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mentation would indeed constitute personal records and not records of a committee.

Official committee records that might have "political" overtones include majority and minority drafts of legislation, staff analytical memoranda, correspondence with interested parties, substantive drafts of statements and reports, and majority and minority briefing materials. Because these materials are either received or created and maintained as a result of performing committee business, and collectively serve to document all points of view within a committee, they are quite properly regarded as committee records. It is especially important for the majority and minority to maintain a complete record of their respective consideration of bills, treaties, and nominations, and of their distinctive analyses of issues.

RECORDS OF LEGISLATIVE ASSISTANTS FOR COMMITTEE WORK

Questions frequently arise concerning the ownership of records created and received by individuals whom senators may designate to assist them in connection with the senator's membership on a committee. Public Law 95–94, Sec. 111 (c)(2) states that such employ

ees:

shall be accorded all privileges of a profes-
sional staff member (whether permanent or
investigatory) of such committee including
access to all committee sessions and files,
except that any such committee may restrict
access to its sessions to one staff member
per senator at a time and require, if classi-
fied material is being handled or discussed,
that any staff member possess the appro-
priate security clearance before being al-
lowed access to such material or to discus-
sion of it.

Because records maintained by this staff person would seem to fall within a standard definition of committee records, "records received or created and maintained as a result of performing committee business," it is helpful, in such instances, to consider the source of funding to determine records ownership. If the staff person's salary is funded from the senator's clerk-hire money, the records appropriately belong with the member's collection of personal papers. If, on the other hand, an individual is on the committee payroll and is paid by committee funding, no matter how closely the person works with an individual member, the records received or created and maintained by this individual pursuant to his/her responsibilities as a committee employee, are records of the committee and belong to the Senate.

RECORDS OF FELLOWS AND
DETAILED PERSONNEL

Committee staffs sometimes are augmented by the addition of fellows, interns, and personnel detailed from executive and legislative branch agencies. Records generated by these individuals are considered Senate property. As such, they must be retained with committee files and disposed of according to Senate Standing Rules.

DOCUMENTS RECEIVED FROM
EXECUTIVE AGENCIES

Committees routinely receive documents from executive agencies, both in the form of formal executive communications and reports required by law, and documents requested to facilitate the work of the committee in oversight or investigative matters. In addition, committees sometimes request and review quantities of agency documents for general informational purposes.

Occasionally, a question arises concerning the ownership and disposition of such documents, especially if they are marked with a security classification or are regarded as "sensitive." In the case of executive communications and reports, it is clear that these records by statutory requirement belong to the committee and should be retained with permanent files because of their informational and legal value.

The Senate legal counsel advises that "in general, copies of documents that were provided to a committee have, by virtue of their provision and use, become Senate committee records, which should be preserved along with the committee's other records." He points out that reference to case law under the Freedom of Information Act suggests that documents would fail to become committee records only if control over them has not passed from an agency to a committee and if they are not subject to the committee's free disposition. Accordingly, this standard would probably only be satisfied if an agency had merely loaned its documents to a committee, with an explicit contemporaneous understanding between the agency and the committee at the time the document was loaned that the document was to be returned to the agency when the committee no longer needed it.

The legal counsel maintains, however, that "it should not ordinarily be necessary for committees to enter into such agreements with agencies, since the applicable Senate rule and resolution provide adequate flexibility to accommodate agencies' confidentiality concerns in the course of preserving Senate records." An agency's concerns about the confidentiality of records that it generated can be accommodated while

complying with the requirement that all noncurrent Senate committee records be preserved.

Senate Resolution 474, 96th Congress (1980), provides that nonpublic committee records that have been transferred to the Archives shall remain nonpublic for twenty years after their creation or, in the case of investigative files relating to individuals, for

fifty years. In addition, to the extent that agency concerns are grounded in specific legal requirements of confidentiality, pertaining, for example, to grand jury records, wiretap information, tax return information, or classified national security information, section 3(a) of the resolution excepts from disclosure documents whose disclosure is legally prohibited (see the following memorandum of the Senate legal counsel).

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MEMORANDUM ON PRESERVATION OF SENATE COMMITTEE RECORDS
This memorandum addresses two questions about the status of Senate records.
The first concerns the ownership of correspondence, memoranda, electronic records,
and other data of Senate committee staff prepared or received by them pursuant to their
responsibilities as committee employees. The second concerns the obligation of Senate
committees to preserve in the National Archives records that they originally obtained
from an agency.

Provisions of the Standing Rules of the Senate and federal law make clear that
the records of Senate committees are the property of the Senate. Senate Rule XI.2 di-
rects the Secretary of the Senate to obtain all noncurrent records of Senate committees
for preservation at the National Archives. This requirement is mirrored in federal sta-
tute, 44 U.S.C. § 2118. Senate Rule XXVI.10(a) specifically provides:

All committee hearings, records, data, charts, and files shall be kept separate and
distinct from the congressional office records of the Member serving as chairman
of the committee; and such records shall be the property of the Senate and all
members of the committee and the Senate shall have access to such records.

Senate Rule XXVI applies to "all" records of a committee, and Senate Rule XI
and 44 U.S.C. § 2118 apply to "all" noncurrent records. The "all" in Rule XXVI mod-
ifies every category that follows, including "files." There is no tenable distinction be-
tween "committee files" and "staff files." All records created or received by Senate
committee staff in connection with Senate committee business are the property of the
Senate.

EXHIBIT 1-1

SENATE LEGAL COUNSEL MEMO-Continued

There are statutory parallels for a broad definition of Senate records. For example, the Copyright Act precludes copyright protection for "any work of the United States Government," 17 U.S.C. § 105, which it defines to be "a work prepared by an officer or employee of the United States Government as part of that person's official duties,” id., § 101. Also, 44 U.S.C. § 3301 defines "records," for the purposes of provisions on the disposal of records of federal agencies, as “all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received. . . in connection with the transaction of public business and preserved or appropriate for preservation. . . .”

A reasonable exception may be made for materials of a purely private nature. Executive branch regulations implementing 44 U.S.C. § 3301 recognize the possibility that there may be, in the office of a federal official, papers "of a private or nonpublic character that do not relate to, or have an effect upon, the conduct of agency business." 36 C.F.R. § 1222.36(a). Examples of such private papers, which "are not owned by the Government," id., include "[m]aterials accumulated by an official before joining Government service that are not used subsequently in the transaction of Government business" or "relating solely to an individual's private affairs, such as outside business pursuits," as well as "[d]iaries, journals, personal correspondence, or other personal notes that are not prepared or used for... transacting Government business." Id. The Executive regulations provide that such papers should be clearly designated as nonofficial and maintained separately from the records of the office. Id. Also, materials such as telephone message slips and appointment calendars, which are created and retained for the convenience of individual officials and are not distributed to other employees, are not "agency records" under the Freedom of Information Act. Bureau of National Affairs v. U.S. Department of Justice, 742 F.2d 1484, 1495-96 (D.C. Cir.

EXHIBIT 1-1

SENATE LEGAL COUNSEL MEMO-Continued

1984). These authorities, although not controlling for congressional records, may
suggest a common sense approach to the definition of Senate records.

One further limitation is suggested by 44 U.S.C. § 3301, which excepts from the
general definition of records "extra copies of documents preserved only for convenience
of reference." With respect to Senate documents, this exception should be read to
apply only to extra copies of public documents in order to preserve the ability of the
Senate and its committees to maintain the confidentiality of closed Senate records.

Senate staff should be attentive to the responsibilities imposed upon them by the Senate's Standing Rules and federal law to ensure the appropriate treatment of records of Senate committees. Failure to comply with these authorities governing the handling of Senate records could result in a violation of federal criminal laws, which make it a criminal offense for anyone to convert to his own or another's use, or without authority to dispose of, any government records, or for anyone with custody of records filed in a government office unlawfully to remove or destroy such records. 18 U.S.C. §§ 641, 2071.

Occasionally questions arise whether committees should preserve documents that were obtained originally from Executive agencies in the course of conducting committee investigative or oversight responsibilities. In general, copies of documents that were provided to a committee have, by virtue of their provision and use, become Senate committee records, which should be preserved along with the committee's other records.

An agency's concerns about maintaining the confidentiality of records that it generated can be accommodated while complying with the requirement that all noncurrent Senate committee records be preserved. Senate Resolution 474, 96th Cong., 2d Sess. (1980), provides that nonpublic committee records that have been transferred to

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