and William E. Griffin:
Herbert J. Miller,
(D.C. Bar No. 026120)
R. Stan Mortenson,
(D.C. Bar No. 114678)
Scott L. Nelson,
(D.C. Bar No. 413548)
Ellen Fels Berkman,
(D.C. Bar No. 433310)
Miller, Cassidy, Larroca & Lewin,
2555 M Street, NW., Washington, DC 20037, (202) 293-6400.
Dated: April 18, 1996.
John W. Carlin,
Archivist of the United States.
[FR Doc. 96-9974 Filed 4-22-96; 8:45 am]
BILLING CODE 7515-01-P
