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ALLEN v. CARMEN

December 30, 1983

Richard V. ALLEN, et al., Plaintiffs,
v.
Gerald P. CARMEN, Administrator of General Services Administration, et al., Defendants



The opinion of the court was delivered by: HOGAN

 I. INTRODUCTION

 The twenty-nine plaintiffs in this suit held White House Staff, Cabinet or policy-making agency positions in the federal government during the Nixon Administration. The defendants are Gerald P. Carmen, the Administrator ("the Administrator") of the General Services Administration ("GSA"), and Robert M. Warner, the Archivist ("the Archivist") of the United States.

 Pursuant to the Presidential Recordings and Materials Preservation Act, 44 U.S.C. § 2107 Note (1976) ("the Act"), the Administrator is authorized to receive, retain or make reasonable efforts to obtain complete possession and control of documents and other materials which constitute the Presidential historical materials of Richard M. Nixon, covering the period beginning January 20, 1969 and ending August 9, 1974. By virtue of the Act, materials related to Watergate were received as well as documents and other materials created by these plaintiffs relevant to their specific positions. Pursuant to regulations promulgated by the Administrator under the Act, employees of the Archives reviewed and categorized materials and prepared them for public access. As administered by the National Archives, public access includes permission to have copies made of the material with no restrictions on the use of those copies.

 One of the categories of material reviewed and ready for release to the public are the "White House Special Files." The Special Files were established during the last three years of the Nixon Administration to contain sensitive material. They are a subset of the White House general correspondence files, known as the "Central Files." See Nixon v. Administrator, 408 F. Supp. 321, 330 n. 1 (D.D.C.1976), aff'd, 433 U.S. 425, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977) and Plaintiffs' Exhibit K to their Cross-Motion for Summary Judgment. The Special Files contain approximately 1.5 million pages of material but represent less than 4% of the entire collection of the Nixon Presidential Materials. See Defendants' Responses to Plaintiffs' First Set of Requests for Admission, numbers 16 and 18.

 Plaintiffs do not seek to delay the release of Watergate-related material. Rather, because of alleged constitutionally infirm regulations, they seek to prevent the public's access to the Special Files at this time. They claim the documents contained therein are substantially comparable to the materials of the staffs of all other Presidents. They allege that Congress exerted improper influence over the creation and modification of the public access regulations by providing for and extensively exercising the legislative veto provided it under the Act. *fn1" They urge that Section 104 of the Act and the regulations promulgated thereunder must be struck down in light of the Supreme Court's recent decision in Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983), which declared the one-house veto unconstitutional. The GSA has set January 3, 1984 as the date on which the public will have access to materials at issue. Defendants have asserted six defenses to this action. Additionally, amici curiae, several writers and other individuals interested in the documents to be released, have sought to dismiss this action.

 The case has been presented to the Court on cross-motions for summary judgment and defendants' motion to dismiss. On December 16, 1983, the Court heard oral argument on those motions and on plaintiffs' motion for preliminary injunction. The Act requires this case take priority over all others and it has been so treated by all concerned on an expedited basis. For the reasons set forth below, the court finds that the defenses asserted by the defendant do not deprive this Court of jurisdiction and that, as a matter of law, plaintiffs are entitled to summary judgment that Chadha should be applied retroactively with the result that the regulations must fall. *fn2" On the issue of severability, the Court concludes that the one-house veto provision is severable and thereby rules in defendants' favor on that issue. Based on these rulings, the Court decides it need not reach the issue of improper Congressional influence.

 II. BACKGROUND

 A. History of the Public Access Regulations

 The Presidential Recordings and Materials Preservation Act was enacted by Congress in December, 1974, largely to nullify an agreement of September 8, 1974 between former President Nixon and then Administrator Arthur Sampson so as to protect and preserve the "Watergate" materials. Under the Nixon-Sampson agreement, all materials in the White House on August 9, 1974 would be deposited temporarily with GSA but the former President would be allowed to have access to them and eventually to withdraw or direct the destruction of materials. Additionally, upon his death, the tapes were to be destroyed immediately. 10 Weekly Comp. of Pres. Doc. 1104 (1974). The Act put an end to this questionable agreement and created, for the first time, strict controls over Presidential materials.

 Section 104(a) of the Act provides that the Administrator shall, within ninety days after the date of enactment of this title submit to each House of Congress a report proposing and explaining regulations that would provide public access to the tape recordings and other materials, *fn3" referred to in section 101. Such regulations shall take into account the following factors:

 
(1) the need to provide the public with the full truth, at the earliest reasonable date, of the abuses of governmental power popularly identified under the generic term "Watergate";
 
(2) the need to make such recordings and materials available for use in judicial proceedings;
 
(3) the need to prevent general access, except in accordance with appropriate procedures established for use in judicial proceedings, to information relating to the Nation's security;
 
(4) the need to protect every individual's right to a fair and impartial trial;
 
(5) the need to protect any party's opportunity to assert any legally or constitutionally based right or privilege which would prevent or otherwise limit access to such recordings and materials;
 
(6) the need to provide public access to those materials which have general historical significance, and which are not likely to be related to the need described in paragraph (1); and
 
(7) the need to give to Richard M. Nixon, or his heirs, for his sole custody and use, tape recordings and other materials which are not likely to be related to the need described in paragraph (1) and are not otherwise of general historical significance.

 44 U.S.C. § 104(a).

 As required, on March 19, 1975, Arthur Sampson reported to Congress a set of proposed public access regulations. The Senate Committee on Government Operations found that many of the regulations complied with the Act but also determined that there were a significant number of provisions which were not consistent and should be disapproved. S.Res. 244, 94th Cong., 1st Sess. (1975). Since there was no provision for revising or amending the proposed regulations in part, and GSA contended that it would be difficult to implement the remaining, approved regulations, the Committee concluded that it should recommend disapproval of all the regulations to prevent the unacceptable provisions from becoming effective. *fn4" S.Rep. No. 368, 94th Cong., 1st Sess. 3 (1975).

 In particular, the Committee disapproved of the proposed regulation which read:

 
The Administrator may restrict access to portions of materials determined to relate to abuses of governmental power when the release of those portions would tend to embarrass, damage or harass living persons, and the deletion of those portions will not distort, and their retention is not essential to an understanding of, the substantive content of the materials.

 Proposed Reg. § 105-63.402-1 (March 19, 1975). The proposed regulations would also have authorized the Administrator to restrict access to materials of general historical significance unrelated to abuses of governmental power when the release of the materials would "tend to embarrass, damage, or harass living persons." Proposed Reg. § 105-63.402-2 (March 19, 1975).

 The Senate Committee found Proposed Reg. 105-63.402-1 unacceptable and commented,

 
The intent of this restriction is understandable and acceptable: to protect the reputations of living persons from unnecessary embarrassment. To the extent that such concern is legitimate, this regulation seems largely superfluous. Any purely personal items would automatically be exempt from disclosure and perhaps even retention by GSA. (See sections 105-63.104(b); 105-63.104-5.)
 
Even if it were not superfluous, the provision would still be objectionable. Almost by definition, the Watergate affairs are embarrassing to those who were associated with them. Therefore, virtually all of the Watergate materials, could, conceivably, be subject to this restriction.
 
The additional qualification does not remedy the situation. It states only that embarrassing materials will not be withheld if their deletion will not "distort" the Watergate history and if their retention is not "essential" to an understanding of that history. But Congress did not direct that only the "essential" of the Watergate affairs be made public. Congress directed that "the full truth" be made public. This provision would undermine that congressional purpose.
 
Another problem with the provision is that the Administrator has total, unfettered discretion to determine whether personal matter included within the Watergate materials should be withheld. If the material is personal and not necessary to understand an abuse, the Administrator should be required to restrict access.
 
To remedy this problem, this subsection should be amended as follows:
 
(b) The Administrator [may] will restrict access to any portions of materials determined to relate to [abuses of governmental power when the release of those portions would tend to embarrass, damage or harass living persons, and the deletion of those portions will not distort, and their retention is not essential to an understanding of the substantive content of the materials] an individual's personal affairs, such as personnel and medical files, if after being given a reasonable opportunity to review the materials, the individual involved expresses, in writing, a desire to withhold such portions from public access: Provided, That if material relating to an abuse of governmental power refers to, involves or incorporates such personal information, the Administrator will make available such personal information, or portions thereof, if such personal information, or portion thereof, is essential to an understanding of the abuse of governmental power.

 S.Rep. No. 368, 94th Cong. 1st Sess., pp. 9-10 (1975). The Committee found that the "tend to embarrass, damage, or harass" language in both proposed regulations was vague and that there were sufficient exemptions under the Act to prevent disclosure of personal information. Id. at 11.

 In response to the veto, the Administrator submitted a second set of proposed regulations to Congress on October 15, 1975. In place of the provision containing the "tend to embarrass, damage or harass" language, the proposed regulation provided,

 
The Administrator will restrict access to any portion of materials determined to relate to abuses of governmental power when the release of those portions would constitute a clearly unwarranted invasion of personal privacy or result in the defamation of a living person: Provided, that if materials relating to an abuse of governmental power refers to, involves or incorporates such personal information, the Administrator will make available such personal information, if such personal information, or portions thereof, is essential to an understanding of the abuse of governmental power.

 Proposed Reg. § 105-63.402-1(b) (October 15, 1975). With regard to materials of general historical significance unrelated to abuses of governmental power, the proposed regulations provided, in pertinent part, that the Administrator will restrict access when the release of the materials would:

 
. . . constitute a clearly unwarranted invasion of personal privacy or result in the defamation of a living person; . . .

 Proposed Reg. § 105-63.402-2(b)(2) (October 15, 1975).

  By letter dated January 21, 1976, Jack Eckerd, Administrator of GSA, explained to the Senate that at the time the proposed regulations were submitted to the Congress, the Government was in the midst of defending a judicial challenge to the constitutionality of the Act. *fn5" Although the three-judge panel upheld the facial constitutionality of the Act, the Assistant Attorney General determined that the opinion necessitated his further reviewing the constitutionality of at least several of the proposed regulations submitted on October 15, 1975.

 On January 22, 1976, Representative Brademas conducted a hearing before the Subcommittee on Printing of the Committee on House Administration, at which Mr. Eckerd, Mr. Rhoads, Archivist of the United States, Donald P. Young, Acting General Counsel of GSA, and Steven Garfinkel, Chief Counsel for Records and Archives, as well as others, testified. Hearing Before the Subcomm. on Printing of the Comm. on House Administration: "Regulations to Implement Title I, Public Law 193-256, the Presidential Recordings and Materials Preservation Act," 94th Cong., 2d Sess. (Jan. 22, 1976) ("The Brademas hearing") (unpublished transcript) (attached as Exhibit B to Plaintiff's Opp. to Defendants' Motion to Dismiss). In that hearing, Representative Brademas and Mr. Young debated whether ...


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